meta
dict | annotations
list | id
int64 1.71k
13.7k
| data
dict |
|---|---|---|---|
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "41be19c3deec4b0b9b986898e1f93929",
"to_name": null,
"type": null,
"value": {
"end": 79,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " - 1 - R"
}
},
{
"from_name": null,
"id": "e807ee781b194abaa0433c1c2b589793",
"to_name": null,
"type": null,
"value": {
"end": 167,
"labels": [
"PREAMBLE"
],
"start": 79,
"text": "\n\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 19TH DAY OF NOVEMBER, 2015"
}
},
{
"from_name": null,
"id": "3f5590b5e4314607b7db4b5d2dde3de1",
"to_name": null,
"type": null,
"value": {
"end": 247,
"labels": [
"PREAMBLE"
],
"start": 167,
"text": "\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE VINEET SARAN\n\n AND"
}
},
{
"from_name": null,
"id": "7ab6ffa363b6499cb9eef659e68e2f8c",
"to_name": null,
"type": null,
"value": {
"end": 339,
"labels": [
"PREAMBLE"
],
"start": 249,
"text": "THE HON'BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR\n\n S.T.R.P.NOS.216/2015 & 242-252/2015"
}
},
{
"from_name": null,
"id": "ae1fcc4ab35e4775992684df20e852a8",
"to_name": null,
"type": null,
"value": {
"end": 376,
"labels": [
"PREAMBLE"
],
"start": 339,
"text": "\n\nBETWEEN :\n\nM/s. Nandi Constructions"
}
},
{
"from_name": null,
"id": "c4dbbdac39ce477cbd99b001aad4c706",
"to_name": null,
"type": null,
"value": {
"end": 424,
"labels": [
"PREAMBLE"
],
"start": 376,
"text": "\nTIN: 29370707569\n125, 3rd Main\nJayalakshmipuram"
}
},
{
"from_name": null,
"id": "e88bf5c7422240e3b8e260cc6d330ca3",
"to_name": null,
"type": null,
"value": {
"end": 438,
"labels": [
"PREAMBLE"
],
"start": 424,
"text": "\nMysuru-570012"
}
},
{
"from_name": null,
"id": "3e6f6d5a7ee24e8ca7374e71e4382c0a",
"to_name": null,
"type": null,
"value": {
"end": 480,
"labels": [
"PREAMBLE"
],
"start": 438,
"text": "\n(by its proprietor T.N.Hemanth, 53 years)"
}
},
{
"from_name": null,
"id": "0f9649904fb242caa848394cac4f6e8c",
"to_name": null,
"type": null,
"value": {
"end": 568,
"labels": [
"PREAMBLE"
],
"start": 480,
"text": "\n\n ...Petitioner\n\n(By Sri T.N. Keshavamurthy, Adv.,)"
}
},
{
"from_name": null,
"id": "1fedb28e54984e8f92b590c4f01339a8",
"to_name": null,
"type": null,
"value": {
"end": 599,
"labels": [
"PREAMBLE"
],
"start": 568,
"text": "\n\nAND :\n\nThe State of Karnataka"
}
},
{
"from_name": null,
"id": "d12b8813cadb4a45b74d946830e33710",
"to_name": null,
"type": null,
"value": {
"end": 680,
"labels": [
"PREAMBLE"
],
"start": 599,
"text": "\nRepresented by\nThe Commissioner of Commercial Taxes\nGandhinagar\nBengaluru-560009"
}
},
{
"from_name": null,
"id": "872bc2530b7447c593624ba9b5e87f01",
"to_name": null,
"type": null,
"value": {
"end": 807,
"labels": [
"PREAMBLE"
],
"start": 745,
"text": "...Respondent\n\n(By Sri K.M. Shivayogiswamy, AGA.,)\n\n\n "
}
},
{
"from_name": null,
"id": "0ea68353e6904fb1b63f64d6c35d9caf",
"to_name": null,
"type": null,
"value": {
"end": 1074,
"labels": [
"PREAMBLE"
],
"start": 807,
"text": "These petitions are filed under Section 65(1) of\nKarnataka Value Added Tax Act, 2003 against the\njudgment and order dated 16.01.2015 passed in STA\nNos.660 to 663/2014 and STA Nos.664 to 671/2014 on the\nfile of the Karnataka Appellate Tribunal at Bangalore.\n\n "
}
},
{
"from_name": null,
"id": "0ecca65ad336419e9aa51706c44fa769",
"to_name": null,
"type": null,
"value": {
"end": 1219,
"labels": [
"PREAMBLE"
],
"start": 1074,
"text": "These petitions coming on for admission, this day,\nVINEET SARAN J., made the following:-\n\n O R D E R\n "
}
},
{
"from_name": null,
"id": "2e538b94e18f4d7fae71279239ba1d44",
"to_name": null,
"type": null,
"value": {
"end": 1380,
"labels": [
"FAC"
],
"start": 1219,
"text": "These revision petitions are filed by the assessee challenging the order of the Tribunal dated 16.1.2015 whereby the appeals of the assessee have been dismissed."
}
},
{
"from_name": null,
"id": "046063dc69864bbfbf8355a27f553920",
"to_name": null,
"type": null,
"value": {
"end": 1541,
"labels": [
"FAC"
],
"start": 1382,
"text": "2. The brief facts of this case are that the assessee is a builder and civil works contractor, carrying on the business of construction and sale of apartments."
}
},
{
"from_name": null,
"id": "73f44c7d91334083a73ca9c898879cc0",
"to_name": null,
"type": null,
"value": {
"end": 1804,
"labels": [
"FAC"
],
"start": 1542,
"text": "For the relevant tax periods, the assessee had sold some apartments, for which it had disclosed the sale consideration, out of which the cost of the land was disclosed in the returns at 45% and consequently paid tax on the sale consideration minus the land cost."
}
},
{
"from_name": null,
"id": "201e57d9c37f499696c8afee7c8c3bb2",
"to_name": null,
"type": null,
"value": {
"end": 1918,
"labels": [
"FAC"
],
"start": 1805,
"text": "The assessing authority did not accept the land cost at 45%, but instead assessed it at 40% and assessed the tax."
}
},
{
"from_name": null,
"id": "ece0950d5fdd4c26bc550408fecef3ba",
"to_name": null,
"type": null,
"value": {
"end": 2105,
"labels": [
"FAC"
],
"start": 1919,
"text": "The assessee challenged the assessment order by filing the appeals, where it claimed the land cost to be 50% of the sale consideration, instead of 45% as had been claimed in the returns."
}
},
{
"from_name": null,
"id": "0e3134fd810c4fc4a5db2e40ea9f41e7",
"to_name": null,
"type": null,
"value": {
"end": 2425,
"labels": [
"FAC"
],
"start": 2105,
"text": "\n 3. The appellate authority considered the matter on merits and, though on facts it came to the conclusion that the land cost was over 50%, but as the claim made in the returns filed by the assessee was for only 45% of the sale consideration, the land cost, for the purpose of calculation of tax, was taken at 45% only."
}
},
{
"from_name": null,
"id": "296c1507fd3e43158cd18651658fe597",
"to_name": null,
"type": null,
"value": {
"end": 2718,
"labels": [
"FAC"
],
"start": 2426,
"text": "While passing the said order, the first appellate authority relied on a decision of the Division Bench of this Court rendered in the case of Infinite Builders and Developers, Bangalore vs. The Additional Commissioner of Commercial Taxes, Zone II, Bangalore, reported in 2013(76) Kar. L.J 390."
}
},
{
"from_name": null,
"id": "cf9e71d86a8447708c19f205e54f7b2a",
"to_name": null,
"type": null,
"value": {
"end": 2861,
"labels": [
"FAC"
],
"start": 2719,
"text": "Challenging the said order, the assessee filed appeals before the Tribunal claiming the land cost be allowed at 50% of the sale consideration."
}
},
{
"from_name": null,
"id": "c764c3c1156a475d900d21d23edb9dee",
"to_name": null,
"type": null,
"value": {
"end": 2975,
"labels": [
"FAC"
],
"start": 2862,
"text": "The appeals have been dismissed by a common reasoned order, which is under challenge in these revision petitions."
}
},
{
"from_name": null,
"id": "244cf473c4e942a6b23f3364f41cbe6b",
"to_name": null,
"type": null,
"value": {
"end": 3165,
"labels": [
"NONE"
],
"start": 2975,
"text": "\n 4. We heard Sri T.N.Keshava Murthy, learned advocate for the petitioner as well as Sri K.M.Shivayogiswamy, learned Government Advocate appearing for the respondent and perused the records."
}
},
{
"from_name": null,
"id": "fcfb3b7b8b934bf5a1da01464b50d677",
"to_name": null,
"type": null,
"value": {
"end": 3728,
"labels": [
"ARG_PETITIONER"
],
"start": 3165,
"text": "\n 5. Although several questions of law are raised in these petitions, learned counsel for the petitioner has, today condensed the same and placed before us only two questions of law for determination by this Court, which are as follows:- a) Whether the appellate Tribunal is legally justified in holding that land cost at 50% that is not claimed in the returns cannot be considered in view of the decisions of this Court in the case of State of Karnataka vs. Centum Industries Pvt. Ltd., and Infinite Builders & Developers vs. Additional CCT., Zone II, Bangalore?"
}
},
{
"from_name": null,
"id": "7aef0f4e1d584753a5f36fa09f9faf34",
"to_name": null,
"type": null,
"value": {
"end": 4156,
"labels": [
"ARG_PETITIONER"
],
"start": 3728,
"text": "\n b) Whether appellate Tribunal is legally justified in confirming the land cost allowed by the first appellate authority at 45% of the contract receipts, even after noticing the finding of the first appellate authority that land cost as per registered sale deeds and the certificate of the Chartered Accountant worked out to 54% of the contract receipts, merely for the reason that the same is not claimed in the returns filed?"
}
},
{
"from_name": null,
"id": "7175d7bd45b34cc0bbca497534f985f9",
"to_name": null,
"type": null,
"value": {
"end": 4367,
"labels": [
"ISSUE"
],
"start": 4158,
"text": "6. The main issue to be decided by this Court is as to whether the petitioner can be granted benefit over and above that what has been claimed in the returns filed by the assessee for the relevant tax periods."
}
},
{
"from_name": null,
"id": "1d673e14620a4a89b7428ca73dd49c6f",
"to_name": null,
"type": null,
"value": {
"end": 4489,
"labels": [
"FAC"
],
"start": 4368,
"text": "Admittedly, the claim of the petitioner, in its returns filed for the relevant tax periods, was at 45% towards land cost."
}
},
{
"from_name": null,
"id": "64249da6639946ccbff5e7e22d8ff3c9",
"to_name": null,
"type": null,
"value": {
"end": 4608,
"labels": [
"FAC"
],
"start": 4490,
"text": "Though Assessing Officer allowed only 40%, the first appellate authority granted the benefit of 45% towards land cost."
}
},
{
"from_name": null,
"id": "583bbede0dda4bb6bacc74864d623c31",
"to_name": null,
"type": null,
"value": {
"end": 4883,
"labels": [
"ISSUE"
],
"start": 4609,
"text": "The question now to be decided is whether unless a claim is made by the assessee in its return (and without the same being revised or modified by filing a revised return), any benefit beyond the benefit claimed in the return can be considered and allowed by the authorities."
}
},
{
"from_name": null,
"id": "53ecbc06d88449f5bcafbf508eb1e87b",
"to_name": null,
"type": null,
"value": {
"end": 4931,
"labels": [
"ANALYSIS"
],
"start": 4883,
"text": "\n 7. In our view the answer would be a clear no."
}
},
{
"from_name": null,
"id": "8a8fea3f1ba8401ab88ffaa77d8a5940",
"to_name": null,
"type": null,
"value": {
"end": 5156,
"labels": [
"PRE_RELIED"
],
"start": 4931,
"text": "\nThe Division Bench of this Court in the case of Infinite Builders and Developers, Bangalore (supra) was considering a case where the first appellate authority had granted a benefit more than what was claimed by the assessee."
}
},
{
"from_name": null,
"id": "c206a7e7142745079b15e105760fe522",
"to_name": null,
"type": null,
"value": {
"end": 5229,
"labels": [
"ANALYSIS"
],
"start": 5157,
"text": "The same was denied by this Court, with the following observations: \"43."
}
},
{
"from_name": null,
"id": "ea0af106a5f24973b3bac130a2a05e0e",
"to_name": null,
"type": null,
"value": {
"end": 5425,
"labels": [
"ANALYSIS"
],
"start": 5230,
"text": "The assessee never filed any revised return in respect of the period from April 2005 to March 2006 nor claimed any input credit return, but, on the other hand only filed nil tax liability return."
}
},
{
"from_name": null,
"id": "913f69292915488880f3d8f641f2b50c",
"to_name": null,
"type": null,
"value": {
"end": 5538,
"labels": [
"ANALYSIS"
],
"start": 5426,
"text": "The assessee persisted and did not file any revised return or anything at all even after inspection, notice etc."
}
},
{
"from_name": null,
"id": "c94ca116daf54a8da737e47c2660ebac",
"to_name": null,
"type": null,
"value": {
"end": 5736,
"labels": [
"ANALYSIS"
],
"start": 5539,
"text": "In this view of the matter, there was nothing at all before the Assessing Authority to provide any input tax deduction in favour of the assessee for the entire period from April 2005 to March 2006."
}
},
{
"from_name": null,
"id": "ebb511ea452741d3bcc6f4cc32f100ce",
"to_name": null,
"type": null,
"value": {
"end": 5949,
"labels": [
"ANALYSIS"
],
"start": 5737,
"text": " So it is urged by the appellant/assessee that even long after the expiry of the period in which the revised return could have been filed, the fact remains that there is no response by filing any revised returns."
}
},
{
"from_name": null,
"id": "c4b131dd08784066b07d321d6873e167",
"to_name": null,
"type": null,
"value": {
"end": 6343,
"labels": [
"ANALYSIS"
],
"start": 5950,
"text": "In such a position, we are of the view that the First Appellate Authority did go out of its duties and responsibilities and acted out of its jurisdiction to entertain a claim for deduction of input tax rebate in favour of the assessee by accepting some material, purporting it to be based on the books of accounts and the purchase invoices etc.\n and in granting reliefs to the assessee."
}
},
{
"from_name": null,
"id": "9f7e7b20b0de4e0db65ed6ab9cc2fdb4",
"to_name": null,
"type": null,
"value": {
"end": 6648,
"labels": [
"ANALYSIS"
],
"start": 6344,
"text": "We find, it is a case of the First Appellate Authority acting more loyal than the king, even though a claim had not been put forth by the assessee through the returns, the First Appellate Authority has ventured to allow the appeals and grant relief to the assessee, contrary to statutory provisions!\"\n 8."
}
},
{
"from_name": null,
"id": "d5712ce0d10b4ee9b2164f062e8ea7b0",
"to_name": null,
"type": null,
"value": {
"end": 6838,
"labels": [
"PRE_RELIED"
],
"start": 6649,
"text": "Similar view has been taken by another Division Bench of this Court in the case of State of Karnataka vs. Centum Industries Private Limited, Bangalore, reported in 2014(80) Kar.L.J.\n65.\n 9."
}
},
{
"from_name": null,
"id": "49c6540f1549490d8da3f23621db1cd6",
"to_name": null,
"type": null,
"value": {
"end": 6912,
"labels": [
"RATIO"
],
"start": 6839,
"text": "We have no reason to differ with the opinion of the two Division Benches."
}
},
{
"from_name": null,
"id": "97cceac5cbf24610a3a40f184e94eb9e",
"to_name": null,
"type": null,
"value": {
"end": 7303,
"labels": [
"RATIO"
],
"start": 6913,
"text": "Learned counsel for the petitioner has submitted that the question in the aforesaid cases was regarding grant of input tax rebate as a deduction, whereas in the present case, according to the petitioner, the claim is exclusion of land cost and as once the authority has accepted it to be higher than 50%, no tax could be levied on such amount which was beyond 50% of the sale consideration."
}
},
{
"from_name": null,
"id": "33b8969cf9ae42b48744ce5d5d53416f",
"to_name": null,
"type": null,
"value": {
"end": 7699,
"labels": [
"RATIO"
],
"start": 7304,
"text": "We are unable to accept such submission made by the learned counsel for the petitioner as nothing more than what is claimed by the assessee in its return can be given by the authorities, and if it is permitted, then the assessing authority or the appellate authorities would be given unfettered powers to grant any such relief which may not even have been claimed by the assessee in its returns."
}
},
{
"from_name": null,
"id": "ffae2ce2590045338d03455c86c26132",
"to_name": null,
"type": null,
"value": {
"end": 7808,
"labels": [
"RATIO"
],
"start": 7700,
"text": "The Act provides for filing a revised return under Section 35(4) of the Karnataka Value Added Tax Act, 2003."
}
},
{
"from_name": null,
"id": "c394794250004a32b7f6e69903e8d3e5",
"to_name": null,
"type": null,
"value": {
"end": 8111,
"labels": [
"RATIO"
],
"start": 7809,
"text": "If the assessee fails to avail the benefit of filing revised return, then it is only the return which is filed, which has to be considered by the assessing officer or other authorities and nothing more than what is claimed in the return that can be granted by the authorities in favour of the assessee."
}
},
{
"from_name": null,
"id": "693bb144efb14c649954cbc258d439d2",
"to_name": null,
"type": null,
"value": {
"end": 8214,
"labels": [
"RPC"
],
"start": 8111,
"text": "\n For the foregoing reasons, we answer the questions in favour of the revenue and against the assessee."
}
},
{
"from_name": null,
"id": "0a85f665185b47eb99bd79fcb9e9ea79",
"to_name": null,
"type": null,
"value": {
"end": 8251,
"labels": [
"RPC"
],
"start": 8215,
"text": "Petitions are dismissed accordingly."
}
},
{
"from_name": null,
"id": "3082c441d9b04162a002601f3fda620d",
"to_name": null,
"type": null,
"value": {
"end": 8273,
"labels": [
"RPC"
],
"start": 8252,
"text": "No order as to costs."
}
},
{
"from_name": null,
"id": "e7ad4ce7596a47d79124f09f5fcef374",
"to_name": null,
"type": null,
"value": {
"end": 8302,
"labels": [
"NONE"
],
"start": 8273,
"text": "\n Sd/- JUDGE Sd/- JUDGE *ck/-"
}
}
]
}
] | 4,190 | {
"text": " - 1 - R\n\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 19TH DAY OF NOVEMBER, 2015\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE VINEET SARAN\n\n AND\n\nTHE HON'BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR\n\n S.T.R.P.NOS.216/2015 & 242-252/2015\n\nBETWEEN :\n\nM/s. Nandi Constructions\nTIN: 29370707569\n125, 3rd Main\nJayalakshmipuram\nMysuru-570012\n(by its proprietor T.N.Hemanth, 53 years)\n\n ...Petitioner\n\n(By Sri T.N. Keshavamurthy, Adv.,)\n\nAND :\n\nThe State of Karnataka\nRepresented by\nThe Commissioner of Commercial Taxes\nGandhinagar\nBengaluru-560009\n\n ...Respondent\n\n(By Sri K.M. Shivayogiswamy, AGA.,)\n\n\n These petitions are filed under Section 65(1) of\nKarnataka Value Added Tax Act, 2003 against the\njudgment and order dated 16.01.2015 passed in STA\nNos.660 to 663/2014 and STA Nos.664 to 671/2014 on the\nfile of the Karnataka Appellate Tribunal at Bangalore.\n\n These petitions coming on for admission, this day,\nVINEET SARAN J., made the following:-\n\n O R D E R\n These revision petitions are filed by the assessee challenging the order of the Tribunal dated 16.1.2015 whereby the appeals of the assessee have been dismissed.\n 2. The brief facts of this case are that the assessee is a builder and civil works contractor, carrying on the business of construction and sale of apartments. For the relevant tax periods, the assessee had sold some apartments, for which it had disclosed the sale consideration, out of which the cost of the land was disclosed in the returns at 45% and consequently paid tax on the sale consideration minus the land cost. The assessing authority did not accept the land cost at 45%, but instead assessed it at 40% and assessed the tax. The assessee challenged the assessment order by filing the appeals, where it claimed the land cost to be 50% of the sale consideration, instead of 45% as had been claimed in the returns.\n 3. The appellate authority considered the matter on merits and, though on facts it came to the conclusion that the land cost was over 50%, but as the claim made in the returns filed by the assessee was for only 45% of the sale consideration, the land cost, for the purpose of calculation of tax, was taken at 45% only. While passing the said order, the first appellate authority relied on a decision of the Division Bench of this Court rendered in the case of Infinite Builders and Developers, Bangalore vs. The Additional Commissioner of Commercial Taxes, Zone II, Bangalore, reported in 2013(76) Kar. L.J 390. Challenging the said order, the assessee filed appeals before the Tribunal claiming the land cost be allowed at 50% of the sale consideration. The appeals have been dismissed by a common reasoned order, which is under challenge in these revision petitions.\n 4. We heard Sri T.N.Keshava Murthy, learned advocate for the petitioner as well as Sri K.M.Shivayogiswamy, learned Government Advocate appearing for the respondent and perused the records.\n 5. Although several questions of law are raised in these petitions, learned counsel for the petitioner has, today condensed the same and placed before us only two questions of law for determination by this Court, which are as follows:- a) Whether the appellate Tribunal is legally justified in holding that land cost at 50% that is not claimed in the returns cannot be considered in view of the decisions of this Court in the case of State of Karnataka vs. Centum Industries Pvt. Ltd., and Infinite Builders & Developers vs. Additional CCT., Zone II, Bangalore?\n b) Whether appellate Tribunal is legally justified in confirming the land cost allowed by the first appellate authority at 45% of the contract receipts, even after noticing the finding of the first appellate authority that land cost as per registered sale deeds and the certificate of the Chartered Accountant worked out to 54% of the contract receipts, merely for the reason that the same is not claimed in the returns filed?\n 6. The main issue to be decided by this Court is as to whether the petitioner can be granted benefit over and above that what has been claimed in the returns filed by the assessee for the relevant tax periods. Admittedly, the claim of the petitioner, in its returns filed for the relevant tax periods, was at 45% towards land cost. Though Assessing Officer allowed only 40%, the first appellate authority granted the benefit of 45% towards land cost. The question now to be decided is whether unless a claim is made by the assessee in its return (and without the same being revised or modified by filing a revised return), any benefit beyond the benefit claimed in the return can be considered and allowed by the authorities.\n 7. In our view the answer would be a clear no.\nThe Division Bench of this Court in the case of Infinite Builders and Developers, Bangalore (supra) was considering a case where the first appellate authority had granted a benefit more than what was claimed by the assessee. The same was denied by this Court, with the following observations: \"43. The assessee never filed any revised return in respect of the period from April 2005 to March 2006 nor claimed any input credit return, but, on the other hand only filed nil tax liability return. The assessee persisted and did not file any revised return or anything at all even after inspection, notice etc. In this view of the matter, there was nothing at all before the Assessing Authority to provide any input tax deduction in favour of the assessee for the entire period from April 2005 to March 2006. So it is urged by the appellant/assessee that even long after the expiry of the period in which the revised return could have been filed, the fact remains that there is no response by filing any revised returns. In such a position, we are of the view that the First Appellate Authority did go out of its duties and responsibilities and acted out of its jurisdiction to entertain a claim for deduction of input tax rebate in favour of the assessee by accepting some material, purporting it to be based on the books of accounts and the purchase invoices etc.\n and in granting reliefs to the assessee. We find, it is a case of the First Appellate Authority acting more loyal than the king, even though a claim had not been put forth by the assessee through the returns, the First Appellate Authority has ventured to allow the appeals and grant relief to the assessee, contrary to statutory provisions!\"\n 8. Similar view has been taken by another Division Bench of this Court in the case of State of Karnataka vs. Centum Industries Private Limited, Bangalore, reported in 2014(80) Kar.L.J.\n65.\n 9. We have no reason to differ with the opinion of the two Division Benches. Learned counsel for the petitioner has submitted that the question in the aforesaid cases was regarding grant of input tax rebate as a deduction, whereas in the present case, according to the petitioner, the claim is exclusion of land cost and as once the authority has accepted it to be higher than 50%, no tax could be levied on such amount which was beyond 50% of the sale consideration. We are unable to accept such submission made by the learned counsel for the petitioner as nothing more than what is claimed by the assessee in its return can be given by the authorities, and if it is permitted, then the assessing authority or the appellate authorities would be given unfettered powers to grant any such relief which may not even have been claimed by the assessee in its returns. The Act provides for filing a revised return under Section 35(4) of the Karnataka Value Added Tax Act, 2003. If the assessee fails to avail the benefit of filing revised return, then it is only the return which is filed, which has to be considered by the assessing officer or other authorities and nothing more than what is claimed in the return that can be granted by the authorities in favour of the assessee.\n For the foregoing reasons, we answer the questions in favour of the revenue and against the assessee. Petitions are dismissed accordingly. No order as to costs.\n Sd/- JUDGE Sd/- JUDGE *ck/- "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "8ae60c57281a4f4f8b52ffb956a8799c",
"to_name": null,
"type": null,
"value": {
"end": 73,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nMETTUR CHEMICAL AND INDUSTRIAL CORPORATION LIMITED\n\n Vs."
}
},
{
"from_name": null,
"id": "6530d5c1035640b0a04947937aecc212",
"to_name": null,
"type": null,
"value": {
"end": 151,
"labels": [
"PREAMBLE"
],
"start": 73,
"text": "\n\nRESPONDENT:\nCOMMISSIONER OF INCOME-TEX, MADRAS-1\n\nDATE OF JUDGMENT16/11/1995"
}
},
{
"from_name": null,
"id": "635447b72dff4f788063047bc094336b",
"to_name": null,
"type": null,
"value": {
"end": 302,
"labels": [
"PREAMBLE"
],
"start": 153,
"text": "BENCH:\nKIRPAL B.N. (J)\nBENCH:\nKIRPAL B.N. (J)\nJEEVAN REDDY, B.P. (J)\n\nCITATION:\n 1995 SCC Supl. (4) 732 1995 SCALE (6)468\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "1c00c04de4e642a5a38449333cab4280",
"to_name": null,
"type": null,
"value": {
"end": 366,
"labels": [
"NONE"
],
"start": 302,
"text": "\n J U D G M E N T KIRPAL."
}
},
{
"from_name": null,
"id": "d65f1441c2b84f7f956c1e45904e338a",
"to_name": null,
"type": null,
"value": {
"end": 687,
"labels": [
"FAC"
],
"start": 367,
"text": "J.\n This is an appeal by way of special leave having been granted against the judgment of the Madras High Court which had answered the three questions of law referred to it by Income Tax Tribunal under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as `the Act') in favour of the respondent."
}
},
{
"from_name": null,
"id": "6c1a4ce17b7b4ffea5d22907d8fe6dbe",
"to_name": null,
"type": null,
"value": {
"end": 874,
"labels": [
"FAC"
],
"start": 689,
"text": "The facts as found by the Tribunal are that the appellant was manufacturing coustic soda utilising billiter cells and up to the year 1956, its production capacity was 13.5 tons per day."
}
},
{
"from_name": null,
"id": "123747b107fd450d9bd44eaaff6997e1",
"to_name": null,
"type": null,
"value": {
"end": 1015,
"labels": [
"FAC"
],
"start": 875,
"text": "The appellant felt the need to expand its capacity and obtained a licence which permitted it to manufacture 20 tons of caustic soda per day."
}
},
{
"from_name": null,
"id": "b01470005e904b9db2698f614391cc3b",
"to_name": null,
"type": null,
"value": {
"end": 1118,
"labels": [
"FAC"
],
"start": 1017,
"text": "In order to increase the capacity, the appellant gradually replaced billiter cells with hooker cells."
}
},
{
"from_name": null,
"id": "80ca79c6e7dd497291da760bec324173",
"to_name": null,
"type": null,
"value": {
"end": 1216,
"labels": [
"FAC"
],
"start": 1119,
"text": "Thirty hooker cells were installed by 31.3.1957 and thirty more were installed in February, 1958."
}
},
{
"from_name": null,
"id": "555a7d121e1941c0ab438bf3812f7c91",
"to_name": null,
"type": null,
"value": {
"end": 1380,
"labels": [
"FAC"
],
"start": 1217,
"text": "The installation of the hooker cells required a change over in the power system and the installation of a rectifier was completed only in the year ended 31.3.1959."
}
},
{
"from_name": null,
"id": "cb8d4b7ca7ca4eb99b5e1e761c51946a",
"to_name": null,
"type": null,
"value": {
"end": 1557,
"labels": [
"FAC"
],
"start": 1381,
"text": "However, the hooker cells were utilised for the production as and when they were installed by a suitable adjustment in the power system even before the rectifier was installed."
}
},
{
"from_name": null,
"id": "f50312a8ef8d44198bd0386eb1e47fc7",
"to_name": null,
"type": null,
"value": {
"end": 1700,
"labels": [
"FAC"
],
"start": 1558,
"text": "The position, thus, was that the production for the year 31.3.1957 included certain production attributable to the use of thirty hooker cells."
}
},
{
"from_name": null,
"id": "91a33de248e04d8095bd27a1923e985a",
"to_name": null,
"type": null,
"value": {
"end": 1871,
"labels": [
"FAC"
],
"start": 1701,
"text": "All the sixty hookers cells were installed by the end of 1958 and the installation of the unit together with the rectifier was also completed in the year ended 31.3.1959."
}
},
{
"from_name": null,
"id": "aecd8f9c21a5495788e54f0d57ec9a5a",
"to_name": null,
"type": null,
"value": {
"end": 2075,
"labels": [
"FAC"
],
"start": 1872,
"text": "It was clear that the capacity of the unit gradually increased from the stage of the installation of the hooker cells, though full capacity was reached only with the installation of all the hooker cells."
}
},
{
"from_name": null,
"id": "beb7a3cd864b4e1097e1f4cd25d30f8b",
"to_name": null,
"type": null,
"value": {
"end": 2422,
"labels": [
"FAC"
],
"start": 2075,
"text": "\n Claim was made by the appellant before Income Tax Officer to the effect that it was entitled to the relief under Section 84 of the Act in respect of assessment year 1962-63 on the ground that such relief is admissible for five assessment years starting from the year in which the industrial undertaking begins to manufacture or produce articles."
}
},
{
"from_name": null,
"id": "b540160fbae2418a811ac0bc5771e323",
"to_name": null,
"type": null,
"value": {
"end": 2790,
"labels": [
"FAC"
],
"start": 2423,
"text": "The contention of the appellant was that it had not claimed any relief in respect of assessment year 1957- 58, when thirty of the sixty hooker cells had been installed and, therefore, the period of five years should commence only with effect from the year 1958-59 by which time the installation of the sixty hooker cells, as well as the rectifier, had been completed."
}
},
{
"from_name": null,
"id": "d47458e1a9a34bd88eedffa98417e588",
"to_name": null,
"type": null,
"value": {
"end": 3120,
"labels": [
"FAC"
],
"start": 2791,
"text": "In the alternative, it was also contended that the appellant was entitled to relief atleast in relation to production of the thirty hooker cells which were installed for the first time in the assessment year 1958-59, as the fifth year for these hooker cells from the commencement of the production is the assessment year 1962-63."
}
},
{
"from_name": null,
"id": "df939b71cccc4d978446a783c2fce902",
"to_name": null,
"type": null,
"value": {
"end": 3232,
"labels": [
"RLC"
],
"start": 3120,
"text": "\n The claim had been disallowed by the Income Tax Officer and in appeal by the Appellate Assistant Commissioner."
}
},
{
"from_name": null,
"id": "1de4c62d290748fbaf5f0d8355b3a7ed",
"to_name": null,
"type": null,
"value": {
"end": 3580,
"labels": [
"RLC"
],
"start": 3233,
"text": "The Income Tax Tribunal, on the further appeal, rejected the claim of the appellant by holding that though the industrial unit ultimately consisted of sixty hooker cells and the rectifier but it had commenced commercial production in the year ended 31.3.1957 and, therefore, the five years had to be reckoned from the year 1957-58 and not 1953-59."
}
},
{
"from_name": null,
"id": "0b2a992d5e904345b50c210b3e8792b4",
"to_name": null,
"type": null,
"value": {
"end": 3874,
"labels": [
"FAC"
],
"start": 3582,
"text": "Another contention which was raised before the Revenue Authorities and the Tribunal was with regard to the deduction of development rebate, which was allowable in respect of a new industrial undertaking in computing the profits and gains for the purpose of relief under Section 84 of the Act."
}
},
{
"from_name": null,
"id": "ac7ea08682ae424892332aad6082f570",
"to_name": null,
"type": null,
"value": {
"end": 4040,
"labels": [
"FAC"
],
"start": 3875,
"text": "In respect of assessment year 1962-63, the profits and gains from the new industrial unit had been computed at Rs. 1,08,282 before adjustment for development rebate."
}
},
{
"from_name": null,
"id": "4e633027e09a4436bbc0018e20f8f85f",
"to_name": null,
"type": null,
"value": {
"end": 4118,
"labels": [
"FAC"
],
"start": 4041,
"text": "The total amount of development rebate had been determined at Rs.13,69,487/-."
}
},
{
"from_name": null,
"id": "0f53ede007c3425cab8d3e1c27341ae1",
"to_name": null,
"type": null,
"value": {
"end": 4388,
"labels": [
"FAC"
],
"start": 4119,
"text": "Adjusting the development rebate towards this profit of Rs. 1,08,282/-, the Income Tax Officer and the Appellate Assistant Commissioner held that there was no income from the new industrial undertaking on which relief was admissible under Section 84(1) of the said Act."
}
},
{
"from_name": null,
"id": "5ba91a4939b24ff894d0ec6b2d277aa6",
"to_name": null,
"type": null,
"value": {
"end": 4600,
"labels": [
"FAC"
],
"start": 4389,
"text": "The contention of appellant was that in arriving at the business income of industrial undertaking on which the relief under Section 84(1) of the Act was admissible, the development rebate was not to be deducted."
}
},
{
"from_name": null,
"id": "50528241fe724850b764db6f717fafb2",
"to_name": null,
"type": null,
"value": {
"end": 4655,
"labels": [
"RLC"
],
"start": 4601,
"text": "This claim was not accepted by the Appellate Tribunal."
}
},
{
"from_name": null,
"id": "bdcc07199a374284b319d5ee7fa8bdbf",
"to_name": null,
"type": null,
"value": {
"end": 4912,
"labels": [
"RLC"
],
"start": 4656,
"text": "It came to the conclusion that on the correct interpretation of Section 84 of the Act, the relief under the said provision was allowable only in case where there was a positive income of the industrial undertaking after the allowance of development rebate."
}
},
{
"from_name": null,
"id": "7ce1a9f871614740bf29e9ad95b7f49a",
"to_name": null,
"type": null,
"value": {
"end": 5944,
"labels": [
"ISSUE"
],
"start": 4912,
"text": "\n On an application being filed by the appellant, the Tribunal referred the following three questions of law to the High Court: \"(1) Whether the first year in which the assessee was entitled to relief in respect of the new industrial undertaking was the assessment year 1957-58 and whether the assessee was entitled to relief in respect of the assessment for 1962-63 under Section 84 ?\n (2) \"Even if the assessee is not entitled to the full relief in respect of 60 hooker cells claimed in respect of the assessment for 1962-63 whether it is entitled to relief in respect of the thirty hooker cells completed during the previous year for 1958-59 ?\n (3) \"Whether development rebate in respect of the new industrial undertaking established during the previous year for 1962-63 should be deducted in computing the profits and gains for the purpose of section 84 and whether the assessee is entitled to any relief under the assessee is entitled to any relief under that section in respect of this undertaking ?\"\n "
}
},
{
"from_name": null,
"id": "d532692015db4718b503085a2bc7f8f3",
"to_name": null,
"type": null,
"value": {
"end": 6055,
"labels": [
"FAC"
],
"start": 5944,
"text": "The High Court agreeing with the Tribunal, answered the aforesaid questions of law in favour of the respondent."
}
},
{
"from_name": null,
"id": "0da623f0cbff4ef2a8673227671f448b",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
"FAC"
],
"start": 6056,
"text": "On leave to appeal being refused, this Court granted special leave to appeal."
}
},
{
"from_name": null,
"id": "347b2683012743d98fbb803836985cbc",
"to_name": null,
"type": null,
"value": {
"end": 6153,
"labels": [
"FAC"
],
"start": 6134,
"text": "Hence, this appeal."
}
},
{
"from_name": null,
"id": "c82b9dc4e7e24d8cbf58d1f48ee9f5bf",
"to_name": null,
"type": null,
"value": {
"end": 6602,
"labels": [
"ARG_PETITIONER"
],
"start": 6153,
"text": "\n Taking the first two questions together, it was contended by Shri Ramachandran, learned counsel for the appellant, that the new industrial undertaking was entitled to the benefit of the provisions of Section 84 of the Act corresponding to Section 15(c) of the Income Tax Act, 1922 in the year 1962-63 because the new industrial undertaking consisted of sixty hooker cells and rectifier and the same were installed only in the year 1958-59."
}
},
{
"from_name": null,
"id": "3789344028184254a04e5f2774cb2149",
"to_name": null,
"type": null,
"value": {
"end": 6769,
"labels": [
"ARG_PETITIONER"
],
"start": 6603,
"text": "It was also contended that in respect of the year 1957-58, no claim was made under the said provision because the assessee had by then not completed the installation."
}
},
{
"from_name": null,
"id": "71c7510ee68843e69eef8ef4ab5be69e",
"to_name": null,
"type": null,
"value": {
"end": 7051,
"labels": [
"STA"
],
"start": 6769,
"text": "\n According to Section 84 of the Act, income tax is not payable by an assessee on so much of the profits and gains, inter alia, derived from any industrial undertaking to which the Section applies, as does not exceed 6% per annum on the capital employed in such undertaking."
}
},
{
"from_name": null,
"id": "b329954b630543168167df7b87050b5d",
"to_name": null,
"type": null,
"value": {
"end": 7204,
"labels": [
"STA"
],
"start": 7052,
"text": "Sub-section (2) of Section 84 provides the conditions which should be specified so as to enable the assessee to enjoy the benefit of the said provision."
}
},
{
"from_name": null,
"id": "d8af0fac41ac4ca6b571023502c800cd",
"to_name": null,
"type": null,
"value": {
"end": 7918,
"labels": [
"STA"
],
"start": 7205,
"text": "It is not in dispute that these conditions are satisfied but what we are concerned in this case is with regard to the applicability of sub-section (7) of Section 84 of the Act which reads as follows: \"The provisions of this section shall, in relation to an industrial undertaking, apply to the assessment-- (i) for the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or, as the case may be, operate the cold storage plant or plants, and (ii) where the assesee is a co-operative society, for the six assessment years immediately succeeding, and where the assessee is any other person, for the four assessment years immediately succeeding.\"\n "
}
},
{
"from_name": null,
"id": "91fc05fa92cb417fb0baa92817cc96f6",
"to_name": null,
"type": null,
"value": {
"end": 8081,
"labels": [
"ANALYSIS"
],
"start": 7918,
"text": "It is found as a fact that the appellant had begun to manufacture or produce articles in the previous year ended on 31.3.1957 with the help of thirty hooker cells."
}
},
{
"from_name": null,
"id": "f9451829ddce4fc19385ecdb9d3534e6",
"to_name": null,
"type": null,
"value": {
"end": 8299,
"labels": [
"ANALYSIS"
],
"start": 8082,
"text": "It is true that rectifier had not been installed in the year 1957- 58 but it not in dispute that with suitable adjustment being made to the power system, the thirty hooker cells which had been installed were utilised."
}
},
{
"from_name": null,
"id": "7bb89b253ca74139afdc62accd41fd52",
"to_name": null,
"type": null,
"value": {
"end": 8463,
"labels": [
"ANALYSIS"
],
"start": 8300,
"text": "The use of these new hooker cells had resulted in the capacity of the unit gradually increasing and the production so made was not experimental but was commercial."
}
},
{
"from_name": null,
"id": "4e51693f5f304f5787450f462a3042ba",
"to_name": null,
"type": null,
"value": {
"end": 8623,
"labels": [
"ANALYSIS"
],
"start": 8464,
"text": "This being so, the appellant's undertaking must be regarded as having been newly established when it had begun to manufacture or produce articles by 31.3.1957."
}
},
{
"from_name": null,
"id": "3cdb3c8b224a4555bce1bdcac2ec72be",
"to_name": null,
"type": null,
"value": {
"end": 8991,
"labels": [
"ANALYSIS"
],
"start": 8624,
"text": "As 1957-58 was the first assessment year in which the relief under Section 15(C) of the Income Tax Act, 1922 corresponding to Section 84 of the Act could have been claimed, the four succeeding years would end by 1961-62 with the result that the appellant would not be entitled to any relief in the year 1962-63 which was rightly regarded as the sixth assessment year."
}
},
{
"from_name": null,
"id": "5a3b8ab2a39445f9b16bc8bf018e94ca",
"to_name": null,
"type": null,
"value": {
"end": 9168,
"labels": [
"RATIO"
],
"start": 8992,
"text": "In answer to question No. 1, the High Court, therefore, rightly come to the conclusion that the first year in which the relief could be claimed was the assessment year 1957-58."
}
},
{
"from_name": null,
"id": "c0636501dd9d4fe4b0caae9e8b4b8181",
"to_name": null,
"type": null,
"value": {
"end": 9602,
"labels": [
"ANALYSIS"
],
"start": 9170,
"text": "As regards question No. 2 is concerned, it was alternatively submitted that thirty hooker cells and the rectifier were installed in the year 1958-59 and, therefore, benefit under Section 84 of the Act with regard to these thirty hooker cells should be available in the year 1962-63.\n This is a case where the manufacturing capacity of the appellant was increased on a licence being granted from 13.5 tons per day to 20 tons per day."
}
},
{
"from_name": null,
"id": "950a43e4f2d64a6fa7fa3512b6d4db4a",
"to_name": null,
"type": null,
"value": {
"end": 9700,
"labels": [
"ANALYSIS"
],
"start": 9603,
"text": "In other words, these hooker cells were installed and the billiter cells were gradually replaced."
}
},
{
"from_name": null,
"id": "08e95af83f5c42209bd80f7eaa3e117b",
"to_name": null,
"type": null,
"value": {
"end": 9884,
"labels": [
"ANALYSIS"
],
"start": 9701,
"text": "The new industrial undertaking came into existence when the initial lot of thirty hooker cells were installed in the year 1957-58 which had resulted in enhanced commercial production."
}
},
{
"from_name": null,
"id": "fe85aa1bb1c64349bd82988ec60dd956",
"to_name": null,
"type": null,
"value": {
"end": 10100,
"labels": [
"ANALYSIS"
],
"start": 9885,
"text": "The Tribunal and the High Court, in our opinion, rightly came to the conclusion that the undertaking could function with thirty hooker cells in the year 1957-58 and further numbers were added in the subsequent year."
}
},
{
"from_name": null,
"id": "c0c4c2a93b594b94a7a6df0358e4d6e3",
"to_name": null,
"type": null,
"value": {
"end": 10401,
"labels": [
"ANALYSIS"
],
"start": 10101,
"text": "The undertaking having, thus, started the commercial manufacture in the year 1957-58 could not claim the benefit of provisions of Section 84 of the Act because the unit as such had commenced in the year 1957-58 notwithstanding the fact that there had been an expansion thereto in the subsequent year."
}
},
{
"from_name": null,
"id": "ae352e5082254431a12b0ae930dbb928",
"to_name": null,
"type": null,
"value": {
"end": 10523,
"labels": [
"ANALYSIS"
],
"start": 10402,
"text": "There was no scope for allowing a partial relief or splitting up of the relief as and when fresh cells came to the added."
}
},
{
"from_name": null,
"id": "75ba0b6d412c4305bb65104b36cb32f5",
"to_name": null,
"type": null,
"value": {
"end": 10626,
"labels": [
"RATIO"
],
"start": 10524,
"text": "The question No. 2, therefore, was thus rightly answered in the negative and in favour of the revenue."
}
},
{
"from_name": null,
"id": "99103ba92c954853985edd5d1f9aaab0",
"to_name": null,
"type": null,
"value": {
"end": 10917,
"labels": [
"ANALYSIS"
],
"start": 10626,
"text": "\n Coming to the third question, the relevant fact as already stated is that the profit with reference to the additional unit of sixty hooker cells which was called caustic soda plant No. 2 was worked out by the appellant at Rs. 1,08,282/- before allowing the allowing the development rebate."
}
},
{
"from_name": null,
"id": "992c82887435448185580333c8a4a5ef",
"to_name": null,
"type": null,
"value": {
"end": 10997,
"labels": [
"ANALYSIS"
],
"start": 10918,
"text": "The development rebate pertaining to this second plant came to Rs. 12,15,055/-."
}
},
{
"from_name": null,
"id": "1f70f75889f543239b64248b060b4d23",
"to_name": null,
"type": null,
"value": {
"end": 11126,
"labels": [
"ANALYSIS"
],
"start": 10998,
"text": "If the development rebate was adjusted against the sum of Rs. 1,08,282/- then the net result would be a loss of Rs. 11,06,773/-."
}
},
{
"from_name": null,
"id": "e9227ed2693e4b829f77e0bce98a1a3e",
"to_name": null,
"type": null,
"value": {
"end": 11221,
"labels": [
"ANALYSIS"
],
"start": 11127,
"text": "There would, thus be no profit which would be eligible for the relief under Section 84 of Act."
}
},
{
"from_name": null,
"id": "50dd66a0341e45cfb930681bce1ec261",
"to_name": null,
"type": null,
"value": {
"end": 11457,
"labels": [
"ANALYSIS"
],
"start": 11222,
"text": "In order to avail of this relief, the submission of the appellant is that the development rebate should not be deducted in arriving at the business income because it had no bearing on the business profits of the industrial undertaking."
}
},
{
"from_name": null,
"id": "3e5e2acd043d4789a4a616e316cc3000",
"to_name": null,
"type": null,
"value": {
"end": 11650,
"labels": [
"PRE_RELIED"
],
"start": 11457,
"text": "\n In view of the decision of this Court in the case of Cambay Electric Supply Industrial Co. Ltd. Vs. Commissioner of Income-tax, Gujarat-II, 113 ITR 84, this question is no longer res integra."
}
},
{
"from_name": null,
"id": "3c310fbe44d74201811da79b1dd3290e",
"to_name": null,
"type": null,
"value": {
"end": 12134,
"labels": [
"PRE_RELIED"
],
"start": 11651,
"text": "Dealing with a similar provision i.e.80 E of the Act prior to its amendment by the Finance (No. 2) Act, 1967, this Court came to the conclusion that in computing the profits of the assessee for the purpose of the special deduction provided under Section 80 E, items of unabsorbed depreciation and unabsorbed development rebate, carried forward from earlier years, will have to be deducted before arriving at the figure from which the 8% contemplated by Section 80E is to be deducted."
}
},
{
"from_name": null,
"id": "ee330cdff8544357b9c519928d604f45",
"to_name": null,
"type": null,
"value": {
"end": 12406,
"labels": [
"ANALYSIS"
],
"start": 12136,
"text": "In an effort to distinguish the aforesaid decision, it was submitted by Mr. Ramachandran that under Section 33(2) of the Act, development rebate is deducted from the total income of an assessee and it is not a component or a ingredient for determining profits and gains."
}
},
{
"from_name": null,
"id": "100144ee7f254cbfa36366056c7c7436",
"to_name": null,
"type": null,
"value": {
"end": 12715,
"labels": [
"ANALYSIS"
],
"start": 12407,
"text": "In other words, in Computing the profits and gains under Section 84(5) of the Act, there must first be a deduction under Section 84(1) of the Act of 6% per annum an the capital employed on the caustic soda plant No. 2 and it is only thereafter the development rebate should be deducted from the total income."
}
},
{
"from_name": null,
"id": "cfe30cb0804c4c38b3c4f50255048e02",
"to_name": null,
"type": null,
"value": {
"end": 12897,
"labels": [
"PRE_RELIED"
],
"start": 12716,
"text": "In support thereof, reliance was placed on the judgment of the Punjab & Haryana High Court in Commissioner of Income-tax, Patiala-I Vs. Patiala Flour Mills Co. P. Ltd., 127 ITR 301."
}
},
{
"from_name": null,
"id": "dddc0d2968e84ff9ba14ea0e0a492022",
"to_name": null,
"type": null,
"value": {
"end": 13460,
"labels": [
"ANALYSIS"
],
"start": 12898,
"text": "As already observed in Cambay Electric Supply Industrial Company\"s case (supra) while interpreting a provision similar to Section 84(5) of the Act, this Court has held that the profits and gains from an industrial undertaking to which Section applies, have to be computed in accordance with the provisions contained in Chapter IV(d) of the Act and development rebate has first to be deducted from the total income and it is only thereafter, if any profits and gains remain from this business, that the benefit under Section 84(1) of the Act would be applicable.\n"
}
},
{
"from_name": null,
"id": "7147d3ecaa714341aab3ea1b07387874",
"to_name": null,
"type": null,
"value": {
"end": 13692,
"labels": [
"ANALYSIS"
],
"start": 13460,
"text": "It appears that the aforesaid decision of this Court in Cambay Electric Supply Industrial Company's case (supra) was not brought to the notice of Punjab & Haryana High Court in the aforesaid case of Patiala Flour Mills case (supra)."
}
},
{
"from_name": null,
"id": "645236d1d6a24a19b17c8fe7e93870f3",
"to_name": null,
"type": null,
"value": {
"end": 13783,
"labels": [
"RATIO"
],
"start": 13693,
"text": "It is clear that the decision of Patiala Flour Mills case (supra) is no longer a good law."
}
},
{
"from_name": null,
"id": "ea4d743818c047aa9aab8559ae22bfa9",
"to_name": null,
"type": null,
"value": {
"end": 13888,
"labels": [
"RATIO"
],
"start": 13784,
"text": "We, accordingly, hold that the third question of law was also rightly answered in favour of the Revenue."
}
},
{
"from_name": null,
"id": "faa2286be2d3482a878e03bbea60251f",
"to_name": null,
"type": null,
"value": {
"end": 14010,
"labels": [
"RPC"
],
"start": 13888,
"text": "\n For the aforesaid reasons, this appeal is dismissed, but in the circumstances, parties are left to bear their won costs."
}
}
]
}
] | 4,160 | {
"text": "PETITIONER:\nMETTUR CHEMICAL AND INDUSTRIAL CORPORATION LIMITED\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME-TEX, MADRAS-1\n\nDATE OF JUDGMENT16/11/1995\n\nBENCH:\nKIRPAL B.N. (J)\nBENCH:\nKIRPAL B.N. (J)\nJEEVAN REDDY, B.P. (J)\n\nCITATION:\n 1995 SCC Supl. (4) 732 1995 SCALE (6)468\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\n J U D G M E N T KIRPAL. J.\n This is an appeal by way of special leave having been granted against the judgment of the Madras High Court which had answered the three questions of law referred to it by Income Tax Tribunal under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as `the Act') in favour of the respondent.\n The facts as found by the Tribunal are that the appellant was manufacturing coustic soda utilising billiter cells and up to the year 1956, its production capacity was 13.5 tons per day. The appellant felt the need to expand its capacity and obtained a licence which permitted it to manufacture 20 tons of caustic soda per day.\n In order to increase the capacity, the appellant gradually replaced billiter cells with hooker cells. Thirty hooker cells were installed by 31.3.1957 and thirty more were installed in February, 1958. The installation of the hooker cells required a change over in the power system and the installation of a rectifier was completed only in the year ended 31.3.1959. However, the hooker cells were utilised for the production as and when they were installed by a suitable adjustment in the power system even before the rectifier was installed. The position, thus, was that the production for the year 31.3.1957 included certain production attributable to the use of thirty hooker cells.\nAll the sixty hookers cells were installed by the end of 1958 and the installation of the unit together with the rectifier was also completed in the year ended 31.3.1959. It was clear that the capacity of the unit gradually increased from the stage of the installation of the hooker cells, though full capacity was reached only with the installation of all the hooker cells.\n Claim was made by the appellant before Income Tax Officer to the effect that it was entitled to the relief under Section 84 of the Act in respect of assessment year 1962-63 on the ground that such relief is admissible for five assessment years starting from the year in which the industrial undertaking begins to manufacture or produce articles. The contention of the appellant was that it had not claimed any relief in respect of assessment year 1957- 58, when thirty of the sixty hooker cells had been installed and, therefore, the period of five years should commence only with effect from the year 1958-59 by which time the installation of the sixty hooker cells, as well as the rectifier, had been completed. In the alternative, it was also contended that the appellant was entitled to relief atleast in relation to production of the thirty hooker cells which were installed for the first time in the assessment year 1958-59, as the fifth year for these hooker cells from the commencement of the production is the assessment year 1962-63.\n The claim had been disallowed by the Income Tax Officer and in appeal by the Appellate Assistant Commissioner. The Income Tax Tribunal, on the further appeal, rejected the claim of the appellant by holding that though the industrial unit ultimately consisted of sixty hooker cells and the rectifier but it had commenced commercial production in the year ended 31.3.1957 and, therefore, the five years had to be reckoned from the year 1957-58 and not 1953-59.\n Another contention which was raised before the Revenue Authorities and the Tribunal was with regard to the deduction of development rebate, which was allowable in respect of a new industrial undertaking in computing the profits and gains for the purpose of relief under Section 84 of the Act. In respect of assessment year 1962-63, the profits and gains from the new industrial unit had been computed at Rs. 1,08,282 before adjustment for development rebate. The total amount of development rebate had been determined at Rs.13,69,487/-. Adjusting the development rebate towards this profit of Rs. 1,08,282/-, the Income Tax Officer and the Appellate Assistant Commissioner held that there was no income from the new industrial undertaking on which relief was admissible under Section 84(1) of the said Act. The contention of appellant was that in arriving at the business income of industrial undertaking on which the relief under Section 84(1) of the Act was admissible, the development rebate was not to be deducted. This claim was not accepted by the Appellate Tribunal. It came to the conclusion that on the correct interpretation of Section 84 of the Act, the relief under the said provision was allowable only in case where there was a positive income of the industrial undertaking after the allowance of development rebate.\n On an application being filed by the appellant, the Tribunal referred the following three questions of law to the High Court: \"(1) Whether the first year in which the assessee was entitled to relief in respect of the new industrial undertaking was the assessment year 1957-58 and whether the assessee was entitled to relief in respect of the assessment for 1962-63 under Section 84 ?\n (2) \"Even if the assessee is not entitled to the full relief in respect of 60 hooker cells claimed in respect of the assessment for 1962-63 whether it is entitled to relief in respect of the thirty hooker cells completed during the previous year for 1958-59 ?\n (3) \"Whether development rebate in respect of the new industrial undertaking established during the previous year for 1962-63 should be deducted in computing the profits and gains for the purpose of section 84 and whether the assessee is entitled to any relief under the assessee is entitled to any relief under that section in respect of this undertaking ?\"\n The High Court agreeing with the Tribunal, answered the aforesaid questions of law in favour of the respondent. On leave to appeal being refused, this Court granted special leave to appeal. Hence, this appeal.\n Taking the first two questions together, it was contended by Shri Ramachandran, learned counsel for the appellant, that the new industrial undertaking was entitled to the benefit of the provisions of Section 84 of the Act corresponding to Section 15(c) of the Income Tax Act, 1922 in the year 1962-63 because the new industrial undertaking consisted of sixty hooker cells and rectifier and the same were installed only in the year 1958-59. It was also contended that in respect of the year 1957-58, no claim was made under the said provision because the assessee had by then not completed the installation.\n According to Section 84 of the Act, income tax is not payable by an assessee on so much of the profits and gains, inter alia, derived from any industrial undertaking to which the Section applies, as does not exceed 6% per annum on the capital employed in such undertaking. Sub-section (2) of Section 84 provides the conditions which should be specified so as to enable the assessee to enjoy the benefit of the said provision. It is not in dispute that these conditions are satisfied but what we are concerned in this case is with regard to the applicability of sub-section (7) of Section 84 of the Act which reads as follows: \"The provisions of this section shall, in relation to an industrial undertaking, apply to the assessment-- (i) for the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or, as the case may be, operate the cold storage plant or plants, and (ii) where the assesee is a co-operative society, for the six assessment years immediately succeeding, and where the assessee is any other person, for the four assessment years immediately succeeding.\"\n It is found as a fact that the appellant had begun to manufacture or produce articles in the previous year ended on 31.3.1957 with the help of thirty hooker cells. It is true that rectifier had not been installed in the year 1957- 58 but it not in dispute that with suitable adjustment being made to the power system, the thirty hooker cells which had been installed were utilised. The use of these new hooker cells had resulted in the capacity of the unit gradually increasing and the production so made was not experimental but was commercial. This being so, the appellant's undertaking must be regarded as having been newly established when it had begun to manufacture or produce articles by 31.3.1957. As 1957-58 was the first assessment year in which the relief under Section 15(C) of the Income Tax Act, 1922 corresponding to Section 84 of the Act could have been claimed, the four succeeding years would end by 1961-62 with the result that the appellant would not be entitled to any relief in the year 1962-63 which was rightly regarded as the sixth assessment year. In answer to question No. 1, the High Court, therefore, rightly come to the conclusion that the first year in which the relief could be claimed was the assessment year 1957-58.\n As regards question No. 2 is concerned, it was alternatively submitted that thirty hooker cells and the rectifier were installed in the year 1958-59 and, therefore, benefit under Section 84 of the Act with regard to these thirty hooker cells should be available in the year 1962-63.\n This is a case where the manufacturing capacity of the appellant was increased on a licence being granted from 13.5 tons per day to 20 tons per day. In other words, these hooker cells were installed and the billiter cells were gradually replaced. The new industrial undertaking came into existence when the initial lot of thirty hooker cells were installed in the year 1957-58 which had resulted in enhanced commercial production. The Tribunal and the High Court, in our opinion, rightly came to the conclusion that the undertaking could function with thirty hooker cells in the year 1957-58 and further numbers were added in the subsequent year. The undertaking having, thus, started the commercial manufacture in the year 1957-58 could not claim the benefit of provisions of Section 84 of the Act because the unit as such had commenced in the year 1957-58 notwithstanding the fact that there had been an expansion thereto in the subsequent year. There was no scope for allowing a partial relief or splitting up of the relief as and when fresh cells came to the added. The question No. 2, therefore, was thus rightly answered in the negative and in favour of the revenue.\n Coming to the third question, the relevant fact as already stated is that the profit with reference to the additional unit of sixty hooker cells which was called caustic soda plant No. 2 was worked out by the appellant at Rs. 1,08,282/- before allowing the allowing the development rebate. The development rebate pertaining to this second plant came to Rs. 12,15,055/-. If the development rebate was adjusted against the sum of Rs. 1,08,282/- then the net result would be a loss of Rs. 11,06,773/-. There would, thus be no profit which would be eligible for the relief under Section 84 of Act. In order to avail of this relief, the submission of the appellant is that the development rebate should not be deducted in arriving at the business income because it had no bearing on the business profits of the industrial undertaking.\n In view of the decision of this Court in the case of Cambay Electric Supply Industrial Co. Ltd. Vs. Commissioner of Income-tax, Gujarat-II, 113 ITR 84, this question is no longer res integra. Dealing with a similar provision i.e.80 E of the Act prior to its amendment by the Finance (No. 2) Act, 1967, this Court came to the conclusion that in computing the profits of the assessee for the purpose of the special deduction provided under Section 80 E, items of unabsorbed depreciation and unabsorbed development rebate, carried forward from earlier years, will have to be deducted before arriving at the figure from which the 8% contemplated by Section 80E is to be deducted.\n In an effort to distinguish the aforesaid decision, it was submitted by Mr. Ramachandran that under Section 33(2) of the Act, development rebate is deducted from the total income of an assessee and it is not a component or a ingredient for determining profits and gains. In other words, in Computing the profits and gains under Section 84(5) of the Act, there must first be a deduction under Section 84(1) of the Act of 6% per annum an the capital employed on the caustic soda plant No. 2 and it is only thereafter the development rebate should be deducted from the total income. In support thereof, reliance was placed on the judgment of the Punjab & Haryana High Court in Commissioner of Income-tax, Patiala-I Vs. Patiala Flour Mills Co. P. Ltd., 127 ITR 301. As already observed in Cambay Electric Supply Industrial Company\"s case (supra) while interpreting a provision similar to Section 84(5) of the Act, this Court has held that the profits and gains from an industrial undertaking to which Section applies, have to be computed in accordance with the provisions contained in Chapter IV(d) of the Act and development rebate has first to be deducted from the total income and it is only thereafter, if any profits and gains remain from this business, that the benefit under Section 84(1) of the Act would be applicable.\nIt appears that the aforesaid decision of this Court in Cambay Electric Supply Industrial Company's case (supra) was not brought to the notice of Punjab & Haryana High Court in the aforesaid case of Patiala Flour Mills case (supra). It is clear that the decision of Patiala Flour Mills case (supra) is no longer a good law. We, accordingly, hold that the third question of law was also rightly answered in favour of the Revenue.\n For the aforesaid reasons, this appeal is dismissed, but in the circumstances, parties are left to bear their won costs.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "776ff7d006f24302897f67b0bf74bc72",
"to_name": null,
"type": null,
"value": {
"end": 143,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n CRL.L.P. 310 of 2013\n\n DIRECTORATE OF REVENUE INTELLIGENCE"
}
},
{
"from_name": null,
"id": "513f38bd51244151ba40f0ab43d153f6",
"to_name": null,
"type": null,
"value": {
"end": 247,
"labels": [
"PREAMBLE"
],
"start": 203,
"text": "..... Petitioner\n "
}
},
{
"from_name": null,
"id": "e98b5f5416a245a79bf2d18b2b4c021a",
"to_name": null,
"type": null,
"value": {
"end": 291,
"labels": [
"PREAMBLE"
],
"start": 247,
"text": "Through: Mr. Satish Aggarwala, Advocate."
}
},
{
"from_name": null,
"id": "d533f183a3d549ddbe17940ed22d974e",
"to_name": null,
"type": null,
"value": {
"end": 390,
"labels": [
"PREAMBLE"
],
"start": 291,
"text": "\n\n versus\n\n MANJINDER SINGH ....."
}
},
{
"from_name": null,
"id": "2672117e6559484689c2122ca438962d",
"to_name": null,
"type": null,
"value": {
"end": 401,
"labels": [
"PREAMBLE"
],
"start": 391,
"text": "Respondent"
}
},
{
"from_name": null,
"id": "16a816873d274ef198b406d8fa18441f",
"to_name": null,
"type": null,
"value": {
"end": 432,
"labels": [
"PREAMBLE"
],
"start": 424,
"text": "Through:"
}
},
{
"from_name": null,
"id": "0ff92225f6394397a29139f50bf574a1",
"to_name": null,
"type": null,
"value": {
"end": 468,
"labels": [
"PREAMBLE"
],
"start": 433,
"text": " Mr. Dhruv Gupta, Advocate."
}
},
{
"from_name": null,
"id": "e381635a336a4acbb6638ea7436b4782",
"to_name": null,
"type": null,
"value": {
"end": 485,
"labels": [
"PREAMBLE"
],
"start": 479,
"text": "CORAM:"
}
},
{
"from_name": null,
"id": "31a0e992d2e4413fadf28b6f4243a821",
"to_name": null,
"type": null,
"value": {
"end": 536,
"labels": [
"PREAMBLE"
],
"start": 486,
"text": "JUSTICE S. MURALIDHAR\n\n "
}
},
{
"from_name": null,
"id": "169a3aab94ca46cebd61a820209e61d3",
"to_name": null,
"type": null,
"value": {
"end": 579,
"labels": [
"PREAMBLE"
],
"start": 536,
"text": "ORDER\n 23.01.2014"
}
},
{
"from_name": null,
"id": "309f1337efd14aa881f9baaf27f00bd5",
"to_name": null,
"type": null,
"value": {
"end": 880,
"labels": [
"FAC"
],
"start": 580,
"text": "1. This is a petition seeking leave to appeal against the impugned judgment dated 14th February 2013 passed by Special Judge, NDPS in Sessions Case No. 18A/08 acquitting the Respondent of the offences under Sections 21 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).\n 2."
}
},
{
"from_name": null,
"id": "e72cf45d63984f668393fc1d6c159205",
"to_name": null,
"type": null,
"value": {
"end": 1242,
"labels": [
"FAC"
],
"start": 881,
"text": "The case of the prosecution is that on 6th October 2007 an intelligence was gathered by Shri Diwakar Joshi, (PW1), an Intelligence Officer of Directorate of Revenue (DRI), through a reliable source that the Respondent, carrying narcotic drugs, would be coming in a Bolero Jeep at HP Petrol Pump, Mahipal Pur, near Radisson Hotel, New Delhi, at around 10.00 p.m."
}
},
{
"from_name": null,
"id": "1632779d129b4f75b32b90e3047cc4f7",
"to_name": null,
"type": null,
"value": {
"end": 1492,
"labels": [
"FAC"
],
"start": 1243,
"text": "The intelligence was reduced to writing, placed before the senior officer Shri Sanjay Bansal (PW2), who directed Shri N.D. Azad (PW9) to immediately organise a team for surveillance and interception of the person along with the contraband substance."
}
},
{
"from_name": null,
"id": "87967482e6ce4f3ba077148c3fcebe2a",
"to_name": null,
"type": null,
"value": {
"end": 1652,
"labels": [
"FAC"
],
"start": 1492,
"text": "\n 3. After associating two public witnesses, the DRI officers are stated to have left their office at 8.00 p.m. and reached the petrol pump at about 9.00 p.m.\n "
}
},
{
"from_name": null,
"id": "dc3f291a52044369a6c2cc0bda7f104e",
"to_name": null,
"type": null,
"value": {
"end": 1749,
"labels": [
"FAC"
],
"start": 1652,
"text": "At around 10.30 p.m., the Bolero jeep arrived at the petrol pump and was immediately intercepted."
}
},
{
"from_name": null,
"id": "d3e809d0c329467581c99ba2ef05c0ff",
"to_name": null,
"type": null,
"value": {
"end": 1873,
"labels": [
"FAC"
],
"start": 1750,
"text": "The driver of the jeep was the Respondent, who happened to be a resident of Village Sammipur in District Jalandhar, Punjab."
}
},
{
"from_name": null,
"id": "72a4335494724936bed44c77b28bd44d",
"to_name": null,
"type": null,
"value": {
"end": 2164,
"labels": [
"FAC"
],
"start": 1873,
"text": "\n 4. The case of the prosecution is that although the Respondent initially denied carrying any narcotic substance, on persistent questioning by the team, he admitted that he was carrying approximately 5 kgs of Heroin concealed in a greenish colour VIP suitcase lying in the boot of the jeep."
}
},
{
"from_name": null,
"id": "557fb8b730cd40009fdd22e427643067",
"to_name": null,
"type": null,
"value": {
"end": 2471,
"labels": [
"FAC"
],
"start": 2165,
"text": "Notice under Section 50 of the NDPS Act (Ex. PW11/B) was given to the Respondent at the spot and he gave a reply in writing on the said notice in his handwriting that he did not require any Magistrate or Gazetted Officer for the search proceedings and that it could be undertaken by any officer of the DRI."
}
},
{
"from_name": null,
"id": "a3ad6af15a994c6f93135f4773f7e280",
"to_name": null,
"type": null,
"value": {
"end": 2602,
"labels": [
"FAC"
],
"start": 2472,
"text": "It is also stated that at the request of the accused, a search was effected at a secure place away from the place of interception."
}
},
{
"from_name": null,
"id": "35221db0d98a43c1a9ae37c540c9628f",
"to_name": null,
"type": null,
"value": {
"end": 2682,
"labels": [
"FAC"
],
"start": 2603,
"text": "From the suitcase, two packets weighing 2.438 kgs and 2.346 kgs were recovered."
}
},
{
"from_name": null,
"id": "835f7adbdcb14a89b6b1ad8192f39491",
"to_name": null,
"type": null,
"value": {
"end": 2822,
"labels": [
"FAC"
],
"start": 2683,
"text": "A personal search of the accused was also conducted and recovery of cash of Rs. 1.98 lakhs and one mobile phone with one sim card was made."
}
},
{
"from_name": null,
"id": "d93098dd9e4e47d996b19959ccca40a1",
"to_name": null,
"type": null,
"value": {
"end": 2880,
"labels": [
"FAC"
],
"start": 2823,
"text": "Three representative samples were taken from the packets."
}
},
{
"from_name": null,
"id": "bc15b80080094d53af3893086fee15c8",
"to_name": null,
"type": null,
"value": {
"end": 2983,
"labels": [
"FAC"
],
"start": 2881,
"text": "On testing, the sample showed the presence of diacetylmorphine of 60.4% and 57.7% purity respectively."
}
},
{
"from_name": null,
"id": "c260808dca8d4dfc8fe630e0f2efa622",
"to_name": null,
"type": null,
"value": {
"end": 3123,
"labels": [
"FAC"
],
"start": 2983,
"text": "\n 5. The case of the prosecution is that a detailed panchnama (Ex. PW11/A) was prepared with regard to the interception, search and seizure."
}
},
{
"from_name": null,
"id": "a9ca709eeecb4cf1ae1d823cc8e91975",
"to_name": null,
"type": null,
"value": {
"end": 3311,
"labels": [
"FAC"
],
"start": 3124,
"text": "Further, it was stated that in response to the summons issued to the accused under Section 67 of the NDPS Act (PW11/C), the accused appeared and tendered his voluntary statement (PW11/D)."
}
},
{
"from_name": null,
"id": "bd8c5089935940be8c42765380b8c28b",
"to_name": null,
"type": null,
"value": {
"end": 3411,
"labels": [
"FAC"
],
"start": 3312,
"text": "He disclosed that the owner of a stand at Jalandhar used to send the vehicle on hire to one Bittoo."
}
},
{
"from_name": null,
"id": "96cd109279b9466eaef638c389b681df",
"to_name": null,
"type": null,
"value": {
"end": 3638,
"labels": [
"FAC"
],
"start": 3412,
"text": "On 6th October 2007, Bittoo called the Respondent at around 1.00 p.m. at BMC Chowk, Jalandhar and had given him the VIP suit case in question and Rs. 2 lakhs and asked him to go to Delhi and deliver it near the Radisson Hotel."
}
},
{
"from_name": null,
"id": "059823d6929645e4a7ad5d6964079c80",
"to_name": null,
"type": null,
"value": {
"end": 3751,
"labels": [
"FAC"
],
"start": 3639,
"text": "The accused was promised to be paid Rs. 6,000/- as charges for the delivery and Rs. 500 for the payment of toll."
}
},
{
"from_name": null,
"id": "b99013393f18406eb46f8c7c9b1230d6",
"to_name": null,
"type": null,
"value": {
"end": 3812,
"labels": [
"FAC"
],
"start": 3752,
"text": "From the sum of Rs. 2 lakhs, he spent Rs.\n 2000/- on diesel."
}
},
{
"from_name": null,
"id": "cc8d336ed71640f99c4b282ca2e8d84a",
"to_name": null,
"type": null,
"value": {
"end": 3907,
"labels": [
"FAC"
],
"start": 3813,
"text": "However, the Respondent did not give the DRI Officers any contact number or address of Bittoo."
}
},
{
"from_name": null,
"id": "1d5bd47347444c6e9ba1fbf42a1be24d",
"to_name": null,
"type": null,
"value": {
"end": 4285,
"labels": [
"RLC"
],
"start": 3907,
"text": "\n 6. In the impugned judgment after discussing the entire prosecution evidence, the learned trial court has come to the following conclusions: i. Section 50 of the NDPS Act was contravened in as much as the notice issued under that provision, Ex. PW11/B, to the accused at the spot appeared to be a fake document, created and manufactured after the alleged time of interception."
}
},
{
"from_name": null,
"id": "90ff2fa2d7c643158fa2b1304bf4f5a8",
"to_name": null,
"type": null,
"value": {
"end": 4453,
"labels": [
"RLC"
],
"start": 4285,
"text": "\n ii. Sections 41 and 42 of the NDPS Act were not complied with since the Investigating Officer (IO) (PW11) did not possess a valid authorisation to effect the seizure."
}
},
{
"from_name": null,
"id": "251968cb9c71452e8b9f154bf0364e99",
"to_name": null,
"type": null,
"value": {
"end": 4584,
"labels": [
"RLC"
],
"start": 4454,
"text": "The authorisation was given by PW2 Sanjay Bansal in favour of PW9 Shri N.D. Azad who in turn authorised Shri Devender Singh (PW7)."
}
},
{
"from_name": null,
"id": "aea3599b6dc048609bfb2ea07517cedc",
"to_name": null,
"type": null,
"value": {
"end": 4685,
"labels": [
"RLC"
],
"start": 4585,
"text": "However, PW7 Devender Singh was neither the seizing officer nor a member of the raiding team of DRI."
}
},
{
"from_name": null,
"id": "800733c6a54a402b96ef93a3fe0b7094",
"to_name": null,
"type": null,
"value": {
"end": 4798,
"labels": [
"RLC"
],
"start": 4686,
"text": "The seizure of this case was effected by PW11 Shri K. Shashi Bhushan in whose favour there was no authorization."
}
},
{
"from_name": null,
"id": "d77c92506d4345ab9985a3e010e0eb4d",
"to_name": null,
"type": null,
"value": {
"end": 4961,
"labels": [
"RLC"
],
"start": 4798,
"text": "\n Merely because PW9 was himself a member of the raiding party, it would not obviate the need for a valid authorisation in favour of PW11 to carry out the seizure."
}
},
{
"from_name": null,
"id": "6f08d7b1cedc466a8398b2e4524998be",
"to_name": null,
"type": null,
"value": {
"end": 5124,
"labels": [
"RLC"
],
"start": 4961,
"text": "\n iii. Section 43 of the NDPS Act would not apply since the seizure was effected not by way of chance recovery but on the basis of specific prior information.\n iv."
}
},
{
"from_name": null,
"id": "1d5b09f1896c4850906269aa4a6e4e1a",
"to_name": null,
"type": null,
"value": {
"end": 5296,
"labels": [
"RLC"
],
"start": 5125,
"text": "The summons issued to the Respondent under Section 67 of NDPS Act appeared to be a document prepared and manipulated subsequent to the search and seizure from the accused."
}
},
{
"from_name": null,
"id": "5472b91583084d8b81fb89a71552cc2b",
"to_name": null,
"type": null,
"value": {
"end": 5460,
"labels": [
"RLC"
],
"start": 5297,
"text": "While the retraction application of the Respondent was in Punjabi, his statement was in Hindi of poor quality and this raised further doubts as to its genuineness."
}
},
{
"from_name": null,
"id": "a374bcb8e72a4721857ba668a45546ae",
"to_name": null,
"type": null,
"value": {
"end": 5735,
"labels": [
"RLC"
],
"start": 5462,
"text": "v. The failure to associate public witnesses in the search and seizure raised sufficient doubts as to their genuineness; there were also doubts regarding the site plan; the issuance of the seal of DRI by PW10 in favour of PW11 and the very constitution of the raiding team."
}
},
{
"from_name": null,
"id": "653b6f4787d649efb6f923176fd47ae6",
"to_name": null,
"type": null,
"value": {
"end": 5930,
"labels": [
"RLC"
],
"start": 5735,
"text": "\n vi. The failure to produce the necessary certification regarding the mobile phone recovered from the Respondent also contributed to the weakening of the prosecution case against the Respondent."
}
},
{
"from_name": null,
"id": "62e96b687b704704b98cc5f29321c572",
"to_name": null,
"type": null,
"value": {
"end": 5936,
"labels": [
"RLC"
],
"start": 5930,
"text": "\n vii."
}
},
{
"from_name": null,
"id": "9589b3262b09418781a7edaa81edefca",
"to_name": null,
"type": null,
"value": {
"end": 6075,
"labels": [
"RLC"
],
"start": 5937,
"text": "The accused could not be found guilty under Sections 27 and 27 A of the NDPS Act merely because of the recovery of cash of Rs. 1.98 lakhs."
}
},
{
"from_name": null,
"id": "4748becd1e9946d3a10bafcd80369e91",
"to_name": null,
"type": null,
"value": {
"end": 6352,
"labels": [
"ARG_PETITIONER"
],
"start": 6075,
"text": "\n 7. Mr. Satish Aggarwala, Senior Standing Counsel for DRI submitted that since the recovery was made from the vehicle there was no need for issuance of notice under Section 50 of the NDPS Act and, therefore, the finding of the learned trial court in that behalf was erroneous."
}
},
{
"from_name": null,
"id": "c4e2b7d0db4841ae8ac58786df8bca19",
"to_name": null,
"type": null,
"value": {
"end": 6414,
"labels": [
"ANALYSIS"
],
"start": 6354,
"text": "8. This Court is unable to agree with the above submissions."
}
},
{
"from_name": null,
"id": "aadc3700dc3a494ea72224237169c6c8",
"to_name": null,
"type": null,
"value": {
"end": 6494,
"labels": [
"ANALYSIS"
],
"start": 6415,
"text": "In the present case a personal search was also made of the body of the accused."
}
},
{
"from_name": null,
"id": "a8cb59604e784a6eb9151174021f3eb2",
"to_name": null,
"type": null,
"value": {
"end": 6569,
"labels": [
"ANALYSIS"
],
"start": 6495,
"text": "A notice under Section 50 NDPS Act had therefore to be mandatorily issued."
}
},
{
"from_name": null,
"id": "fd8643a8815d489aa36007fac47f4d24",
"to_name": null,
"type": null,
"value": {
"end": 6753,
"labels": [
"ANALYSIS"
],
"start": 6569,
"text": "\n 9. What is however, disconcerting is that the details recorded in this notice were contrary to what was deposed by the prosecution witness, as to what transpired on 6th October 2007."
}
},
{
"from_name": null,
"id": "6a5a1cc59efb4dcca323ea8c9bd42453",
"to_name": null,
"type": null,
"value": {
"end": 6883,
"labels": [
"ANALYSIS"
],
"start": 6754,
"text": "The notice under Section 50 (Ex. PW11/B) mentions the time of occurrence as around “11.30 hrs. today” which was 6th October 2007."
}
},
{
"from_name": null,
"id": "ee5357ead6044e40918a22615880cc05",
"to_name": null,
"type": null,
"value": {
"end": 6981,
"labels": [
"ANALYSIS"
],
"start": 6884,
"text": "In the absence of any indication that it was ‘p.m.’ or ‘a.m.’ it could well be taken to be ‘a.m’."
}
},
{
"from_name": null,
"id": "48536063130248718260fcb3b1fccdb3",
"to_name": null,
"type": null,
"value": {
"end": 7112,
"labels": [
"ANALYSIS"
],
"start": 6982,
"text": "Even if it was taken to be p.m., it contradicted the case of the prosecution that the accused was apprehended at around 10.30 p.m."
}
},
{
"from_name": null,
"id": "ead2246ca81a406182dfaaabc01aa9f0",
"to_name": null,
"type": null,
"value": {
"end": 7255,
"labels": [
"ANALYSIS"
],
"start": 7113,
"text": "The second factor pointed out is that a typed notice could not possibly have been served at the time and place of apprehension of the accused."
}
},
{
"from_name": null,
"id": "1be4d74cab1a49428b4b66dd2344a97c",
"to_name": null,
"type": null,
"value": {
"end": 7396,
"labels": [
"ANALYSIS"
],
"start": 7256,
"text": "There was nothing to show that the raiding party took any computer with them from which a typed notice could have been prepared at the spot."
}
},
{
"from_name": null,
"id": "a13ac7fb1d774407b2f04741e29a6525",
"to_name": null,
"type": null,
"value": {
"end": 7485,
"labels": [
"ANALYSIS"
],
"start": 7396,
"text": "\n These factors indicate that the notice Ex. PW11/B was a document prepared subsequently."
}
},
{
"from_name": null,
"id": "a64844e7d9cc4406ab257b825d88ca96",
"to_name": null,
"type": null,
"value": {
"end": 7641,
"labels": [
"ANALYSIS"
],
"start": 7486,
"text": "There is no satisfactory explanation for the above glaring discrepancies concerning the notice issued to the accused under Section 50 of the NDPS Act.\n 10."
}
},
{
"from_name": null,
"id": "4f44157d876546e58a3b8c6accaa719e",
"to_name": null,
"type": null,
"value": {
"end": 7916,
"labels": [
"ARG_PETITIONER"
],
"start": 7642,
"text": "As regard the non-compliance with provisions of Sections 41 and 42 of the NDPS Act, the submission of Mr. Aggarwala is that since the seizure was effected from a vehicle in transit in a public place, Section 43 of the Act that would at best apply and not Sections 41 and 42."
}
},
{
"from_name": null,
"id": "deb1893d70f44f13a7c789fa580ed4f4",
"to_name": null,
"type": null,
"value": {
"end": 8185,
"labels": [
"ANALYSIS"
],
"start": 7917,
"text": "As pointed out by the learned trial court, since the interception took place upon receipt of specific intelligence and not by way of chance recovery and by assembling a team of officers, it was a mandatory requirement to comply with Sections 41 and 42 of the NDPS Act."
}
},
{
"from_name": null,
"id": "ea336a591a4a4f58b605e670b88c1f6e",
"to_name": null,
"type": null,
"value": {
"end": 8461,
"labels": [
"ANALYSIS"
],
"start": 8186,
"text": "The reliance placed in this regard by Mr. Aggarwala on the decisions in Ramesh Kumar Rajput v. State 11 (2008) DLT (Crl) 828 and Directorate of Revenue Intelligence v. Mohammad Nisar Holia (2008) 2 SCC 370 is to no avail since both the decisions are distinguishable on facts."
}
},
{
"from_name": null,
"id": "0b68294902db42e18daf4d6215aa918a",
"to_name": null,
"type": null,
"value": {
"end": 8628,
"labels": [
"ANALYSIS"
],
"start": 8461,
"text": "\n In any event, in the latter case a distinction was drawn between recovery from a public place on receipt of specific information in advance and a recovery by chance."
}
},
{
"from_name": null,
"id": "772145f632b048729f571a1592004bf2",
"to_name": null,
"type": null,
"value": {
"end": 8668,
"labels": [
"ANALYSIS"
],
"start": 8629,
"text": "The rigours of the law might not apply."
}
},
{
"from_name": null,
"id": "1672789417124956ab4cded885d5baf9",
"to_name": null,
"type": null,
"value": {
"end": 8913,
"labels": [
"ANALYSIS"
],
"start": 8669,
"text": "In the present case, however, the recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore the requirements of Sections 41 and 42 of the NDPS Act had to be complied with."
}
},
{
"from_name": null,
"id": "e44fa788dba14a9abc0e79f396df5be3",
"to_name": null,
"type": null,
"value": {
"end": 9080,
"labels": [
"ANALYSIS"
],
"start": 8913,
"text": "\n 11. Further the mere fact that PW9 went along with the raiding party did not mean that he was not required to authorise the officer who in fact effected the seizure."
}
},
{
"from_name": null,
"id": "d7c68a55a6734991af73de39673bbcac",
"to_name": null,
"type": null,
"value": {
"end": 9182,
"labels": [
"ANALYSIS"
],
"start": 9081,
"text": "The seizure in the case was effected by PW11 who was required to be specifically authorised to do so."
}
},
{
"from_name": null,
"id": "055f20deaab541b5ad15c020bdde197e",
"to_name": null,
"type": null,
"value": {
"end": 9274,
"labels": [
"ANALYSIS"
],
"start": 9183,
"text": "The fact of the matter was that there was no specific authorisation in favour of PW11.\n 12."
}
},
{
"from_name": null,
"id": "4d265a8f35ce4a56a044626d5391fada",
"to_name": null,
"type": null,
"value": {
"end": 9574,
"labels": [
"ARG_PETITIONER"
],
"start": 9275,
"text": "As regards non-compliance with Section 67 of the NDPS Act, Mr.\n Aggarwala submitted that it was possible for the DRI to have served upon the accused summons on 6th October 2007 itself requiring him to appear before the DRI at 7.00 a.m. on 7th October 2007 for the purpose of recording his statement."
}
},
{
"from_name": null,
"id": "3b994147c7104bb4a5c0b33eafbbd029",
"to_name": null,
"type": null,
"value": {
"end": 9713,
"labels": [
"ANALYSIS"
],
"start": 9574,
"text": "\n 13. The above submission overlooks the glaring inconsistencies pointed out by the learned trial court as regards the summons, Ex. PW11/C."
}
},
{
"from_name": null,
"id": "9cf40ef6aa9847ec94dec4775d112eeb",
"to_name": null,
"type": null,
"value": {
"end": 9860,
"labels": [
"ANALYSIS"
],
"start": 9714,
"text": "Although it was dated 6th October 2007, the fact of the matter is that the panchnama proceedings concluded at 10.00 a.m. only on 7th October 2007."
}
},
{
"from_name": null,
"id": "f4fb835857b647cebee0e540820d6fb4",
"to_name": null,
"type": null,
"value": {
"end": 9961,
"labels": [
"ANALYSIS"
],
"start": 9861,
"text": "The question of accused appearing at 7.00 a.m. on 7th October 2007, therefore, simply did not arise."
}
},
{
"from_name": null,
"id": "9387588f63344be5bbd330eaf1f4b3ec",
"to_name": null,
"type": null,
"value": {
"end": 10159,
"labels": [
"ANALYSIS"
],
"start": 9962,
"text": "The finding of the trial court that the said summons could never have been served on the accused on 6th October 2007 and that the said document was possibly prepared subsequently cannot be faulted."
}
},
{
"from_name": null,
"id": "ce309908043645e0b3681562ab7a3699",
"to_name": null,
"type": null,
"value": {
"end": 10320,
"labels": [
"RATIO"
],
"start": 10159,
"text": "\n 14. The careful examination of the record also bears out that the other findings of the learned trial court in the impugned judgment are detailed and reasoned."
}
},
{
"from_name": null,
"id": "26f6d0c9ffce4424a7a707f8191d60de",
"to_name": null,
"type": null,
"value": {
"end": 10430,
"labels": [
"RATIO"
],
"start": 10320,
"text": "\n 15. The Court is unable to find any valid ground for granting leave to appeal against the impugned judgment."
}
},
{
"from_name": null,
"id": "80fefa7b86d247e8ad12783f0b66ae24",
"to_name": null,
"type": null,
"value": {
"end": 10496,
"labels": [
"RPC"
],
"start": 10431,
"text": "Accordingly, the petition is dismissed with no order as to costs."
}
},
{
"from_name": null,
"id": "21f4e8746a2046a8900005f8da5f3e62",
"to_name": null,
"type": null,
"value": {
"end": 10548,
"labels": [
"RPC"
],
"start": 10496,
"text": "\n 16. The trial Court record be sent back forthwith."
}
},
{
"from_name": null,
"id": "592b084f86924d0584ec306865b9d2d5",
"to_name": null,
"type": null,
"value": {
"end": 10589,
"labels": [
"NONE"
],
"start": 10548,
"text": "\n S. MURALIDHAR, J.\nJANUARY 23, 2014 ‘vn’"
}
}
]
}
] | 4,139 | {
"text": " IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n CRL.L.P. 310 of 2013\n\n DIRECTORATE OF REVENUE INTELLIGENCE\n ..... Petitioner\n Through: Mr. Satish Aggarwala, Advocate.\n\n versus\n\n MANJINDER SINGH ..... Respondent\n Through: Mr. Dhruv Gupta, Advocate.\n\n CORAM: JUSTICE S. MURALIDHAR\n\n ORDER\n 23.01.2014 1. This is a petition seeking leave to appeal against the impugned judgment dated 14th February 2013 passed by Special Judge, NDPS in Sessions Case No. 18A/08 acquitting the Respondent of the offences under Sections 21 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).\n 2. The case of the prosecution is that on 6th October 2007 an intelligence was gathered by Shri Diwakar Joshi, (PW1), an Intelligence Officer of Directorate of Revenue (DRI), through a reliable source that the Respondent, carrying narcotic drugs, would be coming in a Bolero Jeep at HP Petrol Pump, Mahipal Pur, near Radisson Hotel, New Delhi, at around 10.00 p.m. The intelligence was reduced to writing, placed before the senior officer Shri Sanjay Bansal (PW2), who directed Shri N.D. Azad (PW9) to immediately organise a team for surveillance and interception of the person along with the contraband substance.\n 3. After associating two public witnesses, the DRI officers are stated to have left their office at 8.00 p.m. and reached the petrol pump at about 9.00 p.m.\n At around 10.30 p.m., the Bolero jeep arrived at the petrol pump and was immediately intercepted. The driver of the jeep was the Respondent, who happened to be a resident of Village Sammipur in District Jalandhar, Punjab.\n 4. The case of the prosecution is that although the Respondent initially denied carrying any narcotic substance, on persistent questioning by the team, he admitted that he was carrying approximately 5 kgs of Heroin concealed in a greenish colour VIP suitcase lying in the boot of the jeep. Notice under Section 50 of the NDPS Act (Ex. PW11/B) was given to the Respondent at the spot and he gave a reply in writing on the said notice in his handwriting that he did not require any Magistrate or Gazetted Officer for the search proceedings and that it could be undertaken by any officer of the DRI. It is also stated that at the request of the accused, a search was effected at a secure place away from the place of interception. From the suitcase, two packets weighing 2.438 kgs and 2.346 kgs were recovered. A personal search of the accused was also conducted and recovery of cash of Rs. 1.98 lakhs and one mobile phone with one sim card was made. Three representative samples were taken from the packets. On testing, the sample showed the presence of diacetylmorphine of 60.4% and 57.7% purity respectively.\n 5. The case of the prosecution is that a detailed panchnama (Ex. PW11/A) was prepared with regard to the interception, search and seizure. Further, it was stated that in response to the summons issued to the accused under Section 67 of the NDPS Act (PW11/C), the accused appeared and tendered his voluntary statement (PW11/D). He disclosed that the owner of a stand at Jalandhar used to send the vehicle on hire to one Bittoo. On 6th October 2007, Bittoo called the Respondent at around 1.00 p.m. at BMC Chowk, Jalandhar and had given him the VIP suit case in question and Rs. 2 lakhs and asked him to go to Delhi and deliver it near the Radisson Hotel. The accused was promised to be paid Rs. 6,000/- as charges for the delivery and Rs. 500 for the payment of toll. From the sum of Rs. 2 lakhs, he spent Rs.\n 2000/- on diesel. However, the Respondent did not give the DRI Officers any contact number or address of Bittoo.\n 6. In the impugned judgment after discussing the entire prosecution evidence, the learned trial court has come to the following conclusions: i. Section 50 of the NDPS Act was contravened in as much as the notice issued under that provision, Ex. PW11/B, to the accused at the spot appeared to be a fake document, created and manufactured after the alleged time of interception.\n ii. Sections 41 and 42 of the NDPS Act were not complied with since the Investigating Officer (IO) (PW11) did not possess a valid authorisation to effect the seizure. The authorisation was given by PW2 Sanjay Bansal in favour of PW9 Shri N.D. Azad who in turn authorised Shri Devender Singh (PW7). However, PW7 Devender Singh was neither the seizing officer nor a member of the raiding team of DRI. The seizure of this case was effected by PW11 Shri K. Shashi Bhushan in whose favour there was no authorization.\n Merely because PW9 was himself a member of the raiding party, it would not obviate the need for a valid authorisation in favour of PW11 to carry out the seizure.\n iii. Section 43 of the NDPS Act would not apply since the seizure was effected not by way of chance recovery but on the basis of specific prior information.\n iv. The summons issued to the Respondent under Section 67 of NDPS Act appeared to be a document prepared and manipulated subsequent to the search and seizure from the accused. While the retraction application of the Respondent was in Punjabi, his statement was in Hindi of poor quality and this raised further doubts as to its genuineness.\n v. The failure to associate public witnesses in the search and seizure raised sufficient doubts as to their genuineness; there were also doubts regarding the site plan; the issuance of the seal of DRI by PW10 in favour of PW11 and the very constitution of the raiding team.\n vi. The failure to produce the necessary certification regarding the mobile phone recovered from the Respondent also contributed to the weakening of the prosecution case against the Respondent.\n vii. The accused could not be found guilty under Sections 27 and 27 A of the NDPS Act merely because of the recovery of cash of Rs. 1.98 lakhs.\n 7. Mr. Satish Aggarwala, Senior Standing Counsel for DRI submitted that since the recovery was made from the vehicle there was no need for issuance of notice under Section 50 of the NDPS Act and, therefore, the finding of the learned trial court in that behalf was erroneous.\n 8. This Court is unable to agree with the above submissions. In the present case a personal search was also made of the body of the accused. A notice under Section 50 NDPS Act had therefore to be mandatorily issued.\n 9. What is however, disconcerting is that the details recorded in this notice were contrary to what was deposed by the prosecution witness, as to what transpired on 6th October 2007. The notice under Section 50 (Ex. PW11/B) mentions the time of occurrence as around “11.30 hrs. today” which was 6th October 2007. In the absence of any indication that it was ‘p.m.’ or ‘a.m.’ it could well be taken to be ‘a.m’. Even if it was taken to be p.m., it contradicted the case of the prosecution that the accused was apprehended at around 10.30 p.m. The second factor pointed out is that a typed notice could not possibly have been served at the time and place of apprehension of the accused. There was nothing to show that the raiding party took any computer with them from which a typed notice could have been prepared at the spot.\n These factors indicate that the notice Ex. PW11/B was a document prepared subsequently. There is no satisfactory explanation for the above glaring discrepancies concerning the notice issued to the accused under Section 50 of the NDPS Act.\n 10. As regard the non-compliance with provisions of Sections 41 and 42 of the NDPS Act, the submission of Mr. Aggarwala is that since the seizure was effected from a vehicle in transit in a public place, Section 43 of the Act that would at best apply and not Sections 41 and 42. As pointed out by the learned trial court, since the interception took place upon receipt of specific intelligence and not by way of chance recovery and by assembling a team of officers, it was a mandatory requirement to comply with Sections 41 and 42 of the NDPS Act. The reliance placed in this regard by Mr. Aggarwala on the decisions in Ramesh Kumar Rajput v. State 11 (2008) DLT (Crl) 828 and Directorate of Revenue Intelligence v. Mohammad Nisar Holia (2008) 2 SCC 370 is to no avail since both the decisions are distinguishable on facts.\n In any event, in the latter case a distinction was drawn between recovery from a public place on receipt of specific information in advance and a recovery by chance. The rigours of the law might not apply. In the present case, however, the recovery from the vehicle on a public highway was not as a matter of pure chance but on specific advance information and therefore the requirements of Sections 41 and 42 of the NDPS Act had to be complied with.\n 11. Further the mere fact that PW9 went along with the raiding party did not mean that he was not required to authorise the officer who in fact effected the seizure. The seizure in the case was effected by PW11 who was required to be specifically authorised to do so. The fact of the matter was that there was no specific authorisation in favour of PW11.\n 12. As regards non-compliance with Section 67 of the NDPS Act, Mr.\n Aggarwala submitted that it was possible for the DRI to have served upon the accused summons on 6th October 2007 itself requiring him to appear before the DRI at 7.00 a.m. on 7th October 2007 for the purpose of recording his statement.\n 13. The above submission overlooks the glaring inconsistencies pointed out by the learned trial court as regards the summons, Ex. PW11/C. Although it was dated 6th October 2007, the fact of the matter is that the panchnama proceedings concluded at 10.00 a.m. only on 7th October 2007. The question of accused appearing at 7.00 a.m. on 7th October 2007, therefore, simply did not arise. The finding of the trial court that the said summons could never have been served on the accused on 6th October 2007 and that the said document was possibly prepared subsequently cannot be faulted.\n 14. The careful examination of the record also bears out that the other findings of the learned trial court in the impugned judgment are detailed and reasoned.\n 15. The Court is unable to find any valid ground for granting leave to appeal against the impugned judgment. Accordingly, the petition is dismissed with no order as to costs.\n 16. The trial Court record be sent back forthwith.\n S. MURALIDHAR, J.\nJANUARY 23, 2014 ‘vn’ "
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"text": " IN THE HIGH COURT OF KARNATAKA"
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"text": "DHARWAD BENCH\n\n DATED THIS THE 8TH DAY OF APRIL, 2014"
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"text": "\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR\n\n W.P.Nos.104395-399/2014 &\n 104432-433/2014 (IT)\n\nBETWEEN\n\nSHREE AASHRAYA SOUHARD ..... PETITIONER\nCREDIT SOCIETY LTD\nHAVING ITS H.O. AT GURUPRASAD BUILDING,\n760, KALMATH ROAD, BELGAUM AND\nONE OF ITS BRANCHES AT 107 A & B,\n1ST FLOOR, ARJUN SANKUL,"
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"text": "\nDANE GALLI, SHAHAPUR, BELGAUM\nHEREIN R/BY ITS MANAGER\n\nMR VINAYAK GOPAL ASUKAR\n\n(BY SRI C.V.ANGADI, ADV.)\n\nAND\n\n1. ASSISTANT COMMISSIONER OF INCOME TAX\n CENTRAL CIRCLE -1\n SARAF COLONY, SHRADDHA BUILDING,\n KHANAPUR ROAD, TILAKWADI,\n BELGAUM\n\n2."
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"text": "THE ASSISTANT DIRECTOR OF INCOME TAX (INV)\n\n 4TH FLOOR, LAXMI COMPLEX,\n\n SADASHIVNAGAR, BELGAUM ..... RESPONDENTS"
}
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"text": "(BY SRI Y.V.RAVIRAJ, ADV.)\n\n\n "
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"text": "THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &\n227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE\nGARNISHEE ORDERS ISSUED BY THE RESPONDENT NO.1 UNDER SEC.226(3) (X) OF THE IT ACT FOR THE ASSESSMENT YEARS 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A), FOR THE ASSESSMENT YEAR 2012-13 DTD.10.03.2014 (ANNEXURE-A1), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A2), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A3), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A4)."
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"start": 1472,
"text": "THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER"
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"end": 1851,
"labels": [
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],
"start": 1574,
"text": "On account of search proceedings conducted against one Sri Ramesh Motilal Chindak and family members in exercise of powers under Section 132 of the Income Tax Act, 1961, (for short `the Act') block assessment came to be made and assessment orders came to be passed accordingly."
}
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"labels": [
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],
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"text": "On tax amount being quantified, demand has been raised against the assessee."
}
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{
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"labels": [
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"text": " During the course of assessment proceedings, it was noticed by the Department that family members of the assessee had floated a Co- operative Society known and called as Shivaganga Multi- purpose Co-operative Society Limited and the assessees had invested their undeclared income in the said Co- operative Society which inturn had invested the amounts in petitioner- Shree Aashraya Souhard Credit Society Ltd., and as such Garnishee notice under Section 226 (3) came to be issued by the Department to the petitioner-Society on 12.02.2014 vide Annexure-G1.\nSame was not replied by the petitioner."
}
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{
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"to_name": "text",
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"end": 2933,
"labels": [
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],
"start": 2526,
"text": "Hence, one more notice came to be issued on 28.02.2014 Annexure-H calling upon petitioner-Society to show cause as to why it should not be treated as an assessee in default as per Section 226 (3) (x) of the Act and as to why further proceedings should not be initiated for realisation of the amount as if it was an arrears of tax due from the petitioner-Society itself by treating it as assessee in default."
}
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"value": {
"end": 3143,
"labels": [
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],
"start": 2934,
"text": "Said notice came to be replied by the petitioner by reply dated 01.03.2014 which was communicated to the respondent by registered post acknowledgment due and it was duly served on the respondent on 10.03.2014."
}
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{
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"value": {
"end": 3403,
"labels": [
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],
"start": 3144,
"text": "However, by the time reply could be received, respondent had already proceeded to pass an order under Section 226 (3) (x) by treating petitioner as a deemed defaulter for not complying with the demand made under notice issued under Section 226 (3) of the Act."
}
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"labels": [
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],
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"text": "Accordingly, Garnishee notices came to be issued as per Annexures-A to A4 and demand notices was raised as per Annexures-A-5 to A-9."
}
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"labels": [
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],
"start": 3536,
"text": "\nImmediately, thereafter, petitioner has submitted a representation on 20.03.2014 to respondent requesting the respondent not to treat petitioner-Society as a deemed defaulter and undertaking to pay the amounts due to its depositors (assessees) in respect of which it has received the Garnishee notices immediately after maturity of deposits or on the dates when fixed deposits become due and payable to them and as such, petitioner-Society requested the respondent to treat said representation as an application for rectification of the order passed against it by respondent whereunder petitioners had been held as assessee in default."
}
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"end": 4226,
"labels": [
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"text": "Said representation was not considered by respondent."
}
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"end": 4379,
"labels": [
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],
"start": 4227,
"text": "A communication has been sent to the petitioner on 24.03.2014 Annexure-K calling upon petitioner to comply with the Garnishee notices Annexures-A to A4."
}
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"end": 4421,
"labels": [
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],
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"text": "\nAs such, petitioner is before this Court."
}
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"value": {
"end": 4956,
"labels": [
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],
"start": 4423,
"text": "2. The grievance of the petitioner as urged by Sri C.V.Angadi, learned counsel appearing for the petitioner-Society in these writ petitions is Fixed Deposits (for short FDRs) in respect of which Garnishee notices have been issued is yet to mature or they have not become due and premature payment would not arise and it is not liable to pay the proceeds of the fixed deposit before the maturity period and as such, petitioner-Society cannot be treated as a creditor of the assessee to enable the Department to issue Garnishee notice."
}
},
{
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"id": "396178290e464dc9b8f2a04237263d81",
"to_name": "text",
"type": "labels",
"value": {
"end": 5142,
"labels": [
"ARG_PETITIONER"
],
"start": 4957,
"text": "In support of his submission, he has relied upon the judgment of the Hon'ble Apex Court in the case of UNIT TRUST OF INDIA VS. B.M.MALANI AND OTHERS reported in 2007 (212) CTR 425 (SC)."
}
},
{
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"to_name": "text",
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"value": {
"end": 6549,
"labels": [
"ARG_RESPONDENT"
],
"start": 5142,
"text": "\n 3. Per contra, Sri Raviraj, learned counsel appearing for the respondent-Department would contend that when undisputedly the Department has concluded assessment proceedings against the assessees, Tax Recovery Officer would get jurisdiction to recover tax demanded and in the instant case, the Assessing Officer having found that assessees' undisclosed income had been invested in Shivaganga Multi-purpose Co-operative Society which in turn had invested these amounts in Aashraya Souhard Credit Society Ltd., namely the petitioner-Society, Recovery Officer was well within his bounds to recover the tax due from assessee by issuance of notice under Section 226 (3) inasmuch as depositor or the assessee would be entitled to seek for premature withdrawal of fixed deposits and on account of Assessing Officer or the Tax Recovery Officer stepping into the shoes of the assessee, it cannot be contended that Assessing Officer will have to wait till maturity of the fixed deposits and thereafter invoke provision of Section 226 (3) since their fixed deposits had already been attached by the Department by issuance of prohibitory orders at the time of conducting search proceedings under Section 132 against the petitioner- Society and as such Tax Recovery Officer is well within his bounds to recover the amounts due to the assessee from Society by treating the petitioner-Society as an assessee in defaulter."
}
},
{
"from_name": "label",
"id": "53cf688819d94cd6956645b00cdf45cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 6765,
"labels": [
"ARG_RESPONDENT"
],
"start": 6550,
"text": "In support of his submission, he has relied upon the judgment of a co-ordinate bench of this Court in the case of VYSYA BANK LTD., VS.\nJOINT COMMISSIONER OF INCOME TAX AND ANOTHER reported in 2000 (241) ITR 178.\n 4."
}
},
{
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"id": "4ad2a205f67d48fb89e6e8859c35ce90",
"to_name": "text",
"type": "labels",
"value": {
"end": 7248,
"labels": [
"STA"
],
"start": 6766,
"text": "Having heard the learned advocates and on perusal of case papers, I am of the considered view that it would be necessary to extract relevant provision of Section 226 of I.T. Act for better appreciation of contention raised by learned advocates and they read as under: Section 222.Other modes of recovery- (1) Where no certificate has been drawn up under section 222, the Assessing Officer may recover the tax by any one or more of the modes provided in this section.\n (2) Xxx"
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 7913,
"labels": [
"STA"
],
"start": 7249,
"text": "xxx (3) (i) the Assessing Officer or Tax Recovery Officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay the Assessing Officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount."
}
},
{
"from_name": "label",
"id": "dbabcf70fed74cd381d7ec04b41b273e",
"to_name": "text",
"type": "labels",
"value": {
"end": 8640,
"labels": [
"STA"
],
"start": 7913,
"text": "\nvi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on accoutn of the assessee, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Assessing officer or Tax Recovery Officer to the extent of his own liability to the assessee on the date of the notice, or to the extent of the assessee's liability for any sum due under this Act, whichever is less."
}
},
{
"from_name": "label",
"id": "590208768b1440beb68ceb9a03d62868",
"to_name": "text",
"type": "labels",
"value": {
"end": 9211,
"labels": [
"STA"
],
"start": 8640,
"text": "\nx) if the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Assessing Officer or Tax Recovery Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under section 222."
}
},
{
"from_name": "label",
"id": "79c0d4d0a26042e2a44464064a6d73fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9319,
"labels": [
"STA"
],
"start": 9211,
"text": "\n Sub section (3) of Section 226 of the Act provides for the mode of recovery by way of attachment of debts."
}
},
{
"from_name": "label",
"id": "1635e6fd17ab4ef5a41d112551b922d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9570,
"labels": [
"ANALYSIS"
],
"start": 9320,
"text": "It authorises the Assessing Officer or Tax Recovery Officer to issue notice requiring a debtor to pay to the Department so much of money due from him to the assessee as is sufficient to pay the amount due by the assessee in respect of arrears of tax."
}
},
{
"from_name": "label",
"id": "b2270220e485463dab815159d379a46a",
"to_name": "text",
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"value": {
"end": 9658,
"labels": [
"ANALYSIS"
],
"start": 9571,
"text": "This mode of recovery can be resorted in respect of arrears of tax due by the assessee."
}
},
{
"from_name": "label",
"id": "0d92bfd9f8274cbe8c46eb2db0ba0b19",
"to_name": "text",
"type": "labels",
"value": {
"end": 9833,
"labels": [
"ANALYSIS"
],
"start": 9659,
"text": "Before any notice could be issued under 226 (3), it is necessary there should be an order under Section 201 of the Act against the assessee which requires him to pay the tax."
}
},
{
"from_name": "label",
"id": "0f350bcc600f40fb910d3f2352899de3",
"to_name": "text",
"type": "labels",
"value": {
"end": 9927,
"labels": [
"ANALYSIS"
],
"start": 9834,
"text": "It is also necessary that the order should quantify amount of tax to be paid by the assessee."
}
},
{
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"id": "ca8c444556d947408f7a54339125300c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10163,
"labels": [
"ANALYSIS"
],
"start": 9928,
"text": "The basis for a notice to be issued under Section 226 (3) is that assessee should be in arrears of tax unless there is an order of assessment against the assessee and a notice of demand, assessee cannot be said to have any tax arrears."
}
},
{
"from_name": "label",
"id": "14dc7a5f02b04549aa6b8dabb9b9b108",
"to_name": "text",
"type": "labels",
"value": {
"end": 10405,
"labels": [
"ANALYSIS"
],
"start": 10164,
"text": "The records in the instant case would clearly indicate that after issuing demand notice under Section 156 of the Act to the assessee for the block period 2006-2007 to 2012-13, assessment orders came to be passed on 31.01.2014 and 12.02.2014."
}
},
{
"from_name": "label",
"id": "3a4d2274b1f843ec9699b98702148234",
"to_name": "text",
"type": "labels",
"value": {
"end": 10797,
"labels": [
"ANALYSIS"
],
"start": 10406,
"text": "Undisputedly, during the course of assessment proceedings, it has been concluded that amounts invested in Shivaganga Multi-purpose Co- operative Society is the undisclosed income of the assessees and said amount invested by the assessees in Shivaganga Multi-purpose Co-operative Society has been invested by the said Society in Aashraya Souhard Credit Society Ltd., namely petitioner herein."
}
},
{
"from_name": "label",
"id": "d29475fee02f4819b42206b8b60cf6a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 10901,
"labels": [
"ANALYSIS"
],
"start": 10798,
"text": "As such, notice under Section 226 (3) calling upon the petitioner to pay said amount came to be issued."
}
},
{
"from_name": "label",
"id": "5ad334c99ff04f15876047b9dfbd57ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 11361,
"labels": [
"ANALYSIS"
],
"start": 10902,
"text": "It is not in dispute that an assessment order has been passed against the assessee and the said assessees having deposited the amount in Shivaganga Multi-purpose Co- operative Society and said Society in turn having invested these amounts in petitioner-Society by way of fixed deposit under Fixed Deposit Receipts (FDRs) which would mature as per the due dates mentioned in the FDRs and also the fact that FDR's having been attached during search proceedings."
}
},
{
"from_name": "label",
"id": "947e310df1fe4bf0aef6dfdbc4f58163",
"to_name": "text",
"type": "labels",
"value": {
"end": 11577,
"labels": [
"ANALYSIS"
],
"start": 11361,
"text": "\n 5. Records would indicate that search proceedings under Section 132 was conducted on 20.09.2011 in the premises of Shri Ramesh Motilal Chindak and his family members as also the business premises belonging to them."
}
},
{
"from_name": "label",
"id": "e010e7768b0541e292062cf20a68f4d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12054,
"labels": [
"ANALYSIS"
],
"start": 11578,
"text": "During the search proceedings, an order of prohibition came to be passed by the Authorised Officer in exercise of power under Section 132(3) of the Income Tax Act, directing petitioner herein not to remove, part with or otherwise deal with articles like Bank Accounts, SB, CC, FD, TD etc., and the Bank Lockers held in the names of assessees and all types of lockers and accounts held in the name of M/s. Shivaganga Multipurpose Co-operative Society Limited, Shahapur, Belgaum"
}
},
{
"from_name": "label",
"id": "1c5955d9748a4f5388f61ad03285c654",
"to_name": "text",
"type": "labels",
"value": {
"end": 12151,
"labels": [
"ANALYSIS"
],
"start": 12054,
"text": ". Pursuant to search proceedings, block assessment was conducted for the year 2006-07 to 2012-13."
}
},
{
"from_name": "label",
"id": "44f36c83aff24f229e40a45eeb57d540",
"to_name": "text",
"type": "labels",
"value": {
"end": 12524,
"labels": [
"ANALYSIS"
],
"start": 12152,
"text": "In respect of asseessees and in respect of M/s. Shivaganga Multipurpose Co-operative Society Limited, Shahapur, Belgaum for the assessment year 2012-13 pursuant to which demand was raised by issuing notice under Section 226(3) to the petitioner- Society herein by calling upon petitioner to pay the amounts held by it on behalf of assessee and the amounts invested by M/s."
}
},
{
"from_name": "label",
"id": "36dc12ba9c874447b97845332c4f90f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12597,
"labels": [
"ANALYSIS"
],
"start": 12525,
"text": "Shivaganga Multipurpose Co- operative Society Limited, Shahapur, Belgaum"
}
},
{
"from_name": "label",
"id": "b43b19f7ef25460cb2e642888d5c6da3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12688,
"labels": [
"ANALYSIS"
],
"start": 12598,
"text": "since it was the undisclosed income of Shri Ramesh Motilal Chindak and his family members."
}
},
{
"from_name": "label",
"id": "3157d3d104c74aceab9c9029b5d706c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 13109,
"labels": [
"ANALYSIS"
],
"start": 12689,
"text": "Undisputedly, no reply was submitted by the petitioner-Society to the notice issued under Article 226(3)(i), as such, an order came to be passed on 10.03.2014 by the respondents under Section 226(3)(x) of the Income Tax Act, 1961, calling upon the petitioner to pay the proceeds of fixed deposit, failing which it was notified by the Assessing Officer that petitioner Society would be treated as an assessee in default."
}
},
{
"from_name": "label",
"id": "3002ede4cefd495e91f2501049027120",
"to_name": "text",
"type": "labels",
"value": {
"end": 13187,
"labels": [
"ANALYSIS"
],
"start": 13110,
"text": "Reply was required to be submitted within three days from the date of notice."
}
},
{
"from_name": "label",
"id": "849e01a531c54861b4cc2436a13d8034",
"to_name": "text",
"type": "labels",
"value": {
"end": 13286,
"labels": [
"ANALYSIS"
],
"start": 13188,
"text": "However, it was not submitted on time and as such garnishee order came to be passed on 10.03.2014."
}
},
{
"from_name": "label",
"id": "408713e5c093425b842627b0287cf434",
"to_name": "text",
"type": "labels",
"value": {
"end": 13626,
"labels": [
"ANALYSIS"
],
"start": 13288,
"text": "6. Prior to passing of order on 10.03.2014, notice under Section 226 (3) came to be issued to the petitioner on 12.02.2014 calling upon the petitioner to pay the amount due by the petitioner to the assessees and held by it for and on account of assessee upto the amount of arrears claimed therein which was to the tune of Rs.27.89 crores."
}
},
{
"from_name": "label",
"id": "e421f10eafd747698d30afd254211d26",
"to_name": "text",
"type": "labels",
"value": {
"end": 13659,
"labels": [
"ANALYSIS"
],
"start": 13627,
"text": "The said notice was not replied."
}
},
{
"from_name": "label",
"id": "0db8ecc271e34c89abf49d2e6428f327",
"to_name": "text",
"type": "labels",
"value": {
"end": 14075,
"labels": [
"ANALYSIS"
],
"start": 13659,
"text": "\nHence, notice was issued on 28.02.2014 to the petitioner to show cause as to why it should not be treated as an assessee in default as per Section 226 (3) (x) of the Act and as to why further proceedings should not be taken against the petitioner-Society for realisation of the amounts as if, it was an arrears of tax due from the petitioner itself by resorting to the provision provided under Sections 222 and 225."
}
},
{
"from_name": "label",
"id": "9d8f8ae5b3514297ba38ed7354102d94",
"to_name": "text",
"type": "labels",
"value": {
"end": 14310,
"labels": [
"ANALYSIS"
],
"start": 14076,
"text": "Said notice came to be replied by the petitioner on 01.03.2014 admitting that Shivaganga Multi-purpose Co-operative Society Limited has deposited the amounts as specified in the said reply and it was due to be paid on different dates."
}
},
{
"from_name": "label",
"id": "975e7aa318d54b399c7049a968a74102",
"to_name": "text",
"type": "labels",
"value": {
"end": 14579,
"labels": [
"ANALYSIS"
],
"start": 14311,
"text": "It was also pleaded by the petitioner-Society that it would not be able to pay the amount at one stretch on account of liquidity crunch faced by it and also on the ground that fixed deposits are yet to mature and till such date of maturity it would not become payable."
}
},
{
"from_name": "label",
"id": "2d084896cf9c4eb2b5de315ff6d5140e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14820,
"labels": [
"ANALYSIS"
],
"start": 14580,
"text": "Petitioner-Society also assured the Department that as and when the fixed deposits would become due, the proceeds of such fixed deposits would be paid to the Department and claimed that it has noted the lien of the Department on those FD's."
}
},
{
"from_name": "label",
"id": "ef89f147aa114a7faa27dd560a291fd2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15097,
"labels": [
"ANALYSIS"
],
"start": 14821,
"text": "However, respondent-authorities proceeded to pass order under Section 226 (3) (x) of the Act by treating the petitioner as an assessee in default by order dated 10.03.2014 Annexure-A to A4 on account of reply not having been submitted by the petitioner within stipulated time."
}
},
{
"from_name": "label",
"id": "72a22e997304499d9e5c94f96e27708a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15220,
"labels": [
"ANALYSIS"
],
"start": 15097,
"text": "\nSimultaneously, notice of demand under Section 156 of the Income Tax Act also came to be issued as per Annexures-A5 to A9."
}
},
{
"from_name": "label",
"id": "e460d628099d44159c20de00ddf3c35a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15473,
"labels": [
"ANALYSIS"
],
"start": 15221,
"text": "In reply to the same, petitioner forwarded its reply on 20.03.2014 by forwarding the same under registered post acknowledgement due and copy was also delivered in the office of the 1st respondent as could be seen from the acknowledgement found therein."
}
},
{
"from_name": "label",
"id": "5d0abb2e39064db9979df06c367464e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15805,
"labels": [
"ANALYSIS"
],
"start": 15474,
"text": "Since under the said communication petitioner had requested to treat the said reply as an application for rectification of order passed under Section 226 (3) (x) and to treat the same as mistake apparent from the record, same was considered by respondent and rejected as communicated to the petitioner on 24.03.2014 Annexure-K.\n 7."
}
},
{
"from_name": "label",
"id": "f3dfd1d233974507817976e4110512ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 16487,
"labels": [
"ANALYSIS"
],
"start": 15806,
"text": "A perusal of provision to Section 226 (3) of the Act would indicate that Assessing Officer or Tax Recovery Officer is empowered to call upon any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money on account of the assessee, to pay to the Assessing Officer or the Tax Recovery Officer, as the case may be, either forthwith upon the money becoming due or being held or had or within the time specified in the notice so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of money when it is equal to or less than that of the amount demanded by the Department."
}
},
{
"from_name": "label",
"id": "7559098632c74c3da27c9c3d9966e1f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 16768,
"labels": [
"ANALYSIS"
],
"start": 16488,
"text": "When such a notice is issued, such noticee under Section 222 (3) (vi) can object to it by a statement on oath by contending: i) that the sum demanded or in part thereof due to the assessee is not held by the noticee; ii) or ii) no amount is payable by the noticee to the assessee."
}
},
{
"from_name": "label",
"id": "df7158930f064b47980c0e41b509236f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16988,
"labels": [
"ANALYSIS"
],
"start": 16770,
"text": "In such an event, Assessing Officer or the Recovery Officer is required to examine the claim and if the objection or statement is found to be tenable can revoke, amend the notice issued to such noticee i.e., Garnishee."
}
},
{
"from_name": "label",
"id": "59d14b4429bf4b8e897084008412a612",
"to_name": "text",
"type": "labels",
"value": {
"end": 17264,
"labels": [
"ANALYSIS"
],
"start": 16989,
"text": "However, if it is found that statement made by the Garnishee is untrue, then Assessing Officer or the Tax Recovery Officer, as the case may be, would be empowered to proceed against such Garnishee by treating the Garnishee as an assessee in default under Section 226 (3) (x)."
}
},
{
"from_name": "label",
"id": "078ae3e9e2bc4f7682dbd658ecd2d16b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17426,
"labels": [
"ANALYSIS"
],
"start": 17265,
"text": "If there is no subsisting relationship between the Garnishee and the Assessee, the Department treating such a Garnishee as an assessee in default does not arise."
}
},
{
"from_name": "label",
"id": "bd84329e92c04d1fa3495f4f23af2f21",
"to_name": "text",
"type": "labels",
"value": {
"end": 17653,
"labels": [
"ANALYSIS"
],
"start": 17427,
"text": "Thus, the words found in Section 226 (3) \"money is due or becomes due or any person who holds or may subsequently hold money\" would indicate that there should be an existing relationship between the Garnishee and the assessee."
}
},
{
"from_name": "label",
"id": "cbab7b7670544e658df2dbb51c8d6b39",
"to_name": "text",
"type": "labels",
"value": {
"end": 17835,
"labels": [
"ANALYSIS"
],
"start": 17654,
"text": "If this ingredient is found then Section 226 (3) (x) would be attracted and Assessing Officer or Tax Recovery Officer would proceed to treat the Garnishee as an assessee in default."
}
},
{
"from_name": "label",
"id": "ec0b0acdb25843a99b9d7f0274a6a798",
"to_name": "text",
"type": "labels",
"value": {
"end": 18353,
"labels": [
"ARG_PETITIONER"
],
"start": 17835,
"text": "\n 8. At this juncture, let me examine the contention raised by Mr.C.V.Angadi, namely that in the instant case, deposits held by the petitioner-Society is yet to mature and whether liability of the petitioner would arise only on maturity of the fixed deposits or even prior to it and till maturity of FD's privity of contract between the Garnishee and the assessee would not arise in the light of the judgment of Hon'ble Apex Court in the case of UNIT TRUST OF INDIA VS. B.M.MALANI AND OTHERS [2007 (212) CTR 425 (SC)]."
}
},
{
"from_name": "label",
"id": "9eea2b36bb8c4a47997b4bdb73f1e289",
"to_name": "text",
"type": "labels",
"value": {
"end": 18543,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18354,
"text": "It has to be held that principle enunciated by Their Lordships in the above judgment would not be applicable to the facts and circumstances of the present case for the following reasons: 9."
}
},
{
"from_name": "label",
"id": "1fb3d1aa2bd34614b865adb0945a59ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 18732,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18544,
"text": "In the said case, Unit Trust of India being the Garnishee was issued with a notice and pursuant to said notice money held on behalf of assessee was paid by the Garnishee to the Department."
}
},
{
"from_name": "label",
"id": "56a75e6188ba4329a990fbb80e475b10",
"to_name": "text",
"type": "labels",
"value": {
"end": 19235,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18733,
"text": "A plea was taken by the assessee stating that there was a lock-in period and money deposited by the assessee could not have been withdrawn prematurely without the consent of the depositor or the assessee since the interest benefit was being lost and said plea came to be accepted by the Apex Court, by examining the very scheme itself, it was noticed by their Lordships that scheme guaranteed that capital invested in the scheme will be protected on maturity i.e., units will not be redeemed below par."
}
},
{
"from_name": "label",
"id": "501384f6740f4310a8bfe99cc54e9f54",
"to_name": "text",
"type": "labels",
"value": {
"end": 19310,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19236,
"text": "It has been held in the said judgment by Hon'ble Apex Court as under: \"12."
}
},
{
"from_name": "label",
"id": "b84af3dc14b04213aaf635a9026da47d",
"to_name": "text",
"type": "labels",
"value": {
"end": 19403,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19311,
"text": "Whether the action on the part of the appellant to act thereupon was valid, is the question."
}
},
{
"from_name": "label",
"id": "b533d508c440461b8e90ed61a4ea9c0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19552,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19404,
"text": "The scheme, the relevant provision whereof had been noticed by us hereinbefore, goes to show that the lock-in period was for a period of five years."
}
},
{
"from_name": "label",
"id": "2cd636d96b474531b3497da24e16c7b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19660,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19552,
"text": "\n Purchase of the units, however, was allowed from 1st September, 2001 at NAV based repurchase price."
}
},
{
"from_name": "label",
"id": "e934eab767f041808951fefa25ac9076",
"to_name": "text",
"type": "labels",
"value": {
"end": 19715,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19661,
"text": "The scheme constituted a contract between the parties."
}
},
{
"from_name": "label",
"id": "10c34b29038d4025b4fe6a22487aa658",
"to_name": "text",
"type": "labels",
"value": {
"end": 19781,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19716,
"text": "The option of the purchase was to be exercised by the respondent."
}
},
{
"from_name": "label",
"id": "84f1285efb814d6db4602689609a69d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19915,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19782,
"text": "The appellant, on the basis of the said purported notice dated 8.2.2002, could not have placed itself in the shoes of the respondent."
}
},
{
"from_name": "label",
"id": "1487a0619d7f4abdb473082a267447a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 20005,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19916,
"text": "It is not in dispute that the respondent was a defaulter to the extent of Rs.157.77 lacs."
}
},
{
"from_name": "label",
"id": "b9a40acfb40c42a78f21d2d7a2a68241",
"to_name": "text",
"type": "labels",
"value": {
"end": 20049,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20006,
"text": "He had sold some of his properties in 1998."
}
},
{
"from_name": "label",
"id": "19a57b8b73de4fe3bacc11313b6f7131",
"to_name": "text",
"type": "labels",
"value": {
"end": 20135,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20050,
"text": "A portion of the sale proceeds, namely, 65 lacs had been invested with the appellant."
}
},
{
"from_name": "label",
"id": "3020697d916b4c55a055dfaa1a903d1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20194,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20136,
"text": "He had sought for exemption under Section 54AE of the Act."
}
},
{
"from_name": "label",
"id": "1205ed095dec4468b1591ceaba162193",
"to_name": "text",
"type": "labels",
"value": {
"end": 20270,
"labels": [
"ANALYSIS"
],
"start": 20194,
"text": "\nThe amount of 65 lacs was secured under the said units with the appellants."
}
},
{
"from_name": "label",
"id": "46385cc380054507b69e31006d0f7346",
"to_name": "text",
"type": "labels",
"value": {
"end": 20390,
"labels": [
"ANALYSIS"
],
"start": 20271,
"text": "It is not in dispute that an application for settlement was filed before the Settlement Commissioner by the respondent."
}
},
{
"from_name": "label",
"id": "b2fe8df6e6264074a64bb35cfd3ae8e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 20481,
"labels": [
"ANALYSIS"
],
"start": 20391,
"text": "He had deposited a sum of Rs.25 lacs when moving an application for deposit of the amount."
}
},
{
"from_name": "label",
"id": "2270b4993b81472594d01eb14d570b3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 20544,
"labels": [
"ANALYSIS"
],
"start": 20481,
"text": "\nUpto October 2000, he had already paid a sum of Rs.92.04 lacs."
}
},
{
"from_name": "label",
"id": "f66e85b20af048f3a0bc98408c66dccb",
"to_name": "text",
"type": "labels",
"value": {
"end": 20592,
"labels": [
"ANALYSIS"
],
"start": 20545,
"text": "Only a sum of Rs.48,08,000/- were due from him."
}
},
{
"from_name": "label",
"id": "9e6fcbbe21f6460ba59c62c0c7632464",
"to_name": "text",
"type": "labels",
"value": {
"end": 20832,
"labels": [
"ANALYSIS"
],
"start": 20593,
"text": "He, therefore, in his letter dated 4.2.2002 stated as under : _ \"Sale of Bonds at present would result in a loss of Rs.3 per unit which will be about 30% loss and it would be difficult to bear such loss while the taxes are pending payment."
}
},
{
"from_name": "label",
"id": "412bbc2f1446431192ff73b0f597d045",
"to_name": "text",
"type": "labels",
"value": {
"end": 21044,
"labels": [
"ANALYSIS"
],
"start": 20833,
"text": "In the event the Bonds are sought to be acquired by the Department, I shall transfer them at its face value at Rs.10/- per unit against taxes although I am voluntarily making the tax payments as per commitments."
}
},
{
"from_name": "label",
"id": "2676aa59f7844d6384fe8ff6e2dff0c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 21277,
"labels": [
"ANALYSIS"
],
"start": 21044,
"text": "\n In the above facts and circumstances, with a great constraint I had paid tax Rs.25.00 lakhs on 31.1.2002 as committed by me in my petition dated 26.10.2001 although I had sought time for above payment till the end of February 2002."
}
},
{
"from_name": "label",
"id": "15975caed7994c4090b8b2d6a7666f35",
"to_name": "text",
"type": "labels",
"value": {
"end": 21495,
"labels": [
"ANALYSIS"
],
"start": 21278,
"text": "It may also be submitted that I had sold my property for the purpose of payment of taxes and opted an additional tax burden of Rs.35.00 lakhs under the Settlement Commission Orders and Co-operated with the Department."
}
},
{
"from_name": "label",
"id": "29847aee363f46c1ae3e5743619fbed3",
"to_name": "text",
"type": "labels",
"value": {
"end": 21890,
"labels": [
"ANALYSIS"
],
"start": 21496,
"text": "In the circumstances, I request you sir to grant time for payment of balance tax till the end of May 2002 as I am given to understand after the budget is presented, the capital gains Bonds issued by Unit Trust of India are likely to be purchased by the Government at par @ Rs.10/- per Unit in which case I will not suffer loss on sale and the market rate for sale of such units will also go up."
}
},
{
"from_name": "label",
"id": "888b3416bc024e2f8044e80a2db11f94",
"to_name": "text",
"type": "labels",
"value": {
"end": 22046,
"labels": [
"ANALYSIS"
],
"start": 21891,
"text": "The department was good enough to grant time earlier for payment of tax and I have kept my commitments at all the times and accordingly paid the tax.\"\n 10."
}
},
{
"from_name": "label",
"id": "9b4f832045c344be8573d3c11adc8b80",
"to_name": "text",
"type": "labels",
"value": {
"end": 22584,
"labels": [
"ANALYSIS"
],
"start": 22047,
"text": "In conclusion, it was held by Their Lordships that Clause-(vi) of sub-section (3) of Section 226 of the Act created a legal fiction to the effect that an amount if not payable by the Garnishee to the assessee it is not required to pay any such amount or part thereof and as such it was held that the Unit Trust of India was required to act in terms and conditions of the contract and held that the respondent-assessee is entitled for restitution namely entitled to the dividend declared during the said period from the date of allotment."
}
},
{
"from_name": "label",
"id": "e703a7f8cce744bfb99de9a156afd411",
"to_name": "text",
"type": "labels",
"value": {
"end": 22746,
"labels": [
"ANALYSIS"
],
"start": 22585,
"text": "In fact, the judgment of this Court had also came up for examination before the Apex Court in the said case and dictum laid down by this Court has been approved."
}
},
{
"from_name": "label",
"id": "2aedccad32ec4d6f8666aebeb801b731",
"to_name": "text",
"type": "labels",
"value": {
"end": 22869,
"labels": [
"ANALYSIS"
],
"start": 22746,
"text": "\n 11. In the instant case, undisputedly, there is no lock- in period insofar as fixed deposit of the assessee is concerned."
}
},
{
"from_name": "label",
"id": "51c66a4ee132428196ce2496d3d0f41e",
"to_name": "text",
"type": "labels",
"value": {
"end": 23054,
"labels": [
"ANALYSIS"
],
"start": 22870,
"text": "Though the period of fixed deposit is stipulated in the fixed deposit receipts, it does not prevent the depositor namely assessee to seek for premature withdrawal of the fixed deposit."
}
},
{
"from_name": "label",
"id": "7f640694bebd4e8484ced9d7e6a13390",
"to_name": "text",
"type": "labels",
"value": {
"end": 23358,
"labels": [
"ANALYSIS"
],
"start": 23055,
"text": "Of course, he or she as the case may be has to forego the interest for the remaining period and also in view of the fact that the guidelines issued by the Reserve Bank of India enabling the depositors to withdraw the fixed deposit prematurely they can withdraw the amounts deposited by them prematurely."
}
},
{
"from_name": "label",
"id": "ff24b4534bc34b95adcc230c379089a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 23783,
"labels": [
"PRE_RELIED"
],
"start": 23359,
"text": "In this background, similar claim came to be considered by a co-ordinate bench of this Court in the case of VYSYA BANK LTD., VS. JOINT COMMISSIONER OF INCOME TAX AND ANOTHER [2000 (158) CTR (KAR) 60] wherein it has been held that jurisdiction to attach the fixed deposit by the Department and obligation of the Bank to make payment of the amount even before maturity of the fixed deposit receipts cannot be found fault with."
}
},
{
"from_name": "label",
"id": "4e460e4df56e40548e8adc0fc653e693",
"to_name": "text",
"type": "labels",
"value": {
"end": 23946,
"labels": [
"PRE_RELIED"
],
"start": 23784,
"text": "It has been held as under: \"10. Power under section 226 has been given to the Income Tax Officer to recover in the modes provided the amount which is outstanding."
}
},
{
"from_name": "label",
"id": "7391d22004f84f8ba04caec970b71e55",
"to_name": "text",
"type": "labels",
"value": {
"end": 24126,
"labels": [
"PRE_RELIED"
],
"start": 23947,
"text": "Power under section 226 could be exercised by one or more of the methods provided in the section and the certificate of the Tax Recovery Officer has been issued under section 222."
}
},
{
"from_name": "label",
"id": "6142dc1902db452291b933a30f89b32a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24632,
"labels": [
"PRE_RELIED"
],
"start": 24127,
"text": "Section 226(3) contemplated that the Income Tax Officer may require any person at any time or from time to time (1) from whom money is due, (2) or may become due to the assessee, (3) any person who holds money for an assessee, (4) or may subsequently hold money on account of an assessee, to pay to the assessing officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held)."
}
},
{
"from_name": "label",
"id": "76753e5c648b49398689f6b68115afde",
"to_name": "text",
"type": "labels",
"value": {
"end": 24854,
"labels": [
"PRE_RELIED"
],
"start": 24633,
"text": "There should be an obligation on the person on whom notice is served to pay money to the assessee i.e., the subsisting relationship of a debtor and creditor is sine qua non for the exercise of the power under the section."
}
},
{
"from_name": "label",
"id": "9ecda18fe854412c9c1adf32df1c20b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 25284,
"labels": [
"PRE_RELIED"
],
"start": 24855,
"text": "The relationship of the petitioner-bank and the assessee is that of a debtor and creditor and, therefore, the Income Tax Officer has jurisdiction to attach the amount of fixed deposit receipts irrespective of the fact that the amount is payable at a later period, as on the date of service of notice the relationship of the bank and the assessee as that of debtor and creditor cannot be denied.\n 11. Section 226(3)(iv) of the Act"
}
},
{
"from_name": "label",
"id": "de154b95421d47fd82334f1c6804b939",
"to_name": "text",
"type": "labels",
"value": {
"end": 25585,
"labels": [
"PRE_RELIED"
],
"start": 25285,
"text": "provides that every person to whom a notice is issued is bound to comply with such notice and with reference to the banking company it is provided that it is not necessary for any deposit receipt to be produced before payment is made notwithstanding any rule, practice or requirement to the contrary."
}
},
{
"from_name": "label",
"id": "ead83070e067413589dd4e589ab93ee5",
"to_name": "text",
"type": "labels",
"value": {
"end": 25758,
"labels": [
"PRE_RELIED"
],
"start": 25585,
"text": "\n 11.1. In view of the judgment of the Apex Court in Budda Pictures case [1967 (65) ITR 620], there has to be subsisting relationship between the garnishee and the assessee."
}
},
{
"from_name": "label",
"id": "b1a8ace01e224831809efe79bfead285",
"to_name": "text",
"type": "labels",
"value": {
"end": 25904,
"labels": [
"ANALYSIS"
],
"start": 25758,
"text": "\nThe words 'money is due or becomes due or any person who holds or may subsequently hold money' were interpreted for that subsisting relationship."
}
},
{
"from_name": "label",
"id": "89526691f28247809c75b475c7d0c05b",
"to_name": "text",
"type": "labels",
"value": {
"end": 25978,
"labels": [
"ANALYSIS"
],
"start": 25905,
"text": "The relationship of banker and the assessee in default is not in dispute."
}
},
{
"from_name": "label",
"id": "7202e75d18db42f189df49f443190520",
"to_name": "text",
"type": "labels",
"value": {
"end": 26022,
"labels": [
"ANALYSIS"
],
"start": 25979,
"text": "The bank is holding money for the assessee."
}
},
{
"from_name": "label",
"id": "b7cbca61dfee45e9b52bc9385098f62c",
"to_name": "text",
"type": "labels",
"value": {
"end": 26106,
"labels": [
"ANALYSIS"
],
"start": 26023,
"text": "The dispute is only that according to the petitioner the amount has not become due."
}
},
{
"from_name": "label",
"id": "e2632f26c4674001bfe18bbaa53e2d71",
"to_name": "text",
"type": "labels",
"value": {
"end": 26252,
"labels": [
"ANALYSIS"
],
"start": 26107,
"text": "In the case of a tenant and landlord that subsisting relationship exists because of the tenancy agreement and the amounts become due every month."
}
},
{
"from_name": "label",
"id": "d072c281e8824bfe8d94f4a258cd7f60",
"to_name": "text",
"type": "labels",
"value": {
"end": 26401,
"labels": [
"ANALYSIS"
],
"start": 26253,
"text": "In such a situation the power under section 226(3) of the Act cannot be exercised to demand the rent for the period for which it has not become due."
}
},
{
"from_name": "label",
"id": "99c7a8e943bf458196eefca5a79c1c12",
"to_name": "text",
"type": "labels",
"value": {
"end": 26540,
"labels": [
"ANALYSIS"
],
"start": 26402,
"text": "In order to find out as to whether the amount has become due, it has to be seen whether there is a subsisting claim existing on that date."
}
},
{
"from_name": "label",
"id": "5f53df7d6909466ebacd40869a7fedee",
"to_name": "text",
"type": "labels",
"value": {
"end": 26719,
"labels": [
"ANALYSIS"
],
"start": 26541,
"text": "If the deposit receipt matures even at a subsequent date and the assessee wants to get the fixed deposit encashed earlier than the date of maturity, it is considered permissible."
}
},
{
"from_name": "label",
"id": "c432978ac4ff4c3fa595149574bad55f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26996,
"labels": [
"ANALYSIS"
],
"start": 26719,
"text": "\nThough the contract is entered into by the assessee while obtaining the deposit receipt for receiving the money at a later date yet for the sake of reputation of the bank or for the facility of the assessee or otherwise, payment is made before maturity of the deposit receipt."
}
},
{
"from_name": "label",
"id": "566ed35e9d1c4a40acf80db3fd0ed177",
"to_name": "text",
"type": "labels",
"value": {
"end": 27094,
"labels": [
"ANALYSIS"
],
"start": 26997,
"text": "The department steps in the shoes of the assessee and can claim payment even before its maturity."
}
},
{
"from_name": "label",
"id": "357dc709293d434ea62b29215ee62d43",
"to_name": "text",
"type": "labels",
"value": {
"end": 27200,
"labels": [
"ANALYSIS"
],
"start": 27095,
"text": "Even the production of such receipt, deposit receipt is not required in terms of section 226(3)(iv).\n 12."
}
},
{
"from_name": "label",
"id": "39a1a3cc03d643cab89a71c5d8dbab05",
"to_name": "text",
"type": "labels",
"value": {
"end": 27410,
"labels": [
"ANALYSIS"
],
"start": 27201,
"text": "In these circumstances, the respondent has the jurisdiction to attach the fixed deposit and the bank is under obligation to make the payment of the amount even before the maturity of the fixed deposit receipt."
}
},
{
"from_name": "label",
"id": "047d8822d7e149b8ae6ad5047207f31a",
"to_name": "text",
"type": "labels",
"value": {
"end": 27705,
"labels": [
"ANALYSIS"
],
"start": 27411,
"text": "It may be observed that according to the instructions which are issued by the Reserve Bank from time to time if a depositor wants to encash the fixed deposit receipt before its maturity, the bank is bound to refund the amount with lesser interest as is permissible looking to the time involved."
}
},
{
"from_name": "label",
"id": "59f8deb1ea7041a58f7ff231ad848083",
"to_name": "text",
"type": "labels",
"value": {
"end": 28030,
"labels": [
"ANALYSIS"
],
"start": 27706,
"text": "The position of contracts entered into by an assessee with other companies or partners, where there is no such express or implicit contract for payment before the maturity date, the position stands on a different footing since according to the banking norms, the fixed deposit can be encashed before its maturity date.\"\n 12."
}
},
{
"from_name": "label",
"id": "6fe13d3aa6af4ec59888df08c0a688c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28685,
"labels": [
"RATIO"
],
"start": 28031,
"text": "Keeping these principles in mind when the facts on hand are examined, it would clearly indicate that undisputedly the petitioner did not file objection to the Garnishee notice issued under Section 226 (3)(1) by raising an objection as required under Section 226 (3) (vi) and for this precise reason and also for the reason that the petitioner-Bank did not dispute the relationship between it and the assessees including Shivaganga Multi-purpose Co-operative Society Limited it enabled the Department to arrive at a conclusion that petitioner is to be treated as an assessee in default and accordingly an order came to be passed under Section 226 (3) (x)."
}
},
{
"from_name": "label",
"id": "aee22643e4e643b1aeb5d596459c857e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29029,
"labels": [
"RATIO"
],
"start": 28686,
"text": "In view of the fact that petitioner does not dispute about deposits held by it on behalf of the assessee and the same being payable by the petitioner to the assessee and non-compliance of the demand notice raised by the Department under Section 226 (3), respondents have rightly held that petitioner is to be treated as an assessee in default."
}
},
{
"from_name": "label",
"id": "d492a23417804c829dbed71ffde08a98",
"to_name": "text",
"type": "labels",
"value": {
"end": 29157,
"labels": [
"RATIO"
],
"start": 29030,
"text": "There is no infirmity in the order passed by the respondents calling for exercise of extra-ordinary jurisdiction by this Court."
}
},
{
"from_name": "label",
"id": "d0d10bf1377a48c9b3e930bfc81fc2f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 29201,
"labels": [
"RPC"
],
"start": 29157,
"text": "\nHence, writ petitions are hereby dismissed."
}
},
{
"from_name": "label",
"id": "d7862ab0b5b54180aa385d1912d1b0d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 29507,
"labels": [
"RPC"
],
"start": 29201,
"text": "\n It is needless to state that whatever the amounts that are held by the petitioner either on behalf of the assesee or on behalf of M/s Shivaganga Multi-purpose Co-operative Society Limited ultimately payable to assessees would be the amounts payable by the petitioner-Society to the respondent-Department."
}
},
{
"from_name": "label",
"id": "b2079998bd3e4d5aa2071be734c564b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 29529,
"labels": [
"NONE"
],
"start": 29509,
"text": "Ordered accordingly."
}
},
{
"from_name": "label",
"id": "4877f48981e442a4bca5eaaeefcd0745",
"to_name": "text",
"type": "labels",
"value": {
"end": 29555,
"labels": [
"NONE"
],
"start": 29529,
"text": "\n (sd/-) JUDGE Jm/Rsh/Jm/-"
}
}
]
}
] | 1,780 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n DATED THIS THE 8TH DAY OF APRIL, 2014\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR\n\n W.P.Nos.104395-399/2014 &\n 104432-433/2014 (IT)\n\nBETWEEN\n\nSHREE AASHRAYA SOUHARD ..... PETITIONER\nCREDIT SOCIETY LTD\nHAVING ITS H.O. AT GURUPRASAD BUILDING,\n760, KALMATH ROAD, BELGAUM AND\nONE OF ITS BRANCHES AT 107 A & B,\n1ST FLOOR, ARJUN SANKUL,\nDANE GALLI, SHAHAPUR, BELGAUM\nHEREIN R/BY ITS MANAGER\n\nMR VINAYAK GOPAL ASUKAR\n\n(BY SRI C.V.ANGADI, ADV.)\n\nAND\n\n1. ASSISTANT COMMISSIONER OF INCOME TAX\n CENTRAL CIRCLE -1\n SARAF COLONY, SHRADDHA BUILDING,\n KHANAPUR ROAD, TILAKWADI,\n BELGAUM\n\n2. THE ASSISTANT DIRECTOR OF INCOME TAX (INV)\n\n 4TH FLOOR, LAXMI COMPLEX,\n\n SADASHIVNAGAR, BELGAUM ..... RESPONDENTS\n\n(BY SRI Y.V.RAVIRAJ, ADV.)\n\n\n THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &\n227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE\nGARNISHEE ORDERS ISSUED BY THE RESPONDENT NO.1 UNDER SEC.226(3) (X) OF THE IT ACT FOR THE ASSESSMENT YEARS 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A), FOR THE ASSESSMENT YEAR 2012-13 DTD.10.03.2014 (ANNEXURE-A1), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A2), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A3), FOR THE ASSESSMENT YEAR 2006-07 TO 2012-13 DTD.10.03.2014 (ANNEXURE-A4).\n THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER On account of search proceedings conducted against one Sri Ramesh Motilal Chindak and family members in exercise of powers under Section 132 of the Income Tax Act, 1961, (for short `the Act') block assessment came to be made and assessment orders came to be passed accordingly. On tax amount being quantified, demand has been raised against the assessee. During the course of assessment proceedings, it was noticed by the Department that family members of the assessee had floated a Co- operative Society known and called as Shivaganga Multi- purpose Co-operative Society Limited and the assessees had invested their undeclared income in the said Co- operative Society which inturn had invested the amounts in petitioner- Shree Aashraya Souhard Credit Society Ltd., and as such Garnishee notice under Section 226 (3) came to be issued by the Department to the petitioner-Society on 12.02.2014 vide Annexure-G1.\nSame was not replied by the petitioner. Hence, one more notice came to be issued on 28.02.2014 Annexure-H calling upon petitioner-Society to show cause as to why it should not be treated as an assessee in default as per Section 226 (3) (x) of the Act and as to why further proceedings should not be initiated for realisation of the amount as if it was an arrears of tax due from the petitioner-Society itself by treating it as assessee in default. Said notice came to be replied by the petitioner by reply dated 01.03.2014 which was communicated to the respondent by registered post acknowledgment due and it was duly served on the respondent on 10.03.2014. However, by the time reply could be received, respondent had already proceeded to pass an order under Section 226 (3) (x) by treating petitioner as a deemed defaulter for not complying with the demand made under notice issued under Section 226 (3) of the Act. Accordingly, Garnishee notices came to be issued as per Annexures-A to A4 and demand notices was raised as per Annexures-A-5 to A-9.\nImmediately, thereafter, petitioner has submitted a representation on 20.03.2014 to respondent requesting the respondent not to treat petitioner-Society as a deemed defaulter and undertaking to pay the amounts due to its depositors (assessees) in respect of which it has received the Garnishee notices immediately after maturity of deposits or on the dates when fixed deposits become due and payable to them and as such, petitioner-Society requested the respondent to treat said representation as an application for rectification of the order passed against it by respondent whereunder petitioners had been held as assessee in default. Said representation was not considered by respondent. A communication has been sent to the petitioner on 24.03.2014 Annexure-K calling upon petitioner to comply with the Garnishee notices Annexures-A to A4.\nAs such, petitioner is before this Court.\n 2. The grievance of the petitioner as urged by Sri C.V.Angadi, learned counsel appearing for the petitioner-Society in these writ petitions is Fixed Deposits (for short FDRs) in respect of which Garnishee notices have been issued is yet to mature or they have not become due and premature payment would not arise and it is not liable to pay the proceeds of the fixed deposit before the maturity period and as such, petitioner-Society cannot be treated as a creditor of the assessee to enable the Department to issue Garnishee notice. In support of his submission, he has relied upon the judgment of the Hon'ble Apex Court in the case of UNIT TRUST OF INDIA VS. B.M.MALANI AND OTHERS reported in 2007 (212) CTR 425 (SC).\n 3. Per contra, Sri Raviraj, learned counsel appearing for the respondent-Department would contend that when undisputedly the Department has concluded assessment proceedings against the assessees, Tax Recovery Officer would get jurisdiction to recover tax demanded and in the instant case, the Assessing Officer having found that assessees' undisclosed income had been invested in Shivaganga Multi-purpose Co-operative Society which in turn had invested these amounts in Aashraya Souhard Credit Society Ltd., namely the petitioner-Society, Recovery Officer was well within his bounds to recover the tax due from assessee by issuance of notice under Section 226 (3) inasmuch as depositor or the assessee would be entitled to seek for premature withdrawal of fixed deposits and on account of Assessing Officer or the Tax Recovery Officer stepping into the shoes of the assessee, it cannot be contended that Assessing Officer will have to wait till maturity of the fixed deposits and thereafter invoke provision of Section 226 (3) since their fixed deposits had already been attached by the Department by issuance of prohibitory orders at the time of conducting search proceedings under Section 132 against the petitioner- Society and as such Tax Recovery Officer is well within his bounds to recover the amounts due to the assessee from Society by treating the petitioner-Society as an assessee in defaulter. In support of his submission, he has relied upon the judgment of a co-ordinate bench of this Court in the case of VYSYA BANK LTD., VS.\nJOINT COMMISSIONER OF INCOME TAX AND ANOTHER reported in 2000 (241) ITR 178.\n 4. Having heard the learned advocates and on perusal of case papers, I am of the considered view that it would be necessary to extract relevant provision of Section 226 of I.T. Act for better appreciation of contention raised by learned advocates and they read as under: Section 222.Other modes of recovery- (1) Where no certificate has been drawn up under section 222, the Assessing Officer may recover the tax by any one or more of the modes provided in this section.\n (2) Xxx xxx (3) (i) the Assessing Officer or Tax Recovery Officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay the Assessing Officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.\nvi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on accoutn of the assessee, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Assessing officer or Tax Recovery Officer to the extent of his own liability to the assessee on the date of the notice, or to the extent of the assessee's liability for any sum due under this Act, whichever is less.\nx) if the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Assessing Officer or Tax Recovery Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under section 222.\n Sub section (3) of Section 226 of the Act provides for the mode of recovery by way of attachment of debts. It authorises the Assessing Officer or Tax Recovery Officer to issue notice requiring a debtor to pay to the Department so much of money due from him to the assessee as is sufficient to pay the amount due by the assessee in respect of arrears of tax. This mode of recovery can be resorted in respect of arrears of tax due by the assessee. Before any notice could be issued under 226 (3), it is necessary there should be an order under Section 201 of the Act against the assessee which requires him to pay the tax. It is also necessary that the order should quantify amount of tax to be paid by the assessee. The basis for a notice to be issued under Section 226 (3) is that assessee should be in arrears of tax unless there is an order of assessment against the assessee and a notice of demand, assessee cannot be said to have any tax arrears. The records in the instant case would clearly indicate that after issuing demand notice under Section 156 of the Act to the assessee for the block period 2006-2007 to 2012-13, assessment orders came to be passed on 31.01.2014 and 12.02.2014. Undisputedly, during the course of assessment proceedings, it has been concluded that amounts invested in Shivaganga Multi-purpose Co- operative Society is the undisclosed income of the assessees and said amount invested by the assessees in Shivaganga Multi-purpose Co-operative Society has been invested by the said Society in Aashraya Souhard Credit Society Ltd., namely petitioner herein. As such, notice under Section 226 (3) calling upon the petitioner to pay said amount came to be issued. It is not in dispute that an assessment order has been passed against the assessee and the said assessees having deposited the amount in Shivaganga Multi-purpose Co- operative Society and said Society in turn having invested these amounts in petitioner-Society by way of fixed deposit under Fixed Deposit Receipts (FDRs) which would mature as per the due dates mentioned in the FDRs and also the fact that FDR's having been attached during search proceedings.\n 5. Records would indicate that search proceedings under Section 132 was conducted on 20.09.2011 in the premises of Shri Ramesh Motilal Chindak and his family members as also the business premises belonging to them. During the search proceedings, an order of prohibition came to be passed by the Authorised Officer in exercise of power under Section 132(3) of the Income Tax Act, directing petitioner herein not to remove, part with or otherwise deal with articles like Bank Accounts, SB, CC, FD, TD etc., and the Bank Lockers held in the names of assessees and all types of lockers and accounts held in the name of M/s. Shivaganga Multipurpose Co-operative Society Limited, Shahapur, Belgaum. Pursuant to search proceedings, block assessment was conducted for the year 2006-07 to 2012-13. In respect of asseessees and in respect of M/s. Shivaganga Multipurpose Co-operative Society Limited, Shahapur, Belgaum for the assessment year 2012-13 pursuant to which demand was raised by issuing notice under Section 226(3) to the petitioner- Society herein by calling upon petitioner to pay the amounts held by it on behalf of assessee and the amounts invested by M/s. Shivaganga Multipurpose Co- operative Society Limited, Shahapur, Belgaum since it was the undisclosed income of Shri Ramesh Motilal Chindak and his family members. Undisputedly, no reply was submitted by the petitioner-Society to the notice issued under Article 226(3)(i), as such, an order came to be passed on 10.03.2014 by the respondents under Section 226(3)(x) of the Income Tax Act, 1961, calling upon the petitioner to pay the proceeds of fixed deposit, failing which it was notified by the Assessing Officer that petitioner Society would be treated as an assessee in default. Reply was required to be submitted within three days from the date of notice. However, it was not submitted on time and as such garnishee order came to be passed on 10.03.2014.\n 6. Prior to passing of order on 10.03.2014, notice under Section 226 (3) came to be issued to the petitioner on 12.02.2014 calling upon the petitioner to pay the amount due by the petitioner to the assessees and held by it for and on account of assessee upto the amount of arrears claimed therein which was to the tune of Rs.27.89 crores. The said notice was not replied.\nHence, notice was issued on 28.02.2014 to the petitioner to show cause as to why it should not be treated as an assessee in default as per Section 226 (3) (x) of the Act and as to why further proceedings should not be taken against the petitioner-Society for realisation of the amounts as if, it was an arrears of tax due from the petitioner itself by resorting to the provision provided under Sections 222 and 225. Said notice came to be replied by the petitioner on 01.03.2014 admitting that Shivaganga Multi-purpose Co-operative Society Limited has deposited the amounts as specified in the said reply and it was due to be paid on different dates. It was also pleaded by the petitioner-Society that it would not be able to pay the amount at one stretch on account of liquidity crunch faced by it and also on the ground that fixed deposits are yet to mature and till such date of maturity it would not become payable. Petitioner-Society also assured the Department that as and when the fixed deposits would become due, the proceeds of such fixed deposits would be paid to the Department and claimed that it has noted the lien of the Department on those FD's. However, respondent-authorities proceeded to pass order under Section 226 (3) (x) of the Act by treating the petitioner as an assessee in default by order dated 10.03.2014 Annexure-A to A4 on account of reply not having been submitted by the petitioner within stipulated time.\nSimultaneously, notice of demand under Section 156 of the Income Tax Act also came to be issued as per Annexures-A5 to A9. In reply to the same, petitioner forwarded its reply on 20.03.2014 by forwarding the same under registered post acknowledgement due and copy was also delivered in the office of the 1st respondent as could be seen from the acknowledgement found therein. Since under the said communication petitioner had requested to treat the said reply as an application for rectification of order passed under Section 226 (3) (x) and to treat the same as mistake apparent from the record, same was considered by respondent and rejected as communicated to the petitioner on 24.03.2014 Annexure-K.\n 7. A perusal of provision to Section 226 (3) of the Act would indicate that Assessing Officer or Tax Recovery Officer is empowered to call upon any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money on account of the assessee, to pay to the Assessing Officer or the Tax Recovery Officer, as the case may be, either forthwith upon the money becoming due or being held or had or within the time specified in the notice so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of money when it is equal to or less than that of the amount demanded by the Department. When such a notice is issued, such noticee under Section 222 (3) (vi) can object to it by a statement on oath by contending: i) that the sum demanded or in part thereof due to the assessee is not held by the noticee; ii) or ii) no amount is payable by the noticee to the assessee.\n In such an event, Assessing Officer or the Recovery Officer is required to examine the claim and if the objection or statement is found to be tenable can revoke, amend the notice issued to such noticee i.e., Garnishee. However, if it is found that statement made by the Garnishee is untrue, then Assessing Officer or the Tax Recovery Officer, as the case may be, would be empowered to proceed against such Garnishee by treating the Garnishee as an assessee in default under Section 226 (3) (x). If there is no subsisting relationship between the Garnishee and the Assessee, the Department treating such a Garnishee as an assessee in default does not arise. Thus, the words found in Section 226 (3) \"money is due or becomes due or any person who holds or may subsequently hold money\" would indicate that there should be an existing relationship between the Garnishee and the assessee. If this ingredient is found then Section 226 (3) (x) would be attracted and Assessing Officer or Tax Recovery Officer would proceed to treat the Garnishee as an assessee in default.\n 8. At this juncture, let me examine the contention raised by Mr.C.V.Angadi, namely that in the instant case, deposits held by the petitioner-Society is yet to mature and whether liability of the petitioner would arise only on maturity of the fixed deposits or even prior to it and till maturity of FD's privity of contract between the Garnishee and the assessee would not arise in the light of the judgment of Hon'ble Apex Court in the case of UNIT TRUST OF INDIA VS. B.M.MALANI AND OTHERS [2007 (212) CTR 425 (SC)]. It has to be held that principle enunciated by Their Lordships in the above judgment would not be applicable to the facts and circumstances of the present case for the following reasons: 9. In the said case, Unit Trust of India being the Garnishee was issued with a notice and pursuant to said notice money held on behalf of assessee was paid by the Garnishee to the Department. A plea was taken by the assessee stating that there was a lock-in period and money deposited by the assessee could not have been withdrawn prematurely without the consent of the depositor or the assessee since the interest benefit was being lost and said plea came to be accepted by the Apex Court, by examining the very scheme itself, it was noticed by their Lordships that scheme guaranteed that capital invested in the scheme will be protected on maturity i.e., units will not be redeemed below par. It has been held in the said judgment by Hon'ble Apex Court as under: \"12. Whether the action on the part of the appellant to act thereupon was valid, is the question. The scheme, the relevant provision whereof had been noticed by us hereinbefore, goes to show that the lock-in period was for a period of five years.\n Purchase of the units, however, was allowed from 1st September, 2001 at NAV based repurchase price. The scheme constituted a contract between the parties. The option of the purchase was to be exercised by the respondent. The appellant, on the basis of the said purported notice dated 8.2.2002, could not have placed itself in the shoes of the respondent. It is not in dispute that the respondent was a defaulter to the extent of Rs.157.77 lacs. He had sold some of his properties in 1998. A portion of the sale proceeds, namely, 65 lacs had been invested with the appellant. He had sought for exemption under Section 54AE of the Act.\nThe amount of 65 lacs was secured under the said units with the appellants. It is not in dispute that an application for settlement was filed before the Settlement Commissioner by the respondent. He had deposited a sum of Rs.25 lacs when moving an application for deposit of the amount.\nUpto October 2000, he had already paid a sum of Rs.92.04 lacs. Only a sum of Rs.48,08,000/- were due from him. He, therefore, in his letter dated 4.2.2002 stated as under : _ \"Sale of Bonds at present would result in a loss of Rs.3 per unit which will be about 30% loss and it would be difficult to bear such loss while the taxes are pending payment. In the event the Bonds are sought to be acquired by the Department, I shall transfer them at its face value at Rs.10/- per unit against taxes although I am voluntarily making the tax payments as per commitments.\n In the above facts and circumstances, with a great constraint I had paid tax Rs.25.00 lakhs on 31.1.2002 as committed by me in my petition dated 26.10.2001 although I had sought time for above payment till the end of February 2002. It may also be submitted that I had sold my property for the purpose of payment of taxes and opted an additional tax burden of Rs.35.00 lakhs under the Settlement Commission Orders and Co-operated with the Department. In the circumstances, I request you sir to grant time for payment of balance tax till the end of May 2002 as I am given to understand after the budget is presented, the capital gains Bonds issued by Unit Trust of India are likely to be purchased by the Government at par @ Rs.10/- per Unit in which case I will not suffer loss on sale and the market rate for sale of such units will also go up. The department was good enough to grant time earlier for payment of tax and I have kept my commitments at all the times and accordingly paid the tax.\"\n 10. In conclusion, it was held by Their Lordships that Clause-(vi) of sub-section (3) of Section 226 of the Act created a legal fiction to the effect that an amount if not payable by the Garnishee to the assessee it is not required to pay any such amount or part thereof and as such it was held that the Unit Trust of India was required to act in terms and conditions of the contract and held that the respondent-assessee is entitled for restitution namely entitled to the dividend declared during the said period from the date of allotment. In fact, the judgment of this Court had also came up for examination before the Apex Court in the said case and dictum laid down by this Court has been approved.\n 11. In the instant case, undisputedly, there is no lock- in period insofar as fixed deposit of the assessee is concerned. Though the period of fixed deposit is stipulated in the fixed deposit receipts, it does not prevent the depositor namely assessee to seek for premature withdrawal of the fixed deposit. Of course, he or she as the case may be has to forego the interest for the remaining period and also in view of the fact that the guidelines issued by the Reserve Bank of India enabling the depositors to withdraw the fixed deposit prematurely they can withdraw the amounts deposited by them prematurely. In this background, similar claim came to be considered by a co-ordinate bench of this Court in the case of VYSYA BANK LTD., VS. JOINT COMMISSIONER OF INCOME TAX AND ANOTHER [2000 (158) CTR (KAR) 60] wherein it has been held that jurisdiction to attach the fixed deposit by the Department and obligation of the Bank to make payment of the amount even before maturity of the fixed deposit receipts cannot be found fault with. It has been held as under: \"10. Power under section 226 has been given to the Income Tax Officer to recover in the modes provided the amount which is outstanding. Power under section 226 could be exercised by one or more of the methods provided in the section and the certificate of the Tax Recovery Officer has been issued under section 222. Section 226(3) contemplated that the Income Tax Officer may require any person at any time or from time to time (1) from whom money is due, (2) or may become due to the assessee, (3) any person who holds money for an assessee, (4) or may subsequently hold money on account of an assessee, to pay to the assessing officer or Tax Recovery Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held). There should be an obligation on the person on whom notice is served to pay money to the assessee i.e., the subsisting relationship of a debtor and creditor is sine qua non for the exercise of the power under the section. The relationship of the petitioner-bank and the assessee is that of a debtor and creditor and, therefore, the Income Tax Officer has jurisdiction to attach the amount of fixed deposit receipts irrespective of the fact that the amount is payable at a later period, as on the date of service of notice the relationship of the bank and the assessee as that of debtor and creditor cannot be denied.\n 11. Section 226(3)(iv) of the Act provides that every person to whom a notice is issued is bound to comply with such notice and with reference to the banking company it is provided that it is not necessary for any deposit receipt to be produced before payment is made notwithstanding any rule, practice or requirement to the contrary.\n 11.1. In view of the judgment of the Apex Court in Budda Pictures case [1967 (65) ITR 620], there has to be subsisting relationship between the garnishee and the assessee.\nThe words 'money is due or becomes due or any person who holds or may subsequently hold money' were interpreted for that subsisting relationship. The relationship of banker and the assessee in default is not in dispute. The bank is holding money for the assessee. The dispute is only that according to the petitioner the amount has not become due. In the case of a tenant and landlord that subsisting relationship exists because of the tenancy agreement and the amounts become due every month. In such a situation the power under section 226(3) of the Act cannot be exercised to demand the rent for the period for which it has not become due. In order to find out as to whether the amount has become due, it has to be seen whether there is a subsisting claim existing on that date. If the deposit receipt matures even at a subsequent date and the assessee wants to get the fixed deposit encashed earlier than the date of maturity, it is considered permissible.\nThough the contract is entered into by the assessee while obtaining the deposit receipt for receiving the money at a later date yet for the sake of reputation of the bank or for the facility of the assessee or otherwise, payment is made before maturity of the deposit receipt. The department steps in the shoes of the assessee and can claim payment even before its maturity. Even the production of such receipt, deposit receipt is not required in terms of section 226(3)(iv).\n 12. In these circumstances, the respondent has the jurisdiction to attach the fixed deposit and the bank is under obligation to make the payment of the amount even before the maturity of the fixed deposit receipt. It may be observed that according to the instructions which are issued by the Reserve Bank from time to time if a depositor wants to encash the fixed deposit receipt before its maturity, the bank is bound to refund the amount with lesser interest as is permissible looking to the time involved. The position of contracts entered into by an assessee with other companies or partners, where there is no such express or implicit contract for payment before the maturity date, the position stands on a different footing since according to the banking norms, the fixed deposit can be encashed before its maturity date.\"\n 12. Keeping these principles in mind when the facts on hand are examined, it would clearly indicate that undisputedly the petitioner did not file objection to the Garnishee notice issued under Section 226 (3)(1) by raising an objection as required under Section 226 (3) (vi) and for this precise reason and also for the reason that the petitioner-Bank did not dispute the relationship between it and the assessees including Shivaganga Multi-purpose Co-operative Society Limited it enabled the Department to arrive at a conclusion that petitioner is to be treated as an assessee in default and accordingly an order came to be passed under Section 226 (3) (x). In view of the fact that petitioner does not dispute about deposits held by it on behalf of the assessee and the same being payable by the petitioner to the assessee and non-compliance of the demand notice raised by the Department under Section 226 (3), respondents have rightly held that petitioner is to be treated as an assessee in default. There is no infirmity in the order passed by the respondents calling for exercise of extra-ordinary jurisdiction by this Court.\nHence, writ petitions are hereby dismissed.\n It is needless to state that whatever the amounts that are held by the petitioner either on behalf of the assesee or on behalf of M/s Shivaganga Multi-purpose Co-operative Society Limited ultimately payable to assessees would be the amounts payable by the petitioner-Society to the respondent-Department.\n Ordered accordingly.\n (sd/-) JUDGE Jm/Rsh/Jm/- "
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"start": 1946,
"text": "Whenever the petitioner made a request to the respondent to take her to her matrimonial house the respondent became angry and assaulted the petitioner."
}
},
{
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"text": "The petitioner and the respondent lived in Angul for 2 and half years , then the petitioner and the respondent shifted to Lanji Berna and resided there for two years."
}
},
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"text": "At that time the petitioner became pregnant and got admitted in Govt. Hospital, Panposh for her delivery .The respondent came there and bore all the expenses of the hospital , but when he saw some of his relatives in the hospital he flew away."
}
},
{
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"text": "After some time he came back and asked the petitioner that if anybody asks her about her relationship with the respondent she should not disclose the fact that he is her husband."
}
},
{
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"text": "Tolerating all the hardships, the petitioner gave birth to a male child on 17.01.2015 and named him as Sk. Farhan Raza .Then"
}
},
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"text": "the petitioner again made repeated request to take her and her son to their matrimonial house but the respondent kept silent."
}
},
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"text": "Finding no other way the petitioner went to her parents house with her new born baby as there was no one take care of her and her child .After passing of 2 to 3 months"
}
},
{
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"text": "the petitioner again requested the respondent to take her to her matrimonial house and as a result the respondent tortured her physically and mentally"
}
},
{
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"text": ".On 07.10.2015"
}
},
{
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"text": "the respondent called the petitioner and asked her to visit his house at RDA building , LIG-1,Jabahar nagar, Mahatab road PS- Plantsite ,Dist-Sundargarh .The"
}
},
{
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"text": "petitioner visited the respondent's house , but the respondents family without knowing who she was showed good behavior to the petitioner .But"
}
},
{
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"text": "afterwards when they came to know about the relationship between the respondent and the petitioner they made several threatening calls to the petitioner and asked her not to disclose about her identity to any person in there locality."
}
},
{
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"text": "On this the petitioner took the shelter of law and approached the Mahila PS and lodged a FIR against the respondent on 15.10.2015.As soon as the respondent came to know about this police case they agreed to take the petitioner to their house and the petitioner lived in her matrimonial house for 1 and half months."
}
},
{
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"labels": [
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],
"start": 4124,
"text": "On 02.12.2015 the respondent no.1 , his father , mother , brother and sister in law drove the petitioner and her minor child out of their house and finding no other way the petitioner took the shelter in her parental house and is presently living on the mercy of others."
}
},
{
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"labels": [
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],
"start": 4395,
"text": "The petitioners submits that the respondent no.1 is a driver by profession and obtains a salary of about Rs.20,000/- per month and on the other hand the petitioner and her minor child are living on the mercy of others ."
}
},
{
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],
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"text": "The respondent has neglected the petitioner."
}
},
{
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"labels": [
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],
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"text": "As the petitioner had been subjected to domestic violence she had taken the shelter of law by filling the present petition for the under mentioned reliefs: (1) Protection order U/s 18 of PWDV Act.\n(2) Residence order U/s 19 of PWDV Act.\n(3) Monetary reliefs U/s 20 of PWDV Act.\n(4) Compensation U/s 22 of PWDV Act.\n2."
}
},
{
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"to_name": "text",
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"labels": [
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],
"start": 4978,
"text": "The respondent has not not appeared in this case nor put forth his case by filing any show cause or adducing any evidence for his defense."
}
},
{
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"value": {
"end": 5277,
"labels": [
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],
"start": 5117,
"text": "The domestic incident report was received and despite of giving all the opportunities to the respondent, he did not contest the case and hence was set ex parte."
}
},
{
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"value": {
"end": 5624,
"labels": [
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],
"start": 5277,
"text": "\n4. Considering the allegations made by the petitioner the following points are required to be determined for adjudication of the petition: 1. Whether there existed any domestic relationship between the petitioner and respondents ?\n 2. Whether any acts of domestic violence had been committed against the petitioner by the respondents?\n 3."
}
},
{
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"end": 5722,
"labels": [
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],
"start": 5625,
"text": "Whether this court has jurisdiction to try any proceeding for alleged acts of domestic violence ?"
}
},
{
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"value": {
"end": 5805,
"labels": [
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],
"start": 5722,
"text": "\n 4. Whether the petitioner is entitled to any reliefs under the PWDV Act.?"
}
},
{
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"id": "9abc02233bd44185aa98ed95ab2da7be",
"to_name": "text",
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"value": {
"end": 5921,
"labels": [
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],
"start": 5806,
"text": "5. The petitioner in order to establish her allegations had examined herself as a witness in shape of an affidavit."
}
},
{
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"id": "1f52881a369240fa9559fcc34008873b",
"to_name": "text",
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"value": {
"end": 6027,
"labels": [
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],
"start": 5922,
"text": "She has adduced oral evidence in her favour and also examined her mother as another witness in this case."
}
},
{
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"id": "aa98da4e5e8445838ccad964ba12b1c7",
"to_name": "text",
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"value": {
"end": 6160,
"labels": [
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],
"start": 6028,
"text": "6. The petitioner had filed the present petition U/S 12 of PWDV Act for taking shelter under the beneficiary provisions of PWDV Act."
}
},
{
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"id": "cdb4c72a2865485fa7fb48b16b616851",
"to_name": "text",
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"value": {
"end": 6290,
"labels": [
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],
"start": 6161,
"text": "The primary thing which needs to be seen is whether any domestic relationship existed between the petitioner and the respondents."
}
},
{
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"id": "2b494df5a5f641aa825d66bca9749865",
"to_name": "text",
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"value": {
"end": 6647,
"labels": [
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],
"start": 6291,
"text": "Domestic relationship is defined U/s 2(f) of PWDV Act which lays down that domestic relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in nature of marriage, adoption or are family members living together in a joint family."
}
},
{
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"end": 6947,
"labels": [
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],
"start": 6648,
"text": "In the present case as per the petition and as the petitioner deposed before the court that she was married to the respondent on 09.09.2011 at Shiv temple near Sec-7.At that time the petitioner did not know the full name of the accused and he had said his name was Raju and he is a Bengali by caste."
}
},
{
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"id": "dfb580313e0a4b1299c0ba015a7b023c",
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"value": {
"end": 7082,
"labels": [
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],
"start": 6948,
"text": "After marriage the petitioner came to know the full name of the respondent as Sk.Sabiruddin @ raju and that he was muslim by religion."
}
},
{
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"id": "85412032fc1a4d21ae0b4374768e7c27",
"to_name": "text",
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"value": {
"end": 7296,
"labels": [
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],
"start": 7083,
"text": "After marriage they stayed in her mother's house for two months and consummated their marriage and after two months the respondent took the petitioner to Angul and they lived there in a rented house for two years."
}
},
{
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"id": "2e59109350754f2590e7d383208de946",
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"value": {
"end": 7589,
"labels": [
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],
"start": 7297,
"text": "There the petitioner made repeated requests to the respondent to take her to her matrimonial house, but every time the respondent said that since he had married her without informing his family, first he would inform his family about such marriage then take the petitioner to meet his family."
}
},
{
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"id": "48cb651b8d864c07afbe7834cd400707",
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"value": {
"end": 7767,
"labels": [
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],
"start": 7590,
"text": "Whenever the petitioner asked the respondent to inform his family about their marriage , the respondent would deny and start quarreling with her , abuse her and assault her .She"
}
},
{
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"id": "c65cf5fc668446b1b4f461098662391b",
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"value": {
"end": 7935,
"labels": [
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],
"start": 7768,
"text": "was subjected to physical and mental torture for two years living with the respondent at Angul, but she kept quite with the hope that every thing will be fine one day."
}
},
{
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"id": "bc3abc30b4a5483f9a2b5c8820ac9436",
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"value": {
"end": 8043,
"labels": [
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],
"start": 7935,
"text": "\nAfter two years they shifted to Lanji Berna ,Dist-Sundargarh and lived there in a rented house for 2 years."
}
},
{
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"id": "6eb028c2d7ab4f3a91b79ac3e3056bd4",
"to_name": "text",
"type": "labels",
"value": {
"end": 8080,
"labels": [
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],
"start": 8044,
"text": "There the petitioner became pregnant"
}
},
{
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"id": "f1e30a44db0a4e7ead0d6ae184d7536c",
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"type": "labels",
"value": {
"end": 8088,
"labels": [
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],
"start": 8081,
"text": ".During"
}
},
{
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"to_name": "text",
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"value": {
"end": 8101,
"labels": [
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],
"start": 8089,
"text": "her delivery"
}
},
{
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"id": "1464bf57f21d469d872529110f8131d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 8187,
"labels": [
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],
"start": 8102,
"text": "the respondent took her to the govt hospital (RGH) and bore all the medical expenses."
}
},
{
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"id": "af75013c8d624ffd96b59891e9723af9",
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"value": {
"end": 8338,
"labels": [
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],
"start": 8188,
"text": "But when the petitioner was in labour room , the respondent was standing out and he saw some of his relatives in that hospital and ran away from their"
}
},
{
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"id": "b3c4c1d497bf49edbc619025091d8061",
"to_name": "text",
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"value": {
"end": 8555,
"labels": [
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],
"start": 8338,
"text": ", after some time he came back and said the petitioner that if any body asks her about him she should not disclose his identity and their relationship but should say that she is the wife of a friend of the respondent."
}
},
{
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"id": "f5dcc9e210184bc8a9efac50d9b5b1ef",
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"type": "labels",
"value": {
"end": 8635,
"labels": [
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],
"start": 8556,
"text": "The petitioner gave birth to a son on 17.01.2015 and named him Sk.Farahan Raza."
}
},
{
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"id": "9a8ed56765bf4d6ab0081e1a8d6e127a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8908,
"labels": [
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],
"start": 8636,
"text": "After that the petitioner again made requests to the respondent to take her and her new borne baby to her matrimonial house but again the respondent denied with the plea that he had not yet informed his parents about them and again started torturing her and assaulting her"
}
},
{
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"value": {
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"labels": [
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],
"start": 8909,
"text": ".Then the respondent left the petitioner alone in her house .Since there was no one to look after her and take her son's care"
}
},
{
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"id": "f5396122f7924584939abaca2b91e13c",
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"value": {
"end": 9075,
"labels": [
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],
"start": 9034,
"text": ", she went to live in her maternal house."
}
},
{
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"id": "bdc54bc4951043b2bc4ddf902bd2016b",
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"type": "labels",
"value": {
"end": 9143,
"labels": [
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],
"start": 9076,
"text": "After 2 to 3 mothers the respondent returned to the petitioner .She"
}
},
{
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"id": "e75250e637f645b4b4ea38977466aebb",
"to_name": "text",
"type": "labels",
"value": {
"end": 9393,
"labels": [
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],
"start": 9144,
"text": "again asked the respondent to take her to his house and then the respondent said that his prestige would be hampered if he takes her to his house and the respondent threatened her to desert her and throw her on the road from where he had brought her"
}
},
{
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"id": "3d5cf65bef2e43398370e4baad398508",
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"value": {
"end": 9408,
"labels": [
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],
"start": 9394,
"text": ".On 07.10.2015"
}
},
{
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"id": "86e395a54f884052b919511b8a0d0b1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9500,
"labels": [
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],
"start": 9409,
"text": "the respondent telephoned the petitioner and asked her to go to his house and see the truth"
}
},
{
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"id": "a3aad6aaf7da4758b63d0362cf96892e",
"to_name": "text",
"type": "labels",
"value": {
"end": 9720,
"labels": [
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],
"start": 9501,
"text": ".The petitioner along with her mother went to the respondent's house and the respondent's family behaved very normally with the petitioner ignorant of the fact of marriage between the petitioner and the respondent .Then"
}
},
{
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"id": "851b108d1f964c70bf7c3d484a79df19",
"to_name": "text",
"type": "labels",
"value": {
"end": 9886,
"labels": [
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],
"start": 9721,
"text": "the petitioner left from the house of the respondent and then the respondents family came to know about the relationship between petitioner and respondent no.1 .Then"
}
},
{
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"id": "ce1b8727ffab468f9d51173b78e370ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 9982,
"labels": [
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],
"start": 9887,
"text": "they made repeated calls to her and abused her and threatened her over telephone .On 15.10.2015"
}
},
{
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"id": "d04bb141e1e84653917436ef4df3a5b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 10036,
"labels": [
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],
"start": 9983,
"text": "the petitioner reported the matter in mahila PS .When"
}
},
{
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"id": "3c495f45b9c54028917d093d159a5e0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10187,
"labels": [
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],
"start": 10037,
"text": "the respondent's family came to know about this case they came and took the petitioner and her child to their house and they lived there for 2 months."
}
},
{
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"id": "c242fc94115f4c5eb0f31243103501a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10355,
"labels": [
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],
"start": 10188,
"text": "But on 2.12.15 the respondent , his mother, father,brother and sister-in-law drove her and her minor son out of their house and she took shelter at her maternal house."
}
},
{
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"id": "63bf8dfaf1e340bfafc52fed80f9b984",
"to_name": "text",
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"value": {
"end": 10404,
"labels": [
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],
"start": 10355,
"text": "\nThe petitioner examined her mother as a witness."
}
},
{
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"id": "ca0d2580baa54559a9f979a7d4183eeb",
"to_name": "text",
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"value": {
"end": 10460,
"labels": [
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],
"start": 10405,
"text": "She completely supported the version of the petitioner."
}
},
{
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"id": "4d46879784a64f178fedcc34113adc2e",
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"type": "labels",
"value": {
"end": 10530,
"labels": [
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],
"start": 10461,
"text": "She stated that the respondent no.1 married her daughter on 9.9.2009."
}
},
{
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"id": "7aa04dcdf93749868e5dd0a4e097b064",
"to_name": "text",
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"value": {
"end": 10566,
"labels": [
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],
"start": 10531,
"text": "Then they stayed together in Angul."
}
},
{
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"id": "137a66e52e524608b7a51ecafd4a102f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10728,
"labels": [
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],
"start": 10566,
"text": "\nPetitioner always insisted the respondent to take her to his house but he paid no heed , rather assaulted and abused the petitioner and subjected her to cruelty."
}
},
{
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"id": "86910246be764b21b6e4ccabb16c6664",
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"labels": [
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"text": "Then after 2 years the couple came and stayed in Lanji Berna for two years."
}
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"text": "There her daughter became pregnant and at the time of delivery of her daughter in RGH, the respondent no.1 left her in hospital and after some time came back and asked her daughter not to disclose his identity and his relationship with him."
}
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"text": "After some days the respondent left the petitioner alone with her new born baby."
}
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"text": "As there was no one to take care of the petitioner and her child, so her mother took the petitioner and her child to her house."
}
},
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"text": "There they stayed for 3-4 months."
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"text": "Respondent visited the petitioner and when she asked to take her to his house he abused her."
}
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"text": "Then one day she took her daughter and her grandson to the house of the respondent but found that the respondents family was not aware of this marriage."
}
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"text": "When they knew about the relationship between petitioner and respondent no.1 they threatened and assaulted them."
}
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"text": "Finding no other way the petitioner lodged FIR against the respondents and getting news about such police case the respondents took the petitioner to their house where she stayed for 2-3 months and after that the respondent drove the petitioner out of their house."
}
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"text": "Since then the petitioner with her minor child are living in the house of her mother being dependent on her."
}
},
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"labels": [
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],
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"text": "They are poor and unable to maintain themselves."
}
},
{
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"labels": [
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],
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"text": "The respondent has completely neglected the petitioner and his son and hence is liable to maintain them."
}
},
{
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"labels": [
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],
"start": 12176,
"text": "The above evidence clearly shows that the aggrieved person and respondent no. 1 are related to each other through marriage and had lived together in a shared household in the house of petitioner,Angul,Lanji Berna and in their house of the respondent."
}
},
{
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"labels": [
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],
"start": 12427,
"text": "The other two respondent being the father in law and mother in law respectively of the petitioner have also lived together at some point of time in their house with the petitioner."
}
},
{
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"start": 12608,
"text": "The respondent being set ex parte, the above fact of domestic relationship between the petitioner and respondent remains unchallenged and unrebutted."
}
},
{
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"end": 12904,
"labels": [
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],
"start": 12758,
"text": "Thus the inter se relationship between the parties have been well proved and they were living together in a shared household after their marriage."
}
},
{
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"id": "0b5dd0a37b5b46dba0086f238626c87d",
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"end": 13041,
"labels": [
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],
"start": 12905,
"text": "Therefore the primary point which needed to be determined is established that their existed a domestic relationship between the parties."
}
},
{
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"labels": [
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],
"start": 13042,
"text": "7. Nextly, moving on to the allegations of the petitioner that she was subjected to cruelty and violence by the respondents."
}
},
{
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"end": 13296,
"labels": [
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],
"start": 13167,
"text": "On this point only one part of story is available before this court that is the allegations as put forth by the aggrieved person."
}
},
{
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"id": "09bd1f0cf9be421c8c170b7d8cae2207",
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"end": 13584,
"labels": [
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],
"start": 13297,
"text": "As per the petition of the aggrieved persons and her evidence in chief and the evidence of her mother it is seen that at first the respondent no 1 lied the petitioner about his religion and subsequently the petitioner came to know about the truth about his religion and they got married."
}
},
{
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"end": 13689,
"labels": [
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],
"start": 13585,
"text": "Then instead of taking the petitioner to his house the respondent stayed in the house of the petitioner."
}
},
{
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"id": "3855a074aec14b7f812d51d0352ef795",
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"end": 13940,
"labels": [
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],
"start": 13690,
"text": "Then the petitioner made repeated requests to the respondent to take her to his house but every time the respondent denied taking the plea that since they have married without informing his parents so he will first inform them and then take her home."
}
},
{
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"end": 14093,
"labels": [
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],
"start": 13940,
"text": "\nWhenever the petitioner insisted the respondent to take her to his house he physically assaulted the petitioner,abused her and subjected her to cruelty."
}
},
{
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"end": 14270,
"labels": [
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],
"start": 14093,
"text": "\nDuring the delivery of the petitioner he left her alone to hide from his relatives and asked the petitioner not to disclose about his identity and their relationship to anyone."
}
},
{
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"id": "a4a74c56b9504c76b68cd978d9eb0ff0",
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"end": 14395,
"labels": [
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],
"start": 14271,
"text": "Then the respondent left the petitioner with her new born baby alone in his home due to which she went to her mothers house."
}
},
{
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"id": "e39f292f357b46c4b76e98c433fa4dd6",
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"end": 14714,
"labels": [
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],
"start": 14395,
"text": "\nAnd finally when the respondent asked the petitioner to go to his house, he had not informed his family about his relationship with the petitioner and when they knew the truth they abused her assaulted her and threatened her and her mother because of which the petitioner was forced to report the matter before police."
}
},
{
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"id": "a3349867e6184c088deaa3899e07b885",
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"value": {
"end": 14905,
"labels": [
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],
"start": 14715,
"text": "And when the respondents came to know about the police case out of fear they took the petitioner and her child to their house but again after two to three months ousted her from their house."
}
},
{
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"id": "cc00df20a61d4b4eb056fb3892567c94",
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"value": {
"end": 15127,
"labels": [
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],
"start": 14906,
"text": "The respondent works as a driver and earns about Rs 20,000/- per month but the petitioner is unemployed with a minor child and has no source of earning to maintain herself and her son and hence is depended on her parents."
}
},
{
"from_name": "label",
"id": "902c16da5ea14c3994baf572ce691e2f",
"to_name": "text",
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"value": {
"end": 15231,
"labels": [
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],
"start": 15128,
"text": "The above allegations have in no way been challenged or disproved by the respondent being set ex parte."
}
},
{
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"id": "541d0662bb6c4e679910782d36d1d375",
"to_name": "text",
"type": "labels",
"value": {
"end": 15352,
"labels": [
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],
"start": 15232,
"text": "The above allegations have been well proved through the domestic incident report as submitted by the protection officer."
}
},
{
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"id": "d8ba47a879bc4a1281837504eb53673d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15645,
"labels": [
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],
"start": 15353,
"text": "From the above discussions it is clear that the petitioner was completely cheated by the respondent regarding his identity and he kept his relationship and marriage completely hidden from his family and in his domestic relationship he subjected the petitioner to mental and physical cruelty ."
}
},
{
"from_name": "label",
"id": "a6054a06b76b4c05a5af6112a6c7f398",
"to_name": "text",
"type": "labels",
"value": {
"end": 15784,
"labels": [
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],
"start": 15646,
"text": "The allegations put forth by her was supported by the DIR report and the same could in no way be rebutted in any manner by the respondent."
}
},
{
"from_name": "label",
"id": "bd4562c2e90340dc991ee926dee42d2d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15982,
"labels": [
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],
"start": 15785,
"text": "The ill treatment of the respondents forced her to leave her matrimonial house for her safety and these acts come under the purview of Section 3 of PWDV Act which defines what is domestic violence."
}
},
{
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"id": "b9d3b2f1f6af481a80423f0366811c3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16068,
"labels": [
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],
"start": 15983,
"text": "The Acts of the respondent are sure to have caused emotional abuse to the petitioner."
}
},
{
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"id": "f616d8c1a9f14aa988760762da09b107",
"to_name": "text",
"type": "labels",
"value": {
"end": 16221,
"labels": [
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],
"start": 16069,
"text": "Considering the allegation of the petitioner and the fact that she was subjected to domestic violence it cannot be a subject matter of dispute any more."
}
},
{
"from_name": "label",
"id": "abce9398ef984b14bc268a3211b832e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16391,
"labels": [
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],
"start": 16222,
"text": "8. The acts of domestic violence against petitioner having been established the next factor is that whether the court has jurisdiction to adjudicate in any such matter ?"
}
},
{
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"id": "80a9bde6736645c2834372204d2db9b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 16749,
"labels": [
"STA"
],
"start": 16392,
"text": "Section 27 of PWDV Act lays down that the court of jurisdiction Magistrate of the place where the aggrieved person temporarily or permanently resides or carries on business or is employed, the place where respondent resides or carries on business or is employed or the place where the cause of action arose shall be competent to pass order under this court."
}
},
{
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"id": "81710736937f4dd7a56d9221d0098f8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16990,
"labels": [
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],
"start": 16750,
"text": "It is forthcoming from the petitioner's evidence that both the petitioner and respondent were residing at Rourkela the cause of action arose at Rourkela and the petitioner had filed the case while residing in her parental house in Rourkela."
}
},
{
"from_name": "label",
"id": "de0c8bd797b8433281b07f5d487b756e",
"to_name": "text",
"type": "labels",
"value": {
"end": 17078,
"labels": [
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],
"start": 16991,
"text": "Hence this court has jurisdiction to adjudicate the matter under this act in this case."
}
},
{
"from_name": "label",
"id": "12bc7a40994147f7ab3e1518c8ad19a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 17361,
"labels": [
"ANALYSIS"
],
"start": 17078,
"text": "\n 9. The existence of domestic relationship between the parties, the commission of Acts of domestic violence against the petitioner and the jurisdiction of this court having been established now arise the most pivotal point regarding the reliefs which are claimed by the petitioner ."
}
},
{
"from_name": "label",
"id": "ce86244885924666b64b3dc036f539ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 17425,
"labels": [
"ARG_PETITIONER"
],
"start": 17362,
"text": "The petitioner has claimed protection order U/s 18 of PWDV Act."
}
},
{
"from_name": "label",
"id": "a323f2d647a646f98b6d21c6b6af9218",
"to_name": "text",
"type": "labels",
"value": {
"end": 17901,
"labels": [
"RPC"
],
"start": 17426,
"text": "Considering the fact that the petitioner had been subjected to physical and emotional abuse and for her safety and well being this court feels it just to grant protection order U/s 18 of PWDV Act and the respondent no 1 and respondent no 2 & 3 are directed not to commit any act of domestic violence against the petitioner or aid or abate in the commission of the acts of domestic violence against the petitioner and her minor son and not to interfere in her peaceful living."
}
},
{
"from_name": "label",
"id": "b8cb11a842064d0ca1493c224caaf546",
"to_name": "text",
"type": "labels",
"value": {
"end": 17968,
"labels": [
"ARG_PETITIONER"
],
"start": 17901,
"text": "\n The petitioner has prayed for residence order u/s 19 of PWDV Act."
}
},
{
"from_name": "label",
"id": "6ce34e90f58c4b599e6cf1286ef02235",
"to_name": "text",
"type": "labels",
"value": {
"end": 18029,
"labels": [
"ANALYSIS"
],
"start": 17969,
"text": "At present the petitioner is residing in her parental house."
}
},
{
"from_name": "label",
"id": "b7ad00ef2ceb4bd88109712797f428a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 18145,
"labels": [
"ARG_PETITIONER"
],
"start": 18030,
"text": "The petitioner prays to live in the rented house of the respondent from where she was driven out by the respondent."
}
},
{
"from_name": "label",
"id": "5d9abdcddd374d65b8de2f21a8341732",
"to_name": "text",
"type": "labels",
"value": {
"end": 18583,
"labels": [
"RPC"
],
"start": 18146,
"text": "The respondent no 1 is directed to allow the petitioner along with her son to live in his house with him that is RDA building, LIG-I, Room no 9/10, Jabahar nagar, Mahtab road, PS Plantsite, dist- Sundergarh and all the respondents are directed not top restraint the petitioner in living in that house and no to interfere in her peaceful living in that part of the house and not to commit any acts of domestic violence to her and her son."
}
},
{
"from_name": "label",
"id": "8c0f7dd01bfc4ef29d4a3e46c7444ba6",
"to_name": "text",
"type": "labels",
"value": {
"end": 18684,
"labels": [
"ARG_PETITIONER"
],
"start": 18583,
"text": "\nThe petitioner prays the court to direct the respondent to remove himself from the shared household."
}
},
{
"from_name": "label",
"id": "fb0a145f9ccc4acfa7d1d961f2b33720",
"to_name": "text",
"type": "labels",
"value": {
"end": 19041,
"labels": [
"ANALYSIS"
],
"start": 18685,
"text": "In this light no direction or order can be passed against the respondent no 1 but the parties are at liberty that if they mutually agree then they can live separately in a rented house together as before and in that event the respondent is directed to properly maintain the petitioner and her son and not to commit any act of domestic violence towards her."
}
},
{
"from_name": "label",
"id": "a20a1ab5c7bd4ebc80f02de5d6ed9b3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19113,
"labels": [
"ARG_PETITIONER"
],
"start": 19042,
"text": "The aggrieved person also prays for monetary relief U/s 20 of PWDV Act."
}
},
{
"from_name": "label",
"id": "48d3d5ee46db438bb53badc8c72a3f20",
"to_name": "text",
"type": "labels",
"value": {
"end": 19249,
"labels": [
"ANALYSIS"
],
"start": 19114,
"text": "Considering the fact that the petitioner is presently living with her minor son in house of her parents separately from the respondent."
}
},
{
"from_name": "label",
"id": "da806281dade49409c78a96d9e876bb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 19443,
"labels": [
"ANALYSIS"
],
"start": 19250,
"text": "The aggrieved person is unemployed and presently living in the charity of her parents .She and her minor son are completely depended on her parents being completely neglected by the respondent."
}
},
{
"from_name": "label",
"id": "ec57194dd1704942a852faccca7c42f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 19498,
"labels": [
"ANALYSIS"
],
"start": 19444,
"text": "The respondent has a prim duty to maintain his family."
}
},
{
"from_name": "label",
"id": "cff8a3fd662a44339de643b13c655a9a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19736,
"labels": [
"RPC"
],
"start": 19499,
"text": "So the respondent is directed to pay Rs.10,000 per month towards the maintenance of the aggrieved person and his minor son and if both the parties live together then take proper care of the aggrieved person and his son and maintain them."
}
},
{
"from_name": "label",
"id": "7e0d3b5067904c93a55b453f11d76e72",
"to_name": "text",
"type": "labels",
"value": {
"end": 19810,
"labels": [
"RATIO"
],
"start": 19737,
"text": "The aggrieved person has also prayed for compensation U/s 22 of PWDV Act."
}
},
{
"from_name": "label",
"id": "dc30700549b94e908b864a7229e263d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 19997,
"labels": [
"RATIO"
],
"start": 19811,
"text": "The fact that due to the acts of domestic violence of the respondent the aggrieved person suffered mental agony is facing all sorts of difficulties to maintain herself and her minor son."
}
},
{
"from_name": "label",
"id": "315f9fdef1904d29af14df767063fcc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 20207,
"labels": [
"RATIO"
],
"start": 19998,
"text": "She is leading a miserable life taking all the responsibilities of her son, hence the respondent is directed to pay Rs.50,000 as a compensation to the aggrieved person for the emotional distress caused to her."
}
},
{
"from_name": "label",
"id": "38ca0e3ea9744bf8856e37560ed78238",
"to_name": "text",
"type": "labels",
"value": {
"end": 20214,
"labels": [
"RPC"
],
"start": 20207,
"text": "\n ORDER"
}
},
{
"from_name": "label",
"id": "245902e7761648658cb51f65b0997155",
"to_name": "text",
"type": "labels",
"value": {
"end": 20288,
"labels": [
"RPC"
],
"start": 20215,
"text": "The Misc case be and the same is allowed against the respondent ex parte."
}
},
{
"from_name": "label",
"id": "04b5b7093ee44d56bea4ffe90467d181",
"to_name": "text",
"type": "labels",
"value": {
"end": 20459,
"labels": [
"RPC"
],
"start": 20289,
"text": "The respondents are hereby prohibited from committing,aiding or abetting any acts of domestic violence against the petitioner and not to interfere in her peaceful living."
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"text": "The respondent is directed to allow the petitioner and her son to live with him in the shared household of the respondent and the other respondents are directed not to interfare in the peaceful living of the petitioner in her part of the shared houseghold and not to commit any acts of domestic violence against the aggrieved person, pay a monthly maintenance of Rs.10,000 every month to the aggrieved person for her maintenance and maintenance of her minor son, pay compensation of Rs.50,000 to the petitioner for the mental agony caused to her in case bpth the parties agree to live separately in a rented house as befgore the respondent shall not commit any act of domestic violence against her in future."
}
},
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"value": {
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"text": "The monthly maintenance is to be paid to the aggrieved person from the date of filling of this misc case to the aggrieved persons."
}
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"text": "The above orders passed by this court are to be complied by the respondent and in the event of failure to comply the above orders, the petitioner shall be at the liberty to take shelter of court."
}
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"text": "Issue free copy of the order to the petitioner and the respondent."
}
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"text": "Send an extract of this order to the IIC of Sector-7 PS and IIC of Plantsite PS and the Protection Officer, Sundergarh."
}
},
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"text": "\n This order is dictated, corrected by me and pronounced the in the open court today on this the 9th day of August, 2016 under my signature and seal of the court."
}
},
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"text": "\n Judicial Magistare First Class, Rourkela List of witnesses examined for the Aggrieved Person: PW.1: Bharati Bhoina P.W.2:Durga Bhoina"
}
},
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"text": "List of witnesses examined for the Respondent: NIL List of exhibits marked by Aggrieved Person: NIL List of exhibits marked by Respondents NIL Judicial Magistrate First Class, Rourkela"
}
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}
] | 1,746 | {
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, ROURKELA\n\nPRESENT:\n Smt. Neesha Samal,LLM.\n JMFC,ROURKELA\n Date of Judgment: .... 9.08.2016\n\n CRL. MISC. CASE NO. 9 of 2016\n Application under section 12 of Protection of Women from Domestic\n\n Violence Act,2005\n\n Smt. Renubala Ghadai , aged about 22 years,W/o Sk. Saburuddin, Resident of\n Sector 7 Laxmibasti, PS- Sector-7, Rourkela-3, Dist- Sundergarh, Odisha\n\n .............. Petitioner/ Aggrieved Person.\n - versus \n 1. Sk. Saburuddin@ Raju, S/O- Md. Hussain,\n 2. Md. Hussain,\n 3. Rukaiya Begum, W/O- Md. Hussain,\nAll are residents of R.D.A Building, LIG-I, Room No. 9/10, Jabahar Nagar, Mahatab\nRoad,Ps- Plantsite, Rourkela-1, Dist- Sundergarh,Odisha-769001.\n\n .......... Respondent/Opp.parties\n\nCounsel for Aggrieved person ... Adv. A. Dutta, U. Satpathy & A.\n Kumbhar\n\n ORDER\n 1. This order arises out of an application filed by the present petitioner against the opposite parties U/s 12 of Protection of Women from Domestic Violence Act 2005 herein referred to as the PWDV Act .\n2. The case of the petitioner is that the petitioner and the respondent No.1 are legally married husband and wife and their marriage was solemnised on 09.09.2011 and consummated at Rourkela in the resident of the petitioner. This being a love marriage, the respondent took the petitioner to Angul giving assurance that he will take the petitioner to her matrimonial house after giving due information to his parents about such marriage.\nWhenever the petitioner made a request to the respondent to take her to her matrimonial house the respondent became angry and assaulted the petitioner. The petitioner and the respondent lived in Angul for 2 and half years , then the petitioner and the respondent shifted to Lanji Berna and resided there for two years. At that time the petitioner became pregnant and got admitted in Govt. Hospital, Panposh for her delivery .The respondent came there and bore all the expenses of the hospital , but when he saw some of his relatives in the hospital he flew away. After some time he came back and asked the petitioner that if anybody asks her about her relationship with the respondent she should not disclose the fact that he is her husband. Tolerating all the hardships, the petitioner gave birth to a male child on 17.01.2015 and named him as Sk. Farhan Raza .Then the petitioner again made repeated request to take her and her son to their matrimonial house but the respondent kept silent. Finding no other way the petitioner went to her parents house with her new born baby as there was no one take care of her and her child .After passing of 2 to 3 months the petitioner again requested the respondent to take her to her matrimonial house and as a result the respondent tortured her physically and mentally .On 07.10.2015 the respondent called the petitioner and asked her to visit his house at RDA building , LIG-1,Jabahar nagar, Mahatab road PS- Plantsite ,Dist-Sundargarh .The petitioner visited the respondent's house , but the respondents family without knowing who she was showed good behavior to the petitioner .But afterwards when they came to know about the relationship between the respondent and the petitioner they made several threatening calls to the petitioner and asked her not to disclose about her identity to any person in there locality. On this the petitioner took the shelter of law and approached the Mahila PS and lodged a FIR against the respondent on 15.10.2015.As soon as the respondent came to know about this police case they agreed to take the petitioner to their house and the petitioner lived in her matrimonial house for 1 and half months. On 02.12.2015 the respondent no.1 , his father , mother , brother and sister in law drove the petitioner and her minor child out of their house and finding no other way the petitioner took the shelter in her parental house and is presently living on the mercy of others. The petitioners submits that the respondent no.1 is a driver by profession and obtains a salary of about Rs.20,000/- per month and on the other hand the petitioner and her minor child are living on the mercy of others . The respondent has neglected the petitioner. As the petitioner had been subjected to domestic violence she had taken the shelter of law by filling the present petition for the under mentioned reliefs: (1) Protection order U/s 18 of PWDV Act.\n(2) Residence order U/s 19 of PWDV Act.\n(3) Monetary reliefs U/s 20 of PWDV Act.\n(4) Compensation U/s 22 of PWDV Act.\n2. The respondent has not not appeared in this case nor put forth his case by filing any show cause or adducing any evidence for his defense.\nThe domestic incident report was received and despite of giving all the opportunities to the respondent, he did not contest the case and hence was set ex parte.\n4. Considering the allegations made by the petitioner the following points are required to be determined for adjudication of the petition: 1. Whether there existed any domestic relationship between the petitioner and respondents ?\n 2. Whether any acts of domestic violence had been committed against the petitioner by the respondents?\n 3. Whether this court has jurisdiction to try any proceeding for alleged acts of domestic violence ?\n 4. Whether the petitioner is entitled to any reliefs under the PWDV Act.?\n5. The petitioner in order to establish her allegations had examined herself as a witness in shape of an affidavit. She has adduced oral evidence in her favour and also examined her mother as another witness in this case.\n6. The petitioner had filed the present petition U/S 12 of PWDV Act for taking shelter under the beneficiary provisions of PWDV Act. The primary thing which needs to be seen is whether any domestic relationship existed between the petitioner and the respondents. Domestic relationship is defined U/s 2(f) of PWDV Act which lays down that domestic relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in nature of marriage, adoption or are family members living together in a joint family. In the present case as per the petition and as the petitioner deposed before the court that she was married to the respondent on 09.09.2011 at Shiv temple near Sec-7.At that time the petitioner did not know the full name of the accused and he had said his name was Raju and he is a Bengali by caste. After marriage the petitioner came to know the full name of the respondent as Sk.Sabiruddin @ raju and that he was muslim by religion. After marriage they stayed in her mother's house for two months and consummated their marriage and after two months the respondent took the petitioner to Angul and they lived there in a rented house for two years. There the petitioner made repeated requests to the respondent to take her to her matrimonial house, but every time the respondent said that since he had married her without informing his family, first he would inform his family about such marriage then take the petitioner to meet his family. Whenever the petitioner asked the respondent to inform his family about their marriage , the respondent would deny and start quarreling with her , abuse her and assault her .She was subjected to physical and mental torture for two years living with the respondent at Angul, but she kept quite with the hope that every thing will be fine one day.\nAfter two years they shifted to Lanji Berna ,Dist-Sundargarh and lived there in a rented house for 2 years. There the petitioner became pregnant .During her delivery the respondent took her to the govt hospital (RGH) and bore all the medical expenses. But when the petitioner was in labour room , the respondent was standing out and he saw some of his relatives in that hospital and ran away from their, after some time he came back and said the petitioner that if any body asks her about him she should not disclose his identity and their relationship but should say that she is the wife of a friend of the respondent. The petitioner gave birth to a son on 17.01.2015 and named him Sk.Farahan Raza. After that the petitioner again made requests to the respondent to take her and her new borne baby to her matrimonial house but again the respondent denied with the plea that he had not yet informed his parents about them and again started torturing her and assaulting her .Then the respondent left the petitioner alone in her house .Since there was no one to look after her and take her son's care, she went to live in her maternal house. After 2 to 3 mothers the respondent returned to the petitioner .She again asked the respondent to take her to his house and then the respondent said that his prestige would be hampered if he takes her to his house and the respondent threatened her to desert her and throw her on the road from where he had brought her .On 07.10.2015 the respondent telephoned the petitioner and asked her to go to his house and see the truth .The petitioner along with her mother went to the respondent's house and the respondent's family behaved very normally with the petitioner ignorant of the fact of marriage between the petitioner and the respondent .Then the petitioner left from the house of the respondent and then the respondents family came to know about the relationship between petitioner and respondent no.1 .Then they made repeated calls to her and abused her and threatened her over telephone .On 15.10.2015 the petitioner reported the matter in mahila PS .When the respondent's family came to know about this case they came and took the petitioner and her child to their house and they lived there for 2 months. But on 2.12.15 the respondent , his mother, father,brother and sister-in-law drove her and her minor son out of their house and she took shelter at her maternal house.\nThe petitioner examined her mother as a witness. She completely supported the version of the petitioner. She stated that the respondent no.1 married her daughter on 9.9.2009. Then they stayed together in Angul.\nPetitioner always insisted the respondent to take her to his house but he paid no heed , rather assaulted and abused the petitioner and subjected her to cruelty. Then after 2 years the couple came and stayed in Lanji Berna for two years. There her daughter became pregnant and at the time of delivery of her daughter in RGH, the respondent no.1 left her in hospital and after some time came back and asked her daughter not to disclose his identity and his relationship with him. After some days the respondent left the petitioner alone with her new born baby. As there was no one to take care of the petitioner and her child, so her mother took the petitioner and her child to her house. There they stayed for 3-4 months. Respondent visited the petitioner and when she asked to take her to his house he abused her. Then one day she took her daughter and her grandson to the house of the respondent but found that the respondents family was not aware of this marriage. When they knew about the relationship between petitioner and respondent no.1 they threatened and assaulted them. Finding no other way the petitioner lodged FIR against the respondents and getting news about such police case the respondents took the petitioner to their house where she stayed for 2-3 months and after that the respondent drove the petitioner out of their house. Since then the petitioner with her minor child are living in the house of her mother being dependent on her. They are poor and unable to maintain themselves. The respondent has completely neglected the petitioner and his son and hence is liable to maintain them. The above evidence clearly shows that the aggrieved person and respondent no. 1 are related to each other through marriage and had lived together in a shared household in the house of petitioner,Angul,Lanji Berna and in their house of the respondent. The other two respondent being the father in law and mother in law respectively of the petitioner have also lived together at some point of time in their house with the petitioner. The respondent being set ex parte, the above fact of domestic relationship between the petitioner and respondent remains unchallenged and unrebutted. Thus the inter se relationship between the parties have been well proved and they were living together in a shared household after their marriage. Therefore the primary point which needed to be determined is established that their existed a domestic relationship between the parties.\n7. Nextly, moving on to the allegations of the petitioner that she was subjected to cruelty and violence by the respondents. On this point only one part of story is available before this court that is the allegations as put forth by the aggrieved person. As per the petition of the aggrieved persons and her evidence in chief and the evidence of her mother it is seen that at first the respondent no 1 lied the petitioner about his religion and subsequently the petitioner came to know about the truth about his religion and they got married. Then instead of taking the petitioner to his house the respondent stayed in the house of the petitioner. Then the petitioner made repeated requests to the respondent to take her to his house but every time the respondent denied taking the plea that since they have married without informing his parents so he will first inform them and then take her home.\nWhenever the petitioner insisted the respondent to take her to his house he physically assaulted the petitioner,abused her and subjected her to cruelty.\nDuring the delivery of the petitioner he left her alone to hide from his relatives and asked the petitioner not to disclose about his identity and their relationship to anyone. Then the respondent left the petitioner with her new born baby alone in his home due to which she went to her mothers house.\nAnd finally when the respondent asked the petitioner to go to his house, he had not informed his family about his relationship with the petitioner and when they knew the truth they abused her assaulted her and threatened her and her mother because of which the petitioner was forced to report the matter before police. And when the respondents came to know about the police case out of fear they took the petitioner and her child to their house but again after two to three months ousted her from their house. The respondent works as a driver and earns about Rs 20,000/- per month but the petitioner is unemployed with a minor child and has no source of earning to maintain herself and her son and hence is depended on her parents. The above allegations have in no way been challenged or disproved by the respondent being set ex parte. The above allegations have been well proved through the domestic incident report as submitted by the protection officer. From the above discussions it is clear that the petitioner was completely cheated by the respondent regarding his identity and he kept his relationship and marriage completely hidden from his family and in his domestic relationship he subjected the petitioner to mental and physical cruelty . The allegations put forth by her was supported by the DIR report and the same could in no way be rebutted in any manner by the respondent. The ill treatment of the respondents forced her to leave her matrimonial house for her safety and these acts come under the purview of Section 3 of PWDV Act which defines what is domestic violence. The Acts of the respondent are sure to have caused emotional abuse to the petitioner. Considering the allegation of the petitioner and the fact that she was subjected to domestic violence it cannot be a subject matter of dispute any more.\n8. The acts of domestic violence against petitioner having been established the next factor is that whether the court has jurisdiction to adjudicate in any such matter ? Section 27 of PWDV Act lays down that the court of jurisdiction Magistrate of the place where the aggrieved person temporarily or permanently resides or carries on business or is employed, the place where respondent resides or carries on business or is employed or the place where the cause of action arose shall be competent to pass order under this court. It is forthcoming from the petitioner's evidence that both the petitioner and respondent were residing at Rourkela the cause of action arose at Rourkela and the petitioner had filed the case while residing in her parental house in Rourkela. Hence this court has jurisdiction to adjudicate the matter under this act in this case.\n 9. The existence of domestic relationship between the parties, the commission of Acts of domestic violence against the petitioner and the jurisdiction of this court having been established now arise the most pivotal point regarding the reliefs which are claimed by the petitioner . The petitioner has claimed protection order U/s 18 of PWDV Act. Considering the fact that the petitioner had been subjected to physical and emotional abuse and for her safety and well being this court feels it just to grant protection order U/s 18 of PWDV Act and the respondent no 1 and respondent no 2 & 3 are directed not to commit any act of domestic violence against the petitioner or aid or abate in the commission of the acts of domestic violence against the petitioner and her minor son and not to interfere in her peaceful living.\n The petitioner has prayed for residence order u/s 19 of PWDV Act. At present the petitioner is residing in her parental house. The petitioner prays to live in the rented house of the respondent from where she was driven out by the respondent. The respondent no 1 is directed to allow the petitioner along with her son to live in his house with him that is RDA building, LIG-I, Room no 9/10, Jabahar nagar, Mahtab road, PS Plantsite, dist- Sundergarh and all the respondents are directed not top restraint the petitioner in living in that house and no to interfere in her peaceful living in that part of the house and not to commit any acts of domestic violence to her and her son.\nThe petitioner prays the court to direct the respondent to remove himself from the shared household. In this light no direction or order can be passed against the respondent no 1 but the parties are at liberty that if they mutually agree then they can live separately in a rented house together as before and in that event the respondent is directed to properly maintain the petitioner and her son and not to commit any act of domestic violence towards her. The aggrieved person also prays for monetary relief U/s 20 of PWDV Act. Considering the fact that the petitioner is presently living with her minor son in house of her parents separately from the respondent. The aggrieved person is unemployed and presently living in the charity of her parents .She and her minor son are completely depended on her parents being completely neglected by the respondent. The respondent has a prim duty to maintain his family. So the respondent is directed to pay Rs.10,000 per month towards the maintenance of the aggrieved person and his minor son and if both the parties live together then take proper care of the aggrieved person and his son and maintain them. The aggrieved person has also prayed for compensation U/s 22 of PWDV Act. The fact that due to the acts of domestic violence of the respondent the aggrieved person suffered mental agony is facing all sorts of difficulties to maintain herself and her minor son. She is leading a miserable life taking all the responsibilities of her son, hence the respondent is directed to pay Rs.50,000 as a compensation to the aggrieved person for the emotional distress caused to her.\n ORDER The Misc case be and the same is allowed against the respondent ex parte. The respondents are hereby prohibited from committing,aiding or abetting any acts of domestic violence against the petitioner and not to interfere in her peaceful living. The respondent is directed to allow the petitioner and her son to live with him in the shared household of the respondent and the other respondents are directed not to interfare in the peaceful living of the petitioner in her part of the shared houseghold and not to commit any acts of domestic violence against the aggrieved person, pay a monthly maintenance of Rs.10,000 every month to the aggrieved person for her maintenance and maintenance of her minor son, pay compensation of Rs.50,000 to the petitioner for the mental agony caused to her in case bpth the parties agree to live separately in a rented house as befgore the respondent shall not commit any act of domestic violence against her in future. The monthly maintenance is to be paid to the aggrieved person from the date of filling of this misc case to the aggrieved persons. The above orders passed by this court are to be complied by the respondent and in the event of failure to comply the above orders, the petitioner shall be at the liberty to take shelter of court. Issue free copy of the order to the petitioner and the respondent. Send an extract of this order to the IIC of Sector-7 PS and IIC of Plantsite PS and the Protection Officer, Sundergarh.\n This order is dictated, corrected by me and pronounced the in the open court today on this the 9th day of August, 2016 under my signature and seal of the court.\n Judicial Magistare First Class, Rourkela List of witnesses examined for the Aggrieved Person: PW.1: Bharati Bhoina P.W.2:Durga Bhoina List of witnesses examined for the Respondent: NIL List of exhibits marked by Aggrieved Person: NIL List of exhibits marked by Respondents NIL Judicial Magistrate First Class, Rourkela "
} |
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"text": "IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE,\n BONAI."
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"text": "\n\nPresent:-"
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"start": 99,
"text": "\n\n Sri Ganeswar Pati, LL.B.\n Additional District & Sessions Judge,\n Bonai."
}
},
{
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"start": 203,
"text": "\n\nSessions Trial No. 39/ 78 of 2014\n"
}
},
{
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"end": 482,
"labels": [
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"start": 239,
"text": "(Arising out of GR Case No. 491 of 2013 of the file of the SDJM,\nBonai corresponds to Chandiposh P.S. Case No.49 dated\n07.12.2013 committed to the Court of Session on 24.03.2014 by\nthe learned SDJM, Bonai).\n\nSTATE OF ODISHA. ..."
}
},
{
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"labels": [
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"start": 483,
"text": "Complainant."
}
},
{
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"end": 687,
"labels": [
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],
"start": 495,
"text": "\n\n -Versus-\n\nMANGLU SINGH, aged -63 years, son of late Dhela Singh of\n\nvillage- Kanchhinda (Tamada), PS- Chandiposh, District-\n\nSundargarh (Odisha). "
}
},
{
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"text": "(in custody)"
}
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{
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"value": {
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"labels": [
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"start": 733,
"text": "... Accused Person."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 889,
"labels": [
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],
"start": 754,
"text": "For the Prosecution: Sri Kailash Pradhan,\nFor the defence : Addl. P.P, Bonai.\n "
}
},
{
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"id": "02cafad89d8541df9ef9687576863f0c",
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"type": null,
"value": {
"end": 1125,
"labels": [
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],
"start": 889,
"text": "Miss S.Senapati, Advocate,\n Bonai.(appointed as SDC).\n\n Date of Argument: 05.08.2016.\n Date of Judgment:: 12.08.2016.\n\n(OFFENCE U/s.302 of INDIAN PENAL CODE)\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "b6ec93362c894f2384a3a10e9725576e",
"to_name": null,
"type": null,
"value": {
"end": 1257,
"labels": [
"FAC"
],
"start": 1127,
"text": "The above named accused stands charged for the offence punishable U/s.302 of the Indian Penal Code (herein after referred as IPC)."
}
},
{
"from_name": null,
"id": "31e83a7e1dc742b69581a46f529b4321",
"to_name": null,
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"value": {
"end": 1601,
"labels": [
"FAC"
],
"start": 1257,
"text": "\n2 Prosecution case in brief is that on 07.12.2013 at about 10.55 AM one Biswanatha Singh, son of Manglu Singh of village-Kachhinda (Tamada) reported in writing at Chandiposh PS stating therein that on the same day at about 8.30 AM the accused-father Manglu Singh caused murder of his mother Mangri Munda during a family quarrel in their house."
}
},
{
"from_name": null,
"id": "fea52ccfcfa34ce092a27a402547c8d0",
"to_name": null,
"type": null,
"value": {
"end": 1755,
"labels": [
"FAC"
],
"start": 1602,
"text": "He further gathered information that during that quarrel his father dealt blows at the neck of his mother with a tangia and killed her there at the spot."
}
},
{
"from_name": null,
"id": "36306f38284d43b6bcc7964ebe6bfecb",
"to_name": null,
"type": null,
"value": {
"end": 1957,
"labels": [
"FAC"
],
"start": 1756,
"text": "On getting such information the informant who was then outside his house came to his house and found the dead body of his mother that was falling inside their house sustaining severe bleeding injuries."
}
},
{
"from_name": null,
"id": "e6703a70b4bb4fb8be5e04c3bfb681a1",
"to_name": null,
"type": null,
"value": {
"end": 2039,
"labels": [
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],
"start": 1958,
"text": "He further found his father-accused was sitting near the dead body of his mother."
}
},
{
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"id": "0c10d13b31c8426e8c79a58b595f43dd",
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],
"start": 2040,
"text": "Being asked the accused told the informant that during a family quarrel, he has caused murder of Mangri Munda, his wife by assaulting her with a tangia."
}
},
{
"from_name": null,
"id": "83d2a92a71a641949f8ca0b40399f90a",
"to_name": null,
"type": null,
"value": {
"end": 2388,
"labels": [
"FAC"
],
"start": 2193,
"text": "Thereafter the informant lodged a written report at the PS and basing on his FIR, SI of police Barendra Sial registered PS case No. 49 of 2013 in absence of the OIC and took up its investigation."
}
},
{
"from_name": null,
"id": "c702787a23ce42299a38a6b5ac19ac85",
"to_name": null,
"type": null,
"value": {
"end": 2825,
"labels": [
"FAC"
],
"start": 2388,
"text": "\n During the course of investigation the I.O visited the spot, examined the informant and other material witnesses, made inquest on the dead body of the deceased and sent it for its post mortem examination, apprehended the accused, seized the weapon of offence.,i.e an axe, prepared the seizure lists and thereafter on completion of investigation, he has submitted the CS u/s. 302 of IPC against the accused and placed him for his trial."
}
},
{
"from_name": null,
"id": "c45d47e43648488293c526d49ac53545",
"to_name": null,
"type": null,
"value": {
"end": 2843,
"labels": [
"FAC"
],
"start": 2826,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "37d381a88206451e92b4eb68c73c2ed4",
"to_name": null,
"type": null,
"value": {
"end": 2881,
"labels": [
"FAC"
],
"start": 2844,
"text": "3. The plea of the defence is denial."
}
},
{
"from_name": null,
"id": "a13ae4f721914eb796033144c90757ff",
"to_name": null,
"type": null,
"value": {
"end": 2955,
"labels": [
"FAC"
],
"start": 2881,
"text": "\n4 The prosecution has examined as many as 14 witnesses to prove its case."
}
},
{
"from_name": null,
"id": "eb9ace83fb474ee987b16d7bc290e26a",
"to_name": null,
"type": null,
"value": {
"end": 2978,
"labels": [
"FAC"
],
"start": 2956,
"text": "PW.1 is the informant."
}
},
{
"from_name": null,
"id": "94bf36fdf25641498b57497a9860c1ea",
"to_name": null,
"type": null,
"value": {
"end": 3021,
"labels": [
"FAC"
],
"start": 2979,
"text": "PWs.2, 3 & 4 are the occurrence witnesses."
}
},
{
"from_name": null,
"id": "dfca7e78e81d4e1ea8537ed55270a40a",
"to_name": null,
"type": null,
"value": {
"end": 3062,
"labels": [
"FAC"
],
"start": 3022,
"text": "PW.5 is one of the sons of the deceased."
}
},
{
"from_name": null,
"id": "cde68676df5c4a86942e2f45b4a5881e",
"to_name": null,
"type": null,
"value": {
"end": 3124,
"labels": [
"FAC"
],
"start": 3062,
"text": "\n PWs. 6, 7, 8 & 12 are the other witnesses to the occurrence."
}
},
{
"from_name": null,
"id": "6ffa83224fa947eab4cb3b1a933fbbb4",
"to_name": null,
"type": null,
"value": {
"end": 3166,
"labels": [
"FAC"
],
"start": 3125,
"text": "PWs.9, 10 & 13 are the seizure witnesses."
}
},
{
"from_name": null,
"id": "e6102e93ca2f45b19eac9eb1f408530b",
"to_name": null,
"type": null,
"value": {
"end": 3243,
"labels": [
"FAC"
],
"start": 3167,
"text": "PW.11 is the M.O who had conducted autopsy on the dead body of the deceased."
}
},
{
"from_name": null,
"id": "aaf104ef2dcc4189a5f04801b5568450",
"to_name": null,
"type": null,
"value": {
"end": 3346,
"labels": [
"FAC"
],
"start": 3243,
"text": "\nPW.14 is the I.O who had investigated into this case and finally submitted the CS against the accused."
}
},
{
"from_name": null,
"id": "a34242b12e394235b4201c39f4d174bb",
"to_name": null,
"type": null,
"value": {
"end": 3451,
"labels": [
"FAC"
],
"start": 3346,
"text": "\n On the other hand the defence preferred none to examine in its favour to substantiate its defence plea."
}
},
{
"from_name": null,
"id": "e3f9dbd63e9f4242925057d63e4ec84d",
"to_name": null,
"type": null,
"value": {
"end": 3702,
"labels": [
"ISSUE"
],
"start": 3451,
"text": "\n5 The only point for determination is that (i) Whether on 07.12.2013 at about 8 AM in village- Kachhinda (Tamda) the accused committed murder of one Mangri Munda, his wife by intentionally or knowingly assaulting her with a tangia causing her death ?"
}
},
{
"from_name": null,
"id": "96e3e80fd6784b4a9c8d6c900fe44fbb",
"to_name": null,
"type": null,
"value": {
"end": 3882,
"labels": [
"FAC"
],
"start": 3702,
"text": "\n6 On an analysis of the prosecution evidence, it is found that PW.1, the informant stated in his evidence that the accused is his father, while the deceased Mangri was his mother."
}
},
{
"from_name": null,
"id": "a18c5a6efb9c451b8f2c647a3b028942",
"to_name": null,
"type": null,
"value": {
"end": 4114,
"labels": [
"FAC"
],
"start": 3883,
"text": "It is in his evidence that on the day of the incident he had gone out side of his house for daily wages and while he came back to his house at noon time, he found the dead body of his mother was falling inside their dwelling house."
}
},
{
"from_name": null,
"id": "0a4ec48ad92d4cf6a2b62037f27a7d0b",
"to_name": null,
"type": null,
"value": {
"end": 4272,
"labels": [
"FAC"
],
"start": 4115,
"text": "He further found his father-accused was sitting near the dead body of his mother, who told him that he has killed his mother by assaulting her with a tangia."
}
},
{
"from_name": null,
"id": "36c335e630764d3c9a1786bb285e022a",
"to_name": null,
"type": null,
"value": {
"end": 4317,
"labels": [
"FAC"
],
"start": 4273,
"text": "Then he lodged his written report at the PS."
}
},
{
"from_name": null,
"id": "c6e3d31921a34b1491a35e8ca86f6915",
"to_name": null,
"type": null,
"value": {
"end": 4679,
"labels": [
"FAC"
],
"start": 4318,
"text": "He has proved his written report as Ext.1.\n7. PW.2, the local Gramrakhe stated in his evidence that on the day of the incident at around 9 AM he got information from the villagers that the accused has killed his wife, so he went to the spot, found the dead body of the deceased that was falling inside the house of the accused sustaining cut injury at her neck."
}
},
{
"from_name": null,
"id": "af63b68ad912498288d00c6d80a6504b",
"to_name": null,
"type": null,
"value": {
"end": 4831,
"labels": [
"FAC"
],
"start": 4679,
"text": "\nHe further stated in his evidence that he has ascertained from the villagers that the accused has killed his wife by assaulting her with a Budia (axe)."
}
},
{
"from_name": null,
"id": "6c67bd70f7134b02840874a458290504",
"to_name": null,
"type": null,
"value": {
"end": 4920,
"labels": [
"FAC"
],
"start": 4832,
"text": "So he informed the local police, who arrived at the spot and took the accused to the PS."
}
},
{
"from_name": null,
"id": "5a79afce765b453d855ac7fcca71dc5c",
"to_name": null,
"type": null,
"value": {
"end": 5158,
"labels": [
"FAC"
],
"start": 4921,
"text": "PW.3 stated in his evidence that on the day of the incident he was absent from his house, but on his return on the next day of the incident, he came to know from the villagers that the accused has committed the murder of his wife Mangri."
}
},
{
"from_name": null,
"id": "126062f49c884d54abac2f898f426444",
"to_name": null,
"type": null,
"value": {
"end": 5431,
"labels": [
"FAC"
],
"start": 5159,
"text": "PW.4 similarly stated in her evidence that she was not present at the time of such incident, but on her return at around evening time she came to know about the death of Mangri, but she did not state the name of the person who had killed the deceased there at the spot.\n8."
}
},
{
"from_name": null,
"id": "17caeef187744a3f95a28888897e72ae",
"to_name": null,
"type": null,
"value": {
"end": 5720,
"labels": [
"FAC"
],
"start": 5432,
"text": "PW.5, the other son of the deceased stated in his evidence that on the day of the incident he was absent from his house, as he has gone outside for his wages, but on his return, he found the dead body of his mother was falling inside their house with severe bleeding injuries at her neck."
}
},
{
"from_name": null,
"id": "f33243236a3343389e6b5749d240b7db",
"to_name": null,
"type": null,
"value": {
"end": 5797,
"labels": [
"FAC"
],
"start": 5721,
"text": "He further stated in his evidence that his father was absent from the house."
}
},
{
"from_name": null,
"id": "22a0378f6c0a4148b7da18f190815692",
"to_name": null,
"type": null,
"value": {
"end": 5948,
"labels": [
"FAC"
],
"start": 5798,
"text": "This witness stated in his evidence that police made inquest on the dead body of his mother and that he has signed on the inquest report as a witness."
}
},
{
"from_name": null,
"id": "9fa73e56c81547989a326466f29d4e89",
"to_name": null,
"type": null,
"value": {
"end": 6091,
"labels": [
"FAC"
],
"start": 5949,
"text": "PW.6, scribe of the FIR stated in his evidence that as per the instruction of the informant, he has scribed the FIR that was lodged at the PS."
}
},
{
"from_name": null,
"id": "69cd2371ae304b96a177114d2e2814f0",
"to_name": null,
"type": null,
"value": {
"end": 6253,
"labels": [
"FAC"
],
"start": 6092,
"text": "PWs. 7, 8 & 12, the other occurrence witnesses stated nothing regarding the incident, nor they have implicated the accused during their examination in the Court."
}
},
{
"from_name": null,
"id": "af7c923d81f94431969515e6da48f5e8",
"to_name": null,
"type": null,
"value": {
"end": 6412,
"labels": [
"FAC"
],
"start": 6254,
"text": "9. PWs.9, 10 & 13 are found to be the witnesses to the seizure, who have proved different seizure lists, but they have no direct knowledge about the incident."
}
},
{
"from_name": null,
"id": "9a7a9e6e1a054af8a4f62e80e20fedbf",
"to_name": null,
"type": null,
"value": {
"end": 6572,
"labels": [
"FAC"
],
"start": 6414,
"text": "10. PW.11, the M.O who had conducted post mortem examination on the dead body of the deceased Mangri Singh @ Munda found 3 nos. of incised wounds at her neck."
}
},
{
"from_name": null,
"id": "849d6d9a6e794826941d6af383456370",
"to_name": null,
"type": null,
"value": {
"end": 6821,
"labels": [
"FAC"
],
"start": 6573,
"text": "Incised injury No.(i) has cut through all the muscle of the vessel of the neck have been cut through vertebra column at its way, while Incised injury No.(ii) above the first Incised injury at her neck cut through superficial muscle on small vessel."
}
},
{
"from_name": null,
"id": "0afaf62afeb24a2fa7fe7b7a84df1599",
"to_name": null,
"type": null,
"value": {
"end": 6895,
"labels": [
"FAC"
],
"start": 6822,
"text": "The Iincised injury No.(iii) was over the right shoulder of the deceased."
}
},
{
"from_name": null,
"id": "fe5eddfc2e294001aad0e410a9dcb956",
"to_name": null,
"type": null,
"value": {
"end": 7025,
"labels": [
"FAC"
],
"start": 6896,
"text": "The injuries were all ante mortem in nature as per the opinion of the M.O and the cause of death was due to shock and hemorrhage."
}
},
{
"from_name": null,
"id": "d5e81e8d6262430cb16af644d87eba02",
"to_name": null,
"type": null,
"value": {
"end": 7187,
"labels": [
"FAC"
],
"start": 7026,
"text": "The M.O further opined through his P.M examination report, Ext.7 that the cumulative effect of the injuries was sufficient in ordinary course to cause the death."
}
},
{
"from_name": null,
"id": "ef24567a3a3a48d6a0bfe53ae8fe4136",
"to_name": null,
"type": null,
"value": {
"end": 7498,
"labels": [
"FAC"
],
"start": 7188,
"text": "He further stated in his evidence that on 08.12.2013 at about 11 AM, the I.O produced the weapon of offence, an axe before him stained with blood that he has examined and gave his opinion vide his report, Ext.8 that the injuries he had noticed on the dead body of the deceased were all possible by that weapon."
}
},
{
"from_name": null,
"id": "57c5fd805f2f47a299f448536eaf7fb3",
"to_name": null,
"type": null,
"value": {
"end": 7707,
"labels": [
"FAC"
],
"start": 7499,
"text": "11. PW.14, the I.O stated in his evidence that on 07.12.2013 he has registered PS case No. 49 of 2013 in absence of the OIC, Chandiposh PS on the written report of the informant and took up its investigation."
}
},
{
"from_name": null,
"id": "b34e193e80304c5c9865501300261d66",
"to_name": null,
"type": null,
"value": {
"end": 7942,
"labels": [
"FAC"
],
"start": 7708,
"text": "It is in his evidence that during the course of his investigation he has visited the spot, examined the informant and other material witnesses, made inquest on the dead body of the deceased and sent it for its post mortem examination."
}
},
{
"from_name": null,
"id": "c9fa91c807ce4a8bb2aa4372cd9ee896",
"to_name": null,
"type": null,
"value": {
"end": 8287,
"labels": [
"FAC"
],
"start": 7943,
"text": "He further stated in his evidence that he has seized the incriminating materials from the spot alongwith the wearing apparel of the deceased, he apprehended the accused while he was sitting near the dead body of the deceased, arrested him and forwarded to custody and thereafter on completion of investigation, he has submitted CS in this case."
}
},
{
"from_name": null,
"id": "acde1ff17f92479ba24e3188d2364297",
"to_name": null,
"type": null,
"value": {
"end": 8516,
"labels": [
"ARG_PETITIONER"
],
"start": 8287,
"text": "\n12. During the course of argument, the learned Additional P.P contended that the sole evidence of PW.1 is sufficient enough to prove the guilt of the accused, hence he has urged to punish the accused adequately according to law."
}
},
{
"from_name": null,
"id": "6e211cbac7464d0b83a39e638e733292",
"to_name": null,
"type": null,
"value": {
"end": 8772,
"labels": [
"ARG_PETITIONER"
],
"start": 8517,
"text": "He further contended that the accused has confessed his guilt before the informant (PW.1), his son, so there is no reason to disbelieve the version of PW.1 and conviction can be based on his testimony as confession of the accused was free and voluntary.\n "
}
},
{
"from_name": null,
"id": "484bf53b227b4180a487010fd81556d8",
"to_name": null,
"type": null,
"value": {
"end": 9056,
"labels": [
"ARG_RESPONDENT"
],
"start": 8772,
"text": "On the contrary, the learned defence counsel contended that the sole evidence of PW.1 relating to extra judicial confession of the accused is not free from doubt; hence in such circumstances no conviction can be based solely on his version without any other independent corroboration."
}
},
{
"from_name": null,
"id": "cee40a5e80844f7c8f09f633ede58638",
"to_name": null,
"type": null,
"value": {
"end": 9111,
"labels": [
"ARG_RESPONDENT"
],
"start": 9057,
"text": "Hence, she has prayed for an acquittal of the accused."
}
},
{
"from_name": null,
"id": "1e631d267e984cb499ca98b210852074",
"to_name": null,
"type": null,
"value": {
"end": 9498,
"labels": [
"ARG_RESPONDENT"
],
"start": 9112,
"text": "In support of her contention, the learned defence counsel relied upon a case law as it is reported in (2011) 49 OCR 662 Sukun Kisan versus- State of Orissa, wherein Their Lordship held that mere absence of inducement, threat or promise is not enough to make the confession admissible, but the person making must be expecting the gain in advantage or avoid any evil of a temporal nature."
}
},
{
"from_name": null,
"id": "169e223e9eda4b3c8f94532066daf555",
"to_name": null,
"type": null,
"value": {
"end": 9673,
"labels": [
"ARG_RESPONDENT"
],
"start": 9499,
"text": "It was further held by Their Lordship that prosecution must establish the reasons for the accused to repose confidence on the person before whom he is making such confession."
}
},
{
"from_name": null,
"id": "9c33cb7938ab4432b6393cf5001437eb",
"to_name": null,
"type": null,
"value": {
"end": 9941,
"labels": [
"ARG_RESPONDENT"
],
"start": 9674,
"text": "She has also cited another case law as it is reported in (2011) 49 OCR (SC) 684 Ranjit Singh versus- State of Punjab, wherein Their Lordship held that extra judicial confession is extremely a weak kind of evidence and conviction on its basis alone is rarely recorded."
}
},
{
"from_name": null,
"id": "062d69d26fca466f9ab7fb9341ea294f",
"to_name": null,
"type": null,
"value": {
"end": 10334,
"labels": [
"ARG_RESPONDENT"
],
"start": 9942,
"text": "She has further relied on another case law as it is reported in Sama Kisan-versus- State of Orissa reported in (2011) 50 OCR 852. wherein Their Lordship held that while the fact of extra judicial confession of the accused is not stated by the witness before the IO while recording his statement u/s. 161 Cr.P.C, his later version on that aspect in the Court is not free from reasonable doubt."
}
},
{
"from_name": null,
"id": "bdd52cb3ca134fbaa2126f0eb641467c",
"to_name": null,
"type": null,
"value": {
"end": 10588,
"labels": [
"ARG_RESPONDENT"
],
"start": 10335,
"text": "On relying upon the above case laws, the learned defence counsel contended that the theory of extra judicial confession as it is claimed by the prosecution in this case is not at all reliable, hence benefit of doubt be tendered in favour of the accused."
}
},
{
"from_name": null,
"id": "f63eec7697664d9aadffd3368c7f7327",
"to_name": null,
"type": null,
"value": {
"end": 10846,
"labels": [
"ANALYSIS"
],
"start": 10589,
"text": "13. While the factual matrix of this case is as such we are now to make scrutiny of the evidence on record in order to arrive at our conclusion, whether the prosecution has successfully proved its case against the accused beyond all reasonable doubt or not."
}
},
{
"from_name": null,
"id": "e1628774cdc84c4880eed65e520bcbac",
"to_name": null,
"type": null,
"value": {
"end": 11271,
"labels": [
"ANALYSIS"
],
"start": 10847,
"text": "14. In fact in a case of murder, it is the bounden duty on the part of prosecution first to establish that the injuries inflicted on the deceased were all homicidal and anti mortem in nature and then to prove that the accused had inflicted the injuries causing such death either intentionally or with knowledge that the injuries inflicted on the victim were sufficient enough in ordinary course of nature to cause the death."
}
},
{
"from_name": null,
"id": "34a0ac4a33d044f3a4f94e76647c0764",
"to_name": null,
"type": null,
"value": {
"end": 11361,
"labels": [
"ANALYSIS"
],
"start": 11272,
"text": "The prosecution case may be proved by direct evidence or through circumstantial evidence."
}
},
{
"from_name": null,
"id": "72357820e9264671bc2de115be52b2e2",
"to_name": null,
"type": null,
"value": {
"end": 11471,
"labels": [
"ANALYSIS"
],
"start": 11362,
"text": "If the direct evidence is clear and cogent, a conviction can be based on such evidence without any other aid."
}
},
{
"from_name": null,
"id": "f3c988b6945c4889b85a3c98a5b6c07f",
"to_name": null,
"type": null,
"value": {
"end": 11769,
"labels": [
"ANALYSIS"
],
"start": 11472,
"text": "Similarly, conviction can be based on circumstantial evidence only if the chain of evidence is so completed as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
}
},
{
"from_name": null,
"id": "f3f0888d95364f509b039a6386472d54",
"to_name": null,
"type": null,
"value": {
"end": 11912,
"labels": [
"ANALYSIS"
],
"start": 11770,
"text": "So it is essential in the eye of law that the chain of circumstances aiming at the guilt of the accused should be completed without any break."
}
},
{
"from_name": null,
"id": "6248d7a5045b4040bc099688225d2e00",
"to_name": null,
"type": null,
"value": {
"end": 11995,
"labels": [
"ANALYSIS"
],
"start": 11913,
"text": "Admittedly in the present case at hand, there is no eye witness to the occurrence."
}
},
{
"from_name": null,
"id": "93f52fb83d8e4571bbbb685ec1283706",
"to_name": null,
"type": null,
"value": {
"end": 12101,
"labels": [
"ANALYSIS"
],
"start": 11996,
"text": "None has claimed to have seen the incident in his eye while the accused committed murder of the deceased."
}
},
{
"from_name": null,
"id": "b01aaa28275a4d10bb5210a35eac82fb",
"to_name": null,
"type": null,
"value": {
"end": 12317,
"labels": [
"ANALYSIS"
],
"start": 12102,
"text": "Only PW.1, the informant- son of the deceased stated in his evidence that the accused has confessed his guilt admitting to have committed the murder of Mangri by assaulting her with a tangia during a family quarrel."
}
},
{
"from_name": null,
"id": "a322dc278ad4499e8e5ab7cbb84f482e",
"to_name": null,
"type": null,
"value": {
"end": 12424,
"labels": [
"ANALYSIS"
],
"start": 12318,
"text": "Beside such piece of evidence, there is no other evidence on record to implicate the accused in this case."
}
},
{
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"to_name": null,
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"value": {
"end": 12569,
"labels": [
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],
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"text": "The other occurrence witnesses who deposed in the Court are found to be post occurrence witnesses having no direct knowledge about the incident."
}
},
{
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"end": 12774,
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"start": 12570,
"text": "So at this juncture it is now the duty of the Court to make thorough scrutiny on the evidence of PW.1 relating to extra judicial confession of the accused as it is claimed by the prosecution in this case."
}
},
{
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"id": "91871ff7836a44149c62312e5ab340aa",
"to_name": null,
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"value": {
"end": 12862,
"labels": [
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],
"start": 12775,
"text": "It is admitted fact that PW.1 is none, but the son of both the deceased and the accused"
}
},
{
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"id": "9746df168aa2474fa8f9eaff23843fca",
"to_name": null,
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"value": {
"end": 13009,
"labels": [
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],
"start": 12862,
"text": ". PW.1 further fairly admitted in his evidence that he was absent from his house at the time of such incident as he had gone outside for his wages."
}
},
{
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"id": "89ebae35f4ed4838801113e99a484a47",
"to_name": null,
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"value": {
"end": 13210,
"labels": [
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],
"start": 13010,
"text": "It is in his evidence that during the noon time while he had come back to his house, he found the dead body of his mother Mangri was falling inside their house with severe bleeding injury at her neck."
}
},
{
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"id": "a748c9f35d1d43e4b15ffbe910afb216",
"to_name": null,
"type": null,
"value": {
"end": 13412,
"labels": [
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],
"start": 13211,
"text": "He further noticed that his father-accused was sitting near the dead body of his mother, who had admitted to have committed the murder of Mangri by assaulting her with a tangia during a family quarrel."
}
},
{
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"id": "f60dc359460a46e4abbe6f3257e54788",
"to_name": null,
"type": null,
"value": {
"end": 13509,
"labels": [
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],
"start": 13413,
"text": "This part of his evidence found well corroborated to the facts that he has mentioned in his FIR."
}
},
{
"from_name": null,
"id": "8f6ed23b7be2476ba7e0e005f468da4d",
"to_name": null,
"type": null,
"value": {
"end": 13751,
"labels": [
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],
"start": 13510,
"text": "In his FIR, the informant, PW.1 specifically stated that the accused has confessed his guilt before him admitting to have committed the murder of his mother that he has reported to the police in the earliest opportunity while filing his FIR."
}
},
{
"from_name": null,
"id": "280306f6954d4d869ca21c03e9f3e057",
"to_name": null,
"type": null,
"value": {
"end": 13947,
"labels": [
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],
"start": 13752,
"text": "Similarly, PW.1, the informant also stated in his statement recorded u/s. 161 Cr.P.C by the I.O that the accused told him that he has committed murder of his wife by assaulting her with a tangia."
}
},
{
"from_name": null,
"id": "9de2367be3964d7caab6f1e078ca09b8",
"to_name": null,
"type": null,
"value": {
"end": 14116,
"labels": [
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],
"start": 13948,
"text": "So while assessing the evidence of PW.1, we have now to keep in mind the basic principle as enunciated by the case laws while considering the extra judicial confession."
}
},
{
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"id": "1081a14786d84003be4da8a0fffe9f2c",
"to_name": null,
"type": null,
"value": {
"end": 14548,
"labels": [
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],
"start": 14117,
"text": "The learned defence counsel at the time of argument relied on a case law as it is reported in 2015(II) OLR 614 Dasia Kanhu & another versus- State of Orissa, wherein Their Lordship while considering the case of extra judicial confession came to Their findings that the extra judicial confession of the accused should be free and voluntary unless it is hazardous to base any conviction on such evidence of extra judicial confession."
}
},
{
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"id": "864126619b7c428ba8aa29dc8261d38a",
"to_name": null,
"type": null,
"value": {
"end": 14689,
"labels": [
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],
"start": 14549,
"text": "She has further contended that PW.1 did not ascertain from his accused-father the reasons for which he has committed the murder of his wife."
}
},
{
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"id": "eb012049e2234d56b4200f07b9b3c8d3",
"to_name": null,
"type": null,
"value": {
"end": 14849,
"labels": [
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],
"start": 14690,
"text": "It was further contended by the defence that no where in his evidence PW.1 stated the reasons for which the accused has committed murder of his mother, Mangri."
}
},
{
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"id": "a1ca4f7db7b54160bee9393592e1c3fa",
"to_name": null,
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"value": {
"end": 14964,
"labels": [
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],
"start": 14850,
"text": "So the bald statement of the witness regarding such extra judicial confession is not acceptable in the eye of law."
}
},
{
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"id": "a1497504ae7d46cc85c7f2488c553ea5",
"to_name": null,
"type": null,
"value": {
"end": 15202,
"labels": [
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],
"start": 14965,
"text": "On the contrary the learned Additional P.P contended that there is no circumstance before the Court to disbelieve the version of PW.1, as he is none but the son of the accused who has no ill motive to implicate the accused in this crime."
}
},
{
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"id": "e80bde77ab964cefb1f818d55ddfd127",
"to_name": null,
"type": null,
"value": {
"end": 15373,
"labels": [
"ARG_PETITIONER"
],
"start": 15203,
"text": "He further contended that the evidence of PW.1 is found truthful without any exaggeration; hence his evidence can be relied upon to base a conviction against the accused."
}
},
{
"from_name": null,
"id": "8abee57e48ee4f749822f26d4d3ea470",
"to_name": null,
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"value": {
"end": 15549,
"labels": [
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],
"start": 15374,
"text": "So keeping in mind the contentions of both the sides, we are now to go through some leading case laws on extra judicial confession as it were propounded by the Hon'ble Courts."
}
},
{
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"id": "0a76d19e26fa4a9a9ff38d559aff4073",
"to_name": null,
"type": null,
"value": {
"end": 15790,
"labels": [
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],
"start": 15550,
"text": "In a case law as it is reported in 2014 Supp(II) OLR 999 Hari Dehury versus- State of Orissa, Their Lordship held that evidentiary value of the extra judicial confession must be judged in the facts and circumstances of each individual case."
}
},
{
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"id": "ed629a46f16e470cb69f0681e6e05b23",
"to_name": null,
"type": null,
"value": {
"end": 15940,
"labels": [
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],
"start": 15791,
"text": "If such extra judicial confession is voluntary and consistent with the circumstantial evidence then only the guilt of the accused can be established."
}
},
{
"from_name": null,
"id": "1d54c4652b8b4bf3b00e37aa7cf4f554",
"to_name": null,
"type": null,
"value": {
"end": 16222,
"labels": [
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],
"start": 15941,
"text": "In another case law as it is reported in 2009(I) OLR 548 State of Orissa-versus-Mulia Adapadia, Their Lordship held that unless the extra judicial confession is made voluntarily before a witness on whom the accused has trust and confidence, such statement should not be acted upon."
}
},
{
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"id": "b7f3d3f011fc4a5fa1c076d13fbebd1c",
"to_name": null,
"type": null,
"value": {
"end": 16591,
"labels": [
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],
"start": 16223,
"text": "In another case as it is reported in (2011) 49 OCR (SC) 712 Sk. Yusuf-versus- State of West Bengal, Their Lordship of the Hon'ble Apex Court held that extra judicial confession is certainly a weak piece of evidence, but if it is true and voluntary and made in a free state of mind, then it is credible one and conviction can be based on such extra judicial confession."
}
},
{
"from_name": null,
"id": "ceeb6a8ff42e4912bea2f0e6fd308d2f",
"to_name": null,
"type": null,
"value": {
"end": 16847,
"labels": [
"PRE_RELIED"
],
"start": 16592,
"text": "Similarly, in another case as it is reported in (2012) 52 OCR SC 435 Sahadeb and another- vesus- State of Tamilnadu, Their Lordship of the Hon'ble Apex Court has formulated certain principles while considering the extra judicial confession of the accused."
}
},
{
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"id": "5e4cf8a2b8cd4faaaa6768c3a7760513",
"to_name": null,
"type": null,
"value": {
"end": 16859,
"labels": [
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],
"start": 16848,
"text": "Those are:-"
}
},
{
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"id": "54bd9b38aef64f8299adea5b1f2e8bdd",
"to_name": null,
"type": null,
"value": {
"end": 16921,
"labels": [
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],
"start": 16860,
"text": "(i) The extra judicial confession is weak evidence by itself."
}
},
{
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"id": "e10958d9c859465b96b3e7f5bdedf257",
"to_name": null,
"type": null,
"value": {
"end": 17515,
"labels": [
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],
"start": 16922,
"text": "It has to be examined by the Court with great care and caution, (ii) It should be made voluntarily and should be truthful, (iii) It should inspires confidence, (iv) The extra judicial confession attains a great credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by the prosecution evidence, (v) In an extra judicial confession to base any conviction, it should not be suffer from any material discrepancy and inherent improbability, (vi) Such statement essentially has to be proved like any other fact in accordance with law.\n "
}
},
{
"from_name": null,
"id": "bcf2351347ce4b2cbe3102f07ad9770b",
"to_name": null,
"type": null,
"value": {
"end": 17638,
"labels": [
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],
"start": 17515,
"text": "So keeping in mind, the ratios of the case laws cited above, we have now to make thorough analysis on the evidence of PW.1."
}
},
{
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"id": "817d62465993453184d65fd34f71c2a8",
"to_name": null,
"type": null,
"value": {
"end": 17841,
"labels": [
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],
"start": 17639,
"text": "As it is previously discussed that PW.1 is none but the son of the deceased and the accused, normally there is no possibility on his part to implicate his father-accused falsely in such a heinous crime."
}
},
{
"from_name": null,
"id": "79c4b99a2e1e43bb81b2a2a962a584b9",
"to_name": null,
"type": null,
"value": {
"end": 17983,
"labels": [
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],
"start": 17842,
"text": "It is clear from the evidence of PW.1 that he came back to his house while he found the dead body of his mother was falling inside the house."
}
},
{
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"id": "0303db9c4e464e70946c687ed2280b36",
"to_name": null,
"type": null,
"value": {
"end": 18173,
"labels": [
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],
"start": 17984,
"text": "He further found that his father was sitting by the side of the deceased, who had voluntarily told him that he has killed his mother by assaulting her with a tangia during a family quarrel."
}
},
{
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"id": "77bc468c2cb54f588eb02b6f7275d920",
"to_name": null,
"type": null,
"value": {
"end": 18279,
"labels": [
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],
"start": 18174,
"text": "The circumstance never suggests that there was coercion or threat on the accused to make such confession."
}
},
{
"from_name": null,
"id": "8a30bbf00ae84c3eb6f7980ec87d0066",
"to_name": null,
"type": null,
"value": {
"end": 18473,
"labels": [
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],
"start": 18280,
"text": "It is also abundantly clear that the person before whom the accused has confessed his guilty was his son and normally one can repose confidence on his kith and kin while making such confession."
}
},
{
"from_name": null,
"id": "9e396c7e15f8444fb0c24ec1f99be85b",
"to_name": null,
"type": null,
"value": {
"end": 18593,
"labels": [
"ANALYSIS"
],
"start": 18474,
"text": "No other animosity between the son and accused-father was established by the defence to discredit the evidence of PW.1."
}
},
{
"from_name": null,
"id": "8ee290d89f92409f8f03a1c2d2920394",
"to_name": null,
"type": null,
"value": {
"end": 18739,
"labels": [
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],
"start": 18594,
"text": "So the confession of the accused in my considered opinion was certainly voluntary and truthful that inspires confidence in the mind of the Court."
}
},
{
"from_name": null,
"id": "a30c7131f8a44a019d7452b6176d43c4",
"to_name": null,
"type": null,
"value": {
"end": 18863,
"labels": [
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],
"start": 18740,
"text": "The circumstance of the case also corroborates the fact of confession of the accused as it is claimed by PW.1 in this case."
}
},
{
"from_name": null,
"id": "3fc13d08a35b4c95a7b3bfb7ac65693b",
"to_name": null,
"type": null,
"value": {
"end": 19028,
"labels": [
"ANALYSIS"
],
"start": 18864,
"text": "The I.O, PW.14 who had reached the spot soon after receiving information from the Grama Rakhi found the accused while he was sitting near the dead body of his wife."
}
},
{
"from_name": null,
"id": "7be98615fffd48ac89805dcbcf6ac6ca",
"to_name": null,
"type": null,
"value": {
"end": 19157,
"labels": [
"ANALYSIS"
],
"start": 19029,
"text": "The I.O further stated in his evidence that he has seen the weapon of offence, a tangia that the accused has kept near the spot."
}
},
{
"from_name": null,
"id": "0ca2e2592be946d8a359b4b58729521c",
"to_name": null,
"type": null,
"value": {
"end": 19355,
"labels": [
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],
"start": 19158,
"text": "The M.O, PW.11 before whom the weapon of offence, the axe was produced noticed blood stain marks on it, that also equally corroborates to the fact of killing of the deceased by such weapon, an axe."
}
},
{
"from_name": null,
"id": "4ac4f55347354ace9b6c1208a1941863",
"to_name": null,
"type": null,
"value": {
"end": 19535,
"labels": [
"ANALYSIS"
],
"start": 19356,
"text": "So the whole circumstances of this case clearly suggest me to believe that the accused has killed his wife Mangri during a family quarrel by assaulting her brutally with a tangia."
}
},
{
"from_name": null,
"id": "257b9c7500df4be5933420db619046dc",
"to_name": null,
"type": null,
"value": {
"end": 19652,
"labels": [
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],
"start": 19536,
"text": "Such extra judicial confession of the accused is accepted in this case, as it is found free, voluntary and truthful."
}
},
{
"from_name": null,
"id": "8e85060a69ff4ec09c70f052444b360d",
"to_name": null,
"type": null,
"value": {
"end": 19839,
"labels": [
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],
"start": 19653,
"text": "There is no ambiguity in the mind of the Court to disbelieve such extra judicial confession of the accused as no other contrary is proved by the defence to discard such evidence of PW.1."
}
},
{
"from_name": null,
"id": "80ce52b7322e43688259eae20da76022",
"to_name": null,
"type": null,
"value": {
"end": 20012,
"labels": [
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],
"start": 19840,
"text": "Though PW.1 was extensively cross examined by the defence, but nothing tangible could be brought out to disbelieve such version on extra judicial confession of the accused."
}
},
{
"from_name": null,
"id": "7e7f4c25ecdf4ea799489f188828acae",
"to_name": null,
"type": null,
"value": {
"end": 20060,
"labels": [
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],
"start": 20013,
"text": "So I repose confidence on the evidence of PW.1."
}
},
{
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"id": "8d05b1c31a5541249a9decf576a49ad8",
"to_name": null,
"type": null,
"value": {
"end": 20240,
"labels": [
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],
"start": 20060,
"text": "\nHence it is held that in fact the accused has killed his wife Mangri Munda by assaulting her with a tangia and as such the confession was free and voluntary, hence it is accepted."
}
},
{
"from_name": null,
"id": "35e71bbb0fb948cfaf3d5b7f5eefa0da",
"to_name": null,
"type": null,
"value": {
"end": 20357,
"labels": [
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],
"start": 20241,
"text": "So in such circumstances we have now to further make scrutiny on the circumstances, in which the death was occurred."
}
},
{
"from_name": null,
"id": "fce10054951a48bb8bc7a9a726631ba6",
"to_name": null,
"type": null,
"value": {
"end": 20575,
"labels": [
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],
"start": 20358,
"text": "15. The learned defence counsel at the time of argument alternatively urged that in case the prosecution case is believed, then also it never falls u/s. 302 of IPC as the accused has not killed his wife intentionally."
}
},
{
"from_name": null,
"id": "ee6dc7bedc9e41c6bc5403dc979abeff",
"to_name": null,
"type": null,
"value": {
"end": 20714,
"labels": [
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],
"start": 20576,
"text": "So she has submitted that at best the accused can be punished u/s. 304, Part-II of IPC in case the entire prosecution case is established."
}
},
{
"from_name": null,
"id": "578931a513564ea49a5ca1fe71fa0a04",
"to_name": null,
"type": null,
"value": {
"end": 21570,
"labels": [
"STA"
],
"start": 20714,
"text": "\n16. Section-300 IPC defines `murder' speaks that when the culpable homicide is committed with intention to causing death(clause-firstly) or with the intention of causing such bodily injury which the offence knows is likely to cause death of the person to whom the harm is caused (clause-secondly) or if it is done with the intention of causing bodily injuries which is intentionally inflicted and such bodily injury is sufficient in the ordinary course of nature to cause death of the deceased (clause thirdly) or the offender committed culpable homicide by an act which he knows that it is imminently so dangerous that in all probability such act is likely to cause death of the deceased or likely to cause any injury as is likely to cause death without any excuse for causing the death or such bodily injury (clause fourthly) the same amounts to murder."
}
},
{
"from_name": null,
"id": "61a39757d44a44639ce897f64c9a4d67",
"to_name": null,
"type": null,
"value": {
"end": 21722,
"labels": [
"STA"
],
"start": 21571,
"text": "But such culpable homicide shall not amount to murder if the same is done in any of the circumstances provided in the exception to Section- 300 of IPC."
}
},
{
"from_name": null,
"id": "c9f31c124d02438eadf1cbacd6380a85",
"to_name": null,
"type": null,
"value": {
"end": 22178,
"labels": [
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],
"start": 21723,
"text": "Culpable homicide caused in the circumstances mentioned in clause-Istly to Clause-3rdly to Section- 300 of IPC if covered by any of the five exceptions there in the said section the same would attract the ingredients of charge u/s. 304, Part-I of IPC, but when caused in the circumstances provided in Clause-4thly by Section- 300 of IPC and covered by any of the five exceptions, the same would attract the ingredients of Section- 304, Part-II of IPC.\n17."
}
},
{
"from_name": null,
"id": "c263fd3cf33040afa2c748e52b27fb70",
"to_name": null,
"type": null,
"value": {
"end": 22434,
"labels": [
"ANALYSIS"
],
"start": 22179,
"text": "So keeping in view the principles stated above, now we have to go through the evidence on record in order to arrive at our conclusion, whether the prosecution case falls u/s. 302 of IPC or it falls u/s. 304, Part-II of IPC as it is claimed by the defence."
}
},
{
"from_name": null,
"id": "aac65d1f425b43008cb4cca829779240",
"to_name": null,
"type": null,
"value": {
"end": 22727,
"labels": [
"PRE_RELIED"
],
"start": 22435,
"text": "In a case law as it is reported in (2009) 44 OCR 938 Khaga @ Khageswat Naik and others- versus- State of Orissa, wherein Their Lordship held that where the incident took place without any pre-plan but in a heat of passion then it falls u/s. 304, Part-II of IPC instead of section- 302 of IPC."
}
},
{
"from_name": null,
"id": "634725004e9a4aa19f92581bdd4d6f5c",
"to_name": null,
"type": null,
"value": {
"end": 23095,
"labels": [
"PRE_RELIED"
],
"start": 22728,
"text": "In another case law as it is reported in (2009) 44 OCR 723 Adikanda Mohanty and another-versus- State of Orissa, Their Lordship held that while the assault was not made with a pre-plan, but the incident happened at the spur of the moment causing death of a person due to assault of the accused, then also it falls u/s. 304, Part-II of IPC, instead of u/s. 302 of IPC."
}
},
{
"from_name": null,
"id": "b07dcc53efa44cda9b34f185ace9e4d8",
"to_name": null,
"type": null,
"value": {
"end": 23410,
"labels": [
"PRE_RELIED"
],
"start": 23096,
"text": "In another case law as it is reported in (2005) 11 SCC 536 Tanka Chain versus- State, Their Lordship held that when there is no motive to cause death, section- 300 of IPC is not attracted, but if the assailant knew that the said injury is likely to cause the death, the conviction will be u/s. 304, Part-II of IPC."
}
},
{
"from_name": null,
"id": "220b9adee612486bae12873b202fa01e",
"to_name": null,
"type": null,
"value": {
"end": 23743,
"labels": [
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],
"start": 23411,
"text": "Similarly, in another case law as it is reported in (2000) 7 SCC 2249 State-versus- Indarjit, Their Lordship held that absence of intention to cause a death coupled with lack of knowledge that death would be inevitably caused on account of the injury would make an offence falls only u/s.304,Part-II of IPC, but not u/s. 302 of IPC."
}
},
{
"from_name": null,
"id": "b67e58c7054249a5a76ffaaeb348a8f2",
"to_name": null,
"type": null,
"value": {
"end": 23944,
"labels": [
"RATIO"
],
"start": 23743,
"text": "\n Admittedly the present incident happened during a family quarrel and during that quarrel with a heat of passion the accused has dealt blows with a tangia at the neck of his wife while causing murder."
}
},
{
"from_name": null,
"id": "706bac59f9f84625a1883fb7b61c2bbb",
"to_name": null,
"type": null,
"value": {
"end": 24105,
"labels": [
"RATIO"
],
"start": 23945,
"text": "There was no intention on the part of the accused to cause the murder of his wife, nor it is established through the evidence that it was a pre-planned murder.."
}
},
{
"from_name": null,
"id": "2b154fa095944bb4803e044c0836e86b",
"to_name": null,
"type": null,
"value": {
"end": 24269,
"labels": [
"RATIO"
],
"start": 24106,
"text": "It happened due to sudden quarrel without any intention of causing murder, though the blows were fatal in nature and inflicted with a dangerous weapon like tangia."
}
},
{
"from_name": null,
"id": "e7149d6d76bf4a5490633d8d542ea8a4",
"to_name": null,
"type": null,
"value": {
"end": 24537,
"labels": [
"RATIO"
],
"start": 24270,
"text": "Though there was no intention of the accused to kill his wife, Mangri, but the circumstances suggest that the accused has knowledge of causing such injuries on her vital part at her neck by inflicting the same with dangerous weapon like tangia, resulted to her death."
}
},
{
"from_name": null,
"id": "9290cda4ed1a4a41862240556cf469b2",
"to_name": null,
"type": null,
"value": {
"end": 24660,
"labels": [
"RATIO"
],
"start": 24538,
"text": "So the present case though covers section- 300, Clause-(iv) of IPC, but it falls under exception (iv) of the same section."
}
},
{
"from_name": null,
"id": "7831fe0af1dc4338b6cc5f77546c2b57",
"to_name": null,
"type": null,
"value": {
"end": 24796,
"labels": [
"RATIO"
],
"start": 24661,
"text": "Hence, the accused is liable to be punished for committing the offence punishable u/s. 304, Part-II of IPC, instead of u/s. 302 of IPC."
}
},
{
"from_name": null,
"id": "fd840d1055fd40719b882500ccb868b9",
"to_name": null,
"type": null,
"value": {
"end": 25001,
"labels": [
"RATIO"
],
"start": 24797,
"text": "So in view of my above discussions, I came to my clear findings that the prosecution could be able to prove the offence punishable u/s. 304, Part-II of IPC against the accused beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "52c84dc31f0440789a1d948d1ab012b3",
"to_name": null,
"type": null,
"value": {
"end": 25155,
"labels": [
"RPC"
],
"start": 25002,
"text": "18. In the result, the accused is not found guilty for committing the offence punishable u/s. 302 of IPC and he is acquitted thereof u/s. 235(i) Cr. P.C."
}
},
{
"from_name": null,
"id": "21e5182827724530834ed34b9350d9a8",
"to_name": null,
"type": null,
"value": {
"end": 25271,
"labels": [
"RPC"
],
"start": 25156,
"text": "But he is found guilty for committing the offence punishable u/s. 304, Part-II of IPC and convicted him thereunder."
}
},
{
"from_name": null,
"id": "8505b544bc254f2eb2dc99efcd3a3a2a",
"to_name": null,
"type": null,
"value": {
"end": 25556,
"labels": [
"RPC"
],
"start": 25272,
"text": "19. Further considering the facts and circumstances of this case, nature and gravity of the offence and its impact in the society and magnitude of punishment prescribed under law, this Court is not inclined to extend the benefit of Probation of Offender Act in favourt of the convict."
}
},
{
"from_name": null,
"id": "eb4e865a5bfe4fc3bbaaa40580067ea5",
"to_name": null,
"type": null,
"value": {
"end": 25591,
"labels": [
"NONE"
],
"start": 25556,
"text": "\n Additional Sessions Judge, Bonai."
}
},
{
"from_name": null,
"id": "e228f99535b1414aa51d8705b5cd9453",
"to_name": null,
"type": null,
"value": {
"end": 25927,
"labels": [
"NONE"
],
"start": 25591,
"text": "\n The judgment is pronounced in the open court to-day this the 12th day of August, 2016 given under my hand and the seal of the Court, after it was typed to my dictation and corrected by me.\n Sd/- Additional Sessions Judge, Bonai.\n HEARING ON THE QUESTION OF SENTENCE Heard on the question of the sentence from both the sides at length."
}
},
{
"from_name": null,
"id": "33201b0c21b944e8b3d80990d440b091",
"to_name": null,
"type": null,
"value": {
"end": 26131,
"labels": [
"RPC"
],
"start": 25928,
"text": "The learned defence counsel appearing for the convict contended that the convict Is an old rustic man having his other dependant family members, hence prayed to take lenient view while imposing sentence."
}
},
{
"from_name": null,
"id": "d33a00a00e1041f09daafb73b794a4a5",
"to_name": null,
"type": null,
"value": {
"end": 26280,
"labels": [
"RPC"
],
"start": 26132,
"text": "On the other hand learned Additional P.P contended that the convict has brutally killed his wife, so he may be adequately punished according to law."
}
},
{
"from_name": null,
"id": "f57082639be24bec93aac5cba3ddc262",
"to_name": null,
"type": null,
"value": {
"end": 26375,
"labels": [
"RPC"
],
"start": 26282,
"text": "Perused the case record and it is found that no previous crime is proved against the convict."
}
},
{
"from_name": null,
"id": "5e66b1451b964e2ca928ec688549cea7",
"to_name": null,
"type": null,
"value": {
"end": 26426,
"labels": [
"RPC"
],
"start": 26376,
"text": "The convict is also found to be an old rustic man."
}
},
{
"from_name": null,
"id": "e0cd54e4d87f4f1686d0ba7bbe606cd7",
"to_name": null,
"type": null,
"value": {
"end": 26557,
"labels": [
"RPC"
],
"start": 26427,
"text": "So taking into consideration the above facts and circumstances of the case, lenient view is taken while imposing sentences on him."
}
},
{
"from_name": null,
"id": "5317610e5e7d4cfd82b0fb860a986966",
"to_name": null,
"type": null,
"value": {
"end": 26776,
"labels": [
"RPC"
],
"start": 26558,
"text": "The convict is sentenced to undergo R.I for 7 (SEVEN) years and to pay a fine of Rs.5,000/-(Rupees five thousand) only and in its default to undergo RI for six months for the offence punishable u/s.304, Part-II of IPC."
}
},
{
"from_name": null,
"id": "4e522cb90c5942e7baa15f30f6025efb",
"to_name": null,
"type": null,
"value": {
"end": 26848,
"labels": [
"RPC"
],
"start": 26776,
"text": "\n The UTP period, if any of the convict, be set-off with the sentence.\n "
}
},
{
"from_name": null,
"id": "5a591ebf76f64859a6937f509a89ff48",
"to_name": null,
"type": null,
"value": {
"end": 26967,
"labels": [
"RPC"
],
"start": 26848,
"text": "The seized articles in this case, if any be destroyed after four months of the appeal period if no appeal is preferred."
}
},
{
"from_name": null,
"id": "b2ede255061541a6adabc7aa697fa20a",
"to_name": null,
"type": null,
"value": {
"end": 27044,
"labels": [
"RPC"
],
"start": 26968,
"text": "In case of any appeal it to be dealt with the orders of the Appellate Court."
}
},
{
"from_name": null,
"id": "d0a9f661bbf8464d8c05c88b4fc3ac43",
"to_name": null,
"type": null,
"value": {
"end": 27084,
"labels": [
"NONE"
],
"start": 27044,
"text": "\n Sd/- Additional Sessions Judge, Bonai."
}
},
{
"from_name": null,
"id": "7f934ada6f9545d0a7fae3613f113079",
"to_name": null,
"type": null,
"value": {
"end": 27132,
"labels": [
"NONE"
],
"start": 27086,
"text": "List of witnesses examined by the prosecution."
}
},
{
"from_name": null,
"id": "6d142a465d764705a2f412e450d52c79",
"to_name": null,
"type": null,
"value": {
"end": 27160,
"labels": [
"NONE"
],
"start": 27134,
"text": "PW.1 Biswanath Singh."
}
},
{
"from_name": null,
"id": "b320cd7b58214014bebd45a06a47c9a3",
"to_name": null,
"type": null,
"value": {
"end": 27186,
"labels": [
"NONE"
],
"start": 27161,
"text": "PW.2 Prahalad Singh."
}
},
{
"from_name": null,
"id": "7c9f1497800840b8a47a37f8035efe30",
"to_name": null,
"type": null,
"value": {
"end": 27215,
"labels": [
"NONE"
],
"start": 27187,
"text": "PW.3 Raghunatjha Singh."
}
},
{
"from_name": null,
"id": "f39403f1a2f4443fb6e7babb2f4b3158",
"to_name": null,
"type": null,
"value": {
"end": 27240,
"labels": [
"NONE"
],
"start": 27216,
"text": "PW.4 Fulmani Singh."
}
},
{
"from_name": null,
"id": "fb8a4c14e6a04495bb51236867b5062a",
"to_name": null,
"type": null,
"value": {
"end": 27267,
"labels": [
"NONE"
],
"start": 27241,
"text": "PW.5 Rasananda Singh."
}
},
{
"from_name": null,
"id": "454ad8cc352b41968c4ab9a378d19a1b",
"to_name": null,
"type": null,
"value": {
"end": 27292,
"labels": [
"NONE"
],
"start": 27268,
"text": "PW.6 Theophil Oram."
}
},
{
"from_name": null,
"id": "7b986efcba774273ad14182e282b52a7",
"to_name": null,
"type": null,
"value": {
"end": 27315,
"labels": [
"NONE"
],
"start": 27293,
"text": "PW.7 Birsa Munda."
}
},
{
"from_name": null,
"id": "ca98d34132f24aa0832c166d42b7c07e",
"to_name": null,
"type": null,
"value": {
"end": 27356,
"labels": [
"NONE"
],
"start": 27316,
"text": "PW.8 Edward James Gudia.\nPW.9 "
}
},
{
"from_name": null,
"id": "7896dbbe674b48c78f77b5a83ce587ab",
"to_name": null,
"type": null,
"value": {
"end": 27374,
"labels": [
"NONE"
],
"start": 27356,
"text": "Guru Charan Singh."
}
},
{
"from_name": null,
"id": "e3806208796a4c85b755d59a55fa04ba",
"to_name": null,
"type": null,
"value": {
"end": 27396,
"labels": [
"NONE"
],
"start": 27375,
"text": "PW.10 Efrem Beck."
}
},
{
"from_name": null,
"id": "25e70426e8c04a0091e6bec119d1a678",
"to_name": null,
"type": null,
"value": {
"end": 27420,
"labels": [
"NONE"
],
"start": 27397,
"text": "PW.11 Dr A.Mishra.\n"
}
},
{
"from_name": null,
"id": "6385348118d4462f97d06757b9259ff1",
"to_name": null,
"type": null,
"value": {
"end": 27430,
"labels": [
"NONE"
],
"start": 27420,
"text": "PW.12 "
}
},
{
"from_name": null,
"id": "57b70d35fd754c6f8b31e3a9935344e8",
"to_name": null,
"type": null,
"value": {
"end": 27442,
"labels": [
"NONE"
],
"start": 27430,
"text": "Raju Bhokla."
}
},
{
"from_name": null,
"id": "fd0038e015534f408f4fb26fa9798683",
"to_name": null,
"type": null,
"value": {
"end": 27464,
"labels": [
"NONE"
],
"start": 27443,
"text": "PW.13 Isak Kullu."
}
},
{
"from_name": null,
"id": "95b744c460b0495fa19a1b79df5b01b0",
"to_name": null,
"type": null,
"value": {
"end": 27475,
"labels": [
"NONE"
],
"start": 27465,
"text": "PW.13 "
}
},
{
"from_name": null,
"id": "de7c5b79838649a19f067dc31713797a",
"to_name": null,
"type": null,
"value": {
"end": 27489,
"labels": [
"NONE"
],
"start": 27475,
"text": "Barendra Sial."
}
},
{
"from_name": null,
"id": "3b300550594c4c4f906c6220bdb3c254",
"to_name": null,
"type": null,
"value": {
"end": 27543,
"labels": [
"NONE"
],
"start": 27491,
"text": "List of witnesses examined on behalf of the defence."
}
},
{
"from_name": null,
"id": "c4b6dc65bdae453281dd545663a5898c",
"to_name": null,
"type": null,
"value": {
"end": 27566,
"labels": [
"NONE"
],
"start": 27543,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "da7cedd3a911466992fb275b36338a3f",
"to_name": null,
"type": null,
"value": {
"end": 27609,
"labels": [
"NONE"
],
"start": 27568,
"text": "List of documents marked for prosecution."
}
},
{
"from_name": null,
"id": "1b80558914be4b90bb7154373f25caf4",
"to_name": null,
"type": null,
"value": {
"end": 27680,
"labels": [
"NONE"
],
"start": 27609,
"text": "\n Ext. 1 FIR.\n Ext. 1/1 Signature of PW.1.\n Ext. 2 Seizure list."
}
},
{
"from_name": null,
"id": "852609b0a39a4b0a90a8c71b441c044e",
"to_name": null,
"type": null,
"value": {
"end": 27712,
"labels": [
"NONE"
],
"start": 27682,
"text": "Ext. 2/1 Signature of PW.1.\n "
}
},
{
"from_name": null,
"id": "45efcd2be19c409991e636415b92cd29",
"to_name": null,
"type": null,
"value": {
"end": 27737,
"labels": [
"NONE"
],
"start": 27712,
"text": "Ext..3 Inquest report."
}
},
{
"from_name": null,
"id": "f6807669f8634d689f45fe0af7330a86",
"to_name": null,
"type": null,
"value": {
"end": 27852,
"labels": [
"NONE"
],
"start": 27737,
"text": "\n Ext.3/1 Signature of PW.5.\n Ext.1/2 Signature of PW.6.\n Ext.3/2 Signature of PW.9.\n Ext.4 Seizure list."
}
},
{
"from_name": null,
"id": "8e71366fe1ba488790ff8142fdedfb63",
"to_name": null,
"type": null,
"value": {
"end": 28048,
"labels": [
"NONE"
],
"start": 27852,
"text": "\n Ext.4/1 Signature of PW.10.\n Ext.5 Seizure list.\n Ext.5/1 Signature of PW.10.\n Ext.6 Seizure list.\n Ext.6/1 Signature of PW.10.\n Ext.7 PM report.\n Ext.7/1 Signature of PW.11."
}
},
{
"from_name": null,
"id": "3adc393911534785bfd6e269f08575d2",
"to_name": null,
"type": null,
"value": {
"end": 28076,
"labels": [
"NONE"
],
"start": 28050,
"text": "Ext.8 Medical opinion."
}
},
{
"from_name": null,
"id": "9d16f2c35bc14d5e97d78162bfc8544f",
"to_name": null,
"type": null,
"value": {
"end": 28107,
"labels": [
"NONE"
],
"start": 28076,
"text": "\n Ext.8/1 Signature of PW.11."
}
},
{
"from_name": null,
"id": "1e0db0d81fa04027aa47f174d34efc75",
"to_name": null,
"type": null,
"value": {
"end": 28135,
"labels": [
"NONE"
],
"start": 28107,
"text": "\n Ext.9 Report of PW.11."
}
},
{
"from_name": null,
"id": "9447674e42614073a66fa39b7ddf9b02",
"to_name": null,
"type": null,
"value": {
"end": 28779,
"labels": [
"NONE"
],
"start": 28135,
"text": "\n Ext.9/1 Signature of PW.11.\n5/2 Signature of PW.13.\nExt.4/2 Signature of PW.13.\nExt.6/2 Signature of PW.13.\nExt.1/3 Signature and endorsement of PW.14.\nExt.10 Formal xFIR.\nExt.10/1 Signature of PW.14.\nExt.3/3 Signature of PW.14.\nExt.11 Dead body challan.\nExt.11/1 Signature of PW.14.\nExt.2/2 Signature of PW.14.\nExt.5/3 Signature of PW.14.\nExt.4/3 Signature of PW.14.\nExt.6/3 Signatue of PW.14.\nExt.12 Forwarding report of accused.\nExt.12/1 Signature of PW.14.\n List of documents marked on behalf of defence.\n Nil.\n List of Material Objects, admitted in to evidence.\n Nil."
}
},
{
"from_name": null,
"id": "e3c77c6a67a04ede82ac58e33c1f6bfe",
"to_name": null,
"type": null,
"value": {
"end": 28819,
"labels": [
"NONE"
],
"start": 28781,
"text": "sd/- Additional Sessions Judge, Bonai."
}
}
]
}
] | 4,105 | {
"text": "IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE,\n BONAI.\n\nPresent:-\n\n Sri Ganeswar Pati, LL.B.\n Additional District & Sessions Judge,\n Bonai.\n\nSessions Trial No. 39/ 78 of 2014\n(Arising out of GR Case No. 491 of 2013 of the file of the SDJM,\nBonai corresponds to Chandiposh P.S. Case No.49 dated\n07.12.2013 committed to the Court of Session on 24.03.2014 by\nthe learned SDJM, Bonai).\n\nSTATE OF ODISHA. ... Complainant.\n\n -Versus-\n\nMANGLU SINGH, aged -63 years, son of late Dhela Singh of\n\nvillage- Kanchhinda (Tamada), PS- Chandiposh, District-\n\nSundargarh (Odisha). (in custody)\n\n ... Accused Person.\n\nFor the Prosecution: Sri Kailash Pradhan,\nFor the defence : Addl. P.P, Bonai.\n Miss S.Senapati, Advocate,\n Bonai.(appointed as SDC).\n\n Date of Argument: 05.08.2016.\n Date of Judgment:: 12.08.2016.\n\n(OFFENCE U/s.302 of INDIAN PENAL CODE)\n\n J U D G M E N T\n The above named accused stands charged for the offence punishable U/s.302 of the Indian Penal Code (herein after referred as IPC).\n2 Prosecution case in brief is that on 07.12.2013 at about 10.55 AM one Biswanatha Singh, son of Manglu Singh of village-Kachhinda (Tamada) reported in writing at Chandiposh PS stating therein that on the same day at about 8.30 AM the accused-father Manglu Singh caused murder of his mother Mangri Munda during a family quarrel in their house. He further gathered information that during that quarrel his father dealt blows at the neck of his mother with a tangia and killed her there at the spot. On getting such information the informant who was then outside his house came to his house and found the dead body of his mother that was falling inside their house sustaining severe bleeding injuries. He further found his father-accused was sitting near the dead body of his mother. Being asked the accused told the informant that during a family quarrel, he has caused murder of Mangri Munda, his wife by assaulting her with a tangia. Thereafter the informant lodged a written report at the PS and basing on his FIR, SI of police Barendra Sial registered PS case No. 49 of 2013 in absence of the OIC and took up its investigation.\n During the course of investigation the I.O visited the spot, examined the informant and other material witnesses, made inquest on the dead body of the deceased and sent it for its post mortem examination, apprehended the accused, seized the weapon of offence.,i.e an axe, prepared the seizure lists and thereafter on completion of investigation, he has submitted the CS u/s. 302 of IPC against the accused and placed him for his trial. Hence, this case.\n3. The plea of the defence is denial.\n4 The prosecution has examined as many as 14 witnesses to prove its case. PW.1 is the informant. PWs.2, 3 & 4 are the occurrence witnesses. PW.5 is one of the sons of the deceased.\n PWs. 6, 7, 8 & 12 are the other witnesses to the occurrence.\nPWs.9, 10 & 13 are the seizure witnesses. PW.11 is the M.O who had conducted autopsy on the dead body of the deceased.\nPW.14 is the I.O who had investigated into this case and finally submitted the CS against the accused.\n On the other hand the defence preferred none to examine in its favour to substantiate its defence plea.\n5 The only point for determination is that (i) Whether on 07.12.2013 at about 8 AM in village- Kachhinda (Tamda) the accused committed murder of one Mangri Munda, his wife by intentionally or knowingly assaulting her with a tangia causing her death ?\n6 On an analysis of the prosecution evidence, it is found that PW.1, the informant stated in his evidence that the accused is his father, while the deceased Mangri was his mother. It is in his evidence that on the day of the incident he had gone out side of his house for daily wages and while he came back to his house at noon time, he found the dead body of his mother was falling inside their dwelling house. He further found his father-accused was sitting near the dead body of his mother, who told him that he has killed his mother by assaulting her with a tangia. Then he lodged his written report at the PS. He has proved his written report as Ext.1.\n7. PW.2, the local Gramrakhe stated in his evidence that on the day of the incident at around 9 AM he got information from the villagers that the accused has killed his wife, so he went to the spot, found the dead body of the deceased that was falling inside the house of the accused sustaining cut injury at her neck.\nHe further stated in his evidence that he has ascertained from the villagers that the accused has killed his wife by assaulting her with a Budia (axe). So he informed the local police, who arrived at the spot and took the accused to the PS. PW.3 stated in his evidence that on the day of the incident he was absent from his house, but on his return on the next day of the incident, he came to know from the villagers that the accused has committed the murder of his wife Mangri. PW.4 similarly stated in her evidence that she was not present at the time of such incident, but on her return at around evening time she came to know about the death of Mangri, but she did not state the name of the person who had killed the deceased there at the spot.\n8. PW.5, the other son of the deceased stated in his evidence that on the day of the incident he was absent from his house, as he has gone outside for his wages, but on his return, he found the dead body of his mother was falling inside their house with severe bleeding injuries at her neck. He further stated in his evidence that his father was absent from the house. This witness stated in his evidence that police made inquest on the dead body of his mother and that he has signed on the inquest report as a witness. PW.6, scribe of the FIR stated in his evidence that as per the instruction of the informant, he has scribed the FIR that was lodged at the PS. PWs. 7, 8 & 12, the other occurrence witnesses stated nothing regarding the incident, nor they have implicated the accused during their examination in the Court.\n9. PWs.9, 10 & 13 are found to be the witnesses to the seizure, who have proved different seizure lists, but they have no direct knowledge about the incident.\n 10. PW.11, the M.O who had conducted post mortem examination on the dead body of the deceased Mangri Singh @ Munda found 3 nos. of incised wounds at her neck. Incised injury No.(i) has cut through all the muscle of the vessel of the neck have been cut through vertebra column at its way, while Incised injury No.(ii) above the first Incised injury at her neck cut through superficial muscle on small vessel. The Iincised injury No.(iii) was over the right shoulder of the deceased. The injuries were all ante mortem in nature as per the opinion of the M.O and the cause of death was due to shock and hemorrhage. The M.O further opined through his P.M examination report, Ext.7 that the cumulative effect of the injuries was sufficient in ordinary course to cause the death. He further stated in his evidence that on 08.12.2013 at about 11 AM, the I.O produced the weapon of offence, an axe before him stained with blood that he has examined and gave his opinion vide his report, Ext.8 that the injuries he had noticed on the dead body of the deceased were all possible by that weapon.\n11. PW.14, the I.O stated in his evidence that on 07.12.2013 he has registered PS case No. 49 of 2013 in absence of the OIC, Chandiposh PS on the written report of the informant and took up its investigation. It is in his evidence that during the course of his investigation he has visited the spot, examined the informant and other material witnesses, made inquest on the dead body of the deceased and sent it for its post mortem examination. He further stated in his evidence that he has seized the incriminating materials from the spot alongwith the wearing apparel of the deceased, he apprehended the accused while he was sitting near the dead body of the deceased, arrested him and forwarded to custody and thereafter on completion of investigation, he has submitted CS in this case.\n12. During the course of argument, the learned Additional P.P contended that the sole evidence of PW.1 is sufficient enough to prove the guilt of the accused, hence he has urged to punish the accused adequately according to law. He further contended that the accused has confessed his guilt before the informant (PW.1), his son, so there is no reason to disbelieve the version of PW.1 and conviction can be based on his testimony as confession of the accused was free and voluntary.\n On the contrary, the learned defence counsel contended that the sole evidence of PW.1 relating to extra judicial confession of the accused is not free from doubt; hence in such circumstances no conviction can be based solely on his version without any other independent corroboration. Hence, she has prayed for an acquittal of the accused. In support of her contention, the learned defence counsel relied upon a case law as it is reported in (2011) 49 OCR 662 Sukun Kisan versus- State of Orissa, wherein Their Lordship held that mere absence of inducement, threat or promise is not enough to make the confession admissible, but the person making must be expecting the gain in advantage or avoid any evil of a temporal nature. It was further held by Their Lordship that prosecution must establish the reasons for the accused to repose confidence on the person before whom he is making such confession. She has also cited another case law as it is reported in (2011) 49 OCR (SC) 684 Ranjit Singh versus- State of Punjab, wherein Their Lordship held that extra judicial confession is extremely a weak kind of evidence and conviction on its basis alone is rarely recorded. She has further relied on another case law as it is reported in Sama Kisan-versus- State of Orissa reported in (2011) 50 OCR 852. wherein Their Lordship held that while the fact of extra judicial confession of the accused is not stated by the witness before the IO while recording his statement u/s. 161 Cr.P.C, his later version on that aspect in the Court is not free from reasonable doubt. On relying upon the above case laws, the learned defence counsel contended that the theory of extra judicial confession as it is claimed by the prosecution in this case is not at all reliable, hence benefit of doubt be tendered in favour of the accused.\n13. While the factual matrix of this case is as such we are now to make scrutiny of the evidence on record in order to arrive at our conclusion, whether the prosecution has successfully proved its case against the accused beyond all reasonable doubt or not.\n14. In fact in a case of murder, it is the bounden duty on the part of prosecution first to establish that the injuries inflicted on the deceased were all homicidal and anti mortem in nature and then to prove that the accused had inflicted the injuries causing such death either intentionally or with knowledge that the injuries inflicted on the victim were sufficient enough in ordinary course of nature to cause the death. The prosecution case may be proved by direct evidence or through circumstantial evidence. If the direct evidence is clear and cogent, a conviction can be based on such evidence without any other aid. Similarly, conviction can be based on circumstantial evidence only if the chain of evidence is so completed as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. So it is essential in the eye of law that the chain of circumstances aiming at the guilt of the accused should be completed without any break. Admittedly in the present case at hand, there is no eye witness to the occurrence. None has claimed to have seen the incident in his eye while the accused committed murder of the deceased. Only PW.1, the informant- son of the deceased stated in his evidence that the accused has confessed his guilt admitting to have committed the murder of Mangri by assaulting her with a tangia during a family quarrel.\nBeside such piece of evidence, there is no other evidence on record to implicate the accused in this case. The other occurrence witnesses who deposed in the Court are found to be post occurrence witnesses having no direct knowledge about the incident. So at this juncture it is now the duty of the Court to make thorough scrutiny on the evidence of PW.1 relating to extra judicial confession of the accused as it is claimed by the prosecution in this case. It is admitted fact that PW.1 is none, but the son of both the deceased and the accused. PW.1 further fairly admitted in his evidence that he was absent from his house at the time of such incident as he had gone outside for his wages. It is in his evidence that during the noon time while he had come back to his house, he found the dead body of his mother Mangri was falling inside their house with severe bleeding injury at her neck. He further noticed that his father-accused was sitting near the dead body of his mother, who had admitted to have committed the murder of Mangri by assaulting her with a tangia during a family quarrel. This part of his evidence found well corroborated to the facts that he has mentioned in his FIR. In his FIR, the informant, PW.1 specifically stated that the accused has confessed his guilt before him admitting to have committed the murder of his mother that he has reported to the police in the earliest opportunity while filing his FIR. Similarly, PW.1, the informant also stated in his statement recorded u/s. 161 Cr.P.C by the I.O that the accused told him that he has committed murder of his wife by assaulting her with a tangia. So while assessing the evidence of PW.1, we have now to keep in mind the basic principle as enunciated by the case laws while considering the extra judicial confession. The learned defence counsel at the time of argument relied on a case law as it is reported in 2015(II) OLR 614 Dasia Kanhu & another versus- State of Orissa, wherein Their Lordship while considering the case of extra judicial confession came to Their findings that the extra judicial confession of the accused should be free and voluntary unless it is hazardous to base any conviction on such evidence of extra judicial confession. She has further contended that PW.1 did not ascertain from his accused-father the reasons for which he has committed the murder of his wife. It was further contended by the defence that no where in his evidence PW.1 stated the reasons for which the accused has committed murder of his mother, Mangri. So the bald statement of the witness regarding such extra judicial confession is not acceptable in the eye of law. On the contrary the learned Additional P.P contended that there is no circumstance before the Court to disbelieve the version of PW.1, as he is none but the son of the accused who has no ill motive to implicate the accused in this crime. He further contended that the evidence of PW.1 is found truthful without any exaggeration; hence his evidence can be relied upon to base a conviction against the accused. So keeping in mind the contentions of both the sides, we are now to go through some leading case laws on extra judicial confession as it were propounded by the Hon'ble Courts. In a case law as it is reported in 2014 Supp(II) OLR 999 Hari Dehury versus- State of Orissa, Their Lordship held that evidentiary value of the extra judicial confession must be judged in the facts and circumstances of each individual case. If such extra judicial confession is voluntary and consistent with the circumstantial evidence then only the guilt of the accused can be established.\nIn another case law as it is reported in 2009(I) OLR 548 State of Orissa-versus-Mulia Adapadia, Their Lordship held that unless the extra judicial confession is made voluntarily before a witness on whom the accused has trust and confidence, such statement should not be acted upon. In another case as it is reported in (2011) 49 OCR (SC) 712 Sk. Yusuf-versus- State of West Bengal, Their Lordship of the Hon'ble Apex Court held that extra judicial confession is certainly a weak piece of evidence, but if it is true and voluntary and made in a free state of mind, then it is credible one and conviction can be based on such extra judicial confession. Similarly, in another case as it is reported in (2012) 52 OCR SC 435 Sahadeb and another- vesus- State of Tamilnadu, Their Lordship of the Hon'ble Apex Court has formulated certain principles while considering the extra judicial confession of the accused. Those are:- (i) The extra judicial confession is weak evidence by itself. It has to be examined by the Court with great care and caution, (ii) It should be made voluntarily and should be truthful, (iii) It should inspires confidence, (iv) The extra judicial confession attains a great credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by the prosecution evidence, (v) In an extra judicial confession to base any conviction, it should not be suffer from any material discrepancy and inherent improbability, (vi) Such statement essentially has to be proved like any other fact in accordance with law.\n So keeping in mind, the ratios of the case laws cited above, we have now to make thorough analysis on the evidence of PW.1. As it is previously discussed that PW.1 is none but the son of the deceased and the accused, normally there is no possibility on his part to implicate his father-accused falsely in such a heinous crime. It is clear from the evidence of PW.1 that he came back to his house while he found the dead body of his mother was falling inside the house. He further found that his father was sitting by the side of the deceased, who had voluntarily told him that he has killed his mother by assaulting her with a tangia during a family quarrel. The circumstance never suggests that there was coercion or threat on the accused to make such confession. It is also abundantly clear that the person before whom the accused has confessed his guilty was his son and normally one can repose confidence on his kith and kin while making such confession. No other animosity between the son and accused-father was established by the defence to discredit the evidence of PW.1. So the confession of the accused in my considered opinion was certainly voluntary and truthful that inspires confidence in the mind of the Court. The circumstance of the case also corroborates the fact of confession of the accused as it is claimed by PW.1 in this case. The I.O, PW.14 who had reached the spot soon after receiving information from the Grama Rakhi found the accused while he was sitting near the dead body of his wife. The I.O further stated in his evidence that he has seen the weapon of offence, a tangia that the accused has kept near the spot. The M.O, PW.11 before whom the weapon of offence, the axe was produced noticed blood stain marks on it, that also equally corroborates to the fact of killing of the deceased by such weapon, an axe. So the whole circumstances of this case clearly suggest me to believe that the accused has killed his wife Mangri during a family quarrel by assaulting her brutally with a tangia. Such extra judicial confession of the accused is accepted in this case, as it is found free, voluntary and truthful. There is no ambiguity in the mind of the Court to disbelieve such extra judicial confession of the accused as no other contrary is proved by the defence to discard such evidence of PW.1. Though PW.1 was extensively cross examined by the defence, but nothing tangible could be brought out to disbelieve such version on extra judicial confession of the accused. So I repose confidence on the evidence of PW.1.\nHence it is held that in fact the accused has killed his wife Mangri Munda by assaulting her with a tangia and as such the confession was free and voluntary, hence it is accepted. So in such circumstances we have now to further make scrutiny on the circumstances, in which the death was occurred.\n15. The learned defence counsel at the time of argument alternatively urged that in case the prosecution case is believed, then also it never falls u/s. 302 of IPC as the accused has not killed his wife intentionally. So she has submitted that at best the accused can be punished u/s. 304, Part-II of IPC in case the entire prosecution case is established.\n16. Section-300 IPC defines `murder' speaks that when the culpable homicide is committed with intention to causing death(clause-firstly) or with the intention of causing such bodily injury which the offence knows is likely to cause death of the person to whom the harm is caused (clause-secondly) or if it is done with the intention of causing bodily injuries which is intentionally inflicted and such bodily injury is sufficient in the ordinary course of nature to cause death of the deceased (clause thirdly) or the offender committed culpable homicide by an act which he knows that it is imminently so dangerous that in all probability such act is likely to cause death of the deceased or likely to cause any injury as is likely to cause death without any excuse for causing the death or such bodily injury (clause fourthly) the same amounts to murder. But such culpable homicide shall not amount to murder if the same is done in any of the circumstances provided in the exception to Section- 300 of IPC. Culpable homicide caused in the circumstances mentioned in clause-Istly to Clause-3rdly to Section- 300 of IPC if covered by any of the five exceptions there in the said section the same would attract the ingredients of charge u/s. 304, Part-I of IPC, but when caused in the circumstances provided in Clause-4thly by Section- 300 of IPC and covered by any of the five exceptions, the same would attract the ingredients of Section- 304, Part-II of IPC.\n17. So keeping in view the principles stated above, now we have to go through the evidence on record in order to arrive at our conclusion, whether the prosecution case falls u/s. 302 of IPC or it falls u/s. 304, Part-II of IPC as it is claimed by the defence. In a case law as it is reported in (2009) 44 OCR 938 Khaga @ Khageswat Naik and others- versus- State of Orissa, wherein Their Lordship held that where the incident took place without any pre-plan but in a heat of passion then it falls u/s. 304, Part-II of IPC instead of section- 302 of IPC. In another case law as it is reported in (2009) 44 OCR 723 Adikanda Mohanty and another-versus- State of Orissa, Their Lordship held that while the assault was not made with a pre-plan, but the incident happened at the spur of the moment causing death of a person due to assault of the accused, then also it falls u/s. 304, Part-II of IPC, instead of u/s. 302 of IPC. In another case law as it is reported in (2005) 11 SCC 536 Tanka Chain versus- State, Their Lordship held that when there is no motive to cause death, section- 300 of IPC is not attracted, but if the assailant knew that the said injury is likely to cause the death, the conviction will be u/s. 304, Part-II of IPC. Similarly, in another case law as it is reported in (2000) 7 SCC 2249 State-versus- Indarjit, Their Lordship held that absence of intention to cause a death coupled with lack of knowledge that death would be inevitably caused on account of the injury would make an offence falls only u/s.304,Part-II of IPC, but not u/s. 302 of IPC.\n Admittedly the present incident happened during a family quarrel and during that quarrel with a heat of passion the accused has dealt blows with a tangia at the neck of his wife while causing murder. There was no intention on the part of the accused to cause the murder of his wife, nor it is established through the evidence that it was a pre-planned murder.. It happened due to sudden quarrel without any intention of causing murder, though the blows were fatal in nature and inflicted with a dangerous weapon like tangia. Though there was no intention of the accused to kill his wife, Mangri, but the circumstances suggest that the accused has knowledge of causing such injuries on her vital part at her neck by inflicting the same with dangerous weapon like tangia, resulted to her death. So the present case though covers section- 300, Clause-(iv) of IPC, but it falls under exception (iv) of the same section. Hence, the accused is liable to be punished for committing the offence punishable u/s. 304, Part-II of IPC, instead of u/s. 302 of IPC. So in view of my above discussions, I came to my clear findings that the prosecution could be able to prove the offence punishable u/s. 304, Part-II of IPC against the accused beyond all reasonable doubt.\n18. In the result, the accused is not found guilty for committing the offence punishable u/s. 302 of IPC and he is acquitted thereof u/s. 235(i) Cr. P.C. But he is found guilty for committing the offence punishable u/s. 304, Part-II of IPC and convicted him thereunder.\n19. Further considering the facts and circumstances of this case, nature and gravity of the offence and its impact in the society and magnitude of punishment prescribed under law, this Court is not inclined to extend the benefit of Probation of Offender Act in favourt of the convict.\n Additional Sessions Judge, Bonai.\n The judgment is pronounced in the open court to-day this the 12th day of August, 2016 given under my hand and the seal of the Court, after it was typed to my dictation and corrected by me.\n Sd/- Additional Sessions Judge, Bonai.\n HEARING ON THE QUESTION OF SENTENCE Heard on the question of the sentence from both the sides at length. The learned defence counsel appearing for the convict contended that the convict Is an old rustic man having his other dependant family members, hence prayed to take lenient view while imposing sentence. On the other hand learned Additional P.P contended that the convict has brutally killed his wife, so he may be adequately punished according to law.\n Perused the case record and it is found that no previous crime is proved against the convict. The convict is also found to be an old rustic man. So taking into consideration the above facts and circumstances of the case, lenient view is taken while imposing sentences on him. The convict is sentenced to undergo R.I for 7 (SEVEN) years and to pay a fine of Rs.5,000/-(Rupees five thousand) only and in its default to undergo RI for six months for the offence punishable u/s.304, Part-II of IPC.\n The UTP period, if any of the convict, be set-off with the sentence.\n The seized articles in this case, if any be destroyed after four months of the appeal period if no appeal is preferred. In case of any appeal it to be dealt with the orders of the Appellate Court.\n Sd/- Additional Sessions Judge, Bonai.\n List of witnesses examined by the prosecution.\n PW.1 Biswanath Singh.\nPW.2 Prahalad Singh.\nPW.3 Raghunatjha Singh.\nPW.4 Fulmani Singh.\nPW.5 Rasananda Singh.\nPW.6 Theophil Oram.\nPW.7 Birsa Munda.\nPW.8 Edward James Gudia.\nPW.9 Guru Charan Singh.\nPW.10 Efrem Beck.\nPW.11 Dr A.Mishra.\nPW.12 Raju Bhokla.\nPW.13 Isak Kullu.\nPW.13 Barendra Sial.\n List of witnesses examined on behalf of the defence.\n Nil.\n List of documents marked for prosecution.\n Ext. 1 FIR.\n Ext. 1/1 Signature of PW.1.\n Ext. 2 Seizure list.\n Ext. 2/1 Signature of PW.1.\n Ext..3 Inquest report.\n Ext.3/1 Signature of PW.5.\n Ext.1/2 Signature of PW.6.\n Ext.3/2 Signature of PW.9.\n Ext.4 Seizure list.\n Ext.4/1 Signature of PW.10.\n Ext.5 Seizure list.\n Ext.5/1 Signature of PW.10.\n Ext.6 Seizure list.\n Ext.6/1 Signature of PW.10.\n Ext.7 PM report.\n Ext.7/1 Signature of PW.11.\n Ext.8 Medical opinion.\n Ext.8/1 Signature of PW.11.\n Ext.9 Report of PW.11.\n Ext.9/1 Signature of PW.11.\n5/2 Signature of PW.13.\nExt.4/2 Signature of PW.13.\nExt.6/2 Signature of PW.13.\nExt.1/3 Signature and endorsement of PW.14.\nExt.10 Formal xFIR.\nExt.10/1 Signature of PW.14.\nExt.3/3 Signature of PW.14.\nExt.11 Dead body challan.\nExt.11/1 Signature of PW.14.\nExt.2/2 Signature of PW.14.\nExt.5/3 Signature of PW.14.\nExt.4/3 Signature of PW.14.\nExt.6/3 Signatue of PW.14.\nExt.12 Forwarding report of accused.\nExt.12/1 Signature of PW.14.\n List of documents marked on behalf of defence.\n Nil.\n List of Material Objects, admitted in to evidence.\n Nil.\n sd/- Additional Sessions Judge, Bonai.\n "
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{
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{
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"end": 38,
"labels": [
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"start": 0,
"text": "PETITIONER:\nBHIVA DOULU PATIL\n\n Vs."
}
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{
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"id": "f63c5058156c44dbadc84f0a1c789d35",
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"labels": [
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"start": 38,
"text": "\n\nRESPONDENT:\nSTATE OF MAHARASHTRA"
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{
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"end": 110,
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"start": 72,
"text": "\n\nDATE OF JUDGMENT:\n29/08/1962\n\nBENCH:"
}
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{
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"id": "92b68db165264111bac0bb0335f9eb1d",
"to_name": null,
"type": null,
"value": {
"end": 122,
"labels": [
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],
"start": 110,
"text": "\nKAPUR, J.L."
}
},
{
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"id": "af0ea79b5bcc436bb944648ee00ddea0",
"to_name": null,
"type": null,
"value": {
"end": 744,
"labels": [
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],
"start": 123,
"text": "BENCH:\nKAPUR, J.L.\nSARKAR, A.K.\nHIDAYATULLAH, M.\n\nCITATION:\n\n1963 AIR 599 1962 SCR Supl. (3) 59\n\nCITATOR INFO :\n\nR 1970 SC 45 (21)\n\nRF 1988 SC 672 (7)\n\nRF 1991 SC1463 (5)\n\nACT:\nCriminal Trial-Approver- Corroboration, if necessary qua\neach accused-Indian Evidence Act, 1872(1 of 1872), ss.\n114,133.\n\nHEADNOTE:\nThe appellant and R were convicted for murder on the\ntestimony of an approver Corroborated by the recovery at the\ninstance of R of the knife with which the murder was\ncommitted and of the evidence that the appellant and R had\ngot the knife prepared nine weeks before the murder."
}
},
{
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"id": "285c7f6f2bb244398d0526376d27358e",
"to_name": null,
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"value": {
"end": 891,
"labels": [
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],
"start": 745,
"text": "The\nappellant contended that his conviction was illegal as there\nwas no corroboration of the testimony of the approver so far\nas he was concerned."
}
},
{
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"id": "1b9bca934657454c9b01e61873e0507d",
"to_name": null,
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"value": {
"end": 955,
"labels": [
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],
"start": 892,
"text": "Held, that the conviction of the appellant was not\nsustainable."
}
},
{
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"id": "72d64993152e4e83916b779be4a3fd33",
"to_name": null,
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"value": {
"end": 1069,
"labels": [
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],
"start": 956,
"text": "The law required that there should be\ncorroboration of the approver in material particulars and\nqua each accused."
}
},
{
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"id": "1f5d5f93dfff4f9a8befba951778ad02",
"to_name": null,
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"value": {
"end": 1323,
"labels": [
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],
"start": 1070,
"text": "The combined effect of ss. 133 and 114\nillustration (b) is that though the conviction of an accused\non the testimony of an accomplice could not be said to be\nillegal, the courts will not accept such evidence without\ncorroboration inmaterial particulars."
}
},
{
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"id": "7bdf5295b7ef435ea81a58371f791ac8",
"to_name": null,
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"value": {
"end": 1422,
"labels": [
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],
"start": 1324,
"text": "In the present case there was no\ncorroboration of the testimony of the approver qua the\nappellant."
}
},
{
"from_name": null,
"id": "9b3c6abaee664f038065531a625b4540",
"to_name": null,
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"value": {
"end": 1689,
"labels": [
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],
"start": 1423,
"text": "The preparation of the knife nine weeks before\nthe occurrence was no corroboration of the approver as\nwithin that time gap the appellant might have recanted; nor\nwas the discovery of the knife at the instance of R\nsufficient to connect the appellant with the murder."
}
},
{
"from_name": null,
"id": "7f8ea0777f184d6cbcb2813aa2278947",
"to_name": null,
"type": null,
"value": {
"end": 1951,
"labels": [
"PREAMBLE"
],
"start": 1690,
"text": "The\nfact that the approver had made a confessional statement to\nhis brother could not be called corroboration of the\napprover. It was not sufficient for the conviction of the\nappellant that there was evidence to corroborate the\nparticipation of R in the murder."
}
},
{
"from_name": null,
"id": "42ab82707dad453483b071314552618a",
"to_name": null,
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"value": {
"end": 2067,
"labels": [
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],
"start": 1951,
"text": "\nRes. v. Boyes,(1861)9 Cox, crim. cas.32, Bhuboni Sahu v. The\nKing, (1949) L. R. 76 1. A. 147 and R. v. Baskerville,"
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 2100,
"labels": [
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],
"start": 2067,
"text": "\n\n(1916) 2 K. B. 658, referred to"
}
},
{
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"id": "7ece0308fc4a4fca96285b1548afcdbb",
"to_name": null,
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"value": {
"end": 2112,
"labels": [
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],
"start": 2100,
"text": ".\n\nJUDGMENT:"
}
},
{
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"value": {
"end": 2178,
"labels": [
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],
"start": 2112,
"text": "\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 174 of 1961."
}
},
{
"from_name": null,
"id": "751f6f3079c54b8288f0491790ddb8a1",
"to_name": null,
"type": null,
"value": {
"end": 2307,
"labels": [
"NONE"
],
"start": 2178,
"text": "\nAppeal by special leave from the judgment and order dated April 12113, 1961, of the Bombay High Court in Cr. A. No.\n308 of 1961."
}
},
{
"from_name": null,
"id": "78084e75e0c3497db31060bb9b32a59d",
"to_name": null,
"type": null,
"value": {
"end": 2340,
"labels": [
"NONE"
],
"start": 2307,
"text": "\nG. C. Mathur, for the appellant."
}
},
{
"from_name": null,
"id": "3a8f740ec1ee43f3b353f171a8a15b36",
"to_name": null,
"type": null,
"value": {
"end": 2394,
"labels": [
"NONE"
],
"start": 2340,
"text": "\nS. B. Jathar and R. N. Sachthey, for the respondents."
}
},
{
"from_name": null,
"id": "21493a4e3bd443749d5e88972bad4a9b",
"to_name": null,
"type": null,
"value": {
"end": 2400,
"labels": [
"NONE"
],
"start": 2394,
"text": "\n1962."
}
},
{
"from_name": null,
"id": "9bfb5995e097490888d416e106c31a81",
"to_name": null,
"type": null,
"value": {
"end": 2411,
"labels": [
"NONE"
],
"start": 2401,
"text": "August 29."
}
},
{
"from_name": null,
"id": "a5a2eb8d1b3348a3bad11abbcdb98da2",
"to_name": null,
"type": null,
"value": {
"end": 2464,
"labels": [
"FAC"
],
"start": 2412,
"text": "The Judgment of the Court was delivered by KAPUP., J"
}
},
{
"from_name": null,
"id": "934e51a849cd4867803a884bf67a7937",
"to_name": null,
"type": null,
"value": {
"end": 2470,
"labels": [
"RLC"
],
"start": 2464,
"text": ".-This"
}
},
{
"from_name": null,
"id": "7e6965f788974fc9b5f6bd61aa34b8d4",
"to_name": null,
"type": null,
"value": {
"end": 2750,
"labels": [
"RLC"
],
"start": 2471,
"text": "is an appeal against the judgment and order of the High Court of Bombay confirming the conviction of the appellant for an offence under s. 302, Indian Penal Code, read with s. 34 for the murder of one Lahu Vithu Patil on the night between May 23, and 24, 1960 at village Pasarde."
}
},
{
"from_name": null,
"id": "6007990679d3474da61e73726f836a03",
"to_name": null,
"type": null,
"value": {
"end": 2974,
"labels": [
"FAC"
],
"start": 2751,
"text": "Four persons Rama Krishna Patil accused No. 1, Bhiva Doulu Patil accused No. 2 (now appellant before us), Lahu Santu Patil accused No. 3 and Deoba approver P.W.5 are alleged to have taken part in murder of Lahu Vithu Patil."
}
},
{
"from_name": null,
"id": "90e775e551e44b7f814ddfb399636293",
"to_name": null,
"type": null,
"value": {
"end": 3124,
"labels": [
"FAC"
],
"start": 2975,
"text": "RamaKrishna Patil accused No.1 was convicted of murder and sentenced to death but on appeal his sentence was reduced to one of imprisonment for life."
}
},
{
"from_name": null,
"id": "81b8c9b3deff4b1b9e6f4ae76eeb43f7",
"to_name": null,
"type": null,
"value": {
"end": 3208,
"labels": [
"FAC"
],
"start": 3125,
"text": "The appellant was convicted as above stated and sentenced to imprisonment for life."
}
},
{
"from_name": null,
"id": "ea59b5184d414411b7e86f7258e2f911",
"to_name": null,
"type": null,
"value": {
"end": 3317,
"labels": [
"FAC"
],
"start": 3209,
"text": "The third accused Lahu Santu Patil was acquitted and the 4th participant Deoba turned approver and is P.W.5."
}
},
{
"from_name": null,
"id": "253f1e2a108e42bf9ead439d03ae83b4",
"to_name": null,
"type": null,
"value": {
"end": 3432,
"labels": [
"FAC"
],
"start": 3317,
"text": "\nThe case for the prosecution was that the appellant had a suspicion that the deceased bad a liaison with his wife."
}
},
{
"from_name": null,
"id": "ff48b9cb05f547cd8386d695d3571cf8",
"to_name": null,
"type": null,
"value": {
"end": 3525,
"labels": [
"FAC"
],
"start": 3432,
"text": "\nHe, the appellant, approached the approver and suggested that the deceased should be killed."
}
},
{
"from_name": null,
"id": "33d1132e0a914fbab9e940da4b811870",
"to_name": null,
"type": null,
"value": {
"end": 3553,
"labels": [
"FAC"
],
"start": 3526,
"text": "This was on March 16, 1960."
}
},
{
"from_name": null,
"id": "ede73fc07e7347bc8e0eded9ec0e95a5",
"to_name": null,
"type": null,
"value": {
"end": 3682,
"labels": [
"FAC"
],
"start": 3554,
"text": "On March 17, 1960, Rama Krishna Patil accused No. 1 and appellant got a knife prepared by Nanu Santu Sutar P.W.7 from a crowbar."
}
},
{
"from_name": null,
"id": "ad6229713d8049beada0681ea9c9c847",
"to_name": null,
"type": null,
"value": {
"end": 3852,
"labels": [
"FAC"
],
"start": 3683,
"text": "The deceased was a wrestler and he and his brother used to sleep in the fields and they also had dogs and for that reason the murder could not be committed for sometime."
}
},
{
"from_name": null,
"id": "ca079006f5ae41b68822449b65238942",
"to_name": null,
"type": null,
"value": {
"end": 3931,
"labels": [
"FAC"
],
"start": 3853,
"text": "When rains set in, the deceased started sleeping at Patil's Talim (gymnasium)."
}
},
{
"from_name": null,
"id": "f1b652152a524b079c3e055ec5d8ba9a",
"to_name": null,
"type": null,
"value": {
"end": 4055,
"labels": [
"FAC"
],
"start": 3932,
"text": "There, on the night of the murder the deceased was killed with the knife which was used by Rama Krishna Patil accused No.1."
}
},
{
"from_name": null,
"id": "e0e2213ba8bc4f2e9c3ca15d94964f36",
"to_name": null,
"type": null,
"value": {
"end": 4150,
"labels": [
"FAC"
],
"start": 4056,
"text": "At that time the appellant had a torch and two others Lahu Santu Patil and Deoba were unarmed."
}
},
{
"from_name": null,
"id": "178cf04aa8944e17b23d934df6f608f2",
"to_name": null,
"type": null,
"value": {
"end": 4255,
"labels": [
"FAC"
],
"start": 4151,
"text": "Two blows ware given by accused No.1 one on the throat and the second one on the left side of the chest."
}
},
{
"from_name": null,
"id": "bb7c90488f8a44bfbdf8e99d7e09809e",
"to_name": null,
"type": null,
"value": {
"end": 4335,
"labels": [
"FAC"
],
"start": 4256,
"text": "At the place of the occurrence the assailants left a towel and a patka(turban)."
}
},
{
"from_name": null,
"id": "8e225b5ba3ee4768a2d94d6efa77101a",
"to_name": null,
"type": null,
"value": {
"end": 4418,
"labels": [
"FAC"
],
"start": 4336,
"text": "Both these articles have been found to belong to accused No. 1 Rama Krishna Patil."
}
},
{
"from_name": null,
"id": "aaf9e330170f4b21bfa8d2c87a19ce5c",
"to_name": null,
"type": null,
"value": {
"end": 4689,
"labels": [
"FAC"
],
"start": 4418,
"text": "\nHearing the noise and growing of the deceased, Lahu Vithu Patil, other persons who were sleeping were awakened and one of them went and informed the brother of the deceased and then the first information report was made to the police but no names were mentioned therein."
}
},
{
"from_name": null,
"id": "1f1f6696fc4d4f13952e2ed39fd364b2",
"to_name": null,
"type": null,
"value": {
"end": 4781,
"labels": [
"FAC"
],
"start": 4690,
"text": "On June 6, 1960, Deoba was arrested on information received by police Sub-Inspector Nandke."
}
},
{
"from_name": null,
"id": "326e1ab252c74902a1818daacab83ac9",
"to_name": null,
"type": null,
"value": {
"end": 4922,
"labels": [
"FAC"
],
"start": 4782,
"text": "On June 25, 1960, as a result of a statement made by accused No.1 the knife which is alleged to have been used for the murder was recovered."
}
},
{
"from_name": null,
"id": "5c9768d73a7a4b3c88fae1f4f90b5a58",
"to_name": null,
"type": null,
"value": {
"end": 5014,
"labels": [
"FAC"
],
"start": 4923,
"text": "This knife is stated to be stained with blood but it has not been proved to be human blood."
}
},
{
"from_name": null,
"id": "d7ecc85bb78b4792a1cf58ea3259320e",
"to_name": null,
"type": null,
"value": {
"end": 5087,
"labels": [
"FAC"
],
"start": 5015,
"text": "It may be stated that the knife was of rather unusually large dimensions"
}
},
{
"from_name": null,
"id": "80cb0435a3844ebe9939b6294fcf46ee",
"to_name": null,
"type": null,
"value": {
"end": 5242,
"labels": [
"FAC"
],
"start": 5088,
"text": "The two injuries on the deceased were very extensive and according to the medical evidence they could have been caused with the knife which was recovered."
}
},
{
"from_name": null,
"id": "ce408b0fcba9417786d2ff8222a8ec1d",
"to_name": null,
"type": null,
"value": {
"end": 5398,
"labels": [
"ISSUE"
],
"start": 5242,
"text": "\n The question that arises in the present case is whether the statement of the approver has been corroborated in material particulars and qua the appellant."
}
},
{
"from_name": null,
"id": "43f2403dc9a946229f31a279599e20bc",
"to_name": null,
"type": null,
"value": {
"end": 5780,
"labels": [
"RLC"
],
"start": 5398,
"text": "The trial court convicted the appellant on the testimony of the approver and found corroboration for the approver's testimony in the statement of Nanu Sintu Sutar, P.W. 7 who had prepared the knife alleged to have be, been used for the offence on March 17, 1960, and hi,; motive to commit the murder because of the suspicion he had about his wife having a liaison with the deceased."
}
},
{
"from_name": null,
"id": "0e824df9807644deb244d14a9a18c3a7",
"to_name": null,
"type": null,
"value": {
"end": 5866,
"labels": [
"RLC"
],
"start": 5781,
"text": "These facts according to the learned Judge were sufficient to convict the appellant.."
}
},
{
"from_name": null,
"id": "4c35cb3ac2144c8db96073944feb6f5a",
"to_name": null,
"type": null,
"value": {
"end": 6277,
"labels": [
"ANALYSIS"
],
"start": 5867,
"text": "The High Court on appeal found corroboration in material particulars; from the evidence of Santu 1-.W. 6 brother of Deoba to whom Deoba had made a confession of his participation in the offence the discovery of the 'knife at the instance of accused No. 1 and the knife being found blood-stained and the unusual character of the knife which fitted in with the dimensions of the injurious caused to the deceased."
}
},
{
"from_name": null,
"id": "6d54844df337416abd4af7819045d895",
"to_name": null,
"type": null,
"value": {
"end": 6405,
"labels": [
"ANALYSIS"
],
"start": 6278,
"text": "From those facts the learned Judges came to the conclusion that the approver Deoba was giving a true version of the occurrence."
}
},
{
"from_name": null,
"id": "64575221a3144be18bb133b6701d3ef0",
"to_name": null,
"type": null,
"value": {
"end": 6673,
"labels": [
"ANALYSIS"
],
"start": 6406,
"text": "With great respect to the High Court we are unable to agree because without corroboration of the approver qua the appellant the conviction is unsustainable, the law being that there should be corroboration of the approver in material particulars and qua each accused."
}
},
{
"from_name": null,
"id": "1f517d31f68e4c9cac32a917dc492e48",
"to_name": null,
"type": null,
"value": {
"end": 6757,
"labels": [
"ANALYSIS"
],
"start": 6673,
"text": "The statement of Santu, brother of the approver is no corroboration of the approver."
}
},
{
"from_name": null,
"id": "5b9368ebae71408f960d09cd56f99a52",
"to_name": null,
"type": null,
"value": {
"end": 6831,
"labels": [
"ANALYSIS"
],
"start": 6758,
"text": "it only means that approver made a confessional statement to his brother."
}
},
{
"from_name": null,
"id": "5e7ebb636437409a9541226ea93843fb",
"to_name": null,
"type": null,
"value": {
"end": 6928,
"labels": [
"ANALYSIS"
],
"start": 6832,
"text": "That cannot be called, in the circumstances of this case, to be a corroboration of the approver."
}
},
{
"from_name": null,
"id": "d662b1af4588408cbaa6529ab54cfd83",
"to_name": null,
"type": null,
"value": {
"end": 7263,
"labels": [
"ANALYSIS"
],
"start": 6929,
"text": "The evidence of Nanu Santu Sutar P.W. 7 also cannot operate as a corroboration of the approver's story because the knife was got prepared by accused No. 1 and the appellant nine weeks before the murder and that fact by itself will not corroborate the charge under s. 302 read with s. 34 of the Indian Penal Code against the appellant."
}
},
{
"from_name": null,
"id": "30626ebbd97e4607a1f626ed7ca6214d",
"to_name": null,
"type": null,
"value": {
"end": 7467,
"labels": [
"ANALYSIS"
],
"start": 7264,
"text": "The time gap between the preparation of the knife and murder is great and it is possible in such circumstances that the appellant might have cemented and not proceeded with the commission of the offence."
}
},
{
"from_name": null,
"id": "7b8eca3da3ff475e87ce02e7e15bc7e8",
"to_name": null,
"type": null,
"value": {
"end": 7684,
"labels": [
"ANALYSIS"
],
"start": 7468,
"text": "The finding of the knife at the instance of the first accused also is no corroboration of the approver's story which would be sufficient to connect the appellant with the murder, under s. 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "4550724c91bb411eacac2ac0b46c05cb",
"to_name": null,
"type": null,
"value": {
"end": 8060,
"labels": [
"ANALYSIS"
],
"start": 7685,
"text": "It may be that in this case the approver's evidence was sufficiently corroborated for the conviction of the first accused upon which we express no opinion but so far as the appellant is concerned we find that there is no corroboration of the approver's story and it is not-sufficient that there is evidence to corroborate the participation of the first accused in the murder."
}
},
{
"from_name": null,
"id": "4febb74cfdb74723afe36ea0345af4a1",
"to_name": null,
"type": null,
"value": {
"end": 8208,
"labels": [
"ANALYSIS"
],
"start": 8061,
"text": "It is also necessary for there being independent corroboration of the participation of the appellant in the offence with which he has been charged."
}
},
{
"from_name": null,
"id": "1744acf81e2a4004b2d4022d4e9b191e",
"to_name": null,
"type": null,
"value": {
"end": 8283,
"labels": [
"ANALYSIS"
],
"start": 8209,
"text": "In these circumstances the conviction of the appellant is not sustainable."
}
},
{
"from_name": null,
"id": "ac5ad75f181a4ac4a1edcb2565c01e19",
"to_name": null,
"type": null,
"value": {
"end": 8598,
"labels": [
"STA"
],
"start": 8283,
"text": "\nIn coming to the above conclusion we have not been unmindful of the provisions of s. 133 of the Evidence Act which reads- :- s. 133 \"An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice\"."
}
},
{
"from_name": null,
"id": "e76ecd31aa1e40be9ed70613612e4b07",
"to_name": null,
"type": null,
"value": {
"end": 9034,
"labels": [
"PRE_RELIED"
],
"start": 8598,
"text": "\n It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B in Res. v. Boyes (1) (has become so hallowed as to be deserving of respect\" and in the words of Lord Abinger \"it deserves to have all the reverence of the law\"."
}
},
{
"from_name": null,
"id": "61cc3fda0e5a4faaaff7b0abaac6bb1e",
"to_name": null,
"type": null,
"value": {
"end": 9256,
"labels": [
"STA"
],
"start": 9035,
"text": "This rule of guidance is to be found in illustration (b) to s. 114 of the Evidence which is as follows :- \"The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars\"."
}
},
{
"from_name": null,
"id": "f1a686d1102b4c2483ac9dcb60e868fe",
"to_name": null,
"type": null,
"value": {
"end": 9330,
"labels": [
"ANALYSIS"
],
"start": 9257,
"text": "Both sections are part of one subject and have to be considered together."
}
},
{
"from_name": null,
"id": "8b88dffda49b44e5a552facbf335a995",
"to_name": null,
"type": null,
"value": {
"end": 9821,
"labels": [
"PRE_RELIED"
],
"start": 9331,
"text": "The Privy Council in Bhuboni Sahu v. The King (2) when its attention was drawn to the judgment of Madras High Court in re Rajagopal(3) where conviction was based upon the evidence of an accomplice supported by the statement of a co-accused, said as follows :- \"Their Lordships................... would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence, implicating the particular accused."
}
},
{
"from_name": null,
"id": "e1a21c0e21844b80a749320307dbcfd1",
"to_name": null,
"type": null,
"value": {
"end": 10408,
"labels": [
"PRE_RELIED"
],
"start": 9822,
"text": "The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a (1) (1861) 9 Cox, Crim. Cas. 32.\n (2) (1949) L.R. 76. I.A. 147, (3) I.L.R. 1944. Mad. 308.\nposition in which he can hardly fail to have a strong bias in favour of the prosecution ; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue\"."
}
},
{
"from_name": null,
"id": "57b51806336a4c08930165eef59ea91a",
"to_name": null,
"type": null,
"value": {
"end": 10949,
"labels": [
"ANALYSIS"
],
"start": 10409,
"text": "The combined effect of ss. 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone.\nTherefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
}
},
{
"from_name": null,
"id": "f3aff8c719d94831852ac5d05fd44e81",
"to_name": null,
"type": null,
"value": {
"end": 11167,
"labels": [
"PRE_RELIED"
],
"start": 10950,
"text": "The law may be stated in the words of Lord Reading C. J. in R. v.\nBaskerville (1) as follows \"There is Do doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v Attwood, 1787, 1 Leach 464)."
}
},
{
"from_name": null,
"id": "5f6d67f792c04a8cac4bc2381a195650",
"to_name": null,
"type": null,
"value": {
"end": 11613,
"labels": [
"PRE_RELIED"
],
"start": 11168,
"text": "But it has been Ion(,, a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discre- tion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v Stubbs, Dears 555 In re Heunier, 1894 2 Q.B. 415)\"."
}
},
{
"from_name": null,
"id": "ef3b6e92c9ca45319f6c4508955428dd",
"to_name": null,
"type": null,
"value": {
"end": 11734,
"labels": [
"RPC"
],
"start": 11613,
"text": "\nWe, therefore, allow this appeal, set aside the order of conviction and direct that the appellant be released forthwith."
}
},
{
"from_name": null,
"id": "0709747afdd04538a280f2dafb98c091",
"to_name": null,
"type": null,
"value": {
"end": 11772,
"labels": [
"NONE"
],
"start": 11734,
"text": "\nAppeal allowed (1) [1916] 2. K.B.658."
}
}
]
}
] | 4,198 | {
"text": "PETITIONER:\nBHIVA DOULU PATIL\n\n Vs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\n29/08/1962\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nSARKAR, A.K.\nHIDAYATULLAH, M.\n\nCITATION:\n\n1963 AIR 599 1962 SCR Supl. (3) 59\n\nCITATOR INFO :\n\nR 1970 SC 45 (21)\n\nRF 1988 SC 672 (7)\n\nRF 1991 SC1463 (5)\n\nACT:\nCriminal Trial-Approver- Corroboration, if necessary qua\neach accused-Indian Evidence Act, 1872(1 of 1872), ss.\n114,133.\n\nHEADNOTE:\nThe appellant and R were convicted for murder on the\ntestimony of an approver Corroborated by the recovery at the\ninstance of R of the knife with which the murder was\ncommitted and of the evidence that the appellant and R had\ngot the knife prepared nine weeks before the murder. The\nappellant contended that his conviction was illegal as there\nwas no corroboration of the testimony of the approver so far\nas he was concerned.\nHeld, that the conviction of the appellant was not\nsustainable. The law required that there should be\ncorroboration of the approver in material particulars and\nqua each accused. The combined effect of ss. 133 and 114\nillustration (b) is that though the conviction of an accused\non the testimony of an accomplice could not be said to be\nillegal, the courts will not accept such evidence without\ncorroboration inmaterial particulars. In the present case there was no\ncorroboration of the testimony of the approver qua the\nappellant. The preparation of the knife nine weeks before\nthe occurrence was no corroboration of the approver as\nwithin that time gap the appellant might have recanted; nor\nwas the discovery of the knife at the instance of R\nsufficient to connect the appellant with the murder. The\nfact that the approver had made a confessional statement to\nhis brother could not be called corroboration of the\napprover. It was not sufficient for the conviction of the\nappellant that there was evidence to corroborate the\nparticipation of R in the murder.\nRes. v. Boyes,(1861)9 Cox, crim. cas.32, Bhuboni Sahu v. The\nKing, (1949) L. R. 76 1. A. 147 and R. v. Baskerville,\n\n(1916) 2 K. B. 658, referred to.\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 174 of 1961.\nAppeal by special leave from the judgment and order dated April 12113, 1961, of the Bombay High Court in Cr. A. No.\n308 of 1961.\nG. C. Mathur, for the appellant.\nS. B. Jathar and R. N. Sachthey, for the respondents.\n1962. August 29. The Judgment of the Court was delivered by KAPUP., J.-This is an appeal against the judgment and order of the High Court of Bombay confirming the conviction of the appellant for an offence under s. 302, Indian Penal Code, read with s. 34 for the murder of one Lahu Vithu Patil on the night between May 23, and 24, 1960 at village Pasarde.\nFour persons Rama Krishna Patil accused No. 1, Bhiva Doulu Patil accused No. 2 (now appellant before us), Lahu Santu Patil accused No. 3 and Deoba approver P.W.5 are alleged to have taken part in murder of Lahu Vithu Patil. RamaKrishna Patil accused No.1 was convicted of murder and sentenced to death but on appeal his sentence was reduced to one of imprisonment for life. The appellant was convicted as above stated and sentenced to imprisonment for life. The third accused Lahu Santu Patil was acquitted and the 4th participant Deoba turned approver and is P.W.5.\nThe case for the prosecution was that the appellant had a suspicion that the deceased bad a liaison with his wife.\nHe, the appellant, approached the approver and suggested that the deceased should be killed. This was on March 16, 1960. On March 17, 1960, Rama Krishna Patil accused No. 1 and appellant got a knife prepared by Nanu Santu Sutar P.W.7 from a crowbar. The deceased was a wrestler and he and his brother used to sleep in the fields and they also had dogs and for that reason the murder could not be committed for sometime. When rains set in, the deceased started sleeping at Patil's Talim (gymnasium). There, on the night of the murder the deceased was killed with the knife which was used by Rama Krishna Patil accused No.1. At that time the appellant had a torch and two others Lahu Santu Patil and Deoba were unarmed. Two blows ware given by accused No.1 one on the throat and the second one on the left side of the chest. At the place of the occurrence the assailants left a towel and a patka(turban). Both these articles have been found to belong to accused No. 1 Rama Krishna Patil.\nHearing the noise and growing of the deceased, Lahu Vithu Patil, other persons who were sleeping were awakened and one of them went and informed the brother of the deceased and then the first information report was made to the police but no names were mentioned therein. On June 6, 1960, Deoba was arrested on information received by police Sub-Inspector Nandke. On June 25, 1960, as a result of a statement made by accused No.1 the knife which is alleged to have been used for the murder was recovered. This knife is stated to be stained with blood but it has not been proved to be human blood. It may be stated that the knife was of rather unusually large dimensions The two injuries on the deceased were very extensive and according to the medical evidence they could have been caused with the knife which was recovered.\n The question that arises in the present case is whether the statement of the approver has been corroborated in material particulars and qua the appellant.The trial court convicted the appellant on the testimony of the approver and found corroboration for the approver's testimony in the statement of Nanu Sintu Sutar, P.W. 7 who had prepared the knife alleged to have be, been used for the offence on March 17, 1960, and hi,; motive to commit the murder because of the suspicion he had about his wife having a liaison with the deceased. These facts according to the learned Judge were sufficient to convict the appellant.. The High Court on appeal found corroboration in material particulars; from the evidence of Santu 1-.W. 6 brother of Deoba to whom Deoba had made a confession of his participation in the offence the discovery of the 'knife at the instance of accused No. 1 and the knife being found blood-stained and the unusual character of the knife which fitted in with the dimensions of the injurious caused to the deceased. From those facts the learned Judges came to the conclusion that the approver Deoba was giving a true version of the occurrence. With great respect to the High Court we are unable to agree because without corroboration of the approver qua the appellant the conviction is unsustainable, the law being that there should be corroboration of the approver in material particulars and qua each accused.The statement of Santu, brother of the approver is no corroboration of the approver. it only means that approver made a confessional statement to his brother. That cannot be called, in the circumstances of this case, to be a corroboration of the approver. The evidence of Nanu Santu Sutar P.W. 7 also cannot operate as a corroboration of the approver's story because the knife was got prepared by accused No. 1 and the appellant nine weeks before the murder and that fact by itself will not corroborate the charge under s. 302 read with s. 34 of the Indian Penal Code against the appellant. The time gap between the preparation of the knife and murder is great and it is possible in such circumstances that the appellant might have cemented and not proceeded with the commission of the offence. The finding of the knife at the instance of the first accused also is no corroboration of the approver's story which would be sufficient to connect the appellant with the murder, under s. 34 of the Indian Penal Code. It may be that in this case the approver's evidence was sufficiently corroborated for the conviction of the first accused upon which we express no opinion but so far as the appellant is concerned we find that there is no corroboration of the approver's story and it is not-sufficient that there is evidence to corroborate the participation of the first accused in the murder. It is also necessary for there being independent corroboration of the participation of the appellant in the offence with which he has been charged. In these circumstances the conviction of the appellant is not sustainable.\nIn coming to the above conclusion we have not been unmindful of the provisions of s. 133 of the Evidence Act which reads- :- s. 133 \"An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice\".\n It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B in Res. v. Boyes (1) (has become so hallowed as to be deserving of respect\" and in the words of Lord Abinger \"it deserves to have all the reverence of the law\". This rule of guidance is to be found in illustration (b) to s. 114 of the Evidence which is as follows :- \"The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars\".\nBoth sections are part of one subject and have to be considered together. The Privy Council in Bhuboni Sahu v. The King (2) when its attention was drawn to the judgment of Madras High Court in re Rajagopal(3) where conviction was based upon the evidence of an accomplice supported by the statement of a co-accused, said as follows :- \"Their Lordships................... would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence, implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a (1) (1861) 9 Cox, Crim. Cas. 32.\n (2) (1949) L.R. 76. I.A. 147, (3) I.L.R. 1944. Mad. 308.\nposition in which he can hardly fail to have a strong bias in favour of the prosecution ; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue\".\nThe combined effect of ss. 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone.\nTherefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading C. J. in R. v.\nBaskerville (1) as follows \"There is Do doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v Attwood, 1787, 1 Leach 464). But it has been Ion(,, a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discre- tion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v Stubbs, Dears 555 In re Heunier, 1894 2 Q.B. 415)\".\nWe, therefore, allow this appeal, set aside the order of conviction and direct that the appellant be released forthwith.\nAppeal allowed (1) [1916] 2. K.B.658."
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "2e65ce40e40943b6be8710158afb5044",
"to_name": null,
"type": null,
"value": {
"end": 86,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 17TH DAY OF NOVEMBER, 2018"
}
},
{
"from_name": null,
"id": "11c2c0f97b07477da80a26c5ddc4974a",
"to_name": null,
"type": null,
"value": {
"end": 252,
"labels": [
"PREAMBLE"
],
"start": 86,
"text": "\n\n PRESENT\n\nTHE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR\n\n AND\n\nTHE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR\n\n CRIMINAL APPEAL No. 1139 OF 2014"
}
},
{
"from_name": null,
"id": "b345fb7790fb4cb1b4833679bd7092c0",
"to_name": null,
"type": null,
"value": {
"end": 317,
"labels": [
"PREAMBLE"
],
"start": 252,
"text": "\n\nBETWEEN\n\nPremkumar ...Appellant\n"
}
},
{
"from_name": null,
"id": "03c4324c400945f0b0e9e1a584474a08",
"to_name": null,
"type": null,
"value": {
"end": 439,
"labels": [
"PREAMBLE"
],
"start": 317,
"text": "S/o. Late Devappa,\nAged about 21 years,\nR/o. Vijayapura 2nd Cross,\nChikmagalur Town,\nN/o.Doopadahalli,\nShikaripura Taluk,\n"
}
},
{
"from_name": null,
"id": "08c463642f7e4fbca4b02989ed9e71f4",
"to_name": null,
"type": null,
"value": {
"end": 465,
"labels": [
"PREAMBLE"
],
"start": 439,
"text": "Shimoga District-577427.\n\n"
}
},
{
"from_name": null,
"id": "5cf7c06457944c22a2996e25d1033b27",
"to_name": null,
"type": null,
"value": {
"end": 503,
"labels": [
"PREAMBLE"
],
"start": 465,
"text": "(By Sri. Venkatesh P Dalwai, Advocate)"
}
},
{
"from_name": null,
"id": "5c7f1aefa4ed4f7fa1f9aa7042ac49c5",
"to_name": null,
"type": null,
"value": {
"end": 564,
"labels": [
"PREAMBLE"
],
"start": 503,
"text": "\n\nAND\n\nThe State of Karnataka, ...Respondent"
}
},
{
"from_name": null,
"id": "d10fae0ec6224e76857eec2dd5f46ce3",
"to_name": null,
"type": null,
"value": {
"end": 731,
"labels": [
"PREAMBLE"
],
"start": 565,
"text": "By Chikmagalur Town Police Station,\nRepresented by\nState Public Prosecutor,\nHigh Court Building,\nBangalore-560001.\n\n(By Sri. Vijayakumar Majage, Addl. SPP)\n\n\n "
}
},
{
"from_name": null,
"id": "576b5806d8994097b905bb5f4ab95e9c",
"to_name": null,
"type": null,
"value": {
"end": 829,
"labels": [
"PREAMBLE"
],
"start": 731,
"text": "This Criminal Appeal is filed under Section 374(2)\nof Criminal Procedure Code praying to set aside"
}
},
{
"from_name": null,
"id": "bd0cd07ffddd451bbb5cec24931ca489",
"to_name": null,
"type": null,
"value": {
"end": 1215,
"labels": [
"PREAMBLE"
],
"start": 830,
"text": "the\nconviction order and sentence dated 16.08.2013, passed\nby the Prl. Sessions & Special Judge, Chikmagalur, in\nS.C.No.137/2010-convicting the appellant/accused for\nthe offence punishable under Sections 376 & 506 of\nIPC.\n\n This Criminal Appeal coming on for hearing this\nday, Sreenivas Harish Kumar J., delivered the\nfollowing:\n\n JUDGMENT\n "
}
},
{
"from_name": null,
"id": "77c46905818a4cb9809579af1b8cff06",
"to_name": null,
"type": null,
"value": {
"end": 1826,
"labels": [
"RLC"
],
"start": 1215,
"text": "The Principal Sessions Judge, Chikmagalur, by his judgment dated 16.8.2013 in S.C.137/2010 convicted the appellant for the offences punishable under sections 376 and 506 of the Indian Penal Code (for short `IPC') and sentenced him to undergo rigorous imprisonment for life and pay fine of Rs.50,000/- and in default to undergo simple imprisonment for two years in relation to offence under section 376 IPC; and also sentenced him to undergo rigorous imprisonment for five years and pay fine of Rs.10,000/- with a default clause of simple imprisonment for six months in relation to offence under Section 506 IPC."
}
},
{
"from_name": null,
"id": "ac5fc89f7e4a480fa6be52877bb70c23",
"to_name": null,
"type": null,
"value": {
"end": 2043,
"labels": [
"RLC"
],
"start": 1827,
"text": "The Sessions Court also ordered for payment of Rs.50,000/- as compensation to the victim girl from out of the fine amount by exercising its power under section 357 of the Criminal Procedure Code (for short `Cr.P.C')."
}
},
{
"from_name": null,
"id": "7b96406c529149ebad716fab1f1d421b",
"to_name": null,
"type": null,
"value": {
"end": 2110,
"labels": [
"FAC"
],
"start": 2044,
"text": "Aggrieved by this judgment, the accused has preferred this appeal."
}
},
{
"from_name": null,
"id": "47c2812cf55d483e9b510de67ab4e3c7",
"to_name": null,
"type": null,
"value": {
"end": 2354,
"labels": [
"FAC"
],
"start": 2112,
"text": "2. The prosecution case is as follows : - On 29.7.2010 the victim girl made a report to the police stating that on 25.7.2010 at about 9.00 pm she went to a bakery situated near Syndicate Bank on IG road, Chikmagalur, for buying some eatables."
}
},
{
"from_name": null,
"id": "7b1f4d2e387c4f899a853a884d92e977",
"to_name": null,
"type": null,
"value": {
"end": 2503,
"labels": [
"FAC"
],
"start": 2355,
"text": "When she was returning to her house, at about 9.15 pm, the accused forcibly took her to a nearby dilapidated house and tried to outrage her modesty."
}
},
{
"from_name": null,
"id": "6c7884431799476ea04359eaa5dd4857",
"to_name": null,
"type": null,
"value": {
"end": 2638,
"labels": [
"FAC"
],
"start": 2504,
"text": "As she screamed, he left that place by putting a threat to her that if she would disclose that incident to anybody, he would kill her."
}
},
{
"from_name": null,
"id": "c42146b2ca324e7089913d3d4c55ebfc",
"to_name": null,
"type": null,
"value": {
"end": 2719,
"labels": [
"FAC"
],
"start": 2639,
"text": "She returned to the house but did not disclose the same to anybody in her house."
}
},
{
"from_name": null,
"id": "4eded08a73794e2a9cc880177219b450",
"to_name": null,
"type": null,
"value": {
"end": 2807,
"labels": [
"FAC"
],
"start": 2720,
"text": "On 29.7.2010 at 5.00 pm she disclosed about the incident dated 25.7.2010 to her father."
}
},
{
"from_name": null,
"id": "2ac7070d74b94f2cb89df5528659460c",
"to_name": null,
"type": null,
"value": {
"end": 3012,
"labels": [
"FAC"
],
"start": 2808,
"text": "Thereafter, the father brought her to the police station where she gave a report to the police which came to be registered in Cr.No.160/2010 for the offences punishable under sections 354 and 506 IPC.\n 3."
}
},
{
"from_name": null,
"id": "6512a0ed648d4aaa8e40f1ab9481c4ef",
"to_name": null,
"type": null,
"value": {
"end": 3109,
"labels": [
"FAC"
],
"start": 3013,
"text": "On 30.7.2010 the victim girl was taken to hospital by a women constable for medical examination."
}
},
{
"from_name": null,
"id": "ea52491f88bf4ed4ab486fcf3a4adba2",
"to_name": null,
"type": null,
"value": {
"end": 3227,
"labels": [
"FAC"
],
"start": 3109,
"text": "\nThe doctor who conducted medical examination gave a report that he noticed the evidence of recent sexual intercourse."
}
},
{
"from_name": null,
"id": "25decb50b6db45cc94e1a2df7de72983",
"to_name": null,
"type": null,
"value": {
"end": 3325,
"labels": [
"FAC"
],
"start": 3228,
"text": "Therefore, the charge sheet was filed for the offences under Section 376 and Section 506 IPC.\n 4."
}
},
{
"from_name": null,
"id": "a7b586b9df9a4a4a87ed0478ec87af8b",
"to_name": null,
"type": null,
"value": {
"end": 3389,
"labels": [
"FAC"
],
"start": 3326,
"text": "After charging the accused, the Sessions Court conducted trial."
}
},
{
"from_name": null,
"id": "7ba53b0a3c234e7987079f2abb589c96",
"to_name": null,
"type": null,
"value": {
"end": 3490,
"labels": [
"FAC"
],
"start": 3390,
"text": "The prosecution examined 12 witnesses - PWs1 to 12 and got marked 10 documents as per Exs.P1 to P10."
}
},
{
"from_name": null,
"id": "8e6d79ebd2f7445f8b9263eb7513fc29",
"to_name": null,
"type": null,
"value": {
"end": 3543,
"labels": [
"FAC"
],
"start": 3491,
"text": "The appellant was examined under section 313 Cr.P.C."
}
},
{
"from_name": null,
"id": "98d6650741ff488ca79e8fcd6dcaf66b",
"to_name": null,
"type": null,
"value": {
"end": 3723,
"labels": [
"FAC"
],
"start": 3544,
"text": "After appreciating the evidence, the trial court came to conclusion that the prosecution was able to prove its case and therefore convicted and sentenced the accused as aforesaid."
}
},
{
"from_name": null,
"id": "bd8600bb2e794002ae70f249490a97c8",
"to_name": null,
"type": null,
"value": {
"end": 3823,
"labels": [
"RLC"
],
"start": 3724,
"text": "The trial court has given the following findings to hold the accused guilty of the offence : - 4.1."
}
},
{
"from_name": null,
"id": "e2cdca4b408f442f970429b8bb007852",
"to_name": null,
"type": null,
"value": {
"end": 3880,
"labels": [
"RLC"
],
"start": 3824,
"text": "The evidence given by PW1-the victim girl is believable."
}
},
{
"from_name": null,
"id": "34d4b635e41446c6a3da9e946c3e8720",
"to_name": null,
"type": null,
"value": {
"end": 3948,
"labels": [
"RLC"
],
"start": 3881,
"text": "There is nothing on record showing that PW1 is an unworthy witness."
}
},
{
"from_name": null,
"id": "bb2eb1cfb5bb4e358c25a1cd138026bc",
"to_name": null,
"type": null,
"value": {
"end": 4020,
"labels": [
"RLC"
],
"start": 3949,
"text": "The evidence of PWs3 and 4 further testifies the evidence given by PW1."
}
},
{
"from_name": null,
"id": "7b7e5bc75dfa4649bd8dc4dafaa97c0f",
"to_name": null,
"type": null,
"value": {
"end": 4093,
"labels": [
"RLC"
],
"start": 4021,
"text": "These two witnesses have not been discredited in the cross- examination."
}
},
{
"from_name": null,
"id": "a31eac4414c143889c32c3811509754e",
"to_name": null,
"type": null,
"value": {
"end": 4183,
"labels": [
"RLC"
],
"start": 4094,
"text": "It is for the accused to have explained as to what made him to be present along with PW1."
}
},
{
"from_name": null,
"id": "e3e9142024674450b7d0da4011d76101",
"to_name": null,
"type": null,
"value": {
"end": 4269,
"labels": [
"RLC"
],
"start": 4184,
"text": "The entire testimony of PW1 stands corroborated by the medical evidence given by PW9."
}
},
{
"from_name": null,
"id": "0c71834ff64f4d64b436d800727170dd",
"to_name": null,
"type": null,
"value": {
"end": 4275,
"labels": [
"RLC"
],
"start": 4269,
"text": "\n 4.2."
}
},
{
"from_name": null,
"id": "9064027f66764feba993be375b3592ed",
"to_name": null,
"type": null,
"value": {
"end": 4446,
"labels": [
"RLC"
],
"start": 4276,
"text": "With regard to delay, the trial court has held that whenever an incident of this nature takes place, it is usual that the victim does not reveal the incident immediately."
}
},
{
"from_name": null,
"id": "3f7fdb6e6155479ebd0beb957cd74fcf",
"to_name": null,
"type": null,
"value": {
"end": 4530,
"labels": [
"RLC"
],
"start": 4447,
"text": "Therefore, delay does not come in the way of believing the case of the prosecution."
}
},
{
"from_name": null,
"id": "cba5e3dc8b584315a656dfe860122b68",
"to_name": null,
"type": null,
"value": {
"end": 4682,
"labels": [
"ARG_PETITIONER"
],
"start": 4530,
"text": "\n 5. Impugning the findings of the Sessions Court, the counsel for the appellant firstly argues that the charge framed against the accused is defective."
}
},
{
"from_name": null,
"id": "11cca00c1099499b9c643891c5034616",
"to_name": null,
"type": null,
"value": {
"end": 4776,
"labels": [
"ARG_PETITIONER"
],
"start": 4683,
"text": "In the charge it is stated that the age of the girl was 15 years on the date of the incident."
}
},
{
"from_name": null,
"id": "ae27db4633464fd2a0dbe9ba5d1fcf64",
"to_name": null,
"type": null,
"value": {
"end": 4896,
"labels": [
"ARG_PETITIONER"
],
"start": 4777,
"text": "But, Ex.P3, the document produced by the prosecution to prove the age of the girl shows her date of birth as 16.1.1994."
}
},
{
"from_name": null,
"id": "e3f5a035169748a99e8be4de71e802cd",
"to_name": null,
"type": null,
"value": {
"end": 4970,
"labels": [
"ARG_PETITIONER"
],
"start": 4897,
"text": "Therefore, her age on the date of alleged incident was 16 years 6 months."
}
},
{
"from_name": null,
"id": "01a2919dc47443659a4f3a1c4f52a2b0",
"to_name": null,
"type": null,
"value": {
"end": 5166,
"labels": [
"ARG_PETITIONER"
],
"start": 4971,
"text": "If the correct age had been mentioned in the charge, it would have given the accused an opportunity to take a line of defence that it was not an incident of rape, rather a consensual intercourse."
}
},
{
"from_name": null,
"id": "797476da05d545ecb6d54e9e895822a1",
"to_name": null,
"type": null,
"value": {
"end": 5296,
"labels": [
"ARG_PETITIONER"
],
"start": 5167,
"text": "Since the charge is defective, the accused was denied of taking defence in this manner and therefore his interest is prejudiced.\n"
}
},
{
"from_name": null,
"id": "1b53689de9b34444995ed0e894c54ae5",
"to_name": null,
"type": null,
"value": {
"end": 5416,
"labels": [
"ARG_PETITIONER"
],
"start": 5296,
"text": "For this reason, the case requires to be remanded to the trial court for correcting the charge and holding denovo trial."
}
},
{
"from_name": null,
"id": "a80b4f4dcaf041d5a8ee7ec98fa39f48",
"to_name": null,
"type": null,
"value": {
"end": 5523,
"labels": [
"ARG_PETITIONER"
],
"start": 5418,
"text": "5.1. Secondly, he argues that in Ex.P1-the first information, the offences mentioned are 354 and 506 IPC."
}
},
{
"from_name": null,
"id": "84190d99230c4f4eb41c960f3793e2f5",
"to_name": null,
"type": null,
"value": {
"end": 5649,
"labels": [
"ARG_PETITIONER"
],
"start": 5524,
"text": "Even if Ex.P7 is read, it only gives an impression that some attempt might have been made to outrage the modesty of the girl."
}
},
{
"from_name": null,
"id": "f76fad84a7354b16ace18a535a7c04a0",
"to_name": null,
"type": null,
"value": {
"end": 5693,
"labels": [
"ARG_PETITIONER"
],
"start": 5650,
"text": "The victim girl was studying in I year PUC."
}
},
{
"from_name": null,
"id": "4ea575cf3bb54a9fadfa0640f779dbe3",
"to_name": null,
"type": null,
"value": {
"end": 5783,
"labels": [
"ARG_PETITIONER"
],
"start": 5694,
"text": "If really an incident of rape had taken place, she could have revealed the same in Ex.P1."
}
},
{
"from_name": null,
"id": "ab04b4f8fdaf4c459c65301edfbf0a1b",
"to_name": null,
"type": null,
"value": {
"end": 5809,
"labels": [
"ARG_PETITIONER"
],
"start": 5784,
"text": "It is in her handwriting."
}
},
{
"from_name": null,
"id": "da75d9144127411a997948f5a83be374",
"to_name": null,
"type": null,
"value": {
"end": 6000,
"labels": [
"ARG_PETITIONER"
],
"start": 5810,
"text": "He further refers to Ex.P8-the medical certificate and argues that the doctor noticed only two external injuries, namely, an abrasion over the right knee and an abrasion over the left thigh."
}
},
{
"from_name": null,
"id": "ad94480db0c343b5b50b06abcdcd788e",
"to_name": null,
"type": null,
"value": {
"end": 6061,
"labels": [
"ARG_PETITIONER"
],
"start": 6001,
"text": "These injuries show that the girl was not subjected to rape."
}
},
{
"from_name": null,
"id": "d2f603b73e984393bf567fd6633dd881",
"to_name": null,
"type": null,
"value": {
"end": 6174,
"labels": [
"ARG_PETITIONER"
],
"start": 6062,
"text": "Indirectly, the medical certificate supports the defence version that there was consent on the part of the girl."
}
},
{
"from_name": null,
"id": "821a52d2ec87435e80700093ff3d2106",
"to_name": null,
"type": null,
"value": {
"end": 6317,
"labels": [
"ARG_PETITIONER"
],
"start": 6175,
"text": "If it was a case of rape, the doctor would have noticed some other injuries near the genital organ of the girl or some other resistance marks."
}
},
{
"from_name": null,
"id": "d5021b8b86a84edcb670963174f017da",
"to_name": null,
"type": null,
"value": {
"end": 6440,
"labels": [
"ARG_PETITIONER"
],
"start": 6318,
"text": "If Ex.P8 does not disclose injuries of this nature, the inference that can be drawn is that it was a case of consent only."
}
},
{
"from_name": null,
"id": "168eec5fc9b04b9e8231a22888b87ce6",
"to_name": null,
"type": null,
"value": {
"end": 6596,
"labels": [
"ARG_PETITIONER"
],
"start": 6441,
"text": "In this regard he further argues that the alleged date of incident is 25.7.2010, i.e., before amendment was brought to section 375 of IPC in the year 2013."
}
},
{
"from_name": null,
"id": "86f01a8ed2ee44d1817af9338fe58374",
"to_name": null,
"type": null,
"value": {
"end": 6823,
"labels": [
"ARG_PETITIONER"
],
"start": 6597,
"text": "Before amendment, a consensual act of intercourse with a female up to the age of 16 years was not an offence and for this reason the entire case of the prosecution could be brought within the purview of sixthly of section 375."
}
},
{
"from_name": null,
"id": "5d377ee29ab84c50929ea696ae83a2a7",
"to_name": null,
"type": null,
"value": {
"end": 6933,
"labels": [
"ARG_PETITIONER"
],
"start": 6824,
"text": "He garnered support for his argument from Ex.P3 in which the date of birth of the girl is shown as 16.1.1994."
}
},
{
"from_name": null,
"id": "4eeaf9e6bc8b408aa9fca846a3cf118e",
"to_name": null,
"type": null,
"value": {
"end": 7130,
"labels": [
"ARG_PETITIONER"
],
"start": 6934,
"text": "His another point of argument is that nothing prevented the victim's father examined as PW2 from disclosing the incident before the police to see that a complaint under section 376 was registered."
}
},
{
"from_name": null,
"id": "37272f74c1454bce8318695edcfb3fb5",
"to_name": null,
"type": null,
"value": {
"end": 7176,
"labels": [
"ARG_PETITIONER"
],
"start": 7131,
"text": "Therefore, PW2 also becomes untrusty witness."
}
},
{
"from_name": null,
"id": "0aab760a4d434fdca53bc8a6f419c1a9",
"to_name": null,
"type": null,
"value": {
"end": 7228,
"labels": [
"ARG_PETITIONER"
],
"start": 7177,
"text": "He argues that PWs3 and 4 are the chance witnesses."
}
},
{
"from_name": null,
"id": "ab79f1c6662046bab54095f0f15eb697",
"to_name": null,
"type": null,
"value": {
"end": 7373,
"labels": [
"ARG_PETITIONER"
],
"start": 7229,
"text": "Even if the evidence of these two witnesses is believable, it is possible to say that their evidence also shows consent on the part of the girl."
}
},
{
"from_name": null,
"id": "794d5ed92bff4e91bd5c2162220fc1af",
"to_name": null,
"type": null,
"value": {
"end": 7591,
"labels": [
"ARG_PETITIONER"
],
"start": 7374,
"text": "Therefore, it is his argument that if all these aspects are taken into consideration, though a specific defence of consent was not introduced during cross-examination, it is possible to draw inferences in this manner."
}
},
{
"from_name": null,
"id": "4125b1877e3a4d03a9d33f2f925f9180",
"to_name": null,
"type": null,
"value": {
"end": 7722,
"labels": [
"ARG_PETITIONER"
],
"start": 7592,
"text": "The trial court has failed to appreciate the evidence in proper perspective and thus the judgment of the trial court is erroneous."
}
},
{
"from_name": null,
"id": "cd8ee0acc58f41c4adcdbf32e4813ce9",
"to_name": null,
"type": null,
"value": {
"end": 7987,
"labels": [
"ARG_RESPONDENT"
],
"start": 7722,
"text": "\n 6. Countering the argument of the learned counsel for the appellant, Sri Vijayakumar Majage, Additional SPP argues that any defect in charge is not a matter to be considered seriously unless the accused is able to demonstrate as to how his interest is prejudiced."
}
},
{
"from_name": null,
"id": "5b4ad423ddc9410f926fc82a9bf7a1f7",
"to_name": null,
"type": null,
"value": {
"end": 8073,
"labels": [
"ARG_RESPONDENT"
],
"start": 7987,
"text": "\nMoreover there is evidence of doctor-PW8 that the age of the girl was 13 to 14 years."
}
},
{
"from_name": null,
"id": "6a36f29402e74ddca266f1cc28432016",
"to_name": null,
"type": null,
"value": {
"end": 8157,
"labels": [
"ARG_RESPONDENT"
],
"start": 8074,
"text": "The theory of consent is not available as PW1 was not cross-examined in that angle."
}
},
{
"from_name": null,
"id": "e7855346398e4d98a65625549ca3a950",
"to_name": null,
"type": null,
"value": {
"end": 8227,
"labels": [
"ARG_RESPONDENT"
],
"start": 8158,
"text": "The cross-examination of PW1 shows that she has not been discredited."
}
},
{
"from_name": null,
"id": "9a0ff8e1bc4d42baa250554fc40f80df",
"to_name": null,
"type": null,
"value": {
"end": 8307,
"labels": [
"ARG_RESPONDENT"
],
"start": 8228,
"text": "The evidence of the doctor PW-9 who examined the girl has not been discredited."
}
},
{
"from_name": null,
"id": "3ea43670072441b896b8dc88081c1cfc",
"to_name": null,
"type": null,
"value": {
"end": 8457,
"labels": [
"ARG_RESPONDENT"
],
"start": 8308,
"text": "In fact, two external injuries noticed by the doctor shows that the girl was forcibly dragged to a dilapidated house where the offence was committed."
}
},
{
"from_name": null,
"id": "85a8dac132344212a572c914c3bd3dac",
"to_name": null,
"type": null,
"value": {
"end": 8600,
"labels": [
"ARG_RESPONDENT"
],
"start": 8458,
"text": "There are no infirmities in the findings given by the trial court and therefore the judgment of the trial court should not be interfered with."
}
},
{
"from_name": null,
"id": "1ecb17ec575f4a4bab706b6f89b485b6",
"to_name": null,
"type": null,
"value": {
"end": 8700,
"labels": [
"ANALYSIS"
],
"start": 8600,
"text": "\n 7. We have considered the points of arguments and perused the evidence, both oral and documentary."
}
},
{
"from_name": null,
"id": "b5c06d7f80bf4cb5b8ca639727ed4970",
"to_name": null,
"type": null,
"value": {
"end": 8934,
"labels": [
"ANALYSIS"
],
"start": 8700,
"text": "\nIt is true that when the first information was given to the police as per Ex.P1 on 29.7.2010, the victim girl just stated that she was sought to be outraged by a boy who met her while she was returning from a bakery at about 9.15 pm."
}
},
{
"from_name": null,
"id": "e078935a91f24a9f81201dc532b072e2",
"to_name": null,
"type": null,
"value": {
"end": 9018,
"labels": [
"ANALYSIS"
],
"start": 8935,
"text": "The actual incident as disclosed in Ex.P1 is said to have taken place on 25.7.2010."
}
},
{
"from_name": null,
"id": "17b656480c074709976cfbf07098c42f",
"to_name": null,
"type": null,
"value": {
"end": 9073,
"labels": [
"ANALYSIS"
],
"start": 9019,
"text": "There is a delay of 4 days in reporting to the police."
}
},
{
"from_name": null,
"id": "7ba6c15a31ee4658998067bbbdecb004",
"to_name": null,
"type": null,
"value": {
"end": 9237,
"labels": [
"ANALYSIS"
],
"start": 9074,
"text": "In regard to delay, we too are of the opinion that no girl dares to reveal the incident soon after the incident and therefore delay cannot be seriously considered."
}
},
{
"from_name": null,
"id": "0a22ecf0463e416ab1c06fb2e4c1b190",
"to_name": null,
"type": null,
"value": {
"end": 9532,
"labels": [
"ANALYSIS"
],
"start": 9237,
"text": "\n 8. With regard to one line of argument advanced by the learned counsel for the appellant regarding defect in charge, we have to state that though the age is mentioned as 15 years in the charge, Ex.P3, the age proof produced by the prosecution shows that date of birth of the girl is 16.1.1994."
}
},
{
"from_name": null,
"id": "f401d29cc054442d9f99ba96935a63c8",
"to_name": null,
"type": null,
"value": {
"end": 9583,
"labels": [
"ANALYSIS"
],
"start": 9533,
"text": "The prosecution cannot go back upon this document."
}
},
{
"from_name": null,
"id": "9a1fbac25a0345ff803d1f900072524c",
"to_name": null,
"type": null,
"value": {
"end": 9684,
"labels": [
"ANALYSIS"
],
"start": 9584,
"text": "Therefore, on the date of the alleged incident, the age of the girl appears to be 16 years 6 months."
}
},
{
"from_name": null,
"id": "dd345a5a6649407b850de685390b7450",
"to_name": null,
"type": null,
"value": {
"end": 9813,
"labels": [
"ANALYSIS"
],
"start": 9685,
"text": "But, the argument of the learned counsel that on account of defect in charge, he was deprived of the defence cannot be accepted."
}
},
{
"from_name": null,
"id": "c5b7e8f4e3af41d9aa854235ff9f68d7",
"to_name": null,
"type": null,
"value": {
"end": 9941,
"labels": [
"ANALYSIS"
],
"start": 9814,
"text": "Defect in charge is not a matter that can be taken note of unless that defect seriously prejudices the interest of the accused."
}
},
{
"from_name": null,
"id": "14b4c11a409442548d1ba5e835795731",
"to_name": null,
"type": null,
"value": {
"end": 10210,
"labels": [
"ANALYSIS"
],
"start": 9942,
"text": "Having noticed the correct date of birth, nothing prevented the accused from making an application before the trial court to correctly mention the age of the girl in the charge or taking up a defence with regard to consent while cross-examining the material witnesses."
}
},
{
"from_name": null,
"id": "ab3c22d2cf234abfa44673ee73bf1056",
"to_name": null,
"type": null,
"value": {
"end": 10285,
"labels": [
"ANALYSIS"
],
"start": 10211,
"text": "Neither the victim girl nor the investigation officer has been questioned."
}
},
{
"from_name": null,
"id": "88260ff9f3114192b4eb7b07d215a5a4",
"to_name": null,
"type": null,
"value": {
"end": 10329,
"labels": [
"ANALYSIS"
],
"start": 10286,
"text": "Therefore, this argument is not acceptable."
}
},
{
"from_name": null,
"id": "6314b375a83c43d79e9d3595475d1a81",
"to_name": null,
"type": null,
"value": {
"end": 10552,
"labels": [
"ANALYSIS"
],
"start": 10330,
"text": "However, on perusing the evidence of the other material witnesses-PWs1 and 2 and also the doctor-PW9, we have to arrive at a conclusion different from the findings given by the trial court for the following reasons :- 8.1."
}
},
{
"from_name": null,
"id": "db9d22b0386149aa8380c558bb1a2143",
"to_name": null,
"type": null,
"value": {
"end": 10642,
"labels": [
"ANALYSIS"
],
"start": 10553,
"text": "PW1, the prosecutrix, has stated that on 25.7.2010 at about 9.00 pm she went to a bakery."
}
},
{
"from_name": null,
"id": "adbb5dcade30417a89f467f0e4565831",
"to_name": null,
"type": null,
"value": {
"end": 10872,
"labels": [
"ANALYSIS"
],
"start": 10642,
"text": "\nWhile she was returning to her house, the accused closed her mouth and forcibly took her to a dilapidated house near Seethamma Mysore Krishnappa Municipal Hospital and there he removed her clothes and he also removed his clothes."
}
},
{
"from_name": null,
"id": "44e550da1bbd4bc99588a2a671e19526",
"to_name": null,
"type": null,
"value": {
"end": 11004,
"labels": [
"ANALYSIS"
],
"start": 10873,
"text": "She has clearly stated that he spread her veil on the ground and thereafter sexually assaulted on her forcibly without her consent."
}
},
{
"from_name": null,
"id": "9eb72f5f1cfc4bc4bb7b6123dbaf1e47",
"to_name": null,
"type": null,
"value": {
"end": 11031,
"labels": [
"ANALYSIS"
],
"start": 11005,
"text": "She screamed at that time."
}
},
{
"from_name": null,
"id": "ef58e41218994e8a96a61f89506a4b06",
"to_name": null,
"type": null,
"value": {
"end": 11150,
"labels": [
"ANALYSIS"
],
"start": 11032,
"text": "She has stated that he put a threat to her that he would kill her in case she would disclose this incident to anybody."
}
},
{
"from_name": null,
"id": "86cf2dbae679459bbf63be647110ba55",
"to_name": null,
"type": null,
"value": {
"end": 11270,
"labels": [
"ANALYSIS"
],
"start": 11151,
"text": "According to her, when she was wearing the clothes, PWs3, 4 and CW6 came to that place as they heard a screaming voice."
}
},
{
"from_name": null,
"id": "035b25c7ca1349969a84d3c7ed165bad",
"to_name": null,
"type": null,
"value": {
"end": 11312,
"labels": [
"ANALYSIS"
],
"start": 11270,
"text": "\nShe narrated the entire incident to them."
}
},
{
"from_name": null,
"id": "d268437fdabf41d196d31bd432a607f4",
"to_name": null,
"type": null,
"value": {
"end": 11373,
"labels": [
"ANALYSIS"
],
"start": 11313,
"text": "The accused ran away seeing these three people coming there."
}
},
{
"from_name": null,
"id": "71e80a0935fd46aa8e1d0e5313b7d799",
"to_name": null,
"type": null,
"value": {
"end": 11416,
"labels": [
"ANALYSIS"
],
"start": 11374,
"text": "All the three escorted her till her house."
}
},
{
"from_name": null,
"id": "4ee3a0f779d24e5792058d513b2a93f4",
"to_name": null,
"type": null,
"value": {
"end": 11522,
"labels": [
"ANALYSIS"
],
"start": 11417,
"text": "After returning to the house she did not disclose the same to her father and other members of the family."
}
},
{
"from_name": null,
"id": "c341c5555f164d3fa6af48a75ad1d40d",
"to_name": null,
"type": null,
"value": {
"end": 11560,
"labels": [
"ANALYSIS"
],
"start": 11523,
"text": "She took bath and washed her clothes."
}
},
{
"from_name": null,
"id": "272830459d3c42abb601c6cc01b98529",
"to_name": null,
"type": null,
"value": {
"end": 11663,
"labels": [
"ANALYSIS"
],
"start": 11561,
"text": "She has stated that she did not inform about the incident to anybody fearing injury to her reputation."
}
},
{
"from_name": null,
"id": "67c4b57b04dd45f6b0c33284787b0e56",
"to_name": null,
"type": null,
"value": {
"end": 11768,
"labels": [
"ANALYSIS"
],
"start": 11664,
"text": "In the cross-examination she has been questioned as to why she did not disclose to her parents at least."
}
},
{
"from_name": null,
"id": "7276fdcfd2a446e4a0f8e06bed9dc152",
"to_name": null,
"type": null,
"value": {
"end": 11862,
"labels": [
"ANALYSIS"
],
"start": 11769,
"text": "She has answered that she could not disclose the same as it was not a matter to be disclosed."
}
},
{
"from_name": null,
"id": "cf098fc3888b4200943058c50b9862bf",
"to_name": null,
"type": null,
"value": {
"end": 11953,
"labels": [
"ANALYSIS"
],
"start": 11863,
"text": "She has denied the suggestion that at the time of incident her age was more than 18 years."
}
},
{
"from_name": null,
"id": "18078b91e0e545c3a9ef343a89c6bce1",
"to_name": null,
"type": null,
"value": {
"end": 12062,
"labels": [
"ANALYSIS"
],
"start": 11954,
"text": "The other portion of the cross-examination need not be mentioned here as nothing worth is elicited from her."
}
},
{
"from_name": null,
"id": "df34412a60974413a331b38a577da80d",
"to_name": null,
"type": null,
"value": {
"end": 12106,
"labels": [
"ANALYSIS"
],
"start": 12062,
"text": "\n 8.2. PW2 is the father of the victim girl."
}
},
{
"from_name": null,
"id": "75e1ccf0d70f4b1cab0e5546da2f397f",
"to_name": null,
"type": null,
"value": {
"end": 12397,
"labels": [
"ANALYSIS"
],
"start": 12107,
"text": "He has only spoken that on 29.7.2010 at about 5.30 pm his daughter told him that while she was returning from bakery, the accused closed her mouth, took her to a dilapidated house and thereafter committed rape on her and also put life threat to her if she disclosed the incident to anybody."
}
},
{
"from_name": null,
"id": "c36c3bc54cbd4a4099580b98aa92fb9d",
"to_name": null,
"type": null,
"value": {
"end": 12507,
"labels": [
"ANALYSIS"
],
"start": 12398,
"text": "Except giving suggestions to this witness, nothing worth has been elicited from him in the cross-examination."
}
},
{
"from_name": null,
"id": "ad1fb85901954a53af9619f1cf765ae2",
"to_name": null,
"type": null,
"value": {
"end": 12694,
"labels": [
"ANALYSIS"
],
"start": 12509,
"text": "8.3. PWs3 and 4 have given evidence that on 25.7.2010 at about 9.20 pm when they were going near Srinagar Circle near Seethamma Krishnappa Mysuru Hospital, they heard a screaming voice."
}
},
{
"from_name": null,
"id": "57fa5b450824480cae03b372eeff5fb8",
"to_name": null,
"type": null,
"value": {
"end": 12760,
"labels": [
"ANALYSIS"
],
"start": 12695,
"text": "Immediately, they went to that place and saw PW1 and the accused."
}
},
{
"from_name": null,
"id": "3375f00f44c04f7791102e5344385f7f",
"to_name": null,
"type": null,
"value": {
"end": 12832,
"labels": [
"ANALYSIS"
],
"start": 12760,
"text": "\nThey have stated that the accused ran away from that place seeing them."
}
},
{
"from_name": null,
"id": "bbce9c9cb4004b05b23547008ad2882c",
"to_name": null,
"type": null,
"value": {
"end": 12978,
"labels": [
"ANALYSIS"
],
"start": 12833,
"text": "When they asked PW1 as to what happened, she told that the accused closed her mouth and brought to that place, removed the clothes and raped her."
}
},
{
"from_name": null,
"id": "3f526be13b5b4777b1dbb61147d94334",
"to_name": null,
"type": null,
"value": {
"end": 13125,
"labels": [
"ANALYSIS"
],
"start": 12979,
"text": "Their evidence in examination-in-chief shows that she told them that the accused spread her veil on the ground before having intercourse with her."
}
},
{
"from_name": null,
"id": "a301b050dcae4c20ab7a7c0400baf268",
"to_name": null,
"type": null,
"value": {
"end": 13199,
"labels": [
"ANALYSIS"
],
"start": 13125,
"text": "\n They have denied the suggestions given to them in the cross-examination."
}
},
{
"from_name": null,
"id": "a8b2372190d14c4aabddeb449495c991",
"to_name": null,
"type": null,
"value": {
"end": 13205,
"labels": [
"ANALYSIS"
],
"start": 13199,
"text": "\n 8.4."
}
},
{
"from_name": null,
"id": "6652b42e3b1c4d19aa97cd27b418a05a",
"to_name": null,
"type": null,
"value": {
"end": 13265,
"labels": [
"ANALYSIS"
],
"start": 13206,
"text": "PW5 is the Principal of the college where PW1 was studying."
}
},
{
"from_name": null,
"id": "e752abf811234df988b3b20250b82033",
"to_name": null,
"type": null,
"value": {
"end": 13357,
"labels": [
"ANALYSIS"
],
"start": 13266,
"text": "She speaks about Ex.P3, a certificate, stating that the date of birth of PW1 was 16.1.1994."
}
},
{
"from_name": null,
"id": "71102cde18074f468e120d21882f5b4c",
"to_name": null,
"type": null,
"value": {
"end": 13469,
"labels": [
"ANALYSIS"
],
"start": 13357,
"text": "\nVery strangely a suggestion is given to PW5 that the date of birth 16.1.1994 was not the correct date of birth."
}
},
{
"from_name": null,
"id": "f99445ab199e4c478576fd927b376e0e",
"to_name": null,
"type": null,
"value": {
"end": 13501,
"labels": [
"ANALYSIS"
],
"start": 13469,
"text": "\nShe has denied that suggestion."
}
},
{
"from_name": null,
"id": "48ffe13a0a1d4b1592eff499e19d6b93",
"to_name": null,
"type": null,
"value": {
"end": 13592,
"labels": [
"ANALYSIS"
],
"start": 13503,
"text": "8.5. The other two important witnesses whose evidence needs consideration are PWs8 and 9."
}
},
{
"from_name": null,
"id": "7cd34be0c199430793a99611563ade34",
"to_name": null,
"type": null,
"value": {
"end": 13681,
"labels": [
"ANALYSIS"
],
"start": 13593,
"text": "PW8 has given evidence that on 30.7.2010 he examined PW1 and then sent her to a dentist."
}
},
{
"from_name": null,
"id": "d0735b07ecf24403a70a731fc61a2d24",
"to_name": null,
"type": null,
"value": {
"end": 13773,
"labels": [
"ANALYSIS"
],
"start": 13682,
"text": "As per the certificate given by the dentist, he mentioned the age of PW1 as 13 to 14 years."
}
},
{
"from_name": null,
"id": "fbf31ceb6d6943daa128233a34355765",
"to_name": null,
"type": null,
"value": {
"end": 13804,
"labels": [
"ANALYSIS"
],
"start": 13774,
"text": "Ex.P6 is the said certificate."
}
},
{
"from_name": null,
"id": "c00abc2238804a90a3533a344a69866c",
"to_name": null,
"type": null,
"value": {
"end": 13852,
"labels": [
"ANALYSIS"
],
"start": 13805,
"text": "PW9 is the doctor who examined the victim girl."
}
},
{
"from_name": null,
"id": "02bd1245b0b74876953dc253b6decca0",
"to_name": null,
"type": null,
"value": {
"end": 13881,
"labels": [
"ANALYSIS"
],
"start": 13853,
"text": "He found her hymen ruptured."
}
},
{
"from_name": null,
"id": "7953d6b8bbe244bcaa5a586ecb4cf8d2",
"to_name": null,
"type": null,
"value": {
"end": 13933,
"labels": [
"ANALYSIS"
],
"start": 13882,
"text": "There was no be bleeding, but there was tenderness."
}
},
{
"from_name": null,
"id": "0735510bbdc84b708d95f99e41ce05ff",
"to_name": null,
"type": null,
"value": {
"end": 14078,
"labels": [
"ANALYSIS"
],
"start": 13934,
"text": "From the clinical examination he arrived at a conclusion that there were signs of recent intercourse and he issued the certificate as per Ex.P8."
}
},
{
"from_name": null,
"id": "dbd257d2baf94efb8cf4e5bd141a9d28",
"to_name": null,
"type": null,
"value": {
"end": 14178,
"labels": [
"ANALYSIS"
],
"start": 14080,
"text": "8.6. PW10 is the investigation officer, he has given an account of investigation conducted by him."
}
},
{
"from_name": null,
"id": "671e1966afdd4ea1afb415c9db251c37",
"to_name": null,
"type": null,
"value": {
"end": 14322,
"labels": [
"ANALYSIS"
],
"start": 14180,
"text": "9. On re-appreciation of evidence of these witnesses, it is possible to say that the age of the girl on the date of incident was not 15 years."
}
},
{
"from_name": null,
"id": "8c1d173e94754d35b6da2dfcb465a9ad",
"to_name": null,
"type": null,
"value": {
"end": 14481,
"labels": [
"ANALYSIS"
],
"start": 14323,
"text": "Though a suggestion has been given to PW5 that the date mentioned in Ex.P3 is not correct, it cannot be given much importance because it is just a suggestion."
}
},
{
"from_name": null,
"id": "a4c0c55cbc804f5d976b0713a1d4e75f",
"to_name": null,
"type": null,
"value": {
"end": 14603,
"labels": [
"ANALYSIS"
],
"start": 14482,
"text": "The prosecution cannot make use of this suggestion to hold that the age of the girl on the date of incident was 15 years."
}
},
{
"from_name": null,
"id": "3742f7b79dac432286bb2338d65c829b",
"to_name": null,
"type": null,
"value": {
"end": 14670,
"labels": [
"ANALYSIS"
],
"start": 14604,
"text": "Ex.P3 is produced by the prosecution and it binds the prosecution."
}
},
{
"from_name": null,
"id": "66d4576717a34827aa0df3adcf51d404",
"to_name": null,
"type": null,
"value": {
"end": 14782,
"labels": [
"ANALYSIS"
],
"start": 14671,
"text": "Therefore, the age of the girl on the date of incident was not 15 years, her correct age was 16 years 6 months."
}
},
{
"from_name": null,
"id": "408bca5d81dd46fd83bc374d9413fff5",
"to_name": null,
"type": null,
"value": {
"end": 14945,
"labels": [
"ANALYSIS"
],
"start": 14783,
"text": "What we need to examine here is whether consent on the part of the girl can be inferred although such a defence has not been put forward in the cross-examination?"
}
},
{
"from_name": null,
"id": "2900841807a34df889d7ec289e3cda44",
"to_name": null,
"type": null,
"value": {
"end": 15193,
"labels": [
"ANALYSIS"
],
"start": 14946,
"text": "In our opinion such inferences can certainly be drawn from the evidence in examination-in-chief itself if inklings to that effect are available, though sometimes specific defence is not introduced in cross-examination or defence evidence not lead."
}
},
{
"from_name": null,
"id": "86aa7371ec5e4dc3b0103c7f7d6720d9",
"to_name": null,
"type": null,
"value": {
"end": 15307,
"labels": [
"ANALYSIS"
],
"start": 15194,
"text": "If this benefit is available to the accused, that has to be given notwithstanding such a defence being not taken."
}
},
{
"from_name": null,
"id": "fcb8b9c6c61a42699cbe9ca843474b77",
"to_name": null,
"type": null,
"value": {
"end": 15445,
"labels": [
"ANALYSIS"
],
"start": 15308,
"text": "As has been referred to above, PW1 has clearly stated the way in which she was taken to a dilapidated place and subjected to intercourse."
}
},
{
"from_name": null,
"id": "060185a56b1b4ca683f203508d0a2ccc",
"to_name": null,
"type": null,
"value": {
"end": 15504,
"labels": [
"ANALYSIS"
],
"start": 15446,
"text": "The same thing is revealed by her before PWs 3 and 4 also."
}
},
{
"from_name": null,
"id": "68b6c38a84364889abf07f6e7571cdbe",
"to_name": null,
"type": null,
"value": {
"end": 15672,
"labels": [
"ANALYSIS"
],
"start": 15505,
"text": "If evidence of PWs1, 3 and 4 is scrutinized, it can be very much said that she knew the accused even before the incident took place as he happened to be her neighbour."
}
},
{
"from_name": null,
"id": "7a4ad8bd24184c2d80a775676a5f4862",
"to_name": null,
"type": null,
"value": {
"end": 15844,
"labels": [
"ANALYSIS"
],
"start": 15673,
"text": "In addition to evidence of PW1 about removal of clothes and spreading a piece of cloth on the floor, what can be made out from medical certificate Ex.P8 is also important."
}
},
{
"from_name": null,
"id": "a5642865abaa4ab9ba8883499b76400e",
"to_name": null,
"type": null,
"value": {
"end": 15890,
"labels": [
"ANALYSIS"
],
"start": 15845,
"text": "Only two injuries were noticed by the doctor."
}
},
{
"from_name": null,
"id": "dce79c95538541178fb8acda7cf5c3a8",
"to_name": null,
"type": null,
"value": {
"end": 15926,
"labels": [
"ANALYSIS"
],
"start": 15891,
"text": "He has mentioned the same in Ex.P8."
}
},
{
"from_name": null,
"id": "4e3a459c7f104e8d84421bff7114661f",
"to_name": null,
"type": null,
"value": {
"end": 15979,
"labels": [
"ANALYSIS"
],
"start": 15927,
"text": "They are abrasions on the right knee and left thigh."
}
},
{
"from_name": null,
"id": "8fdc6b821fcc467fa63d9dd08584de54",
"to_name": null,
"type": null,
"value": {
"end": 16154,
"labels": [
"ANALYSIS"
],
"start": 15980,
"text": "The State Public Prosecutor has argued that these injuries in fact show that she was forcibly taken to a dilapidated house or otherwise such injuries would not have occurred."
}
},
{
"from_name": null,
"id": "4975c323395f4c57b63e9ee36c4923b9",
"to_name": null,
"type": null,
"value": {
"end": 16192,
"labels": [
"ANALYSIS"
],
"start": 16155,
"text": "Of course this argument is plausible."
}
},
{
"from_name": null,
"id": "477c2e326cd94a1a8470b016271c4dfc",
"to_name": null,
"type": null,
"value": {
"end": 16310,
"labels": [
"ANALYSIS"
],
"start": 16193,
"text": "It is also true that the evidence of PW9 shows that he noticed signs of recent intercourse when he examined the girl."
}
},
{
"from_name": null,
"id": "78e61391abb94766bb22bdade400c55c",
"to_name": null,
"type": null,
"value": {
"end": 16415,
"labels": [
"ANALYSIS"
],
"start": 16311,
"text": "But these injuries and evidence of PW9 by themselves will not lead to conclusion being drawn about rape."
}
},
{
"from_name": null,
"id": "e411a2ba6ab04df1b022452afe4c548c",
"to_name": null,
"type": null,
"value": {
"end": 16451,
"labels": [
"ANALYSIS"
],
"start": 16416,
"text": "There are other circumstances also."
}
},
{
"from_name": null,
"id": "a8158dfcf346401688afa20fbf68a97f",
"to_name": null,
"type": null,
"value": {
"end": 16582,
"labels": [
"ANALYSIS"
],
"start": 16452,
"text": "In an incident relating to rape, the evidence of prosecutrix must be trustworthy, only then her sole testimony can be relied upon."
}
},
{
"from_name": null,
"id": "ab63c4a6408d42b0a3c5f721234bfdcd",
"to_name": null,
"type": null,
"value": {
"end": 16640,
"labels": [
"ANALYSIS"
],
"start": 16583,
"text": "The medical evidence is only corroborative, nothing more."
}
},
{
"from_name": null,
"id": "b7c5b11725f24e0092b490c0fe8f3259",
"to_name": null,
"type": null,
"value": {
"end": 16767,
"labels": [
"ANALYSIS"
],
"start": 16642,
"text": "10. There remains the evidence of PW3 and PW4 who have stated they heard the scream of PW1 and went to the place of incident."
}
},
{
"from_name": null,
"id": "480b5efd981640409ee1924edb7cc22d",
"to_name": null,
"type": null,
"value": {
"end": 16815,
"labels": [
"ANALYSIS"
],
"start": 16768,
"text": "But their evidence is difficult to be believed."
}
},
{
"from_name": null,
"id": "b013c2a41fc7438d907fec8458599375",
"to_name": null,
"type": null,
"value": {
"end": 16932,
"labels": [
"ANALYSIS"
],
"start": 16816,
"text": "If they accompanied PW1 till her house, they did not inform the father of PW2 about what they came to know from PW1."
}
},
{
"from_name": null,
"id": "ef3e76d2a36143358304bfe56daf9519",
"to_name": null,
"type": null,
"value": {
"end": 17108,
"labels": [
"ANALYSIS"
],
"start": 16933,
"text": "If PW2 was present in the house when PW3 or PW4 brought her, the former should have spoken in examination in chief that PW3 or PW4 brought his daughter to house on that night."
}
},
{
"from_name": null,
"id": "5b23d2b6e3ac4927b54c8a7f341845f7",
"to_name": null,
"type": null,
"value": {
"end": 17251,
"labels": [
"ANALYSIS"
],
"start": 17109,
"text": "Even if he was not present, he should have deposed so, because such a testimony of PW2 would have corroborated the testimonies of PW3 and PW4."
}
},
{
"from_name": null,
"id": "83920245844442d3b37438cb3a2f8863",
"to_name": null,
"type": null,
"value": {
"end": 17348,
"labels": [
"ANALYSIS"
],
"start": 17252,
"text": "This is an important circumstance, which, if established, makes the testimony of PW1 believable."
}
},
{
"from_name": null,
"id": "5679697048ac478e9bfcb8a182ca20cc",
"to_name": null,
"type": null,
"value": {
"end": 17496,
"labels": [
"ANALYSIS"
],
"start": 17349,
"text": "The answer given by PW4 in the cross-examination clearly shows that he and PW3 met PW2 on the date of incident, but they did not tell him anything."
}
},
{
"from_name": null,
"id": "1414af2f1f204285b1d9789cf2209e29",
"to_name": null,
"type": null,
"value": {
"end": 17628,
"labels": [
"ANALYSIS"
],
"start": 17497,
"text": "Added to this PW4 has also stated that PW3, CW4 and he had gone to that place and did not see accused running away from that place."
}
},
{
"from_name": null,
"id": "c5b1eb975c024f8a9c2974ea88090684",
"to_name": null,
"type": null,
"value": {
"end": 17721,
"labels": [
"ANALYSIS"
],
"start": 17629,
"text": "This being the evidence of PW4, it is not safe to place reliance on evidence of PW3 and PW4."
}
},
{
"from_name": null,
"id": "f91ac221546046c4921f6cceb30cfbf7",
"to_name": null,
"type": null,
"value": {
"end": 17921,
"labels": [
"ANALYSIS"
],
"start": 17722,
"text": "The evidence of PW2 is also difficult to be relied upon, for, he being the father of PW1, could have, at the time of lodging FIR by PW1, brought to the notice of police about actual incident of rape."
}
},
{
"from_name": null,
"id": "db169eb91e66468ca8b42f04c05ad0a9",
"to_name": null,
"type": null,
"value": {
"end": 17992,
"labels": [
"ANALYSIS"
],
"start": 17921,
"text": "\n 11. The age of the girl as per Ex.P3 appears to be 16 years 6 months."
}
},
{
"from_name": null,
"id": "57e726a81cfc403baa2723ef28185b00",
"to_name": null,
"type": null,
"value": {
"end": 18094,
"labels": [
"ANALYSIS"
],
"start": 17993,
"text": "Evidence in examination-in-chief shows semblance of consent and her evidence lacks credit worthiness."
}
},
{
"from_name": null,
"id": "0d5182b29b944403b6f9c8f8ae32d547",
"to_name": null,
"type": null,
"value": {
"end": 18283,
"labels": [
"RATIO"
],
"start": 18095,
"text": "Therefore we arrive at a conclusion that the reasons ascribed by the learned Sessions Judge for holding that the prosecution has proved its case beyond reasonable doubt cannot be accepted."
}
},
{
"from_name": null,
"id": "68343c7c24ca47219809944bc0ddff19",
"to_name": null,
"type": null,
"value": {
"end": 18387,
"labels": [
"RATIO"
],
"start": 18284,
"text": "The doubts that arise from the scrutiny of the evidence of PW1, PW2, PW3 or PW4 have remained answered."
}
},
{
"from_name": null,
"id": "74f1423c44f9401e8c1fc971775740a5",
"to_name": null,
"type": null,
"value": {
"end": 18445,
"labels": [
"RATIO"
],
"start": 18388,
"text": "The findings given by the trial court cannot be accepted."
}
},
{
"from_name": null,
"id": "f7b03c4a96f3490a97d0e2deae41a999",
"to_name": null,
"type": null,
"value": {
"end": 18800,
"labels": [
"RPC"
],
"start": 18445,
"text": "\nHence, we proceed to pass the following order : - (a) Appeal is allowed.\n (b) The judgment dated 16.8.2013 in S.C.137/2010 passed by the Principal Sessions Judge, Chikmagalur, is set aside.\n (c) The accused is acquitted of the offence.\n He shall be let free from custody forthwith if his presence is not required in any other case.\n "
}
},
{
"from_name": null,
"id": "d4296a9d64c34e4aa76c11b97c92566a",
"to_name": null,
"type": null,
"value": {
"end": 19217,
"labels": [
"ARG_PETITIONER"
],
"start": 18800,
"text": "The learned counsel for the appellant has filed application-I.A.1/2018 under section 8 read with section 12 (1)(G) of the Legal Services Authority Act, 1987 seeking a direction to the State Legal Services Authority and High Court Legal Services Committee to ensure time bound compliance of directions given by the Hon'ble Supreme Court in SLP (Cri) 6740/2018 in the case of Imtiyaz Ramzan Khan vs State of Maharastra."
}
},
{
"from_name": null,
"id": "d28d9e624b944757b5e47f0bfd9087c1",
"to_name": null,
"type": null,
"value": {
"end": 19433,
"labels": [
"ARG_PETITIONER"
],
"start": 19218,
"text": "The learned counsel submits that in cases where legal aid is given to accused, it is difficult for the advocates rendering legal aid to contact the accused who are languishing in jail and take suitable instructions."
}
},
{
"from_name": null,
"id": "72f7fdb6b35f40d3a303bd65be390fde",
"to_name": null,
"type": null,
"value": {
"end": 19590,
"labels": [
"ARG_PETITIONER"
],
"start": 19434,
"text": "He also submits that the accused should also be aware that their case are posted before the court and they should be in a position to contact their lawyers."
}
},
{
"from_name": null,
"id": "6a5cc96ff3884763b1cf51b59b93d821",
"to_name": null,
"type": null,
"value": {
"end": 19682,
"labels": [
"ANALYSIS"
],
"start": 19591,
"text": "Therefore, suitable directions may be issued in accordance with the Supreme Court judgment."
}
},
{
"from_name": null,
"id": "1c02141cdd484aa890f5a8f4a9f491bb",
"to_name": null,
"type": null,
"value": {
"end": 19948,
"labels": [
"ANALYSIS"
],
"start": 19682,
"text": "\n Learned counsel for the appellant has produced a letter communicated to him by the High Court Legal Services Committee to the effect that there is already a video conferencing facility to enable the advocates to contact the accused undergoing sentence in the jail."
}
},
{
"from_name": null,
"id": "ed54ac23ccfd48c3b0bea6ab30edd5ba",
"to_name": null,
"type": null,
"value": {
"end": 20107,
"labels": [
"ANALYSIS"
],
"start": 19949,
"text": "If any counsel wants to obtain instructions from the accused who are in custody, they should approach the Committee for providing video conferencing facility."
}
},
{
"from_name": null,
"id": "4cba2d11a23c4f21aa0735a04f41f00f",
"to_name": null,
"type": null,
"value": {
"end": 20293,
"labels": [
"ANALYSIS"
],
"start": 20107,
"text": "\n From this letter it is clear that the Legal Services Authority has already taken steps to facilitate video conference to enable the advocates to contact the accused who are in custody."
}
},
{
"from_name": null,
"id": "2d26fd7a507649d99a15bf2876af7503",
"to_name": null,
"type": null,
"value": {
"end": 20419,
"labels": [
"ANALYSIS"
],
"start": 20294,
"text": "But, at the same time we have to state that the accused should also be aware about their cases being posted before the court."
}
},
{
"from_name": null,
"id": "40d380e3641c46a58bedfae4315cc0b0",
"to_name": null,
"type": null,
"value": {
"end": 20496,
"labels": [
"ANALYSIS"
],
"start": 20420,
"text": "We do not find such a facility is made available to the accused in the jail."
}
},
{
"from_name": null,
"id": "8d7c26da143f49698615a36f4f18e370",
"to_name": null,
"type": null,
"value": {
"end": 20811,
"labels": [
"RPC"
],
"start": 20497,
"text": "Therefore, Karnataka State Legal Services Authority and the High Court Legal Services Committee are hereby directed to instruct the Jail Superintendents that necessary arrangements be made to enable the accused to contact the advocates who have been engaged by Legal Aid Committee for rendering assistance to them."
}
},
{
"from_name": null,
"id": "63e7f19c7d334791a1251509c119372f",
"to_name": null,
"type": null,
"value": {
"end": 21054,
"labels": [
"RPC"
],
"start": 20812,
"text": "The Jail Superintendents should also bring to the notice of the accused that their cases are posted before the Court so that the accused can give suitable instructions to their advocates through video conference before their cases are argued."
}
},
{
"from_name": null,
"id": "6d639e6334fb4b678dad5853c79bca2a",
"to_name": null,
"type": null,
"value": {
"end": 21201,
"labels": [
"RPC"
],
"start": 21055,
"text": "The Registry may take suitable steps for notifying the Jail Superintendents about listing of cases in which legal aid is given, for final hearing."
}
},
{
"from_name": null,
"id": "3edba049cbd644c097728d00fd4dfbae",
"to_name": null,
"type": null,
"value": {
"end": 21253,
"labels": [
"RPC"
],
"start": 21202,
"text": "With these observations, I.A.1/2018 is disposed of."
}
},
{
"from_name": null,
"id": "87f130e927b94278a61d5ae98e591546",
"to_name": null,
"type": null,
"value": {
"end": 21280,
"labels": [
"NONE"
],
"start": 21253,
"text": "\n Sd/- JUDGE Sd/- JUDGE Ckl"
}
}
]
}
] | 4,144 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 17TH DAY OF NOVEMBER, 2018\n\n PRESENT\n\nTHE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR\n\n AND\n\nTHE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR\n\n CRIMINAL APPEAL No. 1139 OF 2014\n\nBETWEEN\n\nPremkumar ...Appellant\nS/o. Late Devappa,\nAged about 21 years,\nR/o. Vijayapura 2nd Cross,\nChikmagalur Town,\nN/o.Doopadahalli,\nShikaripura Taluk,\nShimoga District-577427.\n\n(By Sri. Venkatesh P Dalwai, Advocate)\n\nAND\n\nThe State of Karnataka, ...Respondent\nBy Chikmagalur Town Police Station,\nRepresented by\nState Public Prosecutor,\nHigh Court Building,\nBangalore-560001.\n\n(By Sri. Vijayakumar Majage, Addl. SPP)\n\n\n This Criminal Appeal is filed under Section 374(2)\nof Criminal Procedure Code praying to set aside the\nconviction order and sentence dated 16.08.2013, passed\nby the Prl. Sessions & Special Judge, Chikmagalur, in\nS.C.No.137/2010-convicting the appellant/accused for\nthe offence punishable under Sections 376 & 506 of\nIPC.\n\n This Criminal Appeal coming on for hearing this\nday, Sreenivas Harish Kumar J., delivered the\nfollowing:\n\n JUDGMENT\n The Principal Sessions Judge, Chikmagalur, by his judgment dated 16.8.2013 in S.C.137/2010 convicted the appellant for the offences punishable under sections 376 and 506 of the Indian Penal Code (for short `IPC') and sentenced him to undergo rigorous imprisonment for life and pay fine of Rs.50,000/- and in default to undergo simple imprisonment for two years in relation to offence under section 376 IPC; and also sentenced him to undergo rigorous imprisonment for five years and pay fine of Rs.10,000/- with a default clause of simple imprisonment for six months in relation to offence under Section 506 IPC. The Sessions Court also ordered for payment of Rs.50,000/- as compensation to the victim girl from out of the fine amount by exercising its power under section 357 of the Criminal Procedure Code (for short `Cr.P.C'). Aggrieved by this judgment, the accused has preferred this appeal.\n 2. The prosecution case is as follows : - On 29.7.2010 the victim girl made a report to the police stating that on 25.7.2010 at about 9.00 pm she went to a bakery situated near Syndicate Bank on IG road, Chikmagalur, for buying some eatables. When she was returning to her house, at about 9.15 pm, the accused forcibly took her to a nearby dilapidated house and tried to outrage her modesty. As she screamed, he left that place by putting a threat to her that if she would disclose that incident to anybody, he would kill her. She returned to the house but did not disclose the same to anybody in her house. On 29.7.2010 at 5.00 pm she disclosed about the incident dated 25.7.2010 to her father. Thereafter, the father brought her to the police station where she gave a report to the police which came to be registered in Cr.No.160/2010 for the offences punishable under sections 354 and 506 IPC.\n 3. On 30.7.2010 the victim girl was taken to hospital by a women constable for medical examination.\nThe doctor who conducted medical examination gave a report that he noticed the evidence of recent sexual intercourse. Therefore, the charge sheet was filed for the offences under Section 376 and Section 506 IPC.\n 4. After charging the accused, the Sessions Court conducted trial. The prosecution examined 12 witnesses - PWs1 to 12 and got marked 10 documents as per Exs.P1 to P10. The appellant was examined under section 313 Cr.P.C. After appreciating the evidence, the trial court came to conclusion that the prosecution was able to prove its case and therefore convicted and sentenced the accused as aforesaid. The trial court has given the following findings to hold the accused guilty of the offence : - 4.1. The evidence given by PW1-the victim girl is believable. There is nothing on record showing that PW1 is an unworthy witness. The evidence of PWs3 and 4 further testifies the evidence given by PW1. These two witnesses have not been discredited in the cross- examination. It is for the accused to have explained as to what made him to be present along with PW1. The entire testimony of PW1 stands corroborated by the medical evidence given by PW9.\n 4.2. With regard to delay, the trial court has held that whenever an incident of this nature takes place, it is usual that the victim does not reveal the incident immediately. Therefore, delay does not come in the way of believing the case of the prosecution.\n 5. Impugning the findings of the Sessions Court, the counsel for the appellant firstly argues that the charge framed against the accused is defective. In the charge it is stated that the age of the girl was 15 years on the date of the incident. But, Ex.P3, the document produced by the prosecution to prove the age of the girl shows her date of birth as 16.1.1994. Therefore, her age on the date of alleged incident was 16 years 6 months. If the correct age had been mentioned in the charge, it would have given the accused an opportunity to take a line of defence that it was not an incident of rape, rather a consensual intercourse. Since the charge is defective, the accused was denied of taking defence in this manner and therefore his interest is prejudiced.\nFor this reason, the case requires to be remanded to the trial court for correcting the charge and holding denovo trial.\n 5.1. Secondly, he argues that in Ex.P1-the first information, the offences mentioned are 354 and 506 IPC. Even if Ex.P7 is read, it only gives an impression that some attempt might have been made to outrage the modesty of the girl. The victim girl was studying in I year PUC. If really an incident of rape had taken place, she could have revealed the same in Ex.P1. It is in her handwriting. He further refers to Ex.P8-the medical certificate and argues that the doctor noticed only two external injuries, namely, an abrasion over the right knee and an abrasion over the left thigh. These injuries show that the girl was not subjected to rape. Indirectly, the medical certificate supports the defence version that there was consent on the part of the girl. If it was a case of rape, the doctor would have noticed some other injuries near the genital organ of the girl or some other resistance marks. If Ex.P8 does not disclose injuries of this nature, the inference that can be drawn is that it was a case of consent only. In this regard he further argues that the alleged date of incident is 25.7.2010, i.e., before amendment was brought to section 375 of IPC in the year 2013. Before amendment, a consensual act of intercourse with a female up to the age of 16 years was not an offence and for this reason the entire case of the prosecution could be brought within the purview of sixthly of section 375. He garnered support for his argument from Ex.P3 in which the date of birth of the girl is shown as 16.1.1994. His another point of argument is that nothing prevented the victim's father examined as PW2 from disclosing the incident before the police to see that a complaint under section 376 was registered. Therefore, PW2 also becomes untrusty witness. He argues that PWs3 and 4 are the chance witnesses. Even if the evidence of these two witnesses is believable, it is possible to say that their evidence also shows consent on the part of the girl. Therefore, it is his argument that if all these aspects are taken into consideration, though a specific defence of consent was not introduced during cross-examination, it is possible to draw inferences in this manner. The trial court has failed to appreciate the evidence in proper perspective and thus the judgment of the trial court is erroneous.\n 6. Countering the argument of the learned counsel for the appellant, Sri Vijayakumar Majage, Additional SPP argues that any defect in charge is not a matter to be considered seriously unless the accused is able to demonstrate as to how his interest is prejudiced.\nMoreover there is evidence of doctor-PW8 that the age of the girl was 13 to 14 years. The theory of consent is not available as PW1 was not cross-examined in that angle.\nThe cross-examination of PW1 shows that she has not been discredited. The evidence of the doctor PW-9 who examined the girl has not been discredited. In fact, two external injuries noticed by the doctor shows that the girl was forcibly dragged to a dilapidated house where the offence was committed. There are no infirmities in the findings given by the trial court and therefore the judgment of the trial court should not be interfered with.\n 7. We have considered the points of arguments and perused the evidence, both oral and documentary.\nIt is true that when the first information was given to the police as per Ex.P1 on 29.7.2010, the victim girl just stated that she was sought to be outraged by a boy who met her while she was returning from a bakery at about 9.15 pm. The actual incident as disclosed in Ex.P1 is said to have taken place on 25.7.2010. There is a delay of 4 days in reporting to the police. In regard to delay, we too are of the opinion that no girl dares to reveal the incident soon after the incident and therefore delay cannot be seriously considered.\n 8. With regard to one line of argument advanced by the learned counsel for the appellant regarding defect in charge, we have to state that though the age is mentioned as 15 years in the charge, Ex.P3, the age proof produced by the prosecution shows that date of birth of the girl is 16.1.1994. The prosecution cannot go back upon this document. Therefore, on the date of the alleged incident, the age of the girl appears to be 16 years 6 months. But, the argument of the learned counsel that on account of defect in charge, he was deprived of the defence cannot be accepted. Defect in charge is not a matter that can be taken note of unless that defect seriously prejudices the interest of the accused. Having noticed the correct date of birth, nothing prevented the accused from making an application before the trial court to correctly mention the age of the girl in the charge or taking up a defence with regard to consent while cross-examining the material witnesses. Neither the victim girl nor the investigation officer has been questioned. Therefore, this argument is not acceptable. However, on perusing the evidence of the other material witnesses-PWs1 and 2 and also the doctor-PW9, we have to arrive at a conclusion different from the findings given by the trial court for the following reasons :- 8.1. PW1, the prosecutrix, has stated that on 25.7.2010 at about 9.00 pm she went to a bakery.\nWhile she was returning to her house, the accused closed her mouth and forcibly took her to a dilapidated house near Seethamma Mysore Krishnappa Municipal Hospital and there he removed her clothes and he also removed his clothes. She has clearly stated that he spread her veil on the ground and thereafter sexually assaulted on her forcibly without her consent. She screamed at that time. She has stated that he put a threat to her that he would kill her in case she would disclose this incident to anybody. According to her, when she was wearing the clothes, PWs3, 4 and CW6 came to that place as they heard a screaming voice.\nShe narrated the entire incident to them. The accused ran away seeing these three people coming there. All the three escorted her till her house. After returning to the house she did not disclose the same to her father and other members of the family. She took bath and washed her clothes. She has stated that she did not inform about the incident to anybody fearing injury to her reputation. In the cross-examination she has been questioned as to why she did not disclose to her parents at least. She has answered that she could not disclose the same as it was not a matter to be disclosed. She has denied the suggestion that at the time of incident her age was more than 18 years. The other portion of the cross-examination need not be mentioned here as nothing worth is elicited from her.\n 8.2. PW2 is the father of the victim girl. He has only spoken that on 29.7.2010 at about 5.30 pm his daughter told him that while she was returning from bakery, the accused closed her mouth, took her to a dilapidated house and thereafter committed rape on her and also put life threat to her if she disclosed the incident to anybody. Except giving suggestions to this witness, nothing worth has been elicited from him in the cross-examination.\n 8.3. PWs3 and 4 have given evidence that on 25.7.2010 at about 9.20 pm when they were going near Srinagar Circle near Seethamma Krishnappa Mysuru Hospital, they heard a screaming voice. Immediately, they went to that place and saw PW1 and the accused.\nThey have stated that the accused ran away from that place seeing them. When they asked PW1 as to what happened, she told that the accused closed her mouth and brought to that place, removed the clothes and raped her. Their evidence in examination-in-chief shows that she told them that the accused spread her veil on the ground before having intercourse with her.\n They have denied the suggestions given to them in the cross-examination.\n 8.4. PW5 is the Principal of the college where PW1 was studying. She speaks about Ex.P3, a certificate, stating that the date of birth of PW1 was 16.1.1994.\nVery strangely a suggestion is given to PW5 that the date of birth 16.1.1994 was not the correct date of birth.\nShe has denied that suggestion.\n 8.5. The other two important witnesses whose evidence needs consideration are PWs8 and 9. PW8 has given evidence that on 30.7.2010 he examined PW1 and then sent her to a dentist. As per the certificate given by the dentist, he mentioned the age of PW1 as 13 to 14 years. Ex.P6 is the said certificate. PW9 is the doctor who examined the victim girl. He found her hymen ruptured. There was no be bleeding, but there was tenderness. From the clinical examination he arrived at a conclusion that there were signs of recent intercourse and he issued the certificate as per Ex.P8.\n 8.6. PW10 is the investigation officer, he has given an account of investigation conducted by him.\n 9. On re-appreciation of evidence of these witnesses, it is possible to say that the age of the girl on the date of incident was not 15 years. Though a suggestion has been given to PW5 that the date mentioned in Ex.P3 is not correct, it cannot be given much importance because it is just a suggestion. The prosecution cannot make use of this suggestion to hold that the age of the girl on the date of incident was 15 years. Ex.P3 is produced by the prosecution and it binds the prosecution. Therefore, the age of the girl on the date of incident was not 15 years, her correct age was 16 years 6 months. What we need to examine here is whether consent on the part of the girl can be inferred although such a defence has not been put forward in the cross-examination? In our opinion such inferences can certainly be drawn from the evidence in examination-in-chief itself if inklings to that effect are available, though sometimes specific defence is not introduced in cross-examination or defence evidence not lead. If this benefit is available to the accused, that has to be given notwithstanding such a defence being not taken. As has been referred to above, PW1 has clearly stated the way in which she was taken to a dilapidated place and subjected to intercourse. The same thing is revealed by her before PWs 3 and 4 also. If evidence of PWs1, 3 and 4 is scrutinized, it can be very much said that she knew the accused even before the incident took place as he happened to be her neighbour. In addition to evidence of PW1 about removal of clothes and spreading a piece of cloth on the floor, what can be made out from medical certificate Ex.P8 is also important. Only two injuries were noticed by the doctor. He has mentioned the same in Ex.P8. They are abrasions on the right knee and left thigh. The State Public Prosecutor has argued that these injuries in fact show that she was forcibly taken to a dilapidated house or otherwise such injuries would not have occurred. Of course this argument is plausible. It is also true that the evidence of PW9 shows that he noticed signs of recent intercourse when he examined the girl. But these injuries and evidence of PW9 by themselves will not lead to conclusion being drawn about rape. There are other circumstances also. In an incident relating to rape, the evidence of prosecutrix must be trustworthy, only then her sole testimony can be relied upon. The medical evidence is only corroborative, nothing more.\n 10. There remains the evidence of PW3 and PW4 who have stated they heard the scream of PW1 and went to the place of incident. But their evidence is difficult to be believed. If they accompanied PW1 till her house, they did not inform the father of PW2 about what they came to know from PW1. If PW2 was present in the house when PW3 or PW4 brought her, the former should have spoken in examination in chief that PW3 or PW4 brought his daughter to house on that night. Even if he was not present, he should have deposed so, because such a testimony of PW2 would have corroborated the testimonies of PW3 and PW4. This is an important circumstance, which, if established, makes the testimony of PW1 believable. The answer given by PW4 in the cross-examination clearly shows that he and PW3 met PW2 on the date of incident, but they did not tell him anything. Added to this PW4 has also stated that PW3, CW4 and he had gone to that place and did not see accused running away from that place. This being the evidence of PW4, it is not safe to place reliance on evidence of PW3 and PW4. The evidence of PW2 is also difficult to be relied upon, for, he being the father of PW1, could have, at the time of lodging FIR by PW1, brought to the notice of police about actual incident of rape.\n 11. The age of the girl as per Ex.P3 appears to be 16 years 6 months. Evidence in examination-in-chief shows semblance of consent and her evidence lacks credit worthiness. Therefore we arrive at a conclusion that the reasons ascribed by the learned Sessions Judge for holding that the prosecution has proved its case beyond reasonable doubt cannot be accepted. The doubts that arise from the scrutiny of the evidence of PW1, PW2, PW3 or PW4 have remained answered. The findings given by the trial court cannot be accepted.\nHence, we proceed to pass the following order : - (a) Appeal is allowed.\n (b) The judgment dated 16.8.2013 in S.C.137/2010 passed by the Principal Sessions Judge, Chikmagalur, is set aside.\n (c) The accused is acquitted of the offence.\n He shall be let free from custody forthwith if his presence is not required in any other case.\n The learned counsel for the appellant has filed application-I.A.1/2018 under section 8 read with section 12 (1)(G) of the Legal Services Authority Act, 1987 seeking a direction to the State Legal Services Authority and High Court Legal Services Committee to ensure time bound compliance of directions given by the Hon'ble Supreme Court in SLP (Cri) 6740/2018 in the case of Imtiyaz Ramzan Khan vs State of Maharastra.\nThe learned counsel submits that in cases where legal aid is given to accused, it is difficult for the advocates rendering legal aid to contact the accused who are languishing in jail and take suitable instructions. He also submits that the accused should also be aware that their case are posted before the court and they should be in a position to contact their lawyers. Therefore, suitable directions may be issued in accordance with the Supreme Court judgment.\n Learned counsel for the appellant has produced a letter communicated to him by the High Court Legal Services Committee to the effect that there is already a video conferencing facility to enable the advocates to contact the accused undergoing sentence in the jail. If any counsel wants to obtain instructions from the accused who are in custody, they should approach the Committee for providing video conferencing facility.\n From this letter it is clear that the Legal Services Authority has already taken steps to facilitate video conference to enable the advocates to contact the accused who are in custody. But, at the same time we have to state that the accused should also be aware about their cases being posted before the court. We do not find such a facility is made available to the accused in the jail. Therefore, Karnataka State Legal Services Authority and the High Court Legal Services Committee are hereby directed to instruct the Jail Superintendents that necessary arrangements be made to enable the accused to contact the advocates who have been engaged by Legal Aid Committee for rendering assistance to them. The Jail Superintendents should also bring to the notice of the accused that their cases are posted before the Court so that the accused can give suitable instructions to their advocates through video conference before their cases are argued. The Registry may take suitable steps for notifying the Jail Superintendents about listing of cases in which legal aid is given, for final hearing. With these observations, I.A.1/2018 is disposed of.\n Sd/- JUDGE Sd/- JUDGE Ckl "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "e9913ea26dc440b593001664ef5e163f",
"to_name": null,
"type": null,
"value": {
"end": 107,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTATA OIL MILLS CO. LTD.\n\n Vs.\n\nRESPONDENT:\nITS WORKMEN\n\nDATE OF JUDGMENT:\n31/03/1964\n\nBENCH:"
}
},
{
"from_name": null,
"id": "5e2603f6afe64609b9e52805fe5f101e",
"to_name": null,
"type": null,
"value": {
"end": 133,
"labels": [
"PREAMBLE"
],
"start": 107,
"text": "\nGAJENDRAGADKAR, P.B. (CJ)"
}
},
{
"from_name": null,
"id": "b6c2686ce5cf4e6b90a060743c5836c5",
"to_name": null,
"type": null,
"value": {
"end": 543,
"labels": [
"PREAMBLE"
],
"start": 134,
"text": "BENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n\n1965 AIR 155 1964 SCR (7) 555\n\nCITATOR INFO : (6)\n (23)\nR 1969 SC 30 (11)\n (7)\nR 1972 SC 136 (7)\n (10)\nF 1972 SC1343 (18)\n (5)\nF 1975 SC2025 (6)\n\nR "
}
},
{
"from_name": null,
"id": "c41ad0ffd793405fb3bbd49a9c8f74af",
"to_name": null,
"type": null,
"value": {
"end": 783,
"labels": [
"PREAMBLE"
],
"start": 543,
"text": "1978 SC1004\n\nRF 1984 SC 289\n\nR 1984 SC5050\n\nR 1988 SC2118\n\nRF 1991 SC1070\n\nACT:\nIndustrial Dispute-Assault on co-employee-Whether Standing\nOrder 22(viii) attracted-Domestic enquiry-Findings binding\n"
}
},
{
"from_name": null,
"id": "7db9e56887f94723a2a9d7b7591d4427",
"to_name": null,
"type": null,
"value": {
"end": 1221,
"labels": [
"PREAMBLE"
],
"start": 783,
"text": "unless shown to be perverse or evidence lacking-Criminal\nTrial also pending-Failure to stay enquiry, if vitiates\nenquiry-Standing Order 22(viii).\n\nHEADNOTE:\nOn a report that R and M, both employees of the appellant\nwaylaid A, another employee and assaulted him outside the\nfactory, the appellant held an enquiry and sought approval\nfor the dismissal of R and M from the Industrial Tribunal,\nbefore which an industrial dispute was pending."
}
},
{
"from_name": null,
"id": "9576dad483db4ab4bb413cc4bca8213b",
"to_name": null,
"type": null,
"value": {
"end": 1308,
"labels": [
"PREAMBLE"
],
"start": 1222,
"text": "The\nTribunal approved the dismissal of R but not that of M.\nThereupon R was dismissed."
}
},
{
"from_name": null,
"id": "82655e6eabf84a48bc207f893e5da930",
"to_name": null,
"type": null,
"value": {
"end": 1415,
"labels": [
"PREAMBLE"
],
"start": 1309,
"text": "The respondent raised an\nindustrial dispute in regard to the propriety and validity\nof the said dismissal."
}
},
{
"from_name": null,
"id": "0f82ceb4dff74291a5684081e88fc470",
"to_name": null,
"type": null,
"value": {
"end": 1698,
"labels": [
"PREAMBLE"
],
"start": 1416,
"text": "On reference of this dispute, the\nIndustrial Tribunal held that the assault could be treated\nas a private matter between R and A with which the appellant\nwas not concerned and as a result Standing Order 22(viii)\ncould not be invoked against R, and it ordered the\nreinstatement of R."
}
},
{
"from_name": null,
"id": "2797407882e642ceaf04f99e9d02770b",
"to_name": null,
"type": null,
"value": {
"end": 1980,
"labels": [
"PREAMBLE"
],
"start": 1699,
"text": "On appeal by special leave:\nHeld: (i) that It would be unreasonable to, include within\nStanding Order 22(viii) any riotous behaviour without the\nfactory which was the result of purely private and\nindividual dispute and in course of which tempers of both\nthe contestants become hot."
}
},
{
"from_name": null,
"id": "84668771b4c849b08a9a7bf97cc97918",
"to_name": null,
"type": null,
"value": {
"end": 2491,
"labels": [
"PREAMBLE"
],
"start": 1981,
"text": "In order that standing order\n22(viii) may be attracted, the appellant should be able to\nshow that the disorderly or riotous behaviour had some\nrational connection with the employment of the assailant and\nthe victim.\n\n(ii) In the present case the assault by R on A was not a\n\npurely private or individual matter but was referable to the\n\ndifference of opinion between the two in regard to the\n\nintroduction of incentive bonus scheme and that cannot be\n\nsaid to be outside the purview of standing order 22(viii)."
}
},
{
"from_name": null,
"id": "201a99c54ae94e1799e619958d1cf228",
"to_name": null,
"type": null,
"value": {
"end": 2674,
"labels": [
"PREAMBLE"
],
"start": 2491,
"text": "\n\n(iii) The Tribunal was in error in coming, to the\n\nconclusion that the enquiry suffered from the infirmity that\n\nit was conducted contrary to the principles of natural\n\njustice."
}
},
{
"from_name": null,
"id": "fd21caf3ebd5473283c49c4af26625cc",
"to_name": null,
"type": null,
"value": {
"end": 3172,
"labels": [
"PREAMBLE"
],
"start": 2674,
"text": "\n\nIt is true that if it appears that by refusing to adjourn.\n\nthe hearing at the instance of charge-sheeted workmen, the\n\nEnquiry Officer failed to give the said workmen a reasonable\n\nopportunity to lead evidence, that may in a proper case, be\n\nconsidered to introduce an element of infirmity in the\n\nenquiry; but in the circumstances of this case, it would not\n\nbe possible to draw such an inference.\n\n(iv) The finding of the Tribunal that the dismissal was\n\nmalafic, cannot possibly be sustained."
}
},
{
"from_name": null,
"id": "5d9d6cd69d0d44099b9e0a00f6145f9a",
"to_name": null,
"type": null,
"value": {
"end": 3426,
"labels": [
"PREAMBLE"
],
"start": 3172,
"text": "\n\nThe Tribunal has completely overlooked an elementary\n\nprinciple of judicial approach that even if a judge or\n\nTribunal may reach an erroneous conclusion either of fact or\n\nof law, the mere error of the conclusion does not make the\n\nconclusion malafide."
}
},
{
"from_name": null,
"id": "ec977ba75c1c4a9686fa186d34a545b5",
"to_name": null,
"type": null,
"value": {
"end": 3659,
"labels": [
"PREAMBLE"
],
"start": 3428,
"text": "(v) Since the domestic enquiry had been fairly conducted,\n\nand the findings recorded therein were based on Evidence\n\nwhich was believed, there was no justification for the\n\nIndustrial Tribunal to consider the same facts for itself."
}
},
{
"from_name": null,
"id": "7500efb8b4934f568f6a95f153496046",
"to_name": null,
"type": null,
"value": {
"end": 4342,
"labels": [
"PREAMBLE"
],
"start": 3659,
"text": "\n\nFindings properly recorded at such enquiries are binding on\n\nparties, unless, of course, it is shown that such findings\n\nare perverse or are not based on any evidence.\n\nPhulbari Tea Estate v. Its Workmen, [1960] 1 S.C.R. 32,\n\nreferred to.\n\n(vi) The Industrial Tribunal was in error when it charac-\n\nterised the result of the domestic enquiry as malafide\n\npartly because the enquiry was not stayed pending criminal\n\nproceedings against R.\n\nIt is desirable that if the incident giving rise to a charge\n\nframed against a workman in a domestic enquiry is being\n\ntried in a criminal court, the employer should stay the\n\ndomestic enquiry pending the final disposal of the criminal\n\ncase."
}
},
{
"from_name": null,
"id": "72f849f28ad5469e9497c69832ca6b54",
"to_name": null,
"type": null,
"value": {
"end": 4564,
"labels": [
"PREAMBLE"
],
"start": 4343,
"text": "It would be particularly appropriate to adopt such a\n\ncourse when the charge is of a grave character because it\n\nwould be unfair to compel the workman to disclose the,\n\ndefence which he may take before the criminal court."
}
},
{
"from_name": null,
"id": "846e50c870714eb1bf3c15911648a728",
"to_name": null,
"type": null,
"value": {
"end": 5008,
"labels": [
"PREAMBLE"
],
"start": 4565,
"text": "But to\n\nsay that domestic enquiries may be stayed pending criminal\n\ntrial is very different from saying that if an employer\n\nproceeds with the domestic enquiry inspite of the fact that\n\nthe criminal trial is pending, the enquiry for that reason\n\nalone is vitiated and the conclusion arrived at in such, an\n\nenquiry is either bad in law or malafide.\n\nDelhi Cloth & General Mills Ltd. v. Kishan Bhan [1960] 3\n\nS.C.R. 227, referred to.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "63296a0e9c53469493c0915b795416c0",
"to_name": null,
"type": null,
"value": {
"end": 5069,
"labels": [
"NONE"
],
"start": 5008,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 51.7 of 1963."
}
},
{
"from_name": null,
"id": "5a3f076c5d2f4adda78e7dc8201c0384",
"to_name": null,
"type": null,
"value": {
"end": 5210,
"labels": [
"NONE"
],
"start": 5070,
"text": "Appeal by special leave from the Award dated September 28, 1960 of the Industrial Tribunal, Ernakulam, in Industrial Dispute No. 81 of 1958."
}
},
{
"from_name": null,
"id": "30ee7e0fd36d4b68a9af57c23902f458",
"to_name": null,
"type": null,
"value": {
"end": 5292,
"labels": [
"NONE"
],
"start": 5210,
"text": "\nG. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant."
}
},
{
"from_name": null,
"id": "dde025b7e4564d72a76f5f8291d4fb15",
"to_name": null,
"type": null,
"value": {
"end": 5387,
"labels": [
"NONE"
],
"start": 5292,
"text": "\nP. Govinda Menon, M. S. K. Iyengar and M. R. K. Pillai, for respondent No. 1.\n March 31, 1964."
}
},
{
"from_name": null,
"id": "7d70a043a891403e81a62bc30722761e",
"to_name": null,
"type": null,
"value": {
"end": 5446,
"labels": [
"NONE"
],
"start": 5388,
"text": "The Judgment of the Court was delivered by GAJENDRAGADKAR,"
}
},
{
"from_name": null,
"id": "5f385bb7497c4765acec6154fa90ec50",
"to_name": null,
"type": null,
"value": {
"end": 5453,
"labels": [
"NONE"
],
"start": 5447,
"text": "C. J.-"
}
},
{
"from_name": null,
"id": "80e2d9a256234cbda4bc0ec88e405983",
"to_name": null,
"type": null,
"value": {
"end": 5744,
"labels": [
"FAC"
],
"start": 5453,
"text": "This appeal by special leave raises a short question about the validity of the order passed by the Industrial Tribunal, Ernakulam, directing the appellant, the Tata Oil Mills Co. Ltd., to reinstate its workman K. K.\nRaghavan whom it had dismissed with effect from the 14th of November, 1955."
}
},
{
"from_name": null,
"id": "6bd644c5246e4d91b4e860207cc65004",
"to_name": null,
"type": null,
"value": {
"end": 5840,
"labels": [
"FAC"
],
"start": 5745,
"text": "The appellant is a public limited concern engaged in the industry of soaps and toilet articles."
}
},
{
"from_name": null,
"id": "72b06864673444479132dca302875ac6",
"to_name": null,
"type": null,
"value": {
"end": 5897,
"labels": [
"FAC"
],
"start": 5841,
"text": "It owns three factories in addition to 12 sales offices."
}
},
{
"from_name": null,
"id": "956908371cd84862b5149e75fd0e5b05",
"to_name": null,
"type": null,
"value": {
"end": 5980,
"labels": [
"FAC"
],
"start": 5898,
"text": "One of these factories is located at Tatapuram, Ernakulam, in the State of Kerala."
}
},
{
"from_name": null,
"id": "81ca1136bef042f1804ffd2e168c4e79",
"to_name": null,
"type": null,
"value": {
"end": 6053,
"labels": [
"FAC"
],
"start": 5981,
"text": "Mr. Raghavan was working with the appellant at its factory at Tatapuram."
}
},
{
"from_name": null,
"id": "d3a58d1222994937875bba1921c7244c",
"to_name": null,
"type": null,
"value": {
"end": 6373,
"labels": [
"FAC"
],
"start": 6054,
"text": "It was reported to the appellant that on the 12th November, 1955, Mr. Raghavan and another employee of the appellant, Mr. Mathews by name, waylaid Mr. C. A. Augustine, the Chargeman of the Soap Plant of the company's factory at Tatapuram while he was returning home after his duty in the second shift and assaulted him."
}
},
{
"from_name": null,
"id": "6b686eabe2fc41768cf0a1f31a31e06f",
"to_name": null,
"type": null,
"value": {
"end": 6480,
"labels": [
"FAC"
],
"start": 6374,
"text": "That is why charge-sheets were issued against both Messrs Raghavan and Mathews on the 14th November, 1955."
}
},
{
"from_name": null,
"id": "8a63dc77789646b082aa02dc98a33928",
"to_name": null,
"type": null,
"value": {
"end": 6768,
"labels": [
"FAC"
],
"start": 6481,
"text": "Pursuant to the service of the charge- sheets, two officers were appointed by the appellant to hold an enquiry, but the respondent Union represented to the appellant that justice would not be done to Raghavan and Mathews unless somebody outside Tatapuram was invited to hold the enquiry."
}
},
{
"from_name": null,
"id": "6063959fde6d47d8bc2df5db8e5d5a5a",
"to_name": null,
"type": null,
"value": {
"end": 6922,
"labels": [
"FAC"
],
"start": 6769,
"text": "Thereupon, the General Manager of the appellant appointed Mr. Y. D. Joshi, who is a Law Officer of the appellant in the Head Office, to hold the enquiry."
}
},
{
"from_name": null,
"id": "91f33e4be25b4dbc8ffecb5087bd0f86",
"to_name": null,
"type": null,
"value": {
"end": 7090,
"labels": [
"FAC"
],
"start": 6923,
"text": "Mr.\nJoshi held the enquiry from the 27th to 30th December, 1955, and subsequently, he made his report to the General Manager of the appellant on the 7th January, 1956."
}
},
{
"from_name": null,
"id": "8b06ad9927cf4ce581958b606bf8ed5b",
"to_name": null,
"type": null,
"value": {
"end": 7298,
"labels": [
"FAC"
],
"start": 7091,
"text": "At that time, an industrial dispute was pending between the appellant and its employees, and so, the appellant applied to the Industrial Tribunal for approval of the dismissal of Messrs Raghavan and Mathews."
}
},
{
"from_name": null,
"id": "f05af675e4c34d2c9951c15ffa1b81fb",
"to_name": null,
"type": null,
"value": {
"end": 7411,
"labels": [
"RLC"
],
"start": 7299,
"text": "The Tribunal approved of the dismissal of Raghavan, but did not accord its approval of the dismissal of Mathews."
}
},
{
"from_name": null,
"id": "94579cc6944a4d559236b2bb44d5b2c7",
"to_name": null,
"type": null,
"value": {
"end": 7548,
"labels": [
"RLC"
],
"start": 7412,
"text": "Acting in pursuance of the approval accorded by the Tribunal, the appellant dismissed Raghavan with effect from the 14th November, 1955."
}
},
{
"from_name": null,
"id": "90966b611a5843fe9ebafcce60d0a15a",
"to_name": null,
"type": null,
"value": {
"end": 7821,
"labels": [
"FAC"
],
"start": 7549,
"text": "Not satisfied with the order of dismissal, the respondent raised an industrial dispute in regard to the propriety and validity of the said dismissal of Raghavan and that has become the subject-matter of the present reference which was ordered on the 3rd of December, 1958."
}
},
{
"from_name": null,
"id": "86533ba0360349ada67993092482d732",
"to_name": null,
"type": null,
"value": {
"end": 7983,
"labels": [
"FAC"
],
"start": 7822,
"text": "It is on this reference that the Industrial tribunal has held that the appellant was not justified in dismissing Raghavan, and so, has ordered his reinstatement."
}
},
{
"from_name": null,
"id": "b142a77447254a04bafa4b71001db62a",
"to_name": null,
"type": null,
"value": {
"end": 8062,
"labels": [
"FAC"
],
"start": 7984,
"text": "This is the order which has given rise to the present appeal by special leave."
}
},
{
"from_name": null,
"id": "a1eae6a50fcc41c9b165ee2235a8e91c",
"to_name": null,
"type": null,
"value": {
"end": 8315,
"labels": [
"ISSUE"
],
"start": 8062,
"text": "\nThe first point which calls for our decision in this appeal is whether the Tribunal was right in holding that the facts proved against Raghavan did not attract the provisions of Standing Order 22(viii) of the Certified Standing Orders of the appellant."
}
},
{
"from_name": null,
"id": "f03243fb86ce4524a99a4156f5e51c78",
"to_name": null,
"type": null,
"value": {
"end": 8570,
"labels": [
"ANALYSIS"
],
"start": 8316,
"text": "The said standing order provides that without prejudice to the general meaning of the term \"misconduct\", it shall be deemed to mean and include, inter alia, drunkenness, fighting, riotous or disorderly or indecent behaviour within or without the factory."
}
},
{
"from_name": null,
"id": "cdd3fe178f1543dca0362f6c326f4a3b",
"to_name": null,
"type": null,
"value": {
"end": 8697,
"labels": [
"ANALYSIS"
],
"start": 8571,
"text": "It is common ground that the alleged assault took place outside the factory, and, in fact, at a considerable distance from it."
}
},
{
"from_name": null,
"id": "3031287717ec4880b2ac983fe5c39dc4",
"to_name": null,
"type": null,
"value": {
"end": 8949,
"labels": [
"ANALYSIS"
],
"start": 8698,
"text": "The Tribunal has held that the assault in question can be treated as a purely private matter between Raghavan and Augustine with which the appellant was not concerned and as a result of which standing order 22(viii) cannot be invoked against Raghavan."
}
},
{
"from_name": null,
"id": "06c5798422d54007b20f924fb371c111",
"to_name": null,
"type": null,
"value": {
"end": 9190,
"labels": [
"ARG_RESPONDENT"
],
"start": 8950,
"text": "Mr. Menon who has appeared for the respondent before us, has contended that in construing standing orders of this charac- ter, we must take care to see that disputes of a purely private or individual type are not brought within their scope."
}
},
{
"from_name": null,
"id": "6cc3108364c24e98bb2886d4780330f2",
"to_name": null,
"type": null,
"value": {
"end": 9365,
"labels": [
"ARG_RESPONDENT"
],
"start": 9191,
"text": "He argues that on many occasions, individual employees may have to deal with private disputes and sometimes, as a result -of these private disputes, assault may be committed."
}
},
{
"from_name": null,
"id": "c4e25927716a435a81c462d2e2641a81",
"to_name": null,
"type": null,
"value": {
"end": 9495,
"labels": [
"ARG_RESPONDENT"
],
"start": 9366,
"text": "Such an assault may attract the relevant provisions of the Indian Penal Code, but it does not fall under standing order 22(viii)."
}
},
{
"from_name": null,
"id": "df8e6c7a41314f9e81ce3818906e9195",
"to_name": null,
"type": null,
"value": {
"end": 9544,
"labels": [
"ANALYSIS"
],
"start": 9496,
"text": "In our opinion, this contention is well-founded."
}
},
{
"from_name": null,
"id": "7affc5c31e70425cab804207881348a8",
"to_name": null,
"type": null,
"value": {
"end": 9793,
"labels": [
"ANALYSIS"
],
"start": 9545,
"text": "It would, we think, be unreasonable to include within standing order 22(viii) any riotous behaviour without the factory which was the result of purely private and individual dispute and in course of which tempers of both the contestants became hot."
}
},
{
"from_name": null,
"id": "2b6318d68a9a44ba9a8449527f1b429d",
"to_name": null,
"type": null,
"value": {
"end": 10009,
"labels": [
"ANALYSIS"
],
"start": 9794,
"text": "In order that standing order 22(viii) may be attracted, the appellant should be able to show that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim."
}
},
{
"from_name": null,
"id": "47abdca2f3dc4ce190a725d17561913e",
"to_name": null,
"type": null,
"value": {
"end": 10156,
"labels": [
"ANALYSIS"
],
"start": 10009,
"text": "\nIn the present case, however, it is quite clear that the assault committed by Raghavan on Augustine was not a purely private or individual matter."
}
},
{
"from_name": null,
"id": "3331546fe5b64aac89ac708d9050d08f",
"to_name": null,
"type": null,
"value": {
"end": 10454,
"labels": [
"ANALYSIS"
],
"start": 10157,
"text": "What the occasion for this assault was and what motive actuated it, have been consider- ed by the domestic Tribunal and the findings of the domestic Tribunal 'on these points must be accepted in the present proceedings, unless they are shown to be based on no evi- dence or are otherwise perverse."
}
},
{
"from_name": null,
"id": "fecf32f8772141889f7bc88b986fc151",
"to_name": null,
"type": null,
"value": {
"end": 10740,
"labels": [
"ANALYSIS"
],
"start": 10455,
"text": "Now, when we look at the report of the Enquiry Officer, it is clear that on the evidence given by Mr. M. M. Augustine and K. T. Joseph it appeared that the assault was committed by Raghavan on C. A.\nAugustine, because he was in favour of the introduction of the Incentive Bonus Scheme."
}
},
{
"from_name": null,
"id": "ec253f5e944846288a4b9009a6ee5be4",
"to_name": null,
"type": null,
"value": {
"end": 11001,
"labels": [
"ANALYSIS"
],
"start": 10741,
"text": "It appears that the introduction of this incentive bonus scheme was approved by one set of workmen and was 'opposed by another, with the result that the two rival unions belonging to these two sets respectively were arrayed against each other on that question."
}
},
{
"from_name": null,
"id": "59241252a23841aabf42c62363b438e6",
"to_name": null,
"type": null,
"value": {
"end": 11467,
"labels": [
"ANALYSIS"
],
"start": 11002,
"text": "The evidence of the two witnesses to whom we have just referred clearly shows that when Raghavan assaulted C.\nA. Augustine, he expressly stated that Augustine was a black-leg (Karinkali) who was interested in increased production in the company with a view to obtain bonus-, and the report further shows that the Enquiry Officer believed this evidence and came to the conclusion that the assault was motivated by this hostility between Raghavan and C. A.\nAugustine."
}
},
{
"from_name": null,
"id": "9084e381411f452db9c6ac1f9875c954",
"to_name": null,
"type": null,
"value": {
"end": 11556,
"labels": [
"ANALYSIS"
],
"start": 11468,
"text": "In fact, the charge framed clearly suggested that the assault was made, for that motive."
}
},
{
"from_name": null,
"id": "cdbe7019e6ea48e6a3779f102030c575",
"to_name": null,
"type": null,
"value": {
"end": 11731,
"labels": [
"ANALYSIS"
],
"start": 11557,
"text": "It was alleged in the charge that Augustine was assaulted to terrorise the workmen who had been responsible for giving increased production under the incentives bonus scheme."
}
},
{
"from_name": null,
"id": "908405809c954c2984bacb3e98f7c295",
"to_name": null,
"type": null,
"value": {
"end": 11804,
"labels": [
"ANALYSIS"
],
"start": 11732,
"text": "According to the charge, such acts were highly subversive of discipline."
}
},
{
"from_name": null,
"id": "ba414ed5994b4b49ab865ebdba3c8953",
"to_name": null,
"type": null,
"value": {
"end": 11947,
"labels": [
"FAC"
],
"start": 11805,
"text": "The Enquiry Officer has held that in the light of the evidence given by M. M. Augustine andK. T. Joseph, the charge as framed had been proved."
}
},
{
"from_name": null,
"id": "50c9b517c0754017b5a8c8e1ae2f2e13",
"to_name": null,
"type": null,
"value": {
"end": 12263,
"labels": [
"ANALYSIS"
],
"start": 11948,
"text": "This finding clearly means that the assault was not the result of a purely individual 'or private quarrel between the assailant and his victim, but it was referable to the difference of opinion between the two in regard to the introduction of the incentive bonus scheme on which the two unions were sharply divided."
}
},
{
"from_name": null,
"id": "3a9a76ea43164710b2652622e755f11a",
"to_name": null,
"type": null,
"value": {
"end": 12462,
"labels": [
"ANALYSIS"
],
"start": 12264,
"text": "Therefore, if Raghavan assaulted Augustine solely for the reason that Augustine was supporting the plea for more production, that cannot be said to be outside the purview of standing order 22(viii)."
}
},
{
"from_name": null,
"id": "bfb1d3f9ee2f454ab338c2cd4756650e",
"to_name": null,
"type": null,
"value": {
"end": 12861,
"labels": [
"ARG_RESPONDENT"
],
"start": 12462,
"text": "\nThe next point which needs to be considered arises out of a plea which has been strenuously urged before us by Mr. Menon that the Tribunal was justified in holding that the Enquiry Officer did not conduct the enquiry in accordance with the principles of natural justice, and so, the Tribunal was entitled to go into the evidence itself and decide whether, Raghavan's dismissal was justified or not."
}
},
{
"from_name": null,
"id": "bd7a4c57fc594eb8b67b5d6c1b1dc63f",
"to_name": null,
"type": null,
"value": {
"end": 12912,
"labels": [
"ANALYSIS"
],
"start": 12862,
"text": "The legal position in this matter is not in doubt."
}
},
{
"from_name": null,
"id": "d6d624c2bbf44ac7b25de48ea85e9b60",
"to_name": null,
"type": null,
"value": {
"end": 13312,
"labels": [
"ANALYSIS"
],
"start": 12913,
"text": "If it appears that the domestic enquiry was not conducted in accordance with the principles of the natural justice and a reasonable opportunity was not, for instance, given to Raghavan to lead evidence in support of his defence, that would be a valid ground on which the Tribunal can discard the finding of the domestic enquiry and consider the matter on the merits uninfluenced by the said finding."
}
},
{
"from_name": null,
"id": "d640381c6c124e3e8e6b8aa8623bf1b3",
"to_name": null,
"type": null,
"value": {
"end": 13548,
"labels": [
"ANALYSIS"
],
"start": 13313,
"text": "Unfortunately for the respondent, however, on the material on record it is very difficult to sustain the finding of the Tribunal that the Enquiry Officer did not conduct the enquiry in accordance with the principles of natural justice."
}
},
{
"from_name": null,
"id": "cbdf7ea002b44d18be289dd66ea1cfe2",
"to_name": null,
"type": null,
"value": {
"end": 13680,
"labels": [
"ANALYSIS"
],
"start": 13549,
"text": "The whole of this contention is based on the fact that Raghavan wanted to examine two witnesses, -Messrs M. P.\nMenon and Chalakudi."
}
},
{
"from_name": null,
"id": "9193318bca5d4625b58bf68136a82d5e",
"to_name": null,
"type": null,
"value": {
"end": 13850,
"labels": [
"ANALYSIS"
],
"start": 13681,
"text": "It appears that Raghavan told the Enquiry Officer that he wanted to examine these two wit- nesses and he requested him to invite the said two witnesses to give evidence."
}
},
{
"from_name": null,
"id": "612c73dcdeb54e3d8bea32cecbffee82",
"to_name": null,
"type": null,
"value": {
"end": 14020,
"labels": [
"ANALYSIS"
],
"start": 13851,
"text": "The Enquiry Officer told Raghavan that it was really not a part of his duty to call the said two witnesses and that Raghavan should in fact have kept them ready himself."
}
},
{
"from_name": null,
"id": "e7c163b514f142c7960995e7788f9ea9",
"to_name": null,
"type": null,
"value": {
"end": 14114,
"labels": [
"ANALYSIS"
],
"start": 14021,
"text": "Even so, in order to assist Raghavan, the Enquiry Officer wrote letters to the two witnesses."
}
},
{
"from_name": null,
"id": "03195f7537634c029eeaac5d89dce721",
"to_name": null,
"type": null,
"value": {
"end": 14366,
"labels": [
"ANALYSIS"
],
"start": 14115,
"text": "Mr.\nMenon replied expressing his inability to be present before the Enquiry Officer, and the Enquiry Officer communicated this reply to Raghavan, so that for Raghavan's failure to examine Menon no blame can be attributed to the enquiry officer at all."
}
},
{
"from_name": null,
"id": "0f3852c0a77440ac9bf80239be755645",
"to_name": null,
"type": null,
"value": {
"end": 14549,
"labels": [
"ANALYSIS"
],
"start": 14367,
"text": "In regard to Chalakudi, it appears that he sent one letter addressed to the Enquiry Officer and it reached him on the 31st December, 1955, the day on which he was leaving for Bombay."
}
},
{
"from_name": null,
"id": "f6efb51c6af648189c52d6a2c06bd6dd",
"to_name": null,
"type": null,
"value": {
"end": 14737,
"labels": [
"ANALYSIS"
],
"start": 14550,
"text": "This letter was not signed, and so, the Enquiry Officer took no action on it and gave no time to Chalakudi to appear three or four days later as had beensuggested in that unsigned letter."
}
},
{
"from_name": null,
"id": "c20c1f546e634a09a0938c74d23268c8",
"to_name": null,
"type": null,
"value": {
"end": 14898,
"labels": [
"ANALYSIS"
],
"start": 14738,
"text": "The Tribunal thought that this attitude on the part of the Enquiry Officer was unsympathetic and that introduced an element of Unfairness in the enquiry itself."
}
},
{
"from_name": null,
"id": "18dd554a24494cd89ead14cbdd871dab",
"to_name": null,
"type": null,
"value": {
"end": 14988,
"labels": [
"ANALYSIS"
],
"start": 14899,
"text": "We are unable to appreciate how such a conclusion can follow on facts which are admitted."
}
},
{
"from_name": null,
"id": "da10b919c46241d197f21bc2985818ee",
"to_name": null,
"type": null,
"value": {
"end": 15086,
"labels": [
"ANALYSIS"
],
"start": 14989,
"text": "We do not think the Enquiry Officer was called upon to accept an unsigned letter and act upon it."
}
},
{
"from_name": null,
"id": "e8416800a401452ea8484d7f34c2eb54",
"to_name": null,
"type": null,
"value": {
"end": 15386,
"labels": [
"ANALYSIS"
],
"start": 15087,
"text": "Besides, the Enquiry Officer had gone to Ernakulam from Bombay for holding this enquiry, because the respondent Union itself wanted that the enquiry should be held by some other officer outside the local station and it was known that the Bombay Officer would go back as soon as the enquiry was over."
}
},
{
"from_name": null,
"id": "f4907ab3e7654a92a16e86e1e5a73b75",
"to_name": null,
"type": null,
"value": {
"end": 15613,
"labels": [
"ANALYSIS"
],
"start": 15387,
"text": "In such a case, if Raghavan did not take steps to produce his witnesses before the Enquiry Officer, how can it be said that the Enquiry Officer did not conduct the enquiry in accordance with the principles 'of natural justice?"
}
},
{
"from_name": null,
"id": "18dc13c141f3489d8523ea74bfc10882",
"to_name": null,
"type": null,
"value": {
"end": 15773,
"labels": [
"ANALYSIS"
],
"start": 15614,
"text": "Mr. Menon has suggested that the Enquiry Officer should have taken steps to get the witnesses M. P. Menon and Chalakudi brought before him for giving evidence."
}
},
{
"from_name": null,
"id": "a844c418ae8e4bf0b895d07ea5bcddee",
"to_name": null,
"type": null,
"value": {
"end": 15811,
"labels": [
"ANALYSIS"
],
"start": 15774,
"text": "This suggestion is clearly untenable."
}
},
{
"from_name": null,
"id": "74dd28201d2e4141a108f2bac06109ad",
"to_name": null,
"type": null,
"value": {
"end": 16068,
"labels": [
"ANALYSIS"
],
"start": 15812,
"text": "In a domestic enquiry, the officer holding the enquiry can take no valid or effective steps to compel the attendance of any witness; just as the appellant produced its witnesses before the officer, Raghavan should have taken steps to produce his witnesses."
}
},
{
"from_name": null,
"id": "3fc7ae71beaf499ba0d441e5d90d7b82",
"to_name": null,
"type": null,
"value": {
"end": 16328,
"labels": [
"ANALYSIS"
],
"start": 16069,
"text": "His witness Menon probably took the view that it was beneath his dignity to appear in a domestic enquiry, and Chalakudi was content to send an unsigned letter and that too so as to reach the Enquiry Officer on the day when he was leaving Ernakulam for Bombay."
}
},
{
"from_name": null,
"id": "343fb29b67c54369a107ef2cef277841",
"to_name": null,
"type": null,
"value": {
"end": 16485,
"labels": [
"ANALYSIS"
],
"start": 16329,
"text": "It would be unreasonable to suggest that in a domestic enquiry, it is the right 'of the charge-sheeted employee to ask for as many adjournments as he likes."
}
},
{
"from_name": null,
"id": "213b24068bf44c3caf2dcf60309f794a",
"to_name": null,
"type": null,
"value": {
"end": 16896,
"labels": [
"ANALYSIS"
],
"start": 16486,
"text": "It is true that if it appears that by refusing to adjourn the hearing at the instance of the charge-sheeted workman, the Enquiry Officer failed to give the said workman a reasonable opportunity to lead evidence, that may, in a proper case, be considered, to introduce an element of infirmity in the enquiry; but in the circumstances of this case, we do not think it would be possible to draw such an inference."
}
},
{
"from_name": null,
"id": "a65e15228d564e419df076a41a823894",
"to_name": null,
"type": null,
"value": {
"end": 17063,
"labels": [
"ANALYSIS"
],
"start": 16897,
"text": "The record shows that the Enquiry Officer went out of his way to assist Raghavan; and if the witnesses did not turn up to give evidence in time, it was not his fault."
}
},
{
"from_name": null,
"id": "e3c1b7e1533e4d0aa16002880c66eb79",
"to_name": null,
"type": null,
"value": {
"end": 17261,
"labels": [
"ANALYSIS"
],
"start": 17063,
"text": "\nWe must accordingly hold that the Tribunal was in error in coming to the conclusion that the enquiry suffered from the infirmity that it was conducted contrary to the principles of natural justice."
}
},
{
"from_name": null,
"id": "23daac2c79784f9c9248e745ceefce40",
"to_name": null,
"type": null,
"value": {
"end": 17371,
"labels": [
"ANALYSIS"
],
"start": 17262,
"text": "Let us then consider whether the dismissal of Raghavan is actuated by malafides, or amounts to victimisation."
}
},
{
"from_name": null,
"id": "4b0b68f6c8754bfa8cd4c9049094e3ce",
"to_name": null,
"type": null,
"value": {
"end": 17469,
"labels": [
"ANALYSIS"
],
"start": 17372,
"text": "In regard to the plea of victimisation, the Tribunal has definitely found against the respondent."
}
},
{
"from_name": null,
"id": "ca54c97a61534a2a81ac6675f02f24d4",
"to_name": null,
"type": null,
"value": {
"end": 17579,
"labels": [
"ANALYSIS"
],
"start": 17470,
"text": "\"I do not for a moment believe\", says the Tribunal, \"that the management foisted acase against the ex-worker."
}
},
{
"from_name": null,
"id": "77883ed3d665486b8575a3513621fd38",
"to_name": null,
"type": null,
"value": {
"end": 17772,
"labels": [
"ANALYSIS"
],
"start": 17580,
"text": "Regarding the allegation of victimisation, there is no sufficient evidence in the case that the management 'or its Manager Mr. John was motivated with victimisation or unfair labour practice\"."
}
},
{
"from_name": null,
"id": "c932d4762c9847d6af8815c142b8f8c8",
"to_name": null,
"type": null,
"value": {
"end": 17830,
"labels": [
"ANALYSIS"
],
"start": 17773,
"text": "This finding is quite clearly in favour of the appellant."
}
},
{
"from_name": null,
"id": "ea8378fc1333493dbbf8232a016dee81",
"to_name": null,
"type": null,
"value": {
"end": 18001,
"labels": [
"ANALYSIS"
],
"start": 17831,
"text": "The Tribunal, however, thought that because the Enquiry Officer did not give an adjournment to Raghavan to examine his witnesses, that introduced an element of malafides."
}
},
{
"from_name": null,
"id": "7a7e49b918a9462483e1dd6f2ab62a7a",
"to_name": null,
"type": null,
"value": {
"end": 18247,
"labels": [
"ANALYSIS"
],
"start": 18002,
"text": "It has also observed that since the case against Raghavan did not fall within the purview of standing order 22(viii) and yet, the appellant framed a charge against Raghavan under that standing order, that introduced another element of malafides."
}
},
{
"from_name": null,
"id": "7914914942534678af597be647a2221f",
"to_name": null,
"type": null,
"value": {
"end": 18346,
"labels": [
"ANALYSIS"
],
"start": 18248,
"text": "It is on these grounds that the conclusion as to malafides recorded by the Tribunal seems to rest."
}
},
{
"from_name": null,
"id": "82a31f6d882f4015a195d77d6c645343",
"to_name": null,
"type": null,
"value": {
"end": 18521,
"labels": [
"ANALYSIS"
],
"start": 18346,
"text": "\nIn regard to the first ground, we have already held that the Tribunal was not justified in blaming the Enquiry Officer for not adjourning the case beyond 31st December, 1955."
}
},
{
"from_name": null,
"id": "6931a1449f6b4926b95a8dab96ea8c1f",
"to_name": null,
"type": null,
"value": {
"end": 18867,
"labels": [
"ANALYSIS"
],
"start": 18522,
"text": "In regard to the second ground, we are surprised that the Tri- bunal should have taken the view that since in its opinion, standing order 22(viii) did not apply to the facts of this case, the framing of the charge under the said standing 'order and the finding of the domestic Tribunal in favour of the appellant on that ground showed malafides."
}
},
{
"from_name": null,
"id": "507ed3a6f31a487688cc5a8cdc337e8e",
"to_name": null,
"type": null,
"value": {
"end": 19138,
"labels": [
"ANALYSIS"
],
"start": 18868,
"text": "It seems to us that the Tribunal has completely overlooked an elementary principle of judicial approach that even if a judge or Tribunal may reach an erroneous conclusion either of fact or of law, the mere error of the conclusion does not make the conclusion malafiedes."
}
},
{
"from_name": null,
"id": "18d1a3cc266141498711d86551fbdcad",
"to_name": null,
"type": null,
"value": {
"end": 19291,
"labels": [
"ANALYSIS"
],
"start": 19139,
"text": "Besides, as we have just indicated, on the merits we are satisfied that the Tribunal was in error in holding that standing order 22(viii) did not apply."
}
},
{
"from_name": null,
"id": "84f9ae4b00b24d1b82a3862e85f85e9f",
"to_name": null,
"type": null,
"value": {
"end": 19405,
"labels": [
"ANALYSIS"
],
"start": 19291,
"text": "\nTherefore, the finding of the Tribunal that the dismissal of Raghavan was malafide, cannot possibly be sustained."
}
},
{
"from_name": null,
"id": "c02a2d3d94df49ce8496913224dcbf21",
"to_name": null,
"type": null,
"value": {
"end": 19477,
"labels": [
"NONE"
],
"start": 19405,
"text": "\nThere is one more point which has been press-Id before us by Mr. Menon."
}
},
{
"from_name": null,
"id": "39f94ced48a949b2a3f2d4f3cf9ab3cb",
"to_name": null,
"type": null,
"value": {
"end": 19805,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19478,
"text": "In Phulbari Tea Estate v. Its Workmen,(1) this Court has held that even if a domestic enquiry is found to be defective, the employer may seek to justify the dismissal of his employee by leading evidence before the Tribunal to which an industrial dispute arising out of the impugned dismissal has been referred for adjudication."
}
},
{
"from_name": null,
"id": "ebf41af1fb424722b1db4676d720bb9a",
"to_name": null,
"type": null,
"value": {
"end": 20078,
"labels": [
"ARG_RESPONDENT"
],
"start": 19806,
"text": "Mr. Menon contends that by parity of reasoning, in cases where the em- ployee is unable to lead his evidence before the domestic Tribunal for no fault of his own, a similar opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal."
}
},
{
"from_name": null,
"id": "d10f67cffce94ff9b055d8b6f51d7ab8",
"to_name": null,
"type": null,
"value": {
"end": 20131,
"labels": [
"ANALYSIS"
],
"start": 20079,
"text": "In our opinion, this contention is not well-founded."
}
},
{
"from_name": null,
"id": "5d2551e3c3134742bca9dba5ec2a0ea1",
"to_name": null,
"type": null,
"value": {
"end": 20551,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20132,
"text": "The decision in the case of Phulbari Tea Estate (supra) proceeds on the basis which is of basic importance in industrial adjudication that findings properly recorded in (1) [1960] 1 S.C.R. 32.domestic enquiries which are conducted fairly, cannot be re- examined by Industrial adjudication unless the said findings are either perverse, or are not supported by any evidence, or some other valid reason 'of that character."
}
},
{
"from_name": null,
"id": "3862a67b75af4dcca51d62c820a107cf",
"to_name": null,
"type": null,
"value": {
"end": 20858,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20552,
"text": "In such a case, the fact that the finding is not accepted by the Industrial Tribunal would not necessarily preclude the employee from justifying the dismissal of his employee on the merits, provided, of course, he leads evidence before the Industrial Tribunal and persuades the Tribunal to accept his case."
}
},
{
"from_name": null,
"id": "8d71ca274bc349bbb81a420d16a163cb",
"to_name": null,
"type": null,
"value": {
"end": 20922,
"labels": [
"ANALYSIS"
],
"start": 20859,
"text": "That, however, is very -different from a case like the present."
}
},
{
"from_name": null,
"id": "2a017b56e07d40f0811bb42c61e3da56",
"to_name": null,
"type": null,
"value": {
"end": 21046,
"labels": [
"ANALYSIS"
],
"start": 20923,
"text": "In the case before us, the enquiry has been fair, the Enquiry Officer gave Raghavan ample opportunity to lead his evidence."
}
},
{
"from_name": null,
"id": "5ab2cc43fc1a44ce856a3f168f261db4",
"to_name": null,
"type": null,
"value": {
"end": 21397,
"labels": [
"ANALYSIS"
],
"start": 21047,
"text": "If at reasonable opportunity had been denied to the employee, that would have made the enquiry itself bad and then, the employer would have been required to prove his case before the Industrial Tribunal, and in dealing with the dispute, the Industrial Tribunal would have been justified in completely ignoring in the findings of the domestic enquiry."
}
},
{
"from_name": null,
"id": "618660d64d7d45deb4b89b20680ed1c9",
"to_name": null,
"type": null,
"value": {
"end": 21554,
"labels": [
"ANALYSIS"
],
"start": 21398,
"text": "But if the enquiry has been fairly conducted, it means that all reasonable opportunity has been given to the employee to prove his case by leading evidence."
}
},
{
"from_name": null,
"id": "36229fd445104bdb9c26058b38a4b7f6",
"to_name": null,
"type": null,
"value": {
"end": 21769,
"labels": [
"ANALYSIS"
],
"start": 21555,
"text": "In such a case, how can the court hold that merely because the witnesses did not appear to give evidence in support of the employee's case, he should be allowed to lead such evidence before the Industrial Tribunal."
}
},
{
"from_name": null,
"id": "e0b6fe5b2457486489ef9ca1029f3529",
"to_name": null,
"type": null,
"value": {
"end": 21920,
"labels": [
"ANALYSIS"
],
"start": 21770,
"text": "If this plea is upheld, no domestic enquiry would be effective and in every case, the matter would have to be tried afresh by the Industrial Tribunal."
}
},
{
"from_name": null,
"id": "aaf953692be7463b9b0e52aa6e94b389",
"to_name": null,
"type": null,
"value": {
"end": 22107,
"labels": [
"ANALYSIS"
],
"start": 21921,
"text": "Therefore, we are not prepared to accede to Mr. Menon's argument that the Tribunal was justified in considering the merits of the dispute for itself in the present reference proceedings."
}
},
{
"from_name": null,
"id": "01586e3b89bd4cfbb5d61600d1a2fb01",
"to_name": null,
"type": null,
"value": {
"end": 22326,
"labels": [
"ANALYSIS"
],
"start": 22107,
"text": "\nSince the enquiry has been fairly conducted, and the findings recorded therein are based on evidence which is believed, there would be no justification for the Industrial Tribunal to consider the same facts for itself."
}
},
{
"from_name": null,
"id": "d3c29a7d9ea04d0f8109488fedfae6d8",
"to_name": null,
"type": null,
"value": {
"end": 22501,
"labels": [
"ANALYSIS"
],
"start": 22327,
"text": "Findings properly recorded at such enquiries are binding on the parties, unless, of course, it is known that the said findings are perverse, or are not based on any evidence."
}
},
{
"from_name": null,
"id": "3cccf1defdc249089c59e37f61668aa3",
"to_name": null,
"type": null,
"value": {
"end": 22560,
"labels": [
"NONE"
],
"start": 22501,
"text": "\nThere is yet another point which remains to be considered."
}
},
{
"from_name": null,
"id": "ae4999c847274c0796244df01ac3117f",
"to_name": null,
"type": null,
"value": {
"end": 22788,
"labels": [
"ANALYSIS"
],
"start": 22560,
"text": "\nThe Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings."
}
},
{
"from_name": null,
"id": "1dee9f88d832425dbc41dc03dd3f5253",
"to_name": null,
"type": null,
"value": {
"end": 23114,
"labels": [
"PRE_RELIED"
],
"start": 22788,
"text": "\nAs this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan,(1) it is desirable that if the incident giving rise to a charge framed against a workman in a domes- tic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case."
}
},
{
"from_name": null,
"id": "94f5a503d1bc4ca8ad3265e3719a83aa",
"to_name": null,
"type": null,
"value": {
"end": 23394,
"labels": [
"ANALYSIS"
],
"start": 23115,
"text": "It would be particularly appropriate to (1) [1960] 3 S.C.R. 227.adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court."
}
},
{
"from_name": null,
"id": "b156875722264da0bb42eb04fe0e80f2",
"to_name": null,
"type": null,
"value": {
"end": 23734,
"labels": [
"ANALYSIS"
],
"start": 23395,
"text": "But to say that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or malafide."
}
},
{
"from_name": null,
"id": "1840350b73784f5e9dcdd733e0c4a7c0",
"to_name": null,
"type": null,
"value": {
"end": 23825,
"labels": [
"ANALYSIS"
],
"start": 23735,
"text": "In fairness, we ought to add that Mr. Menon did not seek to justify this extreme position."
}
},
{
"from_name": null,
"id": "f8adac61c6a443eba02b84e3b63372f6",
"to_name": null,
"type": null,
"value": {
"end": 24053,
"labels": [
"ANALYSIS"
],
"start": 23826,
"text": "Therefore, we must hold that the Industrial Tribunal was in error when it characterised the result of the domestic enquiry as malafide partly because the enquiry was not stayed pending the criminal proceedings against Raghavan."
}
},
{
"from_name": null,
"id": "b6ba9482a7124aac8c472e60ade40c2b",
"to_name": null,
"type": null,
"value": {
"end": 24259,
"labels": [
"RATIO"
],
"start": 24054,
"text": "We accordingly hold that the domestic enquiry in this case was properly held and fairly conducted and the conclusions of fact reached by the Enquiry Officer are based on evidence which he accepted as true."
}
},
{
"from_name": null,
"id": "fe53b57b9dbc4e6bb04972055f18a056",
"to_name": null,
"type": null,
"value": {
"end": 24393,
"labels": [
"RATIO"
],
"start": 24260,
"text": "That being so, it was not open to the Industrial Tribunal to reconsider the same questions of fact and come to a contrary conclusion."
}
},
{
"from_name": null,
"id": "6afff0ee01414470b52913fc8b882851",
"to_name": null,
"type": null,
"value": {
"end": 24431,
"labels": [
"RPC"
],
"start": 24393,
"text": "\nThe result is, the appeal is allowed."
}
},
{
"from_name": null,
"id": "63e7099146c54cbea47b0ca36d2b2e9d",
"to_name": null,
"type": null,
"value": {
"end": 24557,
"labels": [
"RPC"
],
"start": 24432,
"text": "The order passed by the Industrial Tribunal is set aside and the reference made to it is answered in favour of the appellant."
}
},
{
"from_name": null,
"id": "dc508daa9c2640f682a1d2ea6d451472",
"to_name": null,
"type": null,
"value": {
"end": 24896,
"labels": [
"RPC"
],
"start": 24558,
"text": "Before we part with this appeal, we ought to add that Mr. Pai for the appellant has fairly offered to pay ex gratia Rs. 1,000/- to Raghavan in addition to the amount which has already been paid to him by the appellant in pursuance of the order of this Court granting stay to the appellant pending the final disposal of the present appeal."
}
},
{
"from_name": null,
"id": "6c54b20f33cd4aa7b5dac79e73966860",
"to_name": null,
"type": null,
"value": {
"end": 24933,
"labels": [
"RPC"
],
"start": 24897,
"text": "There would be no order as to costs."
}
},
{
"from_name": null,
"id": "639b061d2c21430dac980ded12757724",
"to_name": null,
"type": null,
"value": {
"end": 24949,
"labels": [
"RPC"
],
"start": 24933,
"text": "\nAppeal allowed."
}
}
]
}
] | 4,161 | {
"text": "PETITIONER:\nTATA OIL MILLS CO. LTD.\n\n Vs.\n\nRESPONDENT:\nITS WORKMEN\n\nDATE OF JUDGMENT:\n31/03/1964\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n\n1965 AIR 155 1964 SCR (7) 555\n\nCITATOR INFO : (6)\n (23)\nR 1969 SC 30 (11)\n (7)\nR 1972 SC 136 (7)\n (10)\nF 1972 SC1343 (18)\n (5)\nF 1975 SC2025 (6)\n\nR 1978 SC1004\n\nRF 1984 SC 289\n\nR 1984 SC5050\n\nR 1988 SC2118\n\nRF 1991 SC1070\n\nACT:\nIndustrial Dispute-Assault on co-employee-Whether Standing\nOrder 22(viii) attracted-Domestic enquiry-Findings binding\nunless shown to be perverse or evidence lacking-Criminal\nTrial also pending-Failure to stay enquiry, if vitiates\nenquiry-Standing Order 22(viii).\n\nHEADNOTE:\nOn a report that R and M, both employees of the appellant\nwaylaid A, another employee and assaulted him outside the\nfactory, the appellant held an enquiry and sought approval\nfor the dismissal of R and M from the Industrial Tribunal,\nbefore which an industrial dispute was pending. The\nTribunal approved the dismissal of R but not that of M.\nThereupon R was dismissed. The respondent raised an\nindustrial dispute in regard to the propriety and validity\nof the said dismissal. On reference of this dispute, the\nIndustrial Tribunal held that the assault could be treated\nas a private matter between R and A with which the appellant\nwas not concerned and as a result Standing Order 22(viii)\ncould not be invoked against R, and it ordered the\nreinstatement of R. On appeal by special leave:\nHeld: (i) that It would be unreasonable to, include within\nStanding Order 22(viii) any riotous behaviour without the\nfactory which was the result of purely private and\nindividual dispute and in course of which tempers of both\nthe contestants become hot. In order that standing order\n22(viii) may be attracted, the appellant should be able to\nshow that the disorderly or riotous behaviour had some\nrational connection with the employment of the assailant and\nthe victim.\n\n(ii) In the present case the assault by R on A was not a\n\npurely private or individual matter but was referable to the\n\ndifference of opinion between the two in regard to the\n\nintroduction of incentive bonus scheme and that cannot be\n\nsaid to be outside the purview of standing order 22(viii).\n\n(iii) The Tribunal was in error in coming, to the\n\nconclusion that the enquiry suffered from the infirmity that\n\nit was conducted contrary to the principles of natural\n\njustice.\n\nIt is true that if it appears that by refusing to adjourn.\n\nthe hearing at the instance of charge-sheeted workmen, the\n\nEnquiry Officer failed to give the said workmen a reasonable\n\nopportunity to lead evidence, that may in a proper case, be\n\nconsidered to introduce an element of infirmity in the\n\nenquiry; but in the circumstances of this case, it would not\n\nbe possible to draw such an inference.\n\n(iv) The finding of the Tribunal that the dismissal was\n\nmalafic, cannot possibly be sustained.\n\nThe Tribunal has completely overlooked an elementary\n\nprinciple of judicial approach that even if a judge or\n\nTribunal may reach an erroneous conclusion either of fact or\n\nof law, the mere error of the conclusion does not make the\n\nconclusion malafide.\n\n(v) Since the domestic enquiry had been fairly conducted,\n\nand the findings recorded therein were based on Evidence\n\nwhich was believed, there was no justification for the\n\nIndustrial Tribunal to consider the same facts for itself.\n\nFindings properly recorded at such enquiries are binding on\n\nparties, unless, of course, it is shown that such findings\n\nare perverse or are not based on any evidence.\n\nPhulbari Tea Estate v. Its Workmen, [1960] 1 S.C.R. 32,\n\nreferred to.\n\n(vi) The Industrial Tribunal was in error when it charac-\n\nterised the result of the domestic enquiry as malafide\n\npartly because the enquiry was not stayed pending criminal\n\nproceedings against R.\n\nIt is desirable that if the incident giving rise to a charge\n\nframed against a workman in a domestic enquiry is being\n\ntried in a criminal court, the employer should stay the\n\ndomestic enquiry pending the final disposal of the criminal\n\ncase. It would be particularly appropriate to adopt such a\n\ncourse when the charge is of a grave character because it\n\nwould be unfair to compel the workman to disclose the,\n\ndefence which he may take before the criminal court. But to\n\nsay that domestic enquiries may be stayed pending criminal\n\ntrial is very different from saying that if an employer\n\nproceeds with the domestic enquiry inspite of the fact that\n\nthe criminal trial is pending, the enquiry for that reason\n\nalone is vitiated and the conclusion arrived at in such, an\n\nenquiry is either bad in law or malafide.\n\nDelhi Cloth & General Mills Ltd. v. Kishan Bhan [1960] 3\n\nS.C.R. 227, referred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 51.7 of 1963.\nAppeal by special leave from the Award dated September 28, 1960 of the Industrial Tribunal, Ernakulam, in Industrial Dispute No. 81 of 1958.\nG. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.\nP. Govinda Menon, M. S. K. Iyengar and M. R. K. Pillai, for respondent No. 1.\n March 31, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J.-This appeal by special leave raises a short question about the validity of the order passed by the Industrial Tribunal, Ernakulam, directing the appellant, the Tata Oil Mills Co. Ltd., to reinstate its workman K. K.\nRaghavan whom it had dismissed with effect from the 14th of November, 1955. The appellant is a public limited concern engaged in the industry of soaps and toilet articles. It owns three factories in addition to 12 sales offices. One of these factories is located at Tatapuram, Ernakulam, in the State of Kerala. Mr. Raghavan was working with the appellant at its factory at Tatapuram. It was reported to the appellant that on the 12th November, 1955, Mr. Raghavan and another employee of the appellant, Mr. Mathews by name, waylaid Mr. C. A. Augustine, the Chargeman of the Soap Plant of the company's factory at Tatapuram while he was returning home after his duty in the second shift and assaulted him. That is why charge-sheets were issued against both Messrs Raghavan and Mathews on the 14th November, 1955. Pursuant to the service of the charge- sheets, two officers were appointed by the appellant to hold an enquiry, but the respondent Union represented to the appellant that justice would not be done to Raghavan and Mathews unless somebody outside Tatapuram was invited to hold the enquiry. Thereupon, the General Manager of the appellant appointed Mr. Y. D. Joshi, who is a Law Officer of the appellant in the Head Office, to hold the enquiry. Mr.\nJoshi held the enquiry from the 27th to 30th December, 1955, and subsequently, he made his report to the General Manager of the appellant on the 7th January, 1956. At that time, an industrial dispute was pending between the appellant and its employees, and so, the appellant applied to the Industrial Tribunal for approval of the dismissal of Messrs Raghavan and Mathews. The Tribunal approved of the dismissal of Raghavan, but did not accord its approval of the dismissal of Mathews. Acting in pursuance of the approval accorded by the Tribunal, the appellant dismissed Raghavan with effect from the 14th November, 1955. Not satisfied with the order of dismissal, the respondent raised an industrial dispute in regard to the propriety and validity of the said dismissal of Raghavan and that has become the subject-matter of the present reference which was ordered on the 3rd of December, 1958. It is on this reference that the Industrial tribunal has held that the appellant was not justified in dismissing Raghavan, and so, has ordered his reinstatement. This is the order which has given rise to the present appeal by special leave.\nThe first point which calls for our decision in this appeal is whether the Tribunal was right in holding that the facts proved against Raghavan did not attract the provisions of Standing Order 22(viii) of the Certified Standing Orders of the appellant. The said standing order provides that without prejudice to the general meaning of the term \"misconduct\", it shall be deemed to mean and include, inter alia, drunkenness, fighting, riotous or disorderly or indecent behaviour within or without the factory. It is common ground that the alleged assault took place outside the factory, and, in fact, at a considerable distance from it. The Tribunal has held that the assault in question can be treated as a purely private matter between Raghavan and Augustine with which the appellant was not concerned and as a result of which standing order 22(viii) cannot be invoked against Raghavan. Mr. Menon who has appeared for the respondent before us, has contended that in construing standing orders of this charac- ter, we must take care to see that disputes of a purely private or individual type are not brought within their scope. He argues that on many occasions, individual employees may have to deal with private disputes and sometimes, as a result -of these private disputes, assault may be committed. Such an assault may attract the relevant provisions of the Indian Penal Code, but it does not fall under standing order 22(viii). In our opinion, this contention is well-founded. It would, we think, be unreasonable to include within standing order 22(viii) any riotous behaviour without the factory which was the result of purely private and individual dispute and in course of which tempers of both the contestants became hot. In order that standing order 22(viii) may be attracted, the appellant should be able to show that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim.\nIn the present case, however, it is quite clear that the assault committed by Raghavan on Augustine was not a purely private or individual matter. What the occasion for this assault was and what motive actuated it, have been consider- ed by the domestic Tribunal and the findings of the domestic Tribunal 'on these points must be accepted in the present proceedings, unless they are shown to be based on no evi- dence or are otherwise perverse. Now, when we look at the report of the Enquiry Officer, it is clear that on the evidence given by Mr. M. M. Augustine and K. T. Joseph it appeared that the assault was committed by Raghavan on C. A.\nAugustine, because he was in favour of the introduction of the Incentive Bonus Scheme. It appears that the introduction of this incentive bonus scheme was approved by one set of workmen and was 'opposed by another, with the result that the two rival unions belonging to these two sets respectively were arrayed against each other on that question. The evidence of the two witnesses to whom we have just referred clearly shows that when Raghavan assaulted C.\nA. Augustine, he expressly stated that Augustine was a black-leg (Karinkali) who was interested in increased production in the company with a view to obtain bonus-, and the report further shows that the Enquiry Officer believed this evidence and came to the conclusion that the assault was motivated by this hostility between Raghavan and C. A.\nAugustine. In fact, the charge framed clearly suggested that the assault was made, for that motive. It was alleged in the charge that Augustine was assaulted to terrorise the workmen who had been responsible for giving increased production under the incentives bonus scheme. According to the charge, such acts were highly subversive of discipline.\nThe Enquiry Officer has held that in the light of the evidence given by M. M. Augustine andK. T. Joseph, the charge as framed had been proved. This finding clearly means that the assault was not the result of a purely individual 'or private quarrel between the assailant and his victim, but it was referable to the difference of opinion between the two in regard to the introduction of the incentive bonus scheme on which the two unions were sharply divided. Therefore, if Raghavan assaulted Augustine solely for the reason that Augustine was supporting the plea for more production, that cannot be said to be outside the purview of standing order 22(viii).\nThe next point which needs to be considered arises out of a plea which has been strenuously urged before us by Mr. Menon that the Tribunal was justified in holding that the Enquiry Officer did not conduct the enquiry in accordance with the principles of natural justice, and so, the Tribunal was entitled to go into the evidence itself and decide whether, Raghavan's dismissal was justified or not. The legal position in this matter is not in doubt. If it appears that the domestic enquiry was not conducted in accordance with the principles of the natural justice and a reasonable opportunity was not, for instance, given to Raghavan to lead evidence in support of his defence, that would be a valid ground on which the Tribunal can discard the finding of the domestic enquiry and consider the matter on the merits uninfluenced by the said finding. Unfortunately for the respondent, however, on the material on record it is very difficult to sustain the finding of the Tribunal that the Enquiry Officer did not conduct the enquiry in accordance with the principles of natural justice.\nThe whole of this contention is based on the fact that Raghavan wanted to examine two witnesses, -Messrs M. P.\nMenon and Chalakudi. It appears that Raghavan told the Enquiry Officer that he wanted to examine these two wit- nesses and he requested him to invite the said two witnesses to give evidence. The Enquiry Officer told Raghavan that it was really not a part of his duty to call the said two witnesses and that Raghavan should in fact have kept them ready himself. Even so, in order to assist Raghavan, the Enquiry Officer wrote letters to the two witnesses. Mr.\nMenon replied expressing his inability to be present before the Enquiry Officer, and the Enquiry Officer communicated this reply to Raghavan, so that for Raghavan's failure to examine Menon no blame can be attributed to the enquiry officer at all. In regard to Chalakudi, it appears that he sent one letter addressed to the Enquiry Officer and it reached him on the 31st December, 1955, the day on which he was leaving for Bombay. This letter was not signed, and so, the Enquiry Officer took no action on it and gave no time to Chalakudi to appear three or four days later as had beensuggested in that unsigned letter. The Tribunal thought that this attitude on the part of the Enquiry Officer was unsympathetic and that introduced an element of Unfairness in the enquiry itself. We are unable to appreciate how such a conclusion can follow on facts which are admitted. We do not think the Enquiry Officer was called upon to accept an unsigned letter and act upon it. Besides, the Enquiry Officer had gone to Ernakulam from Bombay for holding this enquiry, because the respondent Union itself wanted that the enquiry should be held by some other officer outside the local station and it was known that the Bombay Officer would go back as soon as the enquiry was over. In such a case, if Raghavan did not take steps to produce his witnesses before the Enquiry Officer, how can it be said that the Enquiry Officer did not conduct the enquiry in accordance with the principles 'of natural justice? Mr. Menon has suggested that the Enquiry Officer should have taken steps to get the witnesses M. P. Menon and Chalakudi brought before him for giving evidence. This suggestion is clearly untenable. In a domestic enquiry, the officer holding the enquiry can take no valid or effective steps to compel the attendance of any witness; just as the appellant produced its witnesses before the officer, Raghavan should have taken steps to produce his witnesses. His witness Menon probably took the view that it was beneath his dignity to appear in a domestic enquiry, and Chalakudi was content to send an unsigned letter and that too so as to reach the Enquiry Officer on the day when he was leaving Ernakulam for Bombay. It would be unreasonable to suggest that in a domestic enquiry, it is the right 'of the charge-sheeted employee to ask for as many adjournments as he likes. It is true that if it appears that by refusing to adjourn the hearing at the instance of the charge-sheeted workman, the Enquiry Officer failed to give the said workman a reasonable opportunity to lead evidence, that may, in a proper case, be considered, to introduce an element of infirmity in the enquiry; but in the circumstances of this case, we do not think it would be possible to draw such an inference. The record shows that the Enquiry Officer went out of his way to assist Raghavan; and if the witnesses did not turn up to give evidence in time, it was not his fault.\nWe must accordingly hold that the Tribunal was in error in coming to the conclusion that the enquiry suffered from the infirmity that it was conducted contrary to the principles of natural justice.\nLet us then consider whether the dismissal of Raghavan is actuated by malafides, or amounts to victimisation. In regard to the plea of victimisation, the Tribunal has definitely found against the respondent. \"I do not for a moment believe\", says the Tribunal, \"that the management foisted acase against the ex-worker. Regarding the allegation of victimisation, there is no sufficient evidence in the case that the management 'or its Manager Mr. John was motivated with victimisation or unfair labour practice\". This finding is quite clearly in favour of the appellant. The Tribunal, however, thought that because the Enquiry Officer did not give an adjournment to Raghavan to examine his witnesses, that introduced an element of malafides. It has also observed that since the case against Raghavan did not fall within the purview of standing order 22(viii) and yet, the appellant framed a charge against Raghavan under that standing order, that introduced another element of malafides. It is on these grounds that the conclusion as to malafides recorded by the Tribunal seems to rest.\nIn regard to the first ground, we have already held that the Tribunal was not justified in blaming the Enquiry Officer for not adjourning the case beyond 31st December, 1955. In regard to the second ground, we are surprised that the Tri- bunal should have taken the view that since in its opinion, standing order 22(viii) did not apply to the facts of this case, the framing of the charge under the said standing 'order and the finding of the domestic Tribunal in favour of the appellant on that ground showed malafides. It seems to us that the Tribunal has completely overlooked an elementary principle of judicial approach that even if a judge or Tribunal may reach an erroneous conclusion either of fact or of law, the mere error of the conclusion does not make the conclusion malafiedes. Besides, as we have just indicated, on the merits we are satisfied that the Tribunal was in error in holding that standing order 22(viii) did not apply.\nTherefore, the finding of the Tribunal that the dismissal of Raghavan was malafide, cannot possibly be sustained.\nThere is one more point which has been press-Id before us by Mr. Menon. In Phulbari Tea Estate v. Its Workmen,(1) this Court has held that even if a domestic enquiry is found to be defective, the employer may seek to justify the dismissal of his employee by leading evidence before the Tribunal to which an industrial dispute arising out of the impugned dismissal has been referred for adjudication. Mr. Menon contends that by parity of reasoning, in cases where the em- ployee is unable to lead his evidence before the domestic Tribunal for no fault of his own, a similar opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. In our opinion, this contention is not well-founded. The decision in the case of Phulbari Tea Estate (supra) proceeds on the basis which is of basic importance in industrial adjudication that findings properly recorded in (1) [1960] 1 S.C.R. 32.domestic enquiries which are conducted fairly, cannot be re- examined by Industrial adjudication unless the said findings are either perverse, or are not supported by any evidence, or some other valid reason 'of that character. In such a case, the fact that the finding is not accepted by the Industrial Tribunal would not necessarily preclude the employee from justifying the dismissal of his employee on the merits, provided, of course, he leads evidence before the Industrial Tribunal and persuades the Tribunal to accept his case. That, however, is very -different from a case like the present. In the case before us, the enquiry has been fair, the Enquiry Officer gave Raghavan ample opportunity to lead his evidence. If at reasonable opportunity had been denied to the employee, that would have made the enquiry itself bad and then, the employer would have been required to prove his case before the Industrial Tribunal, and in dealing with the dispute, the Industrial Tribunal would have been justified in completely ignoring in the findings of the domestic enquiry. But if the enquiry has been fairly conducted, it means that all reasonable opportunity has been given to the employee to prove his case by leading evidence. In such a case, how can the court hold that merely because the witnesses did not appear to give evidence in support of the employee's case, he should be allowed to lead such evidence before the Industrial Tribunal. If this plea is upheld, no domestic enquiry would be effective and in every case, the matter would have to be tried afresh by the Industrial Tribunal. Therefore, we are not prepared to accede to Mr. Menon's argument that the Tribunal was justified in considering the merits of the dispute for itself in the present reference proceedings.\nSince the enquiry has been fairly conducted, and the findings recorded therein are based on evidence which is believed, there would be no justification for the Industrial Tribunal to consider the same facts for itself. Findings properly recorded at such enquiries are binding on the parties, unless, of course, it is known that the said findings are perverse, or are not based on any evidence.\nThere is yet another point which remains to be considered.\nThe Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings.\nAs this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan,(1) it is desirable that if the incident giving rise to a charge framed against a workman in a domes- tic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to (1) [1960] 3 S.C.R. 227.adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. But to say that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or malafide. In fairness, we ought to add that Mr. Menon did not seek to justify this extreme position. Therefore, we must hold that the Industrial Tribunal was in error when it characterised the result of the domestic enquiry as malafide partly because the enquiry was not stayed pending the criminal proceedings against Raghavan. We accordingly hold that the domestic enquiry in this case was properly held and fairly conducted and the conclusions of fact reached by the Enquiry Officer are based on evidence which he accepted as true. That being so, it was not open to the Industrial Tribunal to reconsider the same questions of fact and come to a contrary conclusion.\nThe result is, the appeal is allowed. The order passed by the Industrial Tribunal is set aside and the reference made to it is answered in favour of the appellant. Before we part with this appeal, we ought to add that Mr. Pai for the appellant has fairly offered to pay ex gratia Rs. 1,000/- to Raghavan in addition to the amount which has already been paid to him by the appellant in pursuance of the order of this Court granting stay to the appellant pending the final disposal of the present appeal. There would be no order as to costs.\nAppeal allowed."
} |
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"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, MADRAS\n\n Vs.\n\nRESPONDENT:\nM/S. ASHOK LEYLAND LTD."
}
},
{
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"text": "\n\nDATE OF JUDGMENT03/10/1972"
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"text": "\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\nDUA, I.D.\n\nCITATION:\n\n1973 AIR 420 1973 SCR (2) 516\n (18,20)\n1973 SCC (3) 201\n\nCITATOR INFO :\n\nRF 1975 SC1945\n\nACT:\nIncome tax--Payment of compensation for terminating managing\nagency--Capital or Revenue expenditure.\n\nHEADNOTE:\nThe assessee-company (respondent) was initially doing the\nbusiness of assembly and sale of Austin cars and Leyland\ntrucks."
}
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{
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"text": "It appointed Managing Agents under certain terms\nregarding office allowance and commission."
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],
"start": 670,
"text": "In 1954, the\nrespondent ceased to assemble Austin cars, in view of the\ndecision of the Government and engaged itself in the\nmanufacture of Leyland commercial vehicles."
}
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{
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"text": "The progress of\nthe scheme was reviewed in 1955 and the Government of India\nsuggested to the respondent that Leyland, U.K., should\nprovide part of the capital, that the remaining capital\nshould be raised by the respondent in India and that the\nGovernment would arrange for such capital in India on\ncondition that the managing agency was abolished."
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"text": "The\nrespondent terminated the managing agency and paid a sum of\nmoney to the Managing Agents as compensation."
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"text": "The respondent claimed deduction of the\namount paid as compensation to the Managing Agents, in its\nassessment, as revenue expenditure laid out wholly and\nexclusively for the purpose of the business in the relevant\nprevious year."
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{
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"id": "5df55f23570e47308f684a3b7b580825",
"to_name": "text",
"type": "labels",
"value": {
"end": 1770,
"labels": [
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],
"start": 1669,
"text": "rejected the claim but the Tribunal\nand the High Court, on reference, held in favour of the\nassessee."
}
},
{
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"id": "e97092aba23e4a9793af34aee95fab0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 1917,
"labels": [
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],
"start": 1770,
"text": "\nDismissing the appeal to this Court,\nHELD : The managing agency was terminated on business\nconsiderations and as a matter of commercial expediency"
}
},
{
"from_name": "label",
"id": "d846f2eed406432790cda540a985e1a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2024,
"labels": [
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],
"start": 1918,
"text": "In\nview of the change in business activity, the continuance of\nthe managing agents had become superfluous."
}
},
{
"from_name": "label",
"id": "1ea87662392c4249a2b1bffa03e4aecf",
"to_name": "text",
"type": "labels",
"value": {
"end": 2269,
"labels": [
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],
"start": 2025,
"text": "It is true that\nby terminating the services of Managing Agents, whose\ncontinuance had become superfluous, the respondent not only\nsaved expense that it would have had to incur in the\nrelevant previous year but also for a few more years to\ncome."
}
},
{
"from_name": "label",
"id": "9c0fccc3c5db4a6b974f5461485a9fe3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2504,
"labels": [
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],
"start": 2270,
"text": "But the payment was made only with a view to save\n\nbusiness expenditure and it, will not be correct to say that\nby avoiding certain business expenditure the respondent\nacquired an enduring benefit or acquired an income yielding\nasset."
}
},
{
"from_name": "label",
"id": "d81e3eaf5b3b44efa2310904a3205137",
"to_name": "text",
"type": "labels",
"value": {
"end": 2589,
"labels": [
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],
"start": 2505,
"text": "Therefore, the expenditure was a revenue\nexpenditure, and not a capital expenditure."
}
},
{
"from_name": "label",
"id": "1224abfe13884c458eed02ff4315427e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2607,
"labels": [
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],
"start": 2590,
"text": "[520A-D; 523C-\nE]"
}
},
{
"from_name": "label",
"id": "611cdfa0c489459a83e84ccf5755d979",
"to_name": "text",
"type": "labels",
"value": {
"end": 2845,
"labels": [
"PREAMBLE"
],
"start": 2608,
"text": "B.W. Noble Limited v. Mitchell, 11 Tax Cas. 372, Atherton v.\nBritish insulated and Helsby Cables Ltd., 10 T.C. 192, Anglo\nPerson Oil Ltd. v. Dale, 16 Tax Cas. 253, G. Scammell and\nNephew Ltd. v. Rowles, (1940) I.T.R. Supp. 41 and Anglo-\n"
}
},
{
"from_name": "label",
"id": "9050f71898c3460794b3891c6c486804",
"to_name": "text",
"type": "labels",
"value": {
"end": 2852,
"labels": [
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],
"start": 2845,
"text": "Persian"
}
},
{
"from_name": "label",
"id": "1987c3e9579b469eb227ad8e1230f46f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2904,
"labels": [
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],
"start": 2853,
"text": "Oil Co. (India) Ltd. v. Commissioner of Income-tax,"
}
},
{
"from_name": "label",
"id": "7f10202851824bd4becec2eaf4f43597",
"to_name": "text",
"type": "labels",
"value": {
"end": 2954,
"labels": [
"PREAMBLE"
],
"start": 2904,
"text": "\n(1933) Vol. 1 I.T.R. 129, referred to.\n\nJUDGMENT:"
}
},
{
"from_name": "label",
"id": "684fc64639a147678bc31ae9f925d897",
"to_name": "text",
"type": "labels",
"value": {
"end": 3220,
"labels": [
"NONE"
],
"start": 2954,
"text": "CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1989 of 1969.\nAppeal by certificate from the judgment and order dated February 8, 1968 of the Madras High Court in Tax Case No. 93 of 1964., 517 S. Swaminathan, D. P. Mohanthy and S. Gopalakrishnan, for the respondent."
}
},
{
"from_name": "label",
"id": "db77fdf2cfc14d3fb0aaf467d7433d3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 3273,
"labels": [
"FAC"
],
"start": 3220,
"text": "\nThe Judgment of the Court was delivered by HEDGE, J."
}
},
{
"from_name": "label",
"id": "e110c5a3512d40a8bdcc25a2efc3f944",
"to_name": "text",
"type": "labels",
"value": {
"end": 3538,
"labels": [
"FAC"
],
"start": 3274,
"text": "The Commissioner of Income-tax Madras is appealing against the decision of the Madras High Court in a Reference under s. 66(2) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) after obtaining certificate of fitness from the High Court."
}
},
{
"from_name": "label",
"id": "126d626ce98f43f7b995705472b162e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 3840,
"labels": [
"FAC"
],
"start": 3538,
"text": "\nThe question before the authorities under the Act was whether the payment of Rs. 2,50,000/- made by the respondent assessee which will hereinafter be referred to as the 'company' for the termination of managing agency is an allowable deduction in computing the total income of the company for 1956-57."
}
},
{
"from_name": "label",
"id": "c341c1416939457fa8bcdf3b0b0a63ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 4043,
"labels": [
"FAC"
],
"start": 3841,
"text": "The Income-tax Officer as well as the Appellate Assistant Commissioner rejected the claim of the Company that it was a Revenue expenditure but the Tribunal in appeal upheld the contention of the Company"
}
},
{
"from_name": "label",
"id": "64561bcd3937468c8b62d19770afdd1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 4422,
"labels": [
"FAC"
],
"start": 4044,
"text": "Aggrieved by the decision of the Tribunal, the Commissioner, demanded a case to be stated for obtaining the opinion of the High Court on the question : \"Whether on the facts and in the circumstances of the case the payment of Rs. 2,50,000/- made for the termination of Managing Agency is an allowable deduction in computing the total income of the assessee company for 1956-57.\""
}
},
{
"from_name": "label",
"id": "c7da83d4e32f4ad9bdfae98b63818df5",
"to_name": "text",
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"value": {
"end": 4517,
"labels": [
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],
"start": 4422,
"text": "\nThe Tribunal refused to state the case taking the view that its findings are findings of fact."
}
},
{
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"id": "7ccba37e72ed47f89fcb0c685fc8ecf1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4717,
"labels": [
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],
"start": 4518,
"text": "Thereafter the Commissioner moved the High Court under s. 66(2) and at the instance of the High Court, the Tribunal stated the case and submitted the aforementioned question of law to the High Court."
}
},
{
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"id": "2306440fdd44439489ac74410b181e4d",
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"value": {
"end": 4808,
"labels": [
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],
"start": 4718,
"text": "But the High Court answered that question in the affirmative and in favour of the Company."
}
},
{
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"id": "79b2e364e00d4baeb6ae548a7980e6bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 4845,
"labels": [
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],
"start": 4809,
"text": "Let us now have a look at the facts."
}
},
{
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"id": "3e4eb6278d09494a902b93d010a887c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 4923,
"labels": [
"FAC"
],
"start": 4846,
"text": "The assessee was a public Limited Co., originally known as Ashok Motors Ltd.\n"
}
},
{
"from_name": "label",
"id": "06d05abda5af4210b98a04a7bd8d2ef8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4964,
"labels": [
"FAC"
],
"start": 4923,
"text": "It was incorporated on September 7, 1948."
}
},
{
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"id": "2f566ca10c3845818b0e63d04212b8e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5176,
"labels": [
"FAC"
],
"start": 4965,
"text": "The Articles of Association of the Company authorised it to carry on various businesses, such as manufacturers, assemblers, dealers, hirers, repairers of motorcars, motorcycles, motor buses, lorries, trucks etc."
}
},
{
"from_name": "label",
"id": "b5f9cb2571574eedab2dc94a3d358b3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5679,
"labels": [
"FAC"
],
"start": 5177,
"text": "In particular it authorised the Company \"to import into India Austin Cars and other Austin products, to assemble Austin products from their components, to undertake the progressive manufacture in India, of such parts of Austin products as can under suitable provisions for such manufacture be manufactured thereto, supply Austin 518 products and parts to accredited distributors for resale to the public in India and to provide adequate facilities for the prompt servicing of Austin products in India.\""
}
},
{
"from_name": "label",
"id": "fee1a11365ff47d3b0138de4aa6c0850",
"to_name": "text",
"type": "labels",
"value": {
"end": 5850,
"labels": [
"FAC"
],
"start": 5679,
"text": "\nThe Company appointed Car Builders Limited, as their manag- ing agents under an agreement dated October 18, 1948 for a term of 14 years from the date of its registration."
}
},
{
"from_name": "label",
"id": "277464096bf647a59ab571803431ca9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 6066,
"labels": [
"FAC"
],
"start": 5851,
"text": "The managing agents were to be paid at the rate of Rs. 2,000/- per mensem as office allowance and 10 per cent of the annual profits with a minimum of Rs. 18,000 per annum in case of inadequacy or absence of profits."
}
},
{
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"id": "d49dc3c638d34ca8b914559f8eaadcb7",
"to_name": "text",
"type": "labels",
"value": {
"end": 6175,
"labels": [
"FAC"
],
"start": 6066,
"text": "\nInitially the business of the Company consisted in the assembly ,and sale of Austin cars and Leyland Trucks."
}
},
{
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"id": "032ed4f7f7bf4548808d3f1111a01746",
"to_name": "text",
"type": "labels",
"value": {
"end": 6317,
"labels": [
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],
"start": 6175,
"text": "\nDuring the year 1952, the Government of India referred the question of establishing an Automobile Industry in India to the Tariff Commission."
}
},
{
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"id": "2592d61f03b444dda81690f707000a4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6443,
"labels": [
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],
"start": 6318,
"text": "The Company prepared and submitted a comprehensive memorandum to the Tariff Commission for the manufacture of Leyland Trucks."
}
},
{
"from_name": "label",
"id": "76cee347e0d840ffb3b4eefdd418d67b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6511,
"labels": [
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],
"start": 6444,
"text": "It also participated in the proceedings of the Tariff Corn-mission."
}
},
{
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"id": "27b68650a5be4f9e93dc41fa0071e866",
"to_name": "text",
"type": "labels",
"value": {
"end": 6608,
"labels": [
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],
"start": 6512,
"text": "The Government instructed the Company to take up the manufacture of Leyland Commercial Vehicles."
}
},
{
"from_name": "label",
"id": "9e05af2251874e84a706c3f4aaa702cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 6774,
"labels": [
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],
"start": 6609,
"text": "From April 1954, the Company ceased to assemble Austin Cars in view of the ,Government decision and engaged itself in the manufacture of Leyland Commercial Vehicles."
}
},
{
"from_name": "label",
"id": "42d9f2d2ec8d44dc8e3171bf80e4f4d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 6923,
"labels": [
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],
"start": 6775,
"text": "The progress of the scheme was reviewed by all the Directors on January 24, 1955 when the Union Minister for Commerce and Industry was also present."
}
},
{
"from_name": "label",
"id": "62f1c67a0fcc41a886346d4c84f39322",
"to_name": "text",
"type": "labels",
"value": {
"end": 7203,
"labels": [
"FAC"
],
"start": 6924,
"text": "In the course of the discussion, the Union Minister suggested to the 'Company to invite Leylands to provide capital as and when required till their holding bore to the existing paid up capital in the ratio of 40/45 to 50155 per cent subject to a maximum of half a million pounds."
}
},
{
"from_name": "label",
"id": "0e6d4504427f4898bdc5a80368beef44",
"to_name": "text",
"type": "labels",
"value": {
"end": 7265,
"labels": [
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],
"start": 7204,
"text": "The Company was asked to rise the remaining capital in India."
}
},
{
"from_name": "label",
"id": "6062600b4a7647eaa0323599c2a1c310",
"to_name": "text",
"type": "labels",
"value": {
"end": 7528,
"labels": [
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],
"start": 7266,
"text": "The Minister is stated to have assured that the 'Government would arrange for the required capital in India but that responsibility would be in the nature of contingent liability and that it would accept such a liability only if the Managing Agency is abolished."
}
},
{
"from_name": "label",
"id": "e4836c5fdac542cd95b2b2bd485f2c02",
"to_name": "text",
"type": "labels",
"value": {
"end": 7681,
"labels": [
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],
"start": 7529,
"text": "The Directors pointed out to the Minister that they had already taken steps to terminate the services of the managing agents on payment of compensation."
}
},
{
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"id": "2a0fb148977248a39563f8af0780f89b",
"to_name": "text",
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"value": {
"end": 7924,
"labels": [
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],
"start": 7681,
"text": "\nOn January 29, 1955, by means of an agreement between the Company and the managing agents, the managing agency agreement was terminated subject to the condition that the managing agents were to be paid compensation in a sum of -Rs. 2,50,000/."
}
},
{
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"id": "d3b20d5b444d4f80ad3b5eee55ab59ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 8050,
"labels": [
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],
"start": 7925,
"text": "The Company paid the said sum during the accounting year ended on December 31, 1955, relevant to the assessment year 1956-57."
}
},
{
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"id": "b9a29ba9a7ff432d95001e388f52925f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8232,
"labels": [
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],
"start": 8051,
"text": "The Company claimed deduction of the same in its assessment as revenue expenditure laid out wholly and exclusively for the purpose of the business in the relevant previous 519 year."
}
},
{
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"id": "a662e3a8a4cf45fc9c496403689d1dc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 8461,
"labels": [
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],
"start": 8233,
"text": "It may also be mentioned that at about this time the Company entered into an agreement with Leyland Motor Limited, Leyland U.K. for participation of the said concern with the Company for implementing its manufacturing programme."
}
},
{
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"id": "8dd7a1f3d54847c6b54c86df5ac47b86",
"to_name": "text",
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"value": {
"end": 8726,
"labels": [
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],
"start": 8461,
"text": "\nOn the aforementioned facts, the question arises whether the compensation paid to the managing agents can be considered as an expenditure wholly and exclusively laid out for the purpose of the business or whether the same should be considered as a capital expense."
}
},
{
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"id": "6e01ac7cc5f04ec9a4e9f093de31689b",
"to_name": "text",
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"end": 8973,
"labels": [
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],
"start": 8726,
"text": "\nThere are numerous decisions of this Court., of the High Courts in this country as well as. of the courts in England dealing with the controversy whether an item of expenditure should be considered as a capital expenditure or revenue expenditure."
}
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{
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"id": "8d2d469e2e314070af2338e6cad4c0be",
"to_name": "text",
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"end": 9066,
"labels": [
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],
"start": 8973,
"text": "\nThe Act has not defined the expressions \"capital expenditure\" and the \"revenue expenditure\"."
}
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{
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"id": "6b6800aaeaaa4b3cb1659b64d14f0adb",
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"end": 9159,
"labels": [
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],
"start": 9067,
"text": "The line that divides revenue expenditure from capital expenditure is often times very thin."
}
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{
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"id": "68158ce3c5464c4dabdc51dcf17830a4",
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"end": 9299,
"labels": [
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],
"start": 9160,
"text": "Hence the decisions of courts have not been able to give a quietus to the controversy whether an item of expenditure is capitol or revenue."
}
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{
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"id": "19ddb67d7e9b486da9a11f5320fb3298",
"to_name": "text",
"type": "labels",
"value": {
"end": 9434,
"labels": [
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],
"start": 9300,
"text": "The general tests to be applied to distinguish capital expenditure from revenue expenditure have been enunciated in various decisions."
}
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{
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"id": "76245fd1045b48e6acf074e62a2b2096",
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"labels": [
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],
"start": 9435,
"text": "There is no difficulty in enumerating those tests."
}
},
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"id": "b9f6871f3e1c4209b7ef1d85b512a1ed",
"to_name": "text",
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"end": 9589,
"labels": [
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],
"start": 9486,
"text": "But the difficulty arises when the courts are called upon to apply those tests to a given set of facts."
}
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{
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"id": "7dee50afa5374e209e98d75c4b317333",
"to_name": "text",
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"value": {
"end": 9650,
"labels": [
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],
"start": 9590,
"text": "Barring rare, exceptions, facts of no two cases are similar."
}
},
{
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"id": "918d143f54c8467db6969553e1678629",
"to_name": "text",
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"value": {
"end": 10004,
"labels": [
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],
"start": 9650,
"text": "\nA long line of decisions have laid down that when an expenditure is made with a view to bring into existence an asset or an advantage for the enduring benefit of a trade, there is good reason (in the absence of special circumstances leading to opposite conclusion) for treating such an expenditure as property attributable not to revenue but to capital."
}
},
{
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"id": "aa4620408050463288d07b272c6d17ed",
"to_name": "text",
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"value": {
"end": 10143,
"labels": [
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],
"start": 10004,
"text": "\nIt was urged on behalf of the revenue that the termination of the managing agency has led to reorientation of the business of the Company."
}
},
{
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"id": "cd823d80588240fa8871cbeb1a9977a3",
"to_name": "text",
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"value": {
"end": 10227,
"labels": [
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],
"start": 10144,
"text": "That termination facilitated the Company to enter into collaboration with Leylands."
}
},
{
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"id": "f00ed12dd514404b89cd4769ff35fe1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10335,
"labels": [
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],
"start": 10228,
"text": "It also made it possible for the Company to get financial assistance from the, Government if there be need."
}
},
{
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"id": "7c40a475ba8b45a9895202f017f479ba",
"to_name": "text",
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"value": {
"end": 10452,
"labels": [
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],
"start": 10336,
"text": "It was also urged that the compensation was paid at the behest of the Government and was for a non-business purpose."
}
},
{
"from_name": "label",
"id": "df35e23025a147d09661f65c2e9ebf1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10592,
"labels": [
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],
"start": 10453,
"text": "Under these circumstances, it was said that the expenditure cannot be considered as having been incurred to meet any commercial expediency."
}
},
{
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"id": "54ba54206bd14a049148b27ca838e51f",
"to_name": "text",
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"end": 10675,
"labels": [
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],
"start": 10593,
"text": "The learned Counsel for the Company joined issue on each one of those contentions."
}
},
{
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"id": "ac588d31c94d41999cc4e3073e7c3415",
"to_name": "text",
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"end": 10820,
"labels": [
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],
"start": 10676,
"text": "He contended that because of the Government policy the Company had to give up its assembling activity and take to manufacture of Leyland Trucks."
}
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"text": "For that purpose it sought and obtained the collaboration of Leylands."
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"text": "In view of the chance in the business activity of the Company."
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"text": "\n520 continuance of the managing agency became superfluous."
}
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"text": "Its continuance meant unnecessary business expenditure for the Company."
}
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"start": 11086,
"text": "Hence commercial expediency required the Company to terminate the services of the managing agents and the managing agents could be get rid of only by paying reasonable compensation."
}
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"end": 11379,
"labels": [
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],
"start": 11268,
"text": "The Tribunal found that the Company. terminated the services of the managing agents on business considerations,"
}
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"end": 11527,
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"text": "It accepted the plea of the Company that in view of the change in its business activity, the continuance of the managing agents became superfluous."
}
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"text": "\nThese are findings of fact which are not open to question before this Court."
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"text": "\nThere is no doubt that as a result of the termination of the services of the managing agents, the Company got rid of its liability to pay office allowance as well as the commission it was required to pay under the managing agency agreement not only during the accounting year but also for a few years more."
}
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"text": "The expenditure thus saved undoubtedly swelled the profits of the Company."
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"text": "From the facts found,- it is clear that the managing agency was terminated on business considerations and as a matter of commercial expediency."
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"text": "\nThere is no basis for holding that by terminating the managing agency."
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"text": "the Company acquired any enduring benefit ,or any income yielding asset."
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"text": "It is true that by terminating the services of the managing agents, the Company not only saved the expense that it would have had to incur in the relevant previous year 'but also for few more years to come."
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"text": "It will not be correct to say that by avoiding certain business expenditure, the Company can be said to have acquired enduring benefits or acquired any income yielding asset."
}
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"text": "\nTo quote the illustration given by Rowlatt J. in B. IV."
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"start": 12712,
"text": "\nNoble Limited v. Mitchell,(1) in the ordinary case a payment to get rid of a servant when it is not expedient to keep him in the interest of trade would be a deductible expenditure."
}
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"text": "\nA payment made to remove the possibility of a recurring disadvantage cannot be considered as a payment made to acquire an enduring advantage."
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"text": "\nIn Noble's case (supra), Rowlatt J. had to examine the ques- tion whether the item of expenditure concerned in that case was a revenue expenditure."
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"start": 13185,
"text": "Briefly stated the facts-of that case were : 'Under its Articles of Association, the management of a company of Insurance brokers registered in England was vested in its Board of Directors in London, with powers of delegation."
}
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{
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"text": "One of the Directors was appointed Resident Director in France."
}
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"text": "He conducted the French business of the Company from an office in Paris under a power of attorney from the Company."
}
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"start": 13592,
"text": "The Company ,claimed as a deduction from its profits for income-tax purposes a sum of pound 19,200 payable (by instalments) to a retiring Director in the following circumstances : The Original Directors were ap- (1) 11 Tax Cas 372.\n521 pointed for life so long as they held a qualifying number of shares, Subject."
}
},
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"text": "Lo dismissal forthwith for neglect or misconduct towards the Company."
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"text": "A Director so dismissed was only entitled to receive his salary then due and could be required to sell his shares to the under Directors at par."
}
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{
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"id": "0611d53cf80a4375b54fa6dad5bc3476",
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"end": 14255,
"labels": [
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"start": 14120,
"text": "\nHe would also have to surrender for cancellation certain notes issued by the, Company entitling him to participate in surplus profits."
}
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{
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"id": "48c6d7a5f09b496ea2805b51e6469905",
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"end": 14513,
"labels": [
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"start": 14256,
"text": "Circumstances arose in 1920 and 1921 in which the Company might possibly have been justified in -dismissing one of the Directors, but to avoid publicity injurious to the Company's reputation, it entered into negotiation with the Director for his retirement."
}
},
{
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"end": 14847,
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"start": 14514,
"text": "He claimed pound 50,000 as compensation; but a compromise was arrived at and embodied in an agreement dated the 30th December, 1921 by which he agreed to retire from the Company, to transfer his 300 pound 1 shares to the, other Directors at par value (they were then worth considerably more) and to surrender his participating notes."
}
},
{
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"labels": [
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"start": 14848,
"text": "The Company agreed to pay him pound 19,200 and the Directors to pay him pound 300 (as consideration for his shares) making together pound 19,500 (payable in five annual instalments) which he agreed to accept in full satisfaction of all claims against the Company or the Directors."
}
},
{
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"end": 15211,
"labels": [
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"start": 15129,
"text": "The question was whether the payment of pound 19,200 was a deductible expenditure."
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"end": 15480,
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"start": 15212,
"text": "The Special Commissioners decided against the Company but the King's Bench Division as well as Court of Appeal accepted the Company's contention and held that the payment of pound 19,200 made was an admissible deduction in arriving its profits for income-tax purposes."
}
},
{
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"end": 15992,
"labels": [
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"start": 15481,
"text": "In the course of his judgment Rowlatt J. sitting on the King's Bench Division relied on the observations of Lord Chancellor in Atherton v.\nBritish Insulated and Helsby Cables Ltd. (1) to the effect \"a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on of the business, may yet be expanded wholly and exclusively for the purposes of the trade.\""
}
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"end": 16149,
"labels": [
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"start": 15992,
"text": "\nThese observations of the Lord Chancellor were again quoted with approval by Lord Hanworth M. R. when the matter was taken in appeal to the Court of Appeal."
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"end": 16249,
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"start": 16149,
"text": "\nThe next case which may be usefully referred is the decision in Anglo Persian Oil Co. Ltd. v. Dale."
}
},
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"start": 16250,
"text": "(2 ) Therein the assessee company by agreement made in 1910 and 1914 had appointed another limited company as its agents in Persia and the East for a period of years, upon the terms (inter alia) that the agents should be remunerated by commission at specified rates."
}
},
{
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"id": "909ac25e71ed4b10882fcbcb82367f34",
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"end": 16928,
"labels": [
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"start": 16517,
"text": "With the passage of time the amounts payable to the agents by way of corn- (1) 10 T.C. P. 192.\n(2) 16 Tax Cas 253.\n522 mission increased far beyond the amounts originally contemplated by the Company, and, after negotiation between the parties, the agreements were cancelled in 1922, the agent company agreeing to go into voluntary liquidation and the company agreeing to pay to the agents pound 300,000-in cash."
}
},
{
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"labels": [
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"start": 16929,
"text": "This sum was in fact paid and the company contended before the Special Commissioners that it was an admissible deduction in computing the Company's profits for purposes of Income-Tax and Corporation Profits Tax."
}
},
{
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"id": "b88e4171101146ba869e88d66b8d27f7",
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"end": 17217,
"labels": [
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"start": 17141,
"text": "The Special Commissioners rejected this contention and the Company appealed."
}
},
{
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"labels": [
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"start": 17218,
"text": "Rowlatt J. sitting in the King's Bench Division allowed the appeal and held that the payment to the agents was an admissible deduction for the purpose of income-tax and Corporation Profits Tax."
}
},
{
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"id": "b40c5a3056a24a469306f9afd332c15a",
"to_name": "text",
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"value": {
"end": 17461,
"labels": [
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"start": 17412,
"text": "His decision was affirmed by the Court of Appeal."
}
},
{
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"id": "bdc5ad7625ab418794ff986a885c352d",
"to_name": "text",
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"value": {
"end": 17734,
"labels": [
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"start": 17462,
"text": "In the course of his judgment Rowlatt J. observed : \"Now I want to see how the Commissioners have dealt with it, and what they say is that this was expenditure of a special nature to secure an enduring benefit for the Company's trade by getting rid of an onerous contract."
}
},
{
"from_name": "label",
"id": "a992d61997134dd0abe3b296eb5f21b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 17800,
"labels": [
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],
"start": 17735,
"text": "In my judgment that is a finding which is perfectly inconclusive."
}
},
{
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"id": "3c044905aee34adcb5fb2486a4c1dfb1",
"to_name": "text",
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"value": {
"end": 17934,
"labels": [
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],
"start": 17801,
"text": "It does not deal with the question, The question is not merely getting rid of an onerous contract, but an onerous contract for what ?"
}
},
{
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"id": "9ccf0f7f157349e0933c226065f71dc6",
"to_name": "text",
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"end": 18508,
"labels": [
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],
"start": 17935,
"text": "If it is an onerous contract for the payment of wages or commission which are chargeable to revenue account in the plainest possible way, and if that is the onerous contract that you are getting rid of it is impossible to suggest that is a reason for saying that this is a capital expenditure unless you get rid of that onerous contract (as I pointed out just now) by erecting in its place a capital asset in the nature of-of course I am only using this as an illustrative examples labour-saving machine which gives you an asset and so dispenses with the expense of labour."
}
},
{
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"id": "7f47cf2a04304cf1b88ed0fb18aa4985",
"to_name": "text",
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"value": {
"end": 18701,
"labels": [
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],
"start": 18509,
"text": "But to say that it is a capital expenditure because it secured an enduring benefit by getting rid of an onerous contract is not to state the material thing, and it is completely inconclusive.\""
}
},
{
"from_name": "label",
"id": "8795352e778e41aa957cf9ab97d1d4b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19092,
"labels": [
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],
"start": 18701,
"text": "\nIn C. Scammell and Nephew Ltd. v. Rowles, (1) the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, wheth er pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement."
}
},
{
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"id": "e5710bf1c421489fa4b2960d34486a3f",
"to_name": "text",
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"value": {
"end": 19416,
"labels": [
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"start": 19092,
"text": "\nThe case which can be said to be the nearest to the facts of the present case decided by any Indian court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax.(2) Therein money was paid by an (1) [1940] I.T.R. Suppl 41 (2) [1933] vol. I, I.T.R. 129.\n523 oil company"
}
},
{
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"id": "20802bfa2c8d46bda1ae3c08ef962829",
"to_name": "text",
"type": "labels",
"value": {
"end": 19430,
"labels": [
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],
"start": 19417,
"text": "in a lump sum"
}
},
{
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"id": "296c012548e247aba78a66af8f5fe6d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19571,
"labels": [
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],
"start": 19431,
"text": "as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account"
}
},
{
"from_name": "label",
"id": "8da03f851e5c44abaa28f6873bc0ea78",
"to_name": "text",
"type": "labels",
"value": {
"end": 19704,
"labels": [
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],
"start": 19571,
"text": ". The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company."
}
},
{
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"id": "9dd67e381e6045eb94d63c1a795e2ec7",
"to_name": "text",
"type": "labels",
"value": {
"end": 19786,
"labels": [
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],
"start": 19705,
"text": "The court upheld the contention of the company that it was a revenue expenditure."
}
},
{
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"id": "e78133e2fdd74f1ebc4344bb8dcc4008",
"to_name": "text",
"type": "labels",
"value": {
"end": 19937,
"labels": [
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],
"start": 19787,
"text": "Further the court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound."
}
},
{
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"id": "b36ef262612945a096cc1180af7cb549",
"to_name": "text",
"type": "labels",
"value": {
"end": 20068,
"labels": [
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],
"start": 19938,
"text": "Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the recipient."
}
},
{
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"id": "cc78579c3c084f89b485e53f772eb41b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20245,
"labels": [
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],
"start": 20069,
"text": "Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the payer and upon other factors related thereto"
}
},
{
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"id": "dd81f57765f2425581ebd103ba57c002",
"to_name": "text",
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"value": {
"end": 20498,
"labels": [
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],
"start": 20245,
"text": ".\nIt is obvious from the facts set out earlier that the compensation paid for termination of the services of the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years."
}
},
{
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"id": "39dfb6feb98548a3a6ae1113663e8bfd",
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"end": 20575,
"labels": [
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"start": 20499,
"text": "It was not made for acquiring any enduring benefit or income-yielding asset."
}
},
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"end": 20710,
"labels": [
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"text": "We agree with the High Court that the Tribunal was right in its conclusion that the expenditure in question was a revenue expenditure."
}
},
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],
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"text": "\nIn the result this appeal fails and the same is dismissed with costs."
}
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"text": "\nV.P.S.\nAppeal dismissed."
}
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"text": "\n16-L498SupCI/73 524"
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}
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}
] | 1,763 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, MADRAS\n\n Vs.\n\nRESPONDENT:\nM/S. ASHOK LEYLAND LTD.\n\nDATE OF JUDGMENT03/10/1972\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\nDUA, I.D.\n\nCITATION:\n\n1973 AIR 420 1973 SCR (2) 516\n (18,20)\n1973 SCC (3) 201\n\nCITATOR INFO :\n\nRF 1975 SC1945\n\nACT:\nIncome tax--Payment of compensation for terminating managing\nagency--Capital or Revenue expenditure.\n\nHEADNOTE:\nThe assessee-company (respondent) was initially doing the\nbusiness of assembly and sale of Austin cars and Leyland\ntrucks. It appointed Managing Agents under certain terms\nregarding office allowance and commission. In 1954, the\nrespondent ceased to assemble Austin cars, in view of the\ndecision of the Government and engaged itself in the\nmanufacture of Leyland commercial vehicles. The progress of\nthe scheme was reviewed in 1955 and the Government of India\nsuggested to the respondent that Leyland, U.K., should\nprovide part of the capital, that the remaining capital\nshould be raised by the respondent in India and that the\nGovernment would arrange for such capital in India on\ncondition that the managing agency was abolished. The\nrespondent terminated the managing agency and paid a sum of\nmoney to the Managing Agents as compensation. The\nrespondent also entered into an agreement with Leyland, U.K.\nfor participation. The respondent claimed deduction of the\namount paid as compensation to the Managing Agents, in its\nassessment, as revenue expenditure laid out wholly and\nexclusively for the purpose of the business in the relevant\nprevious year. The Income-tax Officer and Appellate\nAssistant Commissioner rejected the claim but the Tribunal\nand the High Court, on reference, held in favour of the\nassessee.\nDismissing the appeal to this Court,\nHELD : The managing agency was terminated on business\nconsiderations and as a matter of commercial expediency In\nview of the change in business activity, the continuance of\nthe managing agents had become superfluous. It is true that\nby terminating the services of Managing Agents, whose\ncontinuance had become superfluous, the respondent not only\nsaved expense that it would have had to incur in the\nrelevant previous year but also for a few more years to\ncome. But the payment was made only with a view to save\n\nbusiness expenditure and it, will not be correct to say that\nby avoiding certain business expenditure the respondent\nacquired an enduring benefit or acquired an income yielding\nasset. Therefore, the expenditure was a revenue\nexpenditure, and not a capital expenditure. [520A-D; 523C-\nE]\nB.W. Noble Limited v. Mitchell, 11 Tax Cas. 372, Atherton v.\nBritish insulated and Helsby Cables Ltd., 10 T.C. 192, Anglo\nPerson Oil Ltd. v. Dale, 16 Tax Cas. 253, G. Scammell and\nNephew Ltd. v. Rowles, (1940) I.T.R. Supp. 41 and Anglo-\nPersian Oil Co. (India) Ltd. v. Commissioner of Income-tax,\n(1933) Vol. 1 I.T.R. 129, referred to.\n\nJUDGMENT:CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1989 of 1969.\nAppeal by certificate from the judgment and order dated February 8, 1968 of the Madras High Court in Tax Case No. 93 of 1964., 517 S. Swaminathan, D. P. Mohanthy and S. Gopalakrishnan, for the respondent.\nThe Judgment of the Court was delivered by HEDGE, J. The Commissioner of Income-tax Madras is appealing against the decision of the Madras High Court in a Reference under s. 66(2) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) after obtaining certificate of fitness from the High Court.\nThe question before the authorities under the Act was whether the payment of Rs. 2,50,000/- made by the respondent assessee which will hereinafter be referred to as the 'company' for the termination of managing agency is an allowable deduction in computing the total income of the company for 1956-57. The Income-tax Officer as well as the Appellate Assistant Commissioner rejected the claim of the Company that it was a Revenue expenditure but the Tribunal in appeal upheld the contention of the Company Aggrieved by the decision of the Tribunal, the Commissioner, demanded a case to be stated for obtaining the opinion of the High Court on the question : \"Whether on the facts and in the circumstances of the case the payment of Rs. 2,50,000/- made for the termination of Managing Agency is an allowable deduction in computing the total income of the assessee company for 1956-57.\"\nThe Tribunal refused to state the case taking the view that its findings are findings of fact. Thereafter the Commissioner moved the High Court under s. 66(2) and at the instance of the High Court, the Tribunal stated the case and submitted the aforementioned question of law to the High Court. But the High Court answered that question in the affirmative and in favour of the Company.\nLet us now have a look at the facts. The assessee was a public Limited Co., originally known as Ashok Motors Ltd.\nIt was incorporated on September 7, 1948. The Articles of Association of the Company authorised it to carry on various businesses, such as manufacturers, assemblers, dealers, hirers, repairers of motorcars, motorcycles, motor buses, lorries, trucks etc. In particular it authorised the Company \"to import into India Austin Cars and other Austin products, to assemble Austin products from their components, to undertake the progressive manufacture in India, of such parts of Austin products as can under suitable provisions for such manufacture be manufactured thereto, supply Austin 518 products and parts to accredited distributors for resale to the public in India and to provide adequate facilities for the prompt servicing of Austin products in India.\"\nThe Company appointed Car Builders Limited, as their manag- ing agents under an agreement dated October 18, 1948 for a term of 14 years from the date of its registration. The managing agents were to be paid at the rate of Rs. 2,000/- per mensem as office allowance and 10 per cent of the annual profits with a minimum of Rs. 18,000 per annum in case of inadequacy or absence of profits.\nInitially the business of the Company consisted in the assembly ,and sale of Austin cars and Leyland Trucks.\nDuring the year 1952, the Government of India referred the question of establishing an Automobile Industry in India to the Tariff Commission. The Company prepared and submitted a comprehensive memorandum to the Tariff Commission for the manufacture of Leyland Trucks. It also participated in the proceedings of the Tariff Corn-mission. The Government instructed the Company to take up the manufacture of Leyland Commercial Vehicles. From April 1954, the Company ceased to assemble Austin Cars in view of the ,Government decision and engaged itself in the manufacture of Leyland Commercial Vehicles. The progress of the scheme was reviewed by all the Directors on January 24, 1955 when the Union Minister for Commerce and Industry was also present. In the course of the discussion, the Union Minister suggested to the 'Company to invite Leylands to provide capital as and when required till their holding bore to the existing paid up capital in the ratio of 40/45 to 50155 per cent subject to a maximum of half a million pounds. The Company was asked to rise the remaining capital in India. The Minister is stated to have assured that the 'Government would arrange for the required capital in India but that responsibility would be in the nature of contingent liability and that it would accept such a liability only if the Managing Agency is abolished. The Directors pointed out to the Minister that they had already taken steps to terminate the services of the managing agents on payment of compensation.\nOn January 29, 1955, by means of an agreement between the Company and the managing agents, the managing agency agreement was terminated subject to the condition that the managing agents were to be paid compensation in a sum of -Rs. 2,50,000/. The Company paid the said sum during the accounting year ended on December 31, 1955, relevant to the assessment year 1956-57. The Company claimed deduction of the same in its assessment as revenue expenditure laid out wholly and exclusively for the purpose of the business in the relevant previous 519 year. It may also be mentioned that at about this time the Company entered into an agreement with Leyland Motor Limited, Leyland U.K. for participation of the said concern with the Company for implementing its manufacturing programme.\nOn the aforementioned facts, the question arises whether the compensation paid to the managing agents can be considered as an expenditure wholly and exclusively laid out for the purpose of the business or whether the same should be considered as a capital expense.\nThere are numerous decisions of this Court., of the High Courts in this country as well as. of the courts in England dealing with the controversy whether an item of expenditure should be considered as a capital expenditure or revenue expenditure.\nThe Act has not defined the expressions \"capital expenditure\" and the \"revenue expenditure\". The line that divides revenue expenditure from capital expenditure is often times very thin. Hence the decisions of courts have not been able to give a quietus to the controversy whether an item of expenditure is capitol or revenue. The general tests to be applied to distinguish capital expenditure from revenue expenditure have been enunciated in various decisions. There is no difficulty in enumerating those tests. But the difficulty arises when the courts are called upon to apply those tests to a given set of facts. Barring rare, exceptions, facts of no two cases are similar.\nA long line of decisions have laid down that when an expenditure is made with a view to bring into existence an asset or an advantage for the enduring benefit of a trade, there is good reason (in the absence of special circumstances leading to opposite conclusion) for treating such an expenditure as property attributable not to revenue but to capital.\nIt was urged on behalf of the revenue that the termination of the managing agency has led to reorientation of the business of the Company. That termination facilitated the Company to enter into collaboration with Leylands. It also made it possible for the Company to get financial assistance from the, Government if there be need. It was also urged that the compensation was paid at the behest of the Government and was for a non-business purpose. Under these circumstances, it was said that the expenditure cannot be considered as having been incurred to meet any commercial expediency. The learned Counsel for the Company joined issue on each one of those contentions. He contended that because of the Government policy the Company had to give up its assembling activity and take to manufacture of Leyland Trucks. For that purpose it sought and obtained the collaboration of Leylands. In view of the chance in the business activity of the Company.\n520 continuance of the managing agency became superfluous. Its continuance meant unnecessary business expenditure for the Company. Hence commercial expediency required the Company to terminate the services of the managing agents and the managing agents could be get rid of only by paying reasonable compensation. The Tribunal found that the Company. terminated the services of the managing agents on business considerations, It accepted the plea of the Company that in view of the change in its business activity, the continuance of the managing agents became superfluous.\nThese are findings of fact which are not open to question before this Court.\nThere is no doubt that as a result of the termination of the services of the managing agents, the Company got rid of its liability to pay office allowance as well as the commission it was required to pay under the managing agency agreement not only during the accounting year but also for a few years more. The expenditure thus saved undoubtedly swelled the profits of the Company. From the facts found,- it is clear that the managing agency was terminated on business considerations and as a matter of commercial expediency.\nThere is no basis for holding that by terminating the managing agency. the Company acquired any enduring benefit ,or any income yielding asset. It is true that by terminating the services of the managing agents, the Company not only saved the expense that it would have had to incur in the relevant previous year 'but also for few more years to come. It will not be correct to say that by avoiding certain business expenditure, the Company can be said to have acquired enduring benefits or acquired any income yielding asset.\nTo quote the illustration given by Rowlatt J. in B. IV.\nNoble Limited v. Mitchell,(1) in the ordinary case a payment to get rid of a servant when it is not expedient to keep him in the interest of trade would be a deductible expenditure.\nA payment made to remove the possibility of a recurring disadvantage cannot be considered as a payment made to acquire an enduring advantage.\nIn Noble's case (supra), Rowlatt J. had to examine the ques- tion whether the item of expenditure concerned in that case was a revenue expenditure. Briefly stated the facts-of that case were : 'Under its Articles of Association, the management of a company of Insurance brokers registered in England was vested in its Board of Directors in London, with powers of delegation. One of the Directors was appointed Resident Director in France. He conducted the French business of the Company from an office in Paris under a power of attorney from the Company. The Company ,claimed as a deduction from its profits for income-tax purposes a sum of pound 19,200 payable (by instalments) to a retiring Director in the following circumstances : The Original Directors were ap- (1) 11 Tax Cas 372.\n521 pointed for life so long as they held a qualifying number of shares, Subject. Lo dismissal forthwith for neglect or misconduct towards the Company. A Director so dismissed was only entitled to receive his salary then due and could be required to sell his shares to the under Directors at par.\nHe would also have to surrender for cancellation certain notes issued by the, Company entitling him to participate in surplus profits. Circumstances arose in 1920 and 1921 in which the Company might possibly have been justified in -dismissing one of the Directors, but to avoid publicity injurious to the Company's reputation, it entered into negotiation with the Director for his retirement. He claimed pound 50,000 as compensation; but a compromise was arrived at and embodied in an agreement dated the 30th December, 1921 by which he agreed to retire from the Company, to transfer his 300 pound 1 shares to the, other Directors at par value (they were then worth considerably more) and to surrender his participating notes. The Company agreed to pay him pound 19,200 and the Directors to pay him pound 300 (as consideration for his shares) making together pound 19,500 (payable in five annual instalments) which he agreed to accept in full satisfaction of all claims against the Company or the Directors. The question was whether the payment of pound 19,200 was a deductible expenditure. The Special Commissioners decided against the Company but the King's Bench Division as well as Court of Appeal accepted the Company's contention and held that the payment of pound 19,200 made was an admissible deduction in arriving its profits for income-tax purposes. In the course of his judgment Rowlatt J. sitting on the King's Bench Division relied on the observations of Lord Chancellor in Atherton v.\nBritish Insulated and Helsby Cables Ltd. (1) to the effect \"a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carrying on of the business, may yet be expanded wholly and exclusively for the purposes of the trade.\"\nThese observations of the Lord Chancellor were again quoted with approval by Lord Hanworth M. R. when the matter was taken in appeal to the Court of Appeal.\nThe next case which may be usefully referred is the decision in Anglo Persian Oil Co. Ltd. v. Dale. (2 ) Therein the assessee company by agreement made in 1910 and 1914 had appointed another limited company as its agents in Persia and the East for a period of years, upon the terms (inter alia) that the agents should be remunerated by commission at specified rates. With the passage of time the amounts payable to the agents by way of corn- (1) 10 T.C. P. 192.\n(2) 16 Tax Cas 253.\n522 mission increased far beyond the amounts originally contemplated by the Company, and, after negotiation between the parties, the agreements were cancelled in 1922, the agent company agreeing to go into voluntary liquidation and the company agreeing to pay to the agents pound 300,000-in cash. This sum was in fact paid and the company contended before the Special Commissioners that it was an admissible deduction in computing the Company's profits for purposes of Income-Tax and Corporation Profits Tax. The Special Commissioners rejected this contention and the Company appealed. Rowlatt J. sitting in the King's Bench Division allowed the appeal and held that the payment to the agents was an admissible deduction for the purpose of income-tax and Corporation Profits Tax. His decision was affirmed by the Court of Appeal. In the course of his judgment Rowlatt J. observed : \"Now I want to see how the Commissioners have dealt with it, and what they say is that this was expenditure of a special nature to secure an enduring benefit for the Company's trade by getting rid of an onerous contract. In my judgment that is a finding which is perfectly inconclusive. It does not deal with the question, The question is not merely getting rid of an onerous contract, but an onerous contract for what ? If it is an onerous contract for the payment of wages or commission which are chargeable to revenue account in the plainest possible way, and if that is the onerous contract that you are getting rid of it is impossible to suggest that is a reason for saying that this is a capital expenditure unless you get rid of that onerous contract (as I pointed out just now) by erecting in its place a capital asset in the nature of-of course I am only using this as an illustrative examples labour-saving machine which gives you an asset and so dispenses with the expense of labour. But to say that it is a capital expenditure because it secured an enduring benefit by getting rid of an onerous contract is not to state the material thing, and it is completely inconclusive.\"\nIn C. Scammell and Nephew Ltd. v. Rowles, (1) the Court of Appeal held that the expenditure incurred for the termination of a trading relationship in order to avoid losses occurring in the future through that relationship, wheth er pecuniary losses or commercial inconveniences, is just as much for the purposes of the trade as the making or the carrying into effect of a trading agreement.\nThe case which can be said to be the nearest to the facts of the present case decided by any Indian court is that decided by the Calcutta High Court in Anglo-Persian Oil Co. (India) Ltd. v. Commissioner of Income-tax.(2) Therein money was paid by an (1) [1940] I.T.R. Suppl 41 (2) [1933] vol. I, I.T.R. 129.\n523 oil company in a lump sum as compensation for loss of agency whereby the company relieved itself of future annual payments of commission chargeable to revenue account. The question was whether the money paid as compensation was allowable as proper deduction from the business profits of the Company. The court upheld the contention of the company that it was a revenue expenditure. Further the court observed that the principle that capital receipt spells capital expenditure or vice versa is simple but it is not necessarily sound. Whether a sum is received on capital or revenue account depends or may depend upon the character of the business of the recipient. Whether a payment is or is not in the nature of capital expenditure depends or may depend upon the character of the business of the payer and upon other factors related thereto.\nIt is obvious from the facts set out earlier that the compensation paid for termination of the services of the managing agents was a payment made with a view to save business expenditure in the relevant accounting year as well as for a few more years. It was not made for acquiring any enduring benefit or income-yielding asset. We agree with the High Court that the Tribunal was right in its conclusion that the expenditure in question was a revenue expenditure.\nIn the result this appeal fails and the same is dismissed with costs.\nV.P.S.\nAppeal dismissed.\n16-L498SupCI/73 524 "
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"text": " IN THE HIGH COURT OF KARNATAKA"
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"text": "DHARWAD BENCH\n\n DATED THIS THE 20TH DAY OF AUGUST 2016"
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"text": "\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE ARAVIND KUMAR\n\n CRIMINAL PETITION No.100692 OF 2016\n\nBETWEEN:\n\n RAJU S/O HANAMANTHAPPA BANDIVADDAR\n @ WADDAR, AGED: 22 YEARS,\n OCC:"
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"text": "LABOURER,"
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"text": "\n R/O:"
}
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"start": 378,
"text": "BHOOVEERAPURA VILLAGE,"
}
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"start": 410,
"text": "TQ: HAVERI, DIST: HAVERI.\n\n ... PETITIONER\n(By Sri PATIL M H ADV.)\n\nAND:\n\n THE STATE OF KARNATAKA,\n BY RANEBENNUR TOWN POLICE STATION,\n TQ: RANEBENNUR, DIST: HAVERI,\n REPRESENTED BY ADDL. S.P.P.,\n HIGH COURT OF KARNATAKA\n BENCH DHARWAD.\n\n ..."
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"text": "RESPONDENT"
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"text": "\n(BY SRI. PRAVEEN K.UPPAR, HCGP)"
}
},
{
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"labels": [
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],
"start": 884,
"text": "THIS CRIMINAL PETITION IS FILED U/S.439 OF\nCR.P.C., SEEKING TO THIS HON'BLE COURT KINDLY BE\nPLEASED TO ENLARGE THE PETITIONER ON REGULAR BAIL\nIN RANEBENNUR TOWN P S CRIME NO.177/2015 WHICH\nIS PENDING UNDER SPL.(S.C.) NO.15/2016 ON THE FILE\nOF HON'BLE PRL. DISTRICT & SESSIONS JUDGE & SPL.\nJUDGE, HAVERI FOR THE OFFENCES PUNISHABLE U/S.363\nAND 376 OF IPC AND SECTION 6 OF POCSO ACT,2012.\n\n THIS PETITION COMING ON FOR ORDERS\n"
}
},
{
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"text": "THIS DAY, THE COURT MADE THE FOLLOWING:\n\n O R D E R\n "
}
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{
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"end": 1726,
"labels": [
"FAC"
],
"start": 1412,
"text": "Petitioner who has been arraigned as accused in Crime No.177 of 2015 of Ranebennur Town Police Station for the offences punishable under Sections 363 and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is before this Court seeking for being released on bail."
}
},
{
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"value": {
"end": 2244,
"labels": [
"FAC"
],
"start": 1728,
"text": "2. A complaint came to be lodged by one Sri.Anilkumar before Ranebennur Town Police Station alleging that he had a sister by name Smt.Manjula and she was married to one Sri.Puttanna Ganiger and out of their wedlock, one son and a daughter were born and about 15 years back, his sister Smt.Manjula had expired and as such, he was taking care of the daughter of Smt.Manjula, namely Kum.Vijayalakshmi and she was staying in KLES Hostel, Ranebennur and was visiting their house only during school holidays and festivals."
}
},
{
"from_name": null,
"id": "19a1f9e3b8c0457e92d97289f53349b3",
"to_name": null,
"type": null,
"value": {
"end": 2789,
"labels": [
"FAC"
],
"start": 2245,
"text": "It is stated that on 12th December 2015 at about 06.00 p.m., he received a phone call from Smt.Leelavati Fakiragouda Kenchanagoudra, warden of the hostel, stating that from 09.45 a.m., Kum.Vijayalakshmi was not to be seen in the hostel and as such, he went to the Hostel and searched for her and made enquiries with the relatives and suspecting that petitioner had kidnapped her, he sought for suitable action being taken by lodging a complaint, which came to be registered in Crime No.177 of 2015 under Section 363 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "be12b373e6804bddbf79dce1258a4c61",
"to_name": null,
"type": null,
"value": {
"end": 3201,
"labels": [
"ARG_PETITIONER"
],
"start": 2789,
"text": "\n 3. It is the contention of Sri.M.H.Patil, learned counsel appearing for petitioner, that a false complaint has been registered against petitioner out of ill-will and now, investigation is concluded and charge-sheet has been filed and as such, petitioner's custodial interrogation would not be required and as such, he seeks for petitioner being enlarged on bail, since he is in custody from 16th December 2015."
}
},
{
"from_name": null,
"id": "3301d8d6568b477f8b3d6d03d059753a",
"to_name": null,
"type": null,
"value": {
"end": 3280,
"labels": [
"ARG_PETITIONER"
],
"start": 3202,
"text": "Petitioner undertakes to abide by any conditions that would be imposed on him."
}
},
{
"from_name": null,
"id": "a9a074ee920a4dc885b79eb1955112c1",
"to_name": null,
"type": null,
"value": {
"end": 3785,
"labels": [
"ARG_RESPONDENT"
],
"start": 3280,
"text": "\n 4. Per contra, learned High Court Government Pleader appearing for respondent State has opposed grant of prayer and by relying upon the charge-sheet material, he would contend that offences alleged against petitioner is under Section 376 of Indian Penal Code and under the provisions of Protection of Children from Sexual Offences Act, which are serious in nature and if petitioner is released on bail, he may tramper with prosecution witnesses and may also abscond from the jurisdiction of the Court."
}
},
{
"from_name": null,
"id": "036ecbf25aa34fb6bec5c1b3a7d82a66",
"to_name": null,
"type": null,
"value": {
"end": 3832,
"labels": [
"ARG_RESPONDENT"
],
"start": 3786,
"text": "Hence, he prays for rejection of the petition."
}
},
{
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"to_name": null,
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"labels": [
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],
"start": 3832,
"text": "\n 5. Having heard the learned counsel appearing for the parties and on perusal of records, it would indicate that warden of the Hostel where victim girl was studying has given a statement to the investigating officer and she has categorically stated that on the date victim girl was absconding, she had found a letter written by her about her intention to commit suicide and as such, she ran away from the hostel."
}
},
{
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"id": "aaec77353c6c43f5aed66f734d84ce2d",
"to_name": null,
"type": null,
"value": {
"end": 4369,
"labels": [
"ANALYSIS"
],
"start": 4247,
"text": "She has also stated that immediately, she had informed the guardian of victim girl namely the complainant about this fact."
}
},
{
"from_name": null,
"id": "511b0b93126048fbb4690a4628518967",
"to_name": null,
"type": null,
"value": {
"end": 4651,
"labels": [
"ANALYSIS"
],
"start": 4370,
"text": "Statement made under Section 164 of the Code of Criminal Procedure by the victim girl before the jurisdictional Magistrate would also indicate that it was the victim girl who was contacting petitioner over phone quite often and she had eloped with petitioner on 11th December 2015."
}
},
{
"from_name": null,
"id": "746efee22c0a4189b8c2ddaf5da9855f",
"to_name": null,
"type": null,
"value": {
"end": 4712,
"labels": [
"ANALYSIS"
],
"start": 4652,
"text": "She has not stated that he had forced her to elope with her."
}
},
{
"from_name": null,
"id": "aee8a37a739648edac3eb798fcbb6215",
"to_name": null,
"type": null,
"value": {
"end": 4987,
"labels": [
"ANALYSIS"
],
"start": 4712,
"text": "\n 6. Forensic Science Laboratory report, which was made available by the learned High Court Government Pleader, would indicate that seminal stains were not detected on vaginal swab, perennial swab, pubic hairs, under garments, pubic heirs, swab from penis and under garments."
}
},
{
"from_name": null,
"id": "8bb9115be54e4088bc6feb38385eb961",
"to_name": null,
"type": null,
"value": {
"end": 5184,
"labels": [
"ANALYSIS"
],
"start": 4987,
"text": "\n Likewise, veginal secretions were also not detected on item Nos.7, 8 and 9 i.e., on pubic hairs, swab from penis and under garments, on medical examination by Forensic Science Laboratory experts."
}
},
{
"from_name": null,
"id": "83c5e4bfd3ca4486b18dd6a9a3663385",
"to_name": null,
"type": null,
"value": {
"end": 5338,
"labels": [
"RATIO"
],
"start": 5184,
"text": "\n 7. Letter written by victim girl produced by the warden of hostel would disclose that she had indicated thereunder that she was going to commit suicide."
}
},
{
"from_name": null,
"id": "f1e74f13eb5549a7afce7f877e39e0a5",
"to_name": null,
"type": null,
"value": {
"end": 5742,
"labels": [
"RATIO"
],
"start": 5339,
"text": "The contention of Sri.M.H.Patil, learned counsel appearing for petitioner, that when the statement of victim girl made before the jurisdictional Magistrate under Section 164 of the Code of Criminal Procedure is to the effect that she was in love with petitioner and she herself had threatened the petitioner to take her away for getting married, would probabilise the theory of petitioner at this stage."
}
},
{
"from_name": null,
"id": "4d2b9a22f6e74325b50581baf52078c5",
"to_name": null,
"type": null,
"value": {
"end": 5797,
"labels": [
"RATIO"
],
"start": 5743,
"text": "Said contention deserves to be accepted at this stage."
}
},
{
"from_name": null,
"id": "3ef92e1a283b4cfaa393ff47188e0219",
"to_name": null,
"type": null,
"value": {
"end": 5946,
"labels": [
"RATIO"
],
"start": 5798,
"text": "In the light of medical evidence available on record, this Court is of the considered view that petitioner is entitled for the relief as sought for."
}
},
{
"from_name": null,
"id": "0cdfbed0db6844d9adcaff606e65d2c3",
"to_name": null,
"type": null,
"value": {
"end": 5994,
"labels": [
"RPC"
],
"start": 5946,
"text": "\n O R D E R Criminal Petition is hereby allowed."
}
},
{
"from_name": null,
"id": "e420ccc48f1049c3818dbf4ba44ab1be",
"to_name": null,
"type": null,
"value": {
"end": 6731,
"labels": [
"RPC"
],
"start": 5995,
"text": "Petitioner is ordered to be enlarged on bail in Crime No.177 of 2015 of Ranebennur Town Police Station, on petitioner executing a personal bond for `1,00,000/- (Rupees One Lakh only), with one surety for the like-sum to the satisfaction of the jurisdictional Court and subject to following conditions: (I) Petitioner shall appear before the jurisdictional Court on all the dates of hearing without fail, unless there are exceptional circumstances; (II) Petitioner shall not leave the jurisdiction of the Court without express permission; (III) Petitioner shall mark his attendance before Ranebennur Town Police Station once in a month i.e., on 15th of every month between 10.00 a.m.\n and 5.00 p.m., till conclusion of trial;"
}
},
{
"from_name": null,
"id": "0e0ac3b02e6c4a8ebcfb2f38e8bd50f7",
"to_name": null,
"type": null,
"value": {
"end": 6871,
"labels": [
"RPC"
],
"start": 6732,
"text": "In the event of any of above conditions not being complied by petitioner, prosecution would be at liberty to seek for cancellation of bail."
}
},
{
"from_name": null,
"id": "2a6eb1b070bf46d18e7017736545c611",
"to_name": null,
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"value": {
"end": 6888,
"labels": [
"NONE"
],
"start": 6873,
"text": "Sd/- JUDGE RK/-"
}
}
]
}
] | 4,106 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n\n DHARWAD BENCH\n\n DATED THIS THE 20TH DAY OF AUGUST 2016\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE ARAVIND KUMAR\n\n CRIMINAL PETITION No.100692 OF 2016\n\nBETWEEN:\n\n RAJU S/O HANAMANTHAPPA BANDIVADDAR\n @ WADDAR, AGED: 22 YEARS,\n OCC: LABOURER,\n R/O: BHOOVEERAPURA VILLAGE,\n TQ: HAVERI, DIST: HAVERI.\n\n ... PETITIONER\n(By Sri PATIL M H ADV.)\n\nAND:\n\n THE STATE OF KARNATAKA,\n BY RANEBENNUR TOWN POLICE STATION,\n TQ: RANEBENNUR, DIST: HAVERI,\n REPRESENTED BY ADDL. S.P.P.,\n HIGH COURT OF KARNATAKA\n BENCH DHARWAD.\n\n ... RESPONDENT\n(BY SRI. PRAVEEN K.UPPAR, HCGP)\n\n THIS CRIMINAL PETITION IS FILED U/S.439 OF\nCR.P.C., SEEKING TO THIS HON'BLE COURT KINDLY BE\nPLEASED TO ENLARGE THE PETITIONER ON REGULAR BAIL\nIN RANEBENNUR TOWN P S CRIME NO.177/2015 WHICH\nIS PENDING UNDER SPL.(S.C.) NO.15/2016 ON THE FILE\nOF HON'BLE PRL. DISTRICT & SESSIONS JUDGE & SPL.\nJUDGE, HAVERI FOR THE OFFENCES PUNISHABLE U/S.363\nAND 376 OF IPC AND SECTION 6 OF POCSO ACT,2012.\n\n THIS PETITION COMING ON FOR ORDERS\nTHIS DAY, THE COURT MADE THE FOLLOWING:\n\n O R D E R\n Petitioner who has been arraigned as accused in Crime No.177 of 2015 of Ranebennur Town Police Station for the offences punishable under Sections 363 and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is before this Court seeking for being released on bail.\n 2. A complaint came to be lodged by one Sri.Anilkumar before Ranebennur Town Police Station alleging that he had a sister by name Smt.Manjula and she was married to one Sri.Puttanna Ganiger and out of their wedlock, one son and a daughter were born and about 15 years back, his sister Smt.Manjula had expired and as such, he was taking care of the daughter of Smt.Manjula, namely Kum.Vijayalakshmi and she was staying in KLES Hostel, Ranebennur and was visiting their house only during school holidays and festivals. It is stated that on 12th December 2015 at about 06.00 p.m., he received a phone call from Smt.Leelavati Fakiragouda Kenchanagoudra, warden of the hostel, stating that from 09.45 a.m., Kum.Vijayalakshmi was not to be seen in the hostel and as such, he went to the Hostel and searched for her and made enquiries with the relatives and suspecting that petitioner had kidnapped her, he sought for suitable action being taken by lodging a complaint, which came to be registered in Crime No.177 of 2015 under Section 363 of the Indian Penal Code.\n 3. It is the contention of Sri.M.H.Patil, learned counsel appearing for petitioner, that a false complaint has been registered against petitioner out of ill-will and now, investigation is concluded and charge-sheet has been filed and as such, petitioner's custodial interrogation would not be required and as such, he seeks for petitioner being enlarged on bail, since he is in custody from 16th December 2015. Petitioner undertakes to abide by any conditions that would be imposed on him.\n 4. Per contra, learned High Court Government Pleader appearing for respondent State has opposed grant of prayer and by relying upon the charge-sheet material, he would contend that offences alleged against petitioner is under Section 376 of Indian Penal Code and under the provisions of Protection of Children from Sexual Offences Act, which are serious in nature and if petitioner is released on bail, he may tramper with prosecution witnesses and may also abscond from the jurisdiction of the Court. Hence, he prays for rejection of the petition.\n 5. Having heard the learned counsel appearing for the parties and on perusal of records, it would indicate that warden of the Hostel where victim girl was studying has given a statement to the investigating officer and she has categorically stated that on the date victim girl was absconding, she had found a letter written by her about her intention to commit suicide and as such, she ran away from the hostel. She has also stated that immediately, she had informed the guardian of victim girl namely the complainant about this fact. Statement made under Section 164 of the Code of Criminal Procedure by the victim girl before the jurisdictional Magistrate would also indicate that it was the victim girl who was contacting petitioner over phone quite often and she had eloped with petitioner on 11th December 2015. She has not stated that he had forced her to elope with her.\n 6. Forensic Science Laboratory report, which was made available by the learned High Court Government Pleader, would indicate that seminal stains were not detected on vaginal swab, perennial swab, pubic hairs, under garments, pubic heirs, swab from penis and under garments.\n Likewise, veginal secretions were also not detected on item Nos.7, 8 and 9 i.e., on pubic hairs, swab from penis and under garments, on medical examination by Forensic Science Laboratory experts.\n 7. Letter written by victim girl produced by the warden of hostel would disclose that she had indicated thereunder that she was going to commit suicide. The contention of Sri.M.H.Patil, learned counsel appearing for petitioner, that when the statement of victim girl made before the jurisdictional Magistrate under Section 164 of the Code of Criminal Procedure is to the effect that she was in love with petitioner and she herself had threatened the petitioner to take her away for getting married, would probabilise the theory of petitioner at this stage. Said contention deserves to be accepted at this stage. In the light of medical evidence available on record, this Court is of the considered view that petitioner is entitled for the relief as sought for.\n O R D E R Criminal Petition is hereby allowed. Petitioner is ordered to be enlarged on bail in Crime No.177 of 2015 of Ranebennur Town Police Station, on petitioner executing a personal bond for `1,00,000/- (Rupees One Lakh only), with one surety for the like-sum to the satisfaction of the jurisdictional Court and subject to following conditions: (I) Petitioner shall appear before the jurisdictional Court on all the dates of hearing without fail, unless there are exceptional circumstances; (II) Petitioner shall not leave the jurisdiction of the Court without express permission; (III) Petitioner shall mark his attendance before Ranebennur Town Police Station once in a month i.e., on 15th of every month between 10.00 a.m.\n and 5.00 p.m., till conclusion of trial; In the event of any of above conditions not being complied by petitioner, prosecution would be at liberty to seek for cancellation of bail.\n Sd/- JUDGE RK/- "
} |
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"start": 0,
"text": "PETITIONER: 1968 SCR (2) 522\nSTATE OF MADHYA PRADESH\n\n Vs.\n\nRESPONDENT:"
}
},
{
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"text": "\nRAM PRASAD"
}
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"labels": [
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"start": 108,
"text": "\n\nDATE OF JUDGMENT:\n04/12/1967\n\nBENCH:"
}
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"labels": [
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],
"start": 146,
"text": "\nHIDAYATULLAH, M."
}
},
{
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"to_name": "text",
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"end": 591,
"labels": [
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],
"start": 163,
"text": "\nBENCH:\nHIDAYATULLAH, M.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n 1968 AIR 881\n\nACT:\nIndian Penal Code (45 of 1860), s. 300 (Fourthly)-Scope of.\nPractice-Acquittal by High Court of accused of major offence\nand conviction for lesser offence-Appeal against acquittal\nto Supreme Court-Right of accused to prove that he was not\nguilty of any offence.\n\nHEADNOTE:\nThe accused poured kerosene upon his mistress and set her\nclothes on: fire."
}
},
{
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"id": "a45cadc81be644358d996b0125f2c3f7",
"to_name": "text",
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"value": {
"end": 652,
"labels": [
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],
"start": 592,
"text": "There were extensive burns and she died\nas a result thereof."
}
},
{
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"id": "4cc8f2c75367444dae7580f577bd445e",
"to_name": "text",
"type": "labels",
"value": {
"end": 701,
"labels": [
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],
"start": 653,
"text": "On the question as do the nature of\nthe offence."
}
},
{
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"id": "c5646a709d524c92a46ac1702bcc11df",
"to_name": "text",
"type": "labels",
"value": {
"end": 708,
"labels": [
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],
"start": 701,
"text": "\nHELD :"
}
},
{
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"id": "133b01ca03a64712bea047b54159a871",
"to_name": "text",
"type": "labels",
"value": {
"end": 879,
"labels": [
"PREAMBLE"
],
"start": 709,
"text": "The accused must have known that he was committing an\nact so imminently dangerous that it must in all probability\ncause death or such injury as was likely to cause death."
}
},
{
"from_name": "label",
"id": "0d36c768dcbc4127b7f0b22c2728421b",
"to_name": "text",
"type": "labels",
"value": {
"end": 1093,
"labels": [
"PREAMBLE"
],
"start": 880,
"text": "As\nhe had no excuse for incurring that risk the offence falls\nunder s. 300 (fourthly) of the Indian Penal Code, that is\nculpable homicide amounting to murder, even if the accused\ndid not intend to cause her death."
}
},
{
"from_name": "label",
"id": "02d57baa95f54167a75985c51cd4c382",
"to_name": "text",
"type": "labels",
"value": {
"end": 1103,
"labels": [
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],
"start": 1094,
"text": "[527 D-E]"
}
},
{
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"id": "8cacab9871204ee89ae2faaf10774a5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 1487,
"labels": [
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],
"start": 1104,
"text": "Although the clause is usually invoked in those cases where\nthere is no intention to cause the death of any particular\nperson, it may, on its terms, be used in those cases where\nthere is such callousness towards the result and the risk\ntaken is such that it may be stated that the person knew\nthat the act was likely to cause death or such bodily injury\nas was likely to cause death."
}
},
{
"from_name": "label",
"id": "1742e9514a5648c0bab33a02bda3fbe8",
"to_name": "text",
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"value": {
"end": 1494,
"labels": [
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],
"start": 1488,
"text": "[527 C"
}
},
{
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"id": "edcc3209011e428aba60a3bc8cd0a137",
"to_name": "text",
"type": "labels",
"value": {
"end": 1840,
"labels": [
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],
"start": 1494,
"text": "]\nEven though there is no provision to that effect in the\nRules of the Supreme Court, in the case of an appeal by the\nState against acquittal for the major offence, it is safer,\nfair and just to the accused to give him a chance to prove\nthat he was not guilty even of the lesser offence on the\nanalogy of s. 439(6) of the Criminal Procedure Code."
}
},
{
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"id": "0aebdf5fd1be472298f1d7800744cfed",
"to_name": "text",
"type": "labels",
"value": {
"end": 1859,
"labels": [
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],
"start": 1841,
"text": "[524 F]\n\nJUDGMENT:"
}
},
{
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"id": "66a2166941a14afd9e1650529613c462",
"to_name": "text",
"type": "labels",
"value": {
"end": 1923,
"labels": [
"NONE"
],
"start": 1859,
"text": "CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n92 of 1965."
}
},
{
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"id": "19ed6307a7db41178ce87e2f1ad0fc8e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2067,
"labels": [
"FAC"
],
"start": 1923,
"text": "\nAppeal by special leave from the judgment and order dated' October 20, 1964 of the Madhya Pradesh High Court in Criminal Appeal No. 67 of 1964."
}
},
{
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"id": "875e105cabef491aa008225d63b2cc10",
"to_name": "text",
"type": "labels",
"value": {
"end": 2148,
"labels": [
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],
"start": 2067,
"text": "\n I.N. Shroff and M. N. Shroff, for the appellant.\nO.P. Rana, for the respondent."
}
},
{
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"id": "982ff4d8ec0643d9995820195b53f70f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2208,
"labels": [
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],
"start": 2148,
"text": "\nThe Judgment of the Court was delivered by Hidayatullah, J."
}
},
{
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"id": "72f5f8cb7de94163b42c490c42518805",
"to_name": "text",
"type": "labels",
"value": {
"end": 2386,
"labels": [
"FAC"
],
"start": 2209,
"text": "The respondent Ramprasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of Session under s. 302 of the Indian Penal Code."
}
},
{
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"id": "2def7f4d47c2463a97cd0eabccc84db6",
"to_name": "text",
"type": "labels",
"value": {
"end": 2505,
"labels": [
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],
"start": 2387,
"text": "He was convicted by the Sessions Judge under s. 324 of the Code and sentenced to rigorous imprisonment for six months."
}
},
{
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"id": "ff60c22899b8448cb17e9fb651f882fe",
"to_name": "text",
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"value": {
"end": 2695,
"labels": [
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],
"start": 2506,
"text": "The State Government there filed an appeal against his acquittal under s. 302, Indian Penal Code and also 'an application for 523 revision for the enhancement of the sentence passed on him."
}
},
{
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"id": "e0eacc8dc934483e99e04eae371671e9",
"to_name": "text",
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"value": {
"end": 2870,
"labels": [
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],
"start": 2695,
"text": "\nThe High Court convicted him under s. 304 Part II and sentenced him to 4 years' rigorous imprisonment; concurrently the application for revision was dismissed as infructuous."
}
},
{
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"id": "b63103e030674f079597a74cd998db68",
"to_name": "text",
"type": "labels",
"value": {
"end": 3118,
"labels": [
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],
"start": 2871,
"text": "The State Government has now filed this appeal and contends that the conviction of the respondent should have been under s. 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court."
}
},
{
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"id": "3b34c88999d943f3a4395c8265c8250e",
"to_name": "text",
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"value": {
"end": 3238,
"labels": [
"FAC"
],
"start": 3118,
"text": "\nThe facts of the case are as follows : Ram Prasad was living with his mistress Mst. Rajji at Mannaur in District Panna."
}
},
{
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"id": "9213e777c7a24ce885e68cd64ec04a16",
"to_name": "text",
"type": "labels",
"value": {
"end": 3357,
"labels": [
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],
"start": 3238,
"text": "\nEvidence shows that they were having quarrels for some time previous to the incident which took place on May 24, 1963."
}
},
{
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"id": "e724880df56c4372b7401295ce9e8af4",
"to_name": "text",
"type": "labels",
"value": {
"end": 3482,
"labels": [
"FAC"
],
"start": 3357,
"text": "\nOn that date, Ram Prasad intended leaving Mannaur for a place called Harsa, because his cattle used to be stolen at Mannaur."
}
},
{
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"id": "6f4bd011ac4d4e3ab6df551ad1034740",
"to_name": "text",
"type": "labels",
"value": {
"end": 3722,
"labels": [
"FAC"
],
"start": 3483,
"text": "Mst. Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking her to Harsa; alternatively, she wanted that he should leave her at Mannaur and give her some cattle for her maintenance."
}
},
{
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"id": "5f59d24c93a842b3a0558bec781c1db9",
"to_name": "text",
"type": "labels",
"value": {
"end": 3765,
"labels": [
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],
"start": 3723,
"text": "To either course Ram Prasad was unwilling."
}
},
{
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"id": "19d1e0a2b5f44da9b44c8f218714639e",
"to_name": "text",
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"value": {
"end": 3917,
"labels": [
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],
"start": 3765,
"text": "\nMatters came to a head on the night of. the 24th when Rain Prasad ordered a van in which he began putting his luggage with a view to leaving for Harsa."
}
},
{
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"id": "238536da3acc414d92f202c5eb5c643c",
"to_name": "text",
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"value": {
"end": 4009,
"labels": [
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],
"start": 3918,
"text": "Mst. Rajji then went to some of the village panchas and brought them over for intercession."
}
},
{
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"id": "3fa1557bfe6948b2a53862a4c8606175",
"to_name": "text",
"type": "labels",
"value": {
"end": 4120,
"labels": [
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],
"start": 4010,
"text": "It is these panchas who have now appeared as witnesses to the incident that took place immediately afterwards."
}
},
{
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"id": "9e3c6f886cb74c4db20945a921604be4",
"to_name": "text",
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"text": "To all the panchas Mst. Rajji again narrated the story of her grievance and Ram Prasad insisted on taking her away."
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"text": "As Rain Prasad would not give in, nor would Rajji, the panchas could do nothing further and some of them went away to their lodging which were close to the residence of Ram Prasad."
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"text": "Evidence then shows that Ram Prasad approached Mannulal (P.W.4) with a lantern in one hand and an aluminium bowl in the other."
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"text": "He asked for some kerosene oil, because oil in his lamp had run down, but Mannulal did not give any as he had none to spare."
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"text": "Immediately thereafter Ram Prasad went back to his room and a cry was heard from Mst. Rajji that Ram Prasad had put kerosene oil on her and set her alight."
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"text": "Mannulal, Holke and others immediately arrived on the scene and put out the fire, but before that happened, Mst. Rajii was extensively burnt."
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"text": "\nShe kept on, accusing Ram Prasad with the deed, but Ram Prasad, according to the witnesses, did not say anything in protest."
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"text": "On the other hand, when he was questioned by the panchas as to why he had done so, he retorted that Mst.\nRajji was his wife and what had they to do with the matter and added that they might even get him hanged."
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"text": "Mst. Rajji was -then taken on cycle to the police station house although the hospital was on the way."
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"text": "Evidence shows that Mst. Rajji insisted on being taken to the police station house first."
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"text": "There she made the statement which is Ex. P- 7, in, which she charged Ram Prasad with her condition and stated also,, 524 that he had put kerosene oil on her and set her clothes on fire."
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"text": "Later she was removed to the hospital where separately to two doctors in attendance (Dr. Mrs. Ghosh and Dr. M. L. Gupta) she again stated that she was burnt by her husband who had put kerosene oil on her."
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"text": "Dr. Ghosh noted on the bed head ticket \"homicidal burn by husband'."
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"text": "The next day, Mst. Rajji died Prosecution produced the panchas as witnesses to the earlier transaction in which Mst. Rajji and Ram Prasad had disagreed over going to Harsa and also in proof of the statement of Mst. Rajji that Ram Prasad had put kerosene oil on her and set her clothes alight."
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"text": "They have also through the same witnesses proved the conduct of- Ram Prasad when Mst. Rajji accused him of having committed the outrage."
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"text": "The prosecution has further relied upon the statements made by Mst. Rajji in Ex. P-7 and to the two doctors who have deposed in the court."
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"text": "\nThe High Court and the court below have agreed in holding Ram Prasad responsible for the outrage."
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"text": "They have accepted the three dying declarations as well as the evidence of the eye witnesses in support of the prosecution case."
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"text": "'They have only ,differed as to the offence disclosed by this evidence."
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"text": "\nWe issued notice to the respondent to show cause against the appeal of the State Government."
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"text": "Although he received the notice, he did not make any arrangement for his own representation in this Court."
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"text": "We accordingly invited Mr. O.\nP. Rana to appear as amicus curiae on behalf of the respondent at State expense."
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"text": "We allowed Mr. Rana to argue not only about the nature of the offence but also on merits with a view to point out to us any circumstance proving that the conviction itself was wrong."
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"text": "Although there is no provision to this effect in the rules of this Court, we thought it safer to follow the procedure laid down for the High Court in the Code of Criminal Procedure when it hears 'a matter after notice of enhancement of sentence."
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"text": "It seemed to us to be both fair and just to give the accused a chance to prove to the satisfaction of this Court that the offence itself had not 'been brought home to him."
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"text": "In so far as the quarrel between Ram Prasad and Mst.Rajji is concerned,there is nothing which can be said against it."
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"text": "In fact the record bristles with evidence on this point."
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"text": "All theevidence which has been brought to show that Ram Prasad was intending to leave for Harsa and Mst. Rajji was resisting him could not be false, because the panchas were called and they attempted to intervene."
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"text": "The real dispute is as to whether it was Ram Prasad who poured kerosene oil on Mst. Rajji and set her alight or whether, as suggested by Ram Prasad and pleaded by Mr. Rana, it was Mst. Rajji who herself put her own clothes on fire and committed suicide at the same time falsely charging Ram Prasad with the outrage.\n"
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"text": "In this connection, prosecution produc- 525 ed four witnesses."
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"text": "The first is Mannulal who was present at the. calling of the panchayat by Mst. Rajji."
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"text": "In fact it was Mst. Rajji herself who went to summon him to the house of Ram Prasad and it was from him that Ram Prasad asked for some kerosene off."
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"text": "The fact that kerosene oil was asked for is admitted by Ram Prasad himself and the question arises why was it necessary for Ram Prasad to have asked for kerosene oil at that moment and why immediately afterwards Mst. Rajji was found with her clothes burning."
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"text": "No doubt, Mannulal did not give any kerosene oil but it seems to us that the lantern which Ram Prasad carried in his own hand had some kerosene oil in it."
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"text": "It was possible for him to have extracted some oil from the lantern."
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"text": "We do not put too much emphasis upon this aspect of the case, because there is no direct evidence."
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"text": "But on the side of the prosecution and the defence, there is agreement that kerosene oil was in fact put upon the clothes before they were set on fire."
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"text": "In fact the burnt clothes even in the court emitted still a smell of kerosene oil and the aluminium bowl also smelt of kerosene."
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"text": "This was noted by the Sessions Judge who tried the case."
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"text": "\nIt, therefore, stands to reason that kerosene oil was in fact employed before the clothes were set on."
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"text": "fire and the short question."
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"text": "in this case is whether it was Ram Prasad who set fire to the clothes or it was Mst. Rajji who put kerosene oil on herself and set herself alight."
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"text": "On this part of the case, there is the evidence of Mannulal to which we have already referred."
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"text": "A similar statement was made by Holke (P.W. 3) and Soni (P.W. 6)."
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"text": "They consistently spoke of Ram Prasad having asked Mannulal for kerosene oil and that immediately afterwards Mst. Rajji was found with her clothes burning and accusing Ram Prasad of the outrage upon her."
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"text": "There is one witness, however, who did not entirely support this story and that is Jhallu (P.W. 4)."
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"text": "His version was that Mst. Rajji stated to Ram Prasad that their quarrel had been, settled, implying thereby that she had set herself on fire and thus terminated the quarrel."
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"text": "This statement was made by the accused in his examination under S. 342 of the Code of Criminal Procedure and support is therefore sought to the contrary story from the evidence of Jhallu."
}
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"text": "Jhallu was declared hostile and was crossexamined with reference to his previous statement before the police."
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"text": "We find that in his statement to the police he did not mention the fact to which he deposed in the Court of Session and it makes us doubtful whether what he stated in the Court of Session was true."
}
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"text": "In fact there is nothing brought out in his deposi- tion beyond this remark by Mst. Rajji that the quarrel between the bania and herself has been settled."
}
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"text": "Mst. Rajji in addition to making the accusation might have stated that their quarrel had got settled."
}
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"text": "It is possible this retort might well have been uttered: with the accusation."
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"text": "But it is curious that when Mst. Rajji roundly accused Ram Prasad with having set fire to her clothes, Ram 526 Prasad did not say anything in defence which one would expect a reasonable man to do."
}
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"text": "He should have protested then and there."
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"text": "He had no reason to state to the panchas that Mst. Rajji was his wife and the panchas had nothing to do with the matter .and that they could get him hanged."
}
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"text": "His attitude later in not ,,going to the police station house and to the hospital speaks against him."
}
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"text": "There are also the three statements by Rajji to say nothing of her shouts accusing her husband which were part of the res gestae."
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"start": 12034,
"text": "On the whole, therefore, we are satisfied that the conclusion of the High Court and the Sessions Judge that it was Ram Prasad who had put kerosene oil upon Mst. Rajji and set her clothes on fire was correct in the circumstances of this case."
}
},
{
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"id": "26a7220e336e4aa0ae6e81c86a75839a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12371,
"labels": [
"ANALYSIS"
],
"start": 12275,
"text": "\nThe question then arises, what was the offence which Ram Prasad can be said to have committed ?"
}
},
{
"from_name": "label",
"id": "c2cbedacdb764721b39bcc2858f5e461",
"to_name": "text",
"type": "labels",
"value": {
"end": 12649,
"labels": [
"ANALYSIS"
],
"start": 12372,
"text": "The offence of causing injury by burning is a broad spectrum which runs from s. 324 causing- simple injury by burning through s.\n326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself."
}
},
{
"from_name": "label",
"id": "3e65154999eb4e048aad02a5344891b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12819,
"labels": [
"ANALYSIS"
],
"start": 12650,
"text": "The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account."
}
},
{
"from_name": "label",
"id": "653c4c15373b420cadf90d9900ab6955",
"to_name": "text",
"type": "labels",
"value": {
"end": 12921,
"labels": [
"ANALYSIS"
],
"start": 12820,
"text": "The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder."
}
},
{
"from_name": "label",
"id": "8525c89ea0364c549fbffa0a62e71996",
"to_name": "text",
"type": "labels",
"value": {
"end": 12980,
"labels": [
"ANALYSIS"
],
"start": 12922,
"text": "We think that the matter goes a little further than -this."
}
},
{
"from_name": "label",
"id": "19fbda3b3bd641fea8f452d1b7249cab",
"to_name": "text",
"type": "labels",
"value": {
"end": 13205,
"labels": [
"ANALYSIS"
],
"start": 12981,
"text": "As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad Calls within culpable homicide not amounting to murder or the higher offence of murder itself."
}
},
{
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"id": "2e3fe94c047b4c97804e20bda0b1103c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13505,
"labels": [
"ANALYSIS"
],
"start": 13205,
"text": "\nHere we see that death has actually been caused by the criminal act; in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions ;or extenuating circumstances, must be borne by the person who ,caused it."
}
},
{
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"id": "ea727cf1003945fdbe66df2a9fcf4f9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13628,
"labels": [
"ANALYSIS"
],
"start": 13506,
"text": "The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting -to murder."
}
},
{
"from_name": "label",
"id": "af19a32d1d974eb3a74d44ac94900ea5",
"to_name": "text",
"type": "labels",
"value": {
"end": 13721,
"labels": [
"ANALYSIS"
],
"start": 13629,
"text": "The question is whether the offence falls in any of the clauses of s. 300 Indian Penal Code."
}
},
{
"from_name": "label",
"id": "bd56051b1b484b079dae538f3f1a08f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13857,
"labels": [
"ANALYSIS"
],
"start": 13722,
"text": "In this connection it is difficult to say that Ram Prasad intended causing the death of Mst. Rajji although it might well be the truth."
}
},
{
"from_name": "label",
"id": "52a04fdcce364bffbd8ca2cb48710eba",
"to_name": "text",
"type": "labels",
"value": {
"end": 14054,
"labels": [
"ANALYSIS"
],
"start": 13858,
"text": "That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of s. 300, but all the other clauses also."
}
},
{
"from_name": "label",
"id": "0f29caf658ba41babebe45851d6f55fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 14262,
"labels": [
"ANALYSIS"
],
"start": 14055,
"text": "We do not -wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst. Rajji."
}
},
{
"from_name": "label",
"id": "da6e2a994d4f46619e7892eb2fa483c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14301,
"labels": [
"ANALYSIS"
],
"start": 14263,
"text": "That would be a matter of speculation."
}
},
{
"from_name": "label",
"id": "1760792817f94e829906ce858fa33f40",
"to_name": "text",
"type": "labels",
"value": {
"end": 14395,
"labels": [
"ANALYSIS"
],
"start": 14302,
"text": "In our opinion, this matter can 'be disposed of with reference to clause fourthly ,of s. 300."
}
},
{
"from_name": "label",
"id": "a577e900739f45698162aab7766782f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 14752,
"labels": [
"STA"
],
"start": 14396,
"text": "That clause reads as follows :- ....... culpable homicide is murder..... if the person committing the act knows that it is so imminently 527 dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits'such act without any excuse for incurring the risk or causing death or such injury as aforesaid.\""
}
},
{
"from_name": "label",
"id": "67c4d0748b284fc68ac451b213f54733",
"to_name": "text",
"type": "labels",
"value": {
"end": 14902,
"labels": [
"ANALYSIS"
],
"start": 14752,
"text": "\nIt is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death."
}
},
{
"from_name": "label",
"id": "323f9bb43fa54110be75d58e0d4efdfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 15137,
"labels": [
"ANALYSIS"
],
"start": 14903,
"text": "The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause."
}
},
{
"from_name": "label",
"id": "e9056959dfb247649606287517d166bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15558,
"labels": [
"ANALYSIS"
],
"start": 15138,
"text": "Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death."
}
},
{
"from_name": "label",
"id": "d8d23bfac2814bc399143243d4f1ec05",
"to_name": "text",
"type": "labels",
"value": {
"end": 15668,
"labels": [
"ANALYSIS"
],
"start": 15559,
"text": "In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes."
}
},
{
"from_name": "label",
"id": "c67233ed8f6f4e8db711e5bf59dd8576",
"to_name": "text",
"type": "labels",
"value": {
"end": 15736,
"labels": [
"ANALYSIS"
],
"start": 15669,
"text": "It is obvious that such fire spreads rapidly and burns extensively."
}
},
{
"from_name": "label",
"id": "b465ef42d52f4339969a0844dc6d9eef",
"to_name": "text",
"type": "labels",
"value": {
"end": 15855,
"labels": [
"ANALYSIS"
],
"start": 15737,
"text": "No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person."
}
},
{
"from_name": "label",
"id": "68d5c8ae59334b5eb639cb42ec4f64c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16027,
"labels": [
"ANALYSIS"
],
"start": 15855,
"text": "\nTherefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death."
}
},
{
"from_name": "label",
"id": "23403f30140a4ce5aa4549020c3bb06a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16149,
"labels": [
"ANALYSIS"
],
"start": 16028,
"text": "As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of S. 300, Indian Penal Code."
}
},
{
"from_name": "label",
"id": "240e3a8690e348fc8f192ae0d1c75011",
"to_name": "text",
"type": "labels",
"value": {
"end": 16278,
"labels": [
"ANALYSIS"
],
"start": 16149,
"text": "\nIn other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji."
}
},
{
"from_name": "label",
"id": "cb93e7dd345d4b7e9d39d6cd812660c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 16433,
"labels": [
"ANALYSIS"
],
"start": 16279,
"text": "He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death."
}
},
{
"from_name": "label",
"id": "a959b03eddf3493484c41f482019c65f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16582,
"labels": [
"RATIO"
],
"start": 16434,
"text": "We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder."
}
},
{
"from_name": "label",
"id": "4a240502a3174fa38c64ad4d1fc466e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 16728,
"labels": [
"ARG_RESPONDENT"
],
"start": 16582,
"text": "\n Mr. Rana contended that there was no proof from the medical reports that kerosene oil was employed because the wounds did not smell of kerosene."
}
},
{
"from_name": "label",
"id": "7a855cd3ea4d462d9982909d6714831b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16931,
"labels": [
"ANALYSIS"
],
"start": 16729,
"text": "Apart from the fact that both the courts have held that kerosene was so employed, the evidence is quite satisfactory that kerosene was in fact poured upon the victim before the clothes were set on fire."
}
},
{
"from_name": "label",
"id": "9be7825aa37e4e88afec5bfa7dd1c6c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 17004,
"labels": [
"RATIO"
],
"start": 16931,
"text": "\n The omission of this fact in the medical reports is not of consequence."
}
},
{
"from_name": "label",
"id": "63d023c2d5d544a88324c2d8e1cadf67",
"to_name": "text",
"type": "labels",
"value": {
"end": 17239,
"labels": [
"RPC"
],
"start": 17004,
"text": "\n We accordingly allow this appeal, substitute the conviction under s. 302 of the Indian Penal-Code in place of the conviction under s. 304 Part II and sentence Ram Prasad to imprisonment for life.\n V.P.S. Appeal allowed."
}
}
]
}
] | 1,733 | {
"text": "PETITIONER: 1968 SCR (2) 522\nSTATE OF MADHYA PRADESH\n\n Vs.\n\nRESPONDENT:\nRAM PRASAD\n\nDATE OF JUDGMENT:\n04/12/1967\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n 1968 AIR 881\n\nACT:\nIndian Penal Code (45 of 1860), s. 300 (Fourthly)-Scope of.\nPractice-Acquittal by High Court of accused of major offence\nand conviction for lesser offence-Appeal against acquittal\nto Supreme Court-Right of accused to prove that he was not\nguilty of any offence.\n\nHEADNOTE:\nThe accused poured kerosene upon his mistress and set her\nclothes on: fire. There were extensive burns and she died\nas a result thereof. On the question as do the nature of\nthe offence.\nHELD : The accused must have known that he was committing an\nact so imminently dangerous that it must in all probability\ncause death or such injury as was likely to cause death. As\nhe had no excuse for incurring that risk the offence falls\nunder s. 300 (fourthly) of the Indian Penal Code, that is\nculpable homicide amounting to murder, even if the accused\ndid not intend to cause her death. [527 D-E]\nAlthough the clause is usually invoked in those cases where\nthere is no intention to cause the death of any particular\nperson, it may, on its terms, be used in those cases where\nthere is such callousness towards the result and the risk\ntaken is such that it may be stated that the person knew\nthat the act was likely to cause death or such bodily injury\nas was likely to cause death. [527 C]\nEven though there is no provision to that effect in the\nRules of the Supreme Court, in the case of an appeal by the\nState against acquittal for the major offence, it is safer,\nfair and just to the accused to give him a chance to prove\nthat he was not guilty even of the lesser offence on the\nanalogy of s. 439(6) of the Criminal Procedure Code. [524 F]\n\nJUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n92 of 1965.\nAppeal by special leave from the judgment and order dated' October 20, 1964 of the Madhya Pradesh High Court in Criminal Appeal No. 67 of 1964.\n I.N. Shroff and M. N. Shroff, for the appellant.\nO.P. Rana, for the respondent.\nThe Judgment of the Court was delivered by Hidayatullah, J. The respondent Ramprasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of Session under s. 302 of the Indian Penal Code. He was convicted by the Sessions Judge under s. 324 of the Code and sentenced to rigorous imprisonment for six months. The State Government there filed an appeal against his acquittal under s. 302, Indian Penal Code and also 'an application for 523 revision for the enhancement of the sentence passed on him.\nThe High Court convicted him under s. 304 Part II and sentenced him to 4 years' rigorous imprisonment; concurrently the application for revision was dismissed as infructuous. The State Government has now filed this appeal and contends that the conviction of the respondent should have been under s. 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court.\nThe facts of the case are as follows : Ram Prasad was living with his mistress Mst. Rajji at Mannaur in District Panna.\nEvidence shows that they were having quarrels for some time previous to the incident which took place on May 24, 1963.\nOn that date, Ram Prasad intended leaving Mannaur for a place called Harsa, because his cattle used to be stolen at Mannaur. Mst. Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking her to Harsa; alternatively, she wanted that he should leave her at Mannaur and give her some cattle for her maintenance. To either course Ram Prasad was unwilling.\nMatters came to a head on the night of. the 24th when Rain Prasad ordered a van in which he began putting his luggage with a view to leaving for Harsa. Mst. Rajji then went to some of the village panchas and brought them over for intercession. It is these panchas who have now appeared as witnesses to the incident that took place immediately afterwards. To all the panchas Mst. Rajji again narrated the story of her grievance and Ram Prasad insisted on taking her away. As Rain Prasad would not give in, nor would Rajji, the panchas could do nothing further and some of them went away to their lodging which were close to the residence of Ram Prasad. Evidence then shows that Ram Prasad approached Mannulal (P.W.4) with a lantern in one hand and an aluminium bowl in the other. He asked for some kerosene oil, because oil in his lamp had run down, but Mannulal did not give any as he had none to spare. Immediately thereafter Ram Prasad went back to his room and a cry was heard from Mst. Rajji that Ram Prasad had put kerosene oil on her and set her alight. Mannulal, Holke and others immediately arrived on the scene and put out the fire, but before that happened, Mst. Rajii was extensively burnt.\nShe kept on, accusing Ram Prasad with the deed, but Ram Prasad, according to the witnesses, did not say anything in protest. On the other hand, when he was questioned by the panchas as to why he had done so, he retorted that Mst.\nRajji was his wife and what had they to do with the matter and added that they might even get him hanged. Mst. Rajji was -then taken on cycle to the police station house although the hospital was on the way. Evidence shows that Mst. Rajji insisted on being taken to the police station house first. There she made the statement which is Ex. P- 7, in, which she charged Ram Prasad with her condition and stated also,, 524 that he had put kerosene oil on her and set her clothes on fire. Later she was removed to the hospital where separately to two doctors in attendance (Dr. Mrs. Ghosh and Dr. M. L. Gupta) she again stated that she was burnt by her husband who had put kerosene oil on her. Dr. Ghosh noted on the bed head ticket \"homicidal burn by husband'. The next day, Mst. Rajji died Prosecution produced the panchas as witnesses to the earlier transaction in which Mst. Rajji and Ram Prasad had disagreed over going to Harsa and also in proof of the statement of Mst. Rajji that Ram Prasad had put kerosene oil on her and set her clothes alight. They have also through the same witnesses proved the conduct of- Ram Prasad when Mst. Rajji accused him of having committed the outrage. The prosecution has further relied upon the statements made by Mst. Rajji in Ex. P-7 and to the two doctors who have deposed in the court.\nThe High Court and the court below have agreed in holding Ram Prasad responsible for the outrage. They have accepted the three dying declarations as well as the evidence of the eye witnesses in support of the prosecution case. 'They have only ,differed as to the offence disclosed by this evidence.\nWe issued notice to the respondent to show cause against the appeal of the State Government. Although he received the notice, he did not make any arrangement for his own representation in this Court. We accordingly invited Mr. O.\nP. Rana to appear as amicus curiae on behalf of the respondent at State expense. We allowed Mr. Rana to argue not only about the nature of the offence but also on merits with a view to point out to us any circumstance proving that the conviction itself was wrong. Although there is no provision to this effect in the rules of this Court, we thought it safer to follow the procedure laid down for the High Court in the Code of Criminal Procedure when it hears 'a matter after notice of enhancement of sentence. It seemed to us to be both fair and just to give the accused a chance to prove to the satisfaction of this Court that the offence itself had not 'been brought home to him.\nIn so far as the quarrel between Ram Prasad and Mst.Rajji is concerned,there is nothing which can be said against it.In fact the record bristles with evidence on this point. All theevidence which has been brought to show that Ram Prasad was intending to leave for Harsa and Mst. Rajji was resisting him could not be false, because the panchas were called and they attempted to intervene. The real dispute is as to whether it was Ram Prasad who poured kerosene oil on Mst. Rajji and set her alight or whether, as suggested by Ram Prasad and pleaded by Mr. Rana, it was Mst. Rajji who herself put her own clothes on fire and committed suicide at the same time falsely charging Ram Prasad with the outrage.\nIn this connection, prosecution produc- 525 ed four witnesses. The first is Mannulal who was present at the. calling of the panchayat by Mst. Rajji. In fact it was Mst. Rajji herself who went to summon him to the house of Ram Prasad and it was from him that Ram Prasad asked for some kerosene off. The fact that kerosene oil was asked for is admitted by Ram Prasad himself and the question arises why was it necessary for Ram Prasad to have asked for kerosene oil at that moment and why immediately afterwards Mst. Rajji was found with her clothes burning. No doubt, Mannulal did not give any kerosene oil but it seems to us that the lantern which Ram Prasad carried in his own hand had some kerosene oil in it. It was possible for him to have extracted some oil from the lantern. We do not put too much emphasis upon this aspect of the case, because there is no direct evidence. But on the side of the prosecution and the defence, there is agreement that kerosene oil was in fact put upon the clothes before they were set on fire. In fact the burnt clothes even in the court emitted still a smell of kerosene oil and the aluminium bowl also smelt of kerosene. This was noted by the Sessions Judge who tried the case.\nIt, therefore, stands to reason that kerosene oil was in fact employed before the clothes were set on. fire and the short question. in this case is whether it was Ram Prasad who set fire to the clothes or it was Mst. Rajji who put kerosene oil on herself and set herself alight. On this part of the case, there is the evidence of Mannulal to which we have already referred. A similar statement was made by Holke (P.W. 3) and Soni (P.W. 6). They consistently spoke of Ram Prasad having asked Mannulal for kerosene oil and that immediately afterwards Mst. Rajji was found with her clothes burning and accusing Ram Prasad of the outrage upon her. There is one witness, however, who did not entirely support this story and that is Jhallu (P.W. 4). His version was that Mst. Rajji stated to Ram Prasad that their quarrel had been, settled, implying thereby that she had set herself on fire and thus terminated the quarrel. This statement was made by the accused in his examination under S. 342 of the Code of Criminal Procedure and support is therefore sought to the contrary story from the evidence of Jhallu. Jhallu was declared hostile and was crossexamined with reference to his previous statement before the police. We find that in his statement to the police he did not mention the fact to which he deposed in the Court of Session and it makes us doubtful whether what he stated in the Court of Session was true. In fact there is nothing brought out in his deposi- tion beyond this remark by Mst. Rajji that the quarrel between the bania and herself has been settled. Mst. Rajji in addition to making the accusation might have stated that their quarrel had got settled. It is possible this retort might well have been uttered: with the accusation. But it is curious that when Mst. Rajji roundly accused Ram Prasad with having set fire to her clothes, Ram 526 Prasad did not say anything in defence which one would expect a reasonable man to do. He should have protested then and there. He had no reason to state to the panchas that Mst. Rajji was his wife and the panchas had nothing to do with the matter .and that they could get him hanged. His attitude later in not ,,going to the police station house and to the hospital speaks against him. There are also the three statements by Rajji to say nothing of her shouts accusing her husband which were part of the res gestae. On the whole, therefore, we are satisfied that the conclusion of the High Court and the Sessions Judge that it was Ram Prasad who had put kerosene oil upon Mst. Rajji and set her clothes on fire was correct in the circumstances of this case.\nThe question then arises, what was the offence which Ram Prasad can be said to have committed ? The offence of causing injury by burning is a broad spectrum which runs from s. 324 causing- simple injury by burning through s.\n326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than -this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad Calls within culpable homicide not amounting to murder or the higher offence of murder itself.\nHere we see that death has actually been caused by the criminal act; in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions ;or extenuating circumstances, must be borne by the person who ,caused it. The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting -to murder. The question is whether the offence falls in any of the clauses of s. 300 Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst. Rajji although it might well be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of s. 300, but all the other clauses also. We do not -wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst. Rajji. That would be a matter of speculation. In our opinion, this matter can 'be disposed of with reference to clause fourthly ,of s. 300. That clause reads as follows :- ....... culpable homicide is murder..... if the person committing the act knows that it is so imminently 527 dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits'such act without any excuse for incurring the risk or causing death or such injury as aforesaid.\"\nIt is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person.\nTherefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of S. 300, Indian Penal Code.\nIn other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.\n Mr. Rana contended that there was no proof from the medical reports that kerosene oil was employed because the wounds did not smell of kerosene. Apart from the fact that both the courts have held that kerosene was so employed, the evidence is quite satisfactory that kerosene was in fact poured upon the victim before the clothes were set on fire.\n The omission of this fact in the medical reports is not of consequence.\n We accordingly allow this appeal, substitute the conviction under s. 302 of the Indian Penal-Code in place of the conviction under s. 304 Part II and sentence Ram Prasad to imprisonment for life.\n V.P.S. Appeal allowed.\n 528 "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "9fe90ed4a15f4f4b98887ad4894580fb",
"to_name": null,
"type": null,
"value": {
"end": 71,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER: 1952 SCR 202\nBIJJOY CHAND POTRA\n\n Vs."
}
},
{
"from_name": null,
"id": "0f35bd4dc8df4f8eb9e44110a33b99ec",
"to_name": null,
"type": null,
"value": {
"end": 94,
"labels": [
"PREAMBLE"
],
"start": 71,
"text": "\n\nRESPONDENT:\nTHE STATE"
}
},
{
"from_name": null,
"id": "0214e74de5ea43ebb85ddf907d11c342",
"to_name": null,
"type": null,
"value": {
"end": 124,
"labels": [
"PREAMBLE"
],
"start": 94,
"text": "\n\nDATE OF JUDGMENT:\n14/12/1951"
}
},
{
"from_name": null,
"id": "ea5e4e21a5c24a79a6e66f795f74d20d",
"to_name": null,
"type": null,
"value": {
"end": 732,
"labels": [
"PREAMBLE"
],
"start": 124,
"text": "\n\nBENCH:\nFAZAL ALI, SAIYID\nBENCH:\nFAZAL ALI, SAIYID\nBOSE, VIVIAN\n\nCITATION:\n 1952 AIR 105\n\nACT:\n Criminal Procedure Code (Act V of 1898), ss.\n\n237,342--Indian Penal Code (XLV of 1860), ss. 307,\n326--Charge under s. 307-Conviction under s. 326\n--Legality--Failure to examine accused fully --When vitiates\ntrial--Necessity of prejudice to accused.\n\nHEADNOTE:\n The appellant who inflicted serious injuries on another\n\nwas charged under s. 307 of the Indian Penal Code but the\njury returned a verdict of guilty against him under s. 326\nof the Penal Code, and the Sessions Judge, accepting the\nverdict"
}
},
{
"from_name": null,
"id": "0fa41eea3e8b49f288e145dd9505a4ad",
"to_name": null,
"type": null,
"value": {
"end": 761,
"labels": [
"PREAMBLE"
],
"start": 732,
"text": ", convicted him under s. 326."
}
},
{
"from_name": null,
"id": "aa4a58e210924da6aa76f06e5eaedd86",
"to_name": null,
"type": null,
"value": {
"end": 915,
"labels": [
"PREAMBLE"
],
"start": 762,
"text": "It was contended that\nthe conviction was illegal inasmuch as the offence under s.\n326 was not a minor offence with reference to the offence\nunder s. 307."
}
},
{
"from_name": null,
"id": "aaffeb610a7f4ec9b6f745dcd9c09903",
"to_name": null,
"type": null,
"value": {
"end": 1291,
"labels": [
"PREAMBLE"
],
"start": 916,
"text": "Held, that as it was open to the Sessions\nJudge, on the facts of the case, to charge the appellant\nalternatively under ss. 307 and 326 of the Code the case was\ncovered by s. 237 of the Criminal Procedure Code, and the\nconviction under s. 328 of the Penal Code was proper, even\nthough there was no charge under the section. Begu v. King\nEmperor (52 I.A. 191) applied.\n\n "
}
},
{
"from_name": null,
"id": "d6f3a160c3c44fb2a06cf8175d5107ee",
"to_name": null,
"type": null,
"value": {
"end": 1602,
"labels": [
"PREAMBLE"
],
"start": 1291,
"text": "In order that a conviction may be set aside for non-\ncompliance with the provisions of s. 342 of the Criminal\nProcedure Code, it is not sufficient for the accused merely\nto show that he was not fully examined as required by the\nsection, but he must also show that such examination has\nmaterially prejudiced him."
}
},
{
"from_name": null,
"id": "7d6009d293fe4493a59d035c734edbf7",
"to_name": null,
"type": null,
"value": {
"end": 1612,
"labels": [
"PREAMBLE"
],
"start": 1603,
"text": "JUDGMENT:"
}
},
{
"from_name": null,
"id": "cf5e4aaa23ea457aa8acabc0e908cb42",
"to_name": null,
"type": null,
"value": {
"end": 1652,
"labels": [
"NONE"
],
"start": 1612,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "e06c17dcc3c445679bdc2c42f5b4cfe4",
"to_name": null,
"type": null,
"value": {
"end": 1685,
"labels": [
"NONE"
],
"start": 1653,
"text": "Criminal Appeal No.\n 30 of 1951."
}
},
{
"from_name": null,
"id": "6513a8bfe10d45619e864382ab942cab",
"to_name": null,
"type": null,
"value": {
"end": 1866,
"labels": [
"NONE"
],
"start": 1686,
"text": "Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950."
}
},
{
"from_name": null,
"id": "214d05fb1a4340d5be3a5962e0a1d2cc",
"to_name": null,
"type": null,
"value": {
"end": 1902,
"labels": [
"NONE"
],
"start": 1866,
"text": "\n S.N. Mukherjee, for the appellant."
}
},
{
"from_name": null,
"id": "1847bf8adc33438ea58b22047096a597",
"to_name": null,
"type": null,
"value": {
"end": 1931,
"labels": [
"NONE"
],
"start": 1902,
"text": "\n B. Sen, for the respondent."
}
},
{
"from_name": null,
"id": "eda94acca93e4385b943a580e7087e07",
"to_name": null,
"type": null,
"value": {
"end": 1938,
"labels": [
"NONE"
],
"start": 1931,
"text": "\n 1951."
}
},
{
"from_name": null,
"id": "eb995c883a1342c6a17a715b05bf05de",
"to_name": null,
"type": null,
"value": {
"end": 1951,
"labels": [
"NONE"
],
"start": 1939,
"text": "December 14."
}
},
{
"from_name": null,
"id": "2c4d998e90804a61a1067122b25ece4a",
"to_name": null,
"type": null,
"value": {
"end": 2010,
"labels": [
"NONE"
],
"start": 1952,
"text": "The Judgment of the Court was deliv- ered by FAZL ALI J.--"
}
},
{
"from_name": null,
"id": "8598a166773b40bab772517336c59bce",
"to_name": null,
"type": null,
"value": {
"end": 2257,
"labels": [
"FAC"
],
"start": 2010,
"text": "This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses- sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years' rigorous imprisonment."
}
},
{
"from_name": null,
"id": "9e1b2458b2344326916aa8543a2dcab7",
"to_name": null,
"type": null,
"value": {
"end": 2513,
"labels": [
"FAC"
],
"start": 2257,
"text": "\n The prosecution case against the appellant may be short- ly stated as follows:--The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other."
}
},
{
"from_name": null,
"id": "fe33d051c44742dfa8b7e71ba5593635",
"to_name": null,
"type": null,
"value": {
"end": 2648,
"labels": [
"FAC"
],
"start": 2514,
"text": "They had a dispute about a pathway adjoin- ing their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949."
}
},
{
"from_name": null,
"id": "9c88d7bb7a8d40f5a95596c2ce882ea7",
"to_name": null,
"type": null,
"value": {
"end": 2820,
"labels": [
"FAC"
],
"start": 2649,
"text": "Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries."
}
},
{
"from_name": null,
"id": "95b4951800d84d06919091e3c1c8115f",
"to_name": null,
"type": null,
"value": {
"end": 2941,
"labels": [
"FAC"
],
"start": 2821,
"text": "with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb."
}
},
{
"from_name": null,
"id": "0c8711e33e5249d49efafc6165b41a6e",
"to_name": null,
"type": null,
"value": {
"end": 3136,
"labels": [
"FAC"
],
"start": 2942,
"text": "The police being informed, started investigation and submitted a charge-sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury."
}
},
{
"from_name": null,
"id": "29c2454c03f4416cbdaa5907a43f5776",
"to_name": null,
"type": null,
"value": {
"end": 3386,
"labels": [
"FAC"
],
"start": 3137,
"text": "He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid."
}
},
{
"from_name": null,
"id": "8390395f09d94979b1930ade075290b4",
"to_name": null,
"type": null,
"value": {
"end": 3681,
"labels": [
"FAC"
],
"start": 3387,
"text": "When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentenceshould not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld."
}
},
{
"from_name": null,
"id": "3400caea5ac841488a932279fd304eab",
"to_name": null,
"type": null,
"value": {
"end": 3996,
"labels": [
"ANALYSIS"
],
"start": 3681,
"text": "\n The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code, he could not have been convicted under the former section."
}
},
{
"from_name": null,
"id": "884918df0cf041329390e987db892666",
"to_name": null,
"type": null,
"value": {
"end": 4090,
"labels": [
"ANALYSIS"
],
"start": 3997,
"text": "This argument however overlooks the provisions of section 237 of the Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "34849e87ca9241b39e57cc942f0c1997",
"to_name": null,
"type": null,
"value": {
"end": 4642,
"labels": [
"STA"
],
"start": 4091,
"text": "That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of- fences the facts which can be proved will constitute, states as follows :-- \"If ......... the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.\"\n "
}
},
{
"from_name": null,
"id": "ed0584a39e274691ab801fe20135e68b",
"to_name": null,
"type": null,
"value": {
"end": 4813,
"labels": [
"ANALYSIS"
],
"start": 4642,
"text": "There can be no doubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code."
}
},
{
"from_name": null,
"id": "c3d3ca2517314628b497a8c844004347",
"to_name": null,
"type": null,
"value": {
"end": 5006,
"labels": [
"ANALYSIS"
],
"start": 4813,
"text": "\nThe case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant's conviction under section 326 of the Penal Code was proper even in the absence of a charge."
}
},
{
"from_name": null,
"id": "454dd44f9787422fae82b4912e5d5076",
"to_name": null,
"type": null,
"value": {
"end": 5233,
"labels": [
"PRE_RELIED"
],
"start": 5006,
"text": "\n In Begu v. The King Emperor (1) the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were convicted under section 201 for causing the disappearance of evidence."
}
},
{
"from_name": null,
"id": "70afaaccaae6404fa0393715c661c396",
"to_name": null,
"type": null,
"value": {
"end": 5554,
"labels": [
"PRE_RELIED"
],
"start": 5233,
"text": "\nTheir Lordships upheld the conviction, and while referring to section 237 of the Criminal Procedure Code, they ob- served:-- \"A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have (1) (1925) 52 I.A. 191,been made ......"
}
},
{
"from_name": null,
"id": "48b453a43a8d4327b61560cb2ed319e1",
"to_name": null,
"type": null,
"value": {
"end": 5685,
"labels": [
"PRE_RELIED"
],
"start": 5555,
"text": "Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.\""
}
},
{
"from_name": null,
"id": "71d33a691fd44caa8db3ed20b2bf3f60",
"to_name": null,
"type": null,
"value": {
"end": 5909,
"labels": [
"ANALYSIS"
],
"start": 5687,
"text": "The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was not allowed to do."
}
},
{
"from_name": null,
"id": "83d2aae7271a4122a391a95d6428b279",
"to_name": null,
"type": null,
"value": {
"end": 6085,
"labels": [
"ANALYSIS"
],
"start": 5910,
"text": "The learned counsel for the appellant was not, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise."
}
},
{
"from_name": null,
"id": "219e6859f1284a058b5c1d0d46f84497",
"to_name": null,
"type": null,
"value": {
"end": 6398,
"labels": [
"ANALYSIS"
],
"start": 6086,
"text": "Only three contentions were put forward by him, these being :-- (1) that several material witnesses were not examined; (2.) that the appellant's case was not placed before the jury in a fair manner; and (3) that there was no proper examination of the appel- lant under section 342 of the Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "98bf98b89e014f1e9d91034806dae426",
"to_name": null,
"type": null,
"value": {
"end": 6487,
"labels": [
"ANALYSIS"
],
"start": 6398,
"text": "\n We have examined these contentions and find that they are entirely without merit."
}
},
{
"from_name": null,
"id": "5f917916fd104283b099a01798d1e934",
"to_name": null,
"type": null,
"value": {
"end": 6760,
"labels": [
"ANALYSIS"
],
"start": 6488,
"text": "In urging his first contention, the learned counsel stated that though it was admitted that several persons have got houses to the east, north and north-west of the tank where the occurrence is alleged to have taken place, they have not been examined by the prose- cution."
}
},
{
"from_name": null,
"id": "2b440c956d614d53b46a4f4670a9185e",
"to_name": null,
"type": null,
"value": {
"end": 6902,
"labels": [
"ANALYSIS"
],
"start": 6761,
"text": "He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also not been examined."
}
},
{
"from_name": null,
"id": "a7007a5be4c1417c86497baa8cf898b9",
"to_name": null,
"type": null,
"value": {
"end": 7206,
"labels": [
"ANALYSIS"
],
"start": 6903,
"text": "These arguments however have very little force, since there is no evidence to show that those persons had seen the occurrence, an d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi- cient to support the conviction of the appellant."
}
},
{
"from_name": null,
"id": "c10d2515eeda4a22ab5e26f4acaa74dd",
"to_name": null,
"type": null,
"value": {
"end": 7431,
"labels": [
"ANALYSIS"
],
"start": 7207,
"text": "The Ses- sions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told 'the jurors that if they thought it fit it was open to them to draw an inference against the prosecution."
}
},
{
"from_name": null,
"id": "b3d169071ff4427bb5574918e79a1b62",
"to_name": null,
"type": null,
"value": {
"end": 7610,
"labels": [
"ANALYSIS"
],
"start": 7432,
"text": "There can be no doubt that the jurors were206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant."
}
},
{
"from_name": null,
"id": "93ec98fa29f44e86b484d19193c79978",
"to_name": null,
"type": null,
"value": {
"end": 7941,
"labels": [
"ANALYSIS"
],
"start": 7610,
"text": "\n The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and committed indecent assault on her and was assaulted in these circumstances."
}
},
{
"from_name": null,
"id": "321500e43c1a4388aa4e5271fe2d1967",
"to_name": null,
"type": null,
"value": {
"end": 8191,
"labels": [
"ANALYSIS"
],
"start": 7942,
"text": "This story was not sup- ported by any evidence but was merely suggested in cross- examination, and the Sessions Judge while referring to it in his charge to the jury, observed:-- ''If I were left alone, I would not have believed the defence version."
}
},
{
"from_name": null,
"id": "93885a8c18414f748a730c305ebd9164",
"to_name": null,
"type": null,
"value": {
"end": 8272,
"labels": [
"ANALYSIS"
],
"start": 8192,
"text": "But you are not bound to accept my opin- ion, nor you should be influenced by it"
}
},
{
"from_name": null,
"id": "edefc33ab229411b93469732af82e5e8",
"to_name": null,
"type": null,
"value": {
"end": 8407,
"labels": [
"ANALYSIS"
],
"start": 8273,
"text": "It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence.\"\n "
}
},
{
"from_name": null,
"id": "d1487e61140944e0b1da5e955ba78602",
"to_name": null,
"type": null,
"value": {
"end": 8709,
"labels": [
"ANALYSIS"
],
"start": 8407,
"text": "The Sessions Judge undoubtedly expressed himself some- what strongly with regard to the defence suggestion, but he coupled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it."
}
},
{
"from_name": null,
"id": "013cae85455c4815802a27274e3ffea3",
"to_name": null,
"type": null,
"value": {
"end": 8867,
"labels": [
"ANALYSIS"
],
"start": 8710,
"text": "The defence version was rejected by the jury, and there can be no doubt that on the materials on the record it would have been rejected by any court of fact."
}
},
{
"from_name": null,
"id": "0e4344383db44965b9dfe77df5cd11f2",
"to_name": null,
"type": null,
"value": {
"end": 9039,
"labels": [
"ANALYSIS"
],
"start": 8867,
"text": "\n The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "4260db9127a84960a2588ba6e6bb356c",
"to_name": null,
"type": null,
"value": {
"end": 9169,
"labels": [
"ANALYSIS"
],
"start": 9040,
"text": "It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence."
}
},
{
"from_name": null,
"id": "cbb7fe05334e49028f15eff07dde51b7",
"to_name": null,
"type": null,
"value": {
"end": 9538,
"labels": [
"ANALYSIS"
],
"start": 9170,
"text": "In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence ad- duced, against him; in the second question, the Judge re- ferred to the dispute about the pathway and asked the appel- lant whether he had inflicted injuries on Kumad Patra; and in the third question, the appellant was asked.whether he would adduce any evidence."
}
},
{
"from_name": null,
"id": "e3f98b7d5b274f98b5ef6f2405ea70a2",
"to_name": null,
"type": null,
"value": {
"end": 9745,
"labels": [
"ANALYSIS"
],
"start": 9539,
"text": "The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examina- tion of the appellant in this particular case was not ade- quate."
}
},
{
"from_name": null,
"id": "e9cd49bda8344a63ab65bea152f29d0a",
"to_name": null,
"type": null,
"value": {
"end": 10020,
"labels": [
"ANALYSIS"
],
"start": 9746,
"text": "To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him."
}
},
{
"from_name": null,
"id": "c6e99593177a4b54bb8e47a3fd027efc",
"to_name": null,
"type": null,
"value": {
"end": 10236,
"labels": [
"RATIO"
],
"start": 10021,
"text": "In the present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find a place in the grounds of appeal or in the statement of case filed in this court."
}
},
{
"from_name": null,
"id": "d95189d2e0e6404d8f08ef2b199a3cde",
"to_name": null,
"type": null,
"value": {
"end": 10399,
"labels": [
"RATIO"
],
"start": 10237,
"text": "It has nowhere been stated that the accused was in any way prejudiced, and there are no materi- als before us to hold that he was or might have been preju- diced."
}
},
{
"from_name": null,
"id": "d28e4f35bc034396b8752caf9f3b7f81",
"to_name": null,
"type": null,
"value": {
"end": 10610,
"labels": [
"RATIO"
],
"start": 10400,
"text": "We have read the Sessions Judge's charge to the jury, which is a very fair and full charge, and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted."
}
},
{
"from_name": null,
"id": "af53929ce7d24c61bbd2f7dbd402872a",
"to_name": null,
"type": null,
"value": {
"end": 10657,
"labels": [
"RPC"
],
"start": 10611,
"text": "The appeal accordingly fails and is dismissed."
}
},
{
"from_name": null,
"id": "e80acfe4a1bb4e16a4c64ad60a244085",
"to_name": null,
"type": null,
"value": {
"end": 10676,
"labels": [
"RPC"
],
"start": 10657,
"text": "\n Appeal dismissed."
}
},
{
"from_name": null,
"id": "64cb97ec93f141829df02d69841246b8",
"to_name": null,
"type": null,
"value": {
"end": 10717,
"labels": [
"NONE"
],
"start": 10677,
"text": "Agent for the appellant: P.K. Chatterji."
}
},
{
"from_name": null,
"id": "02405aa5fc214dc88b57d7b46ec319e8",
"to_name": null,
"type": null,
"value": {
"end": 10772,
"labels": [
"NONE"
],
"start": 10719,
"text": "Agent for the respondent: I. N. Shroff for P.K. Bose."
}
}
]
}
] | 4,235 | {
"text": "PETITIONER: 1952 SCR 202\nBIJJOY CHAND POTRA\n\n Vs.\n\nRESPONDENT:\nTHE STATE\n\nDATE OF JUDGMENT:\n14/12/1951\n\nBENCH:\nFAZAL ALI, SAIYID\nBENCH:\nFAZAL ALI, SAIYID\nBOSE, VIVIAN\n\nCITATION:\n 1952 AIR 105\n\nACT:\n Criminal Procedure Code (Act V of 1898), ss.\n\n237,342--Indian Penal Code (XLV of 1860), ss. 307,\n326--Charge under s. 307-Conviction under s. 326\n--Legality--Failure to examine accused fully --When vitiates\ntrial--Necessity of prejudice to accused.\n\nHEADNOTE:\n The appellant who inflicted serious injuries on another\n\nwas charged under s. 307 of the Indian Penal Code but the\njury returned a verdict of guilty against him under s. 326\nof the Penal Code, and the Sessions Judge, accepting the\nverdict, convicted him under s. 326. It was contended that\nthe conviction was illegal inasmuch as the offence under s.\n326 was not a minor offence with reference to the offence\nunder s. 307. Held, that as it was open to the Sessions\nJudge, on the facts of the case, to charge the appellant\nalternatively under ss. 307 and 326 of the Code the case was\ncovered by s. 237 of the Criminal Procedure Code, and the\nconviction under s. 328 of the Penal Code was proper, even\nthough there was no charge under the section. Begu v. King\nEmperor (52 I.A. 191) applied.\n\n In order that a conviction may be set aside for non-\ncompliance with the provisions of s. 342 of the Criminal\nProcedure Code, it is not sufficient for the accused merely\nto show that he was not fully examined as required by the\nsection, but he must also show that such examination has\nmaterially prejudiced him.\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 30 of 1951. Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950.\n S.N. Mukherjee, for the appellant.\n B. Sen, for the respondent.\n 1951. December 14. The Judgment of the Court was deliv- ered by FAZL ALI J.--This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses- sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years' rigorous imprisonment.\n The prosecution case against the appellant may be short- ly stated as follows:--The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other. They had a dispute about a pathway adjoin- ing their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949. Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries. with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb. The police being informed, started investigation and submitted a charge-sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury. He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid. When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentenceshould not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld.\n The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code, he could not have been convicted under the former section. This argument however overlooks the provisions of section 237 of the Criminal Procedure Code. That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of- fences the facts which can be proved will constitute, states as follows :-- \"If ......... the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.\"\n There can be no doubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code.\nThe case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant's conviction under section 326 of the Penal Code was proper even in the absence of a charge.\n In Begu v. The King Emperor (1) the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were convicted under section 201 for causing the disappearance of evidence.\nTheir Lordships upheld the conviction, and while referring to section 237 of the Criminal Procedure Code, they ob- served:-- \"A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have (1) (1925) 52 I.A. 191,been made ...... Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.\"\n The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was not allowed to do. The learned counsel for the appellant was not, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise. Only three contentions were put forward by him, these being :-- (1) that several material witnesses were not examined; (2.) that the appellant's case was not placed before the jury in a fair manner; and (3) that there was no proper examination of the appel- lant under section 342 of the Criminal Procedure Code.\n We have examined these contentions and find that they are entirely without merit. In urging his first contention, the learned counsel stated that though it was admitted that several persons have got houses to the east, north and north-west of the tank where the occurrence is alleged to have taken place, they have not been examined by the prose- cution. He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also not been examined. These arguments however have very little force, since there is no evidence to show that those persons had seen the occurrence, an d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi- cient to support the conviction of the appellant. The Ses- sions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told 'the jurors that if they thought it fit it was open to them to draw an inference against the prosecution. There can be no doubt that the jurors were206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant.\n The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and committed indecent assault on her and was assaulted in these circumstances. This story was not sup- ported by any evidence but was merely suggested in cross- examination, and the Sessions Judge while referring to it in his charge to the jury, observed:-- ''If I were left alone, I would not have believed the defence version. But you are not bound to accept my opin- ion, nor you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence.\"\n The Sessions Judge undoubtedly expressed himself some- what strongly with regard to the defence suggestion, but he coupled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it. The defence version was rejected by the jury, and there can be no doubt that on the materials on the record it would have been rejected by any court of fact.\n The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code. It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence. In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence ad- duced, against him; in the second question, the Judge re- ferred to the dispute about the pathway and asked the appel- lant whether he had inflicted injuries on Kumad Patra; and in the third question, the appellant was asked.whether he would adduce any evidence. The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examina- tion of the appellant in this particular case was not ade- quate. To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him. In the present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find a place in the grounds of appeal or in the statement of case filed in this court. It has nowhere been stated that the accused was in any way prejudiced, and there are no materi- als before us to hold that he was or might have been preju- diced. We have read the Sessions Judge's charge to the jury, which is a very fair and full charge, and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted.\nThe appeal accordingly fails and is dismissed.\n Appeal dismissed.\nAgent for the appellant: P.K. Chatterji.\n Agent for the respondent: I. N. Shroff for P.K. Bose."
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "fe484f43b30046fcbb8dbb9cdfa51352",
"to_name": null,
"type": null,
"value": {
"end": 70,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nK. C. THOMAS, FIRST INCOME-TAX OFFICER, BOMBAY\n\n Vs."
}
},
{
"from_name": null,
"id": "5af475960f054ad5806881804fe613c5",
"to_name": null,
"type": null,
"value": {
"end": 574,
"labels": [
"PREAMBLE"
],
"start": 72,
"text": "RESPONDENT:\nVASANT HIRALAL SHAH & ORS.\n\nDATE OF JUDGMENT:\n29/01/1964\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nSINHA, BHUVNESHWAR P.(CJ)\nSUBBARAO, K.\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n\n1964 AIR 1034 1964 SCR (6) 437\n (20)\nCITATOR INFO :\n\nR 1965 SC 342\n\nACT:\nIncome Tax-Escaped income-Notice issued for assessment after\nexpiry of 8 years-If sanction required-Indian Income-tax\nAct, 1922 (11 of 1922). ss. 34(i), 34(ii), 34(3) proviso."
}
},
{
"from_name": null,
"id": "fbe55d09fb474d309d1bd97b349067f9",
"to_name": null,
"type": null,
"value": {
"end": 626,
"labels": [
"PREAMBLE"
],
"start": 575,
"text": "as\namended by Act XXV of 1953 and Act XVII of 1956."
}
},
{
"from_name": null,
"id": "bd653a01a5f74db982f168500eef56fb",
"to_name": null,
"type": null,
"value": {
"end": 637,
"labels": [
"PREAMBLE"
],
"start": 626,
"text": "\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "a54487148227446fb1a9a7a07ed12d07",
"to_name": null,
"type": null,
"value": {
"end": 814,
"labels": [
"PREAMBLE"
],
"start": 637,
"text": "\n\nThe appellant had issued notice to the respondents under s.\n\n34(1)( of the Income Tax Act, 1922 in respect of an escaped\n\nincome of Rs. 47,595 for the assessment year 1944-45."
}
},
{
"from_name": null,
"id": "c746645d8a874effa4e880eb367850f8",
"to_name": null,
"type": null,
"value": {
"end": 1086,
"labels": [
"PREAMBLE"
],
"start": 815,
"text": "The\n\ncase of the respondents was that the impugned notice was bad\n\nbecause the Income-Tax Officer proceeded against the\n\nrespondents without obtaining the necessary sanction of the\n\nCentral Board of Revenue as required by cl. (iii) of the\n\nproviso to s. 34(1) of the Act."
}
},
{
"from_name": null,
"id": "253b39181ecd4f329c3814fbebd56da2",
"to_name": null,
"type": null,
"value": {
"end": 1201,
"labels": [
"PREAMBLE"
],
"start": 1087,
"text": "The respondents filed a\n\nwrit petition in the High Court challenging the notice\n\nissued under s. 34(1) of the Art."
}
},
{
"from_name": null,
"id": "dcce8f54fdbf4ddfafbabf341bf3c6b5",
"to_name": null,
"type": null,
"value": {
"end": 1251,
"labels": [
"PREAMBLE"
],
"start": 1202,
"text": "The respondents succeeded\n\nbefore the High Court."
}
},
{
"from_name": null,
"id": "fdd25eb6eca34b84bace1efb76b10792",
"to_name": null,
"type": null,
"value": {
"end": 1423,
"labels": [
"PREAMBLE"
],
"start": 1253,
"text": "Held: (i) The sanction under cl. (iii) of the proviso to\n\ns. 34(1) is, however, necessary only where the notice in\n\nquestion is issued under cl. (ii) of the proviso."
}
},
{
"from_name": null,
"id": "a3d295a496734a13bc62650b4c5768f9",
"to_name": null,
"type": null,
"value": {
"end": 1521,
"labels": [
"PREAMBLE"
],
"start": 1424,
"text": "That is\n\nevidently what the legislature meant when it said \"in any\n\ncase failing under cl. (ii)\"."
}
},
{
"from_name": null,
"id": "b266f32899c0481cbdf135fc9f7e534f",
"to_name": null,
"type": null,
"value": {
"end": 1628,
"labels": [
"PREAMBLE"
],
"start": 1522,
"text": "The words \"in any case\" used\n\nin cl. (iii) only mean a case in which notice can be issued\n\nunder cl. (ii)."
}
},
{
"from_name": null,
"id": "d4ff389b779241e1a6a729831055d200",
"to_name": null,
"type": null,
"value": {
"end": 1721,
"labels": [
"PREAMBLE"
],
"start": 1629,
"text": "Such a notice can be issued only when the\n\nescaped income is of one lakh of rupees and over."
}
},
{
"from_name": null,
"id": "cad7b5fd2efe4e40b92e662e66eafc0e",
"to_name": null,
"type": null,
"value": {
"end": 2002,
"labels": [
"PREAMBLE"
],
"start": 1722,
"text": "Clause\n\n(iii) requires such sanction where the notice is issued\n\nunder cl. (ii) and when on a construction of cl. (ii), no\n\nnotice can be issued with respect to a class of escaped\n\nassessments, there can possibly be no requirement of the\n\nsanction of the Central Board of Revenue."
}
},
{
"from_name": null,
"id": "0110922bd03642b1b6852ae5a085af4f",
"to_name": null,
"type": null,
"value": {
"end": 2302,
"labels": [
"PREAMBLE"
],
"start": 2003,
"text": "If a notice is\n\nissued by virtue of some other provision sub as the second\n\nproviso to sub-s. (3) of s. 34, it would be a notice \"in any\n\nother case\" referred to in cl. (iii) of the proviso to sub-\n\ns. (1) of s. 34 and in such a case the sanction which is\n\nrequired is only that of the Commissioner."
}
},
{
"from_name": null,
"id": "b50ab5faff3046748c3588a64265194f",
"to_name": null,
"type": null,
"value": {
"end": 2473,
"labels": [
"PREAMBLE"
],
"start": 2303,
"text": "Such a sanction\n\n\nwas obtained in this case and therefore, the notice cannot\nbe said to be bad because the sanction of the Central Board\nof Revenue had not been obtained."
}
},
{
"from_name": null,
"id": "ecbd850eeef741208a75590bbd612f86",
"to_name": null,
"type": null,
"value": {
"end": 2696,
"labels": [
"PREAMBLE"
],
"start": 2473,
"text": "\nIn the present case the income which has escaped assessment\nis below one lakh of rupees and more than eight years have\nelapsed since the assessment year in respect of which the\nincome is alleged to have escaped assessment."
}
},
{
"from_name": null,
"id": "c81abd78dd1948b58a071199385712a7",
"to_name": null,
"type": null,
"value": {
"end": 2754,
"labels": [
"PREAMBLE"
],
"start": 2697,
"text": "Clearly,\ntherefore, no notice could issue under cl. (ii)."
}
},
{
"from_name": null,
"id": "e5a8295e106d456aad99e2248f53bd9a",
"to_name": null,
"type": null,
"value": {
"end": 2983,
"labels": [
"PREAMBLE"
],
"start": 2754,
"text": "\n(ii) The High Court erred in holding that the provisions of\nthe second proviso to s. 34(3) would not apply to a case\nwhere the escaped assessment is of an amount less than a\nlakh of rupees and more than eight years have elapsed."
}
},
{
"from_name": null,
"id": "0b7eb90b3d8f413993f5f4e924938bb0",
"to_name": null,
"type": null,
"value": {
"end": 3146,
"labels": [
"PREAMBLE"
],
"start": 2983,
"text": "\nApparently, the High Court has overlooked the fact that the\nsecond proviso to sub-s. (3) of s. 34 was amended first by\nAct 25 of 1953 and then by Act. 18 of 1956."
}
},
{
"from_name": null,
"id": "73cb41f3e5f64e19b90f4e94d58fdd6f",
"to_name": null,
"type": null,
"value": {
"end": 3352,
"labels": [
"PREAMBLE"
],
"start": 3147,
"text": "The amendment\nof 1956 would govern the whole of s. 34(1) and would\nconsequently include even an escaped assessment with respect\nto which limitation is provided in cl. (ii) of the first\nproviso to s. 34(1)."
}
},
{
"from_name": null,
"id": "8541b13f75bf48b2b4abb5bb07dfc1f7",
"to_name": null,
"type": null,
"value": {
"end": 3495,
"labels": [
"PREAMBLE"
],
"start": 3353,
"text": "The result would be the same even if\nthe case fell to be governed by the Amending Act of 1953,\nthough not by that of the Amending Act of 1956."
}
},
{
"from_name": null,
"id": "9231f8e09be948bbaa7f4955489e8146",
"to_name": null,
"type": null,
"value": {
"end": 3506,
"labels": [
"PREAMBLE"
],
"start": 3495,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "833a1a715d6c4b7bb23ea79bf8773a72",
"to_name": null,
"type": null,
"value": {
"end": 3566,
"labels": [
"NONE"
],
"start": 3506,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 688 of 1962."
}
},
{
"from_name": null,
"id": "0007c6fd63c4492f98f1b6d257b7511c",
"to_name": null,
"type": null,
"value": {
"end": 3701,
"labels": [
"NONE"
],
"start": 3566,
"text": "\nAppeal by special leave from the judgment and order dated April 1, 1958 of the Bombay High Court in Misc. Application No. 202 of 1957."
}
},
{
"from_name": null,
"id": "a8f7a6f0c65247a6bad6fdd65caf5530",
"to_name": null,
"type": null,
"value": {
"end": 3756,
"labels": [
"NONE"
],
"start": 3701,
"text": "\nN. D. Karkhanis and R. N. Sachthey, for the appellant."
}
},
{
"from_name": null,
"id": "ba9406ce30fe43f0ad3ef67204dfe7ae",
"to_name": null,
"type": null,
"value": {
"end": 3790,
"labels": [
"NONE"
],
"start": 3756,
"text": "\nI. N. Shroff for the respondents."
}
},
{
"from_name": null,
"id": "fe233ce01d0f472ca097381f0977b4d4",
"to_name": null,
"type": null,
"value": {
"end": 3808,
"labels": [
"NONE"
],
"start": 3790,
"text": "\nJanuary 29, 1964."
}
},
{
"from_name": null,
"id": "4d5665024371421b87d8f532dfbccf87",
"to_name": null,
"type": null,
"value": {
"end": 3865,
"labels": [
"NONE"
],
"start": 3809,
"text": "The Judgment of the Court was delivered by MUDHOLKAR J.-"
}
},
{
"from_name": null,
"id": "2d950c15c9f847e09ef8fc582ef26f86",
"to_name": null,
"type": null,
"value": {
"end": 4116,
"labels": [
"FAC"
],
"start": 3865,
"text": "This is an appeal by special leave against the judgment of the Bombay High Court in a writ petition challenging the notice issued under s. 34(1) of the Indian Income-tax Act, 1922 by the First Income-tax Officer,Bombay, who is the appellant before us."
}
},
{
"from_name": null,
"id": "4b1a3ff3ce2140609d151a58e8abaadf",
"to_name": null,
"type": null,
"value": {
"end": 4243,
"labels": [
"FAC"
],
"start": 4117,
"text": "In the writ petition various grounds were urged by the respondent in support of the convention that the notice was bad in law."
}
},
{
"from_name": null,
"id": "9a66c55471a747a8b20d478dd20420c2",
"to_name": null,
"type": null,
"value": {
"end": 4465,
"labels": [
"FAC"
],
"start": 4243,
"text": "\nThe High Court, however, dealt with only one of those contentions, accepted it, and did not permit the respon- dents' counsel Mr. Mehta to put forward the other conten- tions urged in the writ petition by the respondents."
}
},
{
"from_name": null,
"id": "7b910171d9ec45b8a7461f1a73f28ee1",
"to_name": null,
"type": null,
"value": {
"end": 4635,
"labels": [
"FAC"
],
"start": 4465,
"text": "\nThe appellant had issued notice to the respondents under s.\n34(1)(a) of the Income-tax Act in respect of an escaped income of Rs. 47,595 for the assessment year 1944-45."
}
},
{
"from_name": null,
"id": "624bfd23f90e402fa195100ed1dd2267",
"to_name": null,
"type": null,
"value": {
"end": 4684,
"labels": [
"FAC"
],
"start": 4636,
"text": "This notice was issued by him on March 27, 1957."
}
},
{
"from_name": null,
"id": "f40606737b824477bec6cf5d2a21c796",
"to_name": null,
"type": null,
"value": {
"end": 5070,
"labels": [
"FAC"
],
"start": 4685,
"text": "On behalf of the respondents, it is contended that the notice was bad because, though it was in respect of an amount of less than Rs. 1 lakh it was issued after the expiry of the assessment year and that the sanction of the Central Board of Revenue for issuing that notice had not been obtained by the Income- tax Officer as required by cl. (iii) of the proviso to s.\n34(1) of the Act."
}
},
{
"from_name": null,
"id": "485bd6931f6e49398239304e10cec7c2",
"to_name": null,
"type": null,
"value": {
"end": 5138,
"labels": [
"ANALYSIS"
],
"start": 5071,
"text": "It is not disputed before us that the case falls under s. 34(1)(a)."
}
},
{
"from_name": null,
"id": "c821caadf6bc4442a9ce33d636badb1c",
"to_name": null,
"type": null,
"value": {
"end": 6202,
"labels": [
"STA"
],
"start": 5139,
"text": "That provision reads thus: \"(1) If-- (a) the Income-tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under- assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depre- ciation allowance has been computed, or....\n he may in cases falling under clause (a) at any time . . . . . . serve on the assessee a notice containing all or any of the require- ments which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or re-assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection:\"\n "
}
},
{
"from_name": null,
"id": "bc9fc8f4cf2046fa8c87aac34c13c081",
"to_name": null,
"type": null,
"value": {
"end": 6243,
"labels": [
"ANALYSIS"
],
"start": 6202,
"text": "We have quoted only the relevant portion."
}
},
{
"from_name": null,
"id": "738db849b7b74b8bab2586faa1c4639c",
"to_name": null,
"type": null,
"value": {
"end": 7411,
"labels": [
"STA"
],
"start": 6244,
"text": "Then follows the first proviso which runs thus: \" provided that the Income-tax Officer shall not issue, a notice under clause (a) of sub-section (1) (i) for any year prior to the year ending on the 31st day of March 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment or have been underassessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending be- fore the 31st day of March 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice:\"\n "
}
},
{
"from_name": null,
"id": "15b6a905918a42d0a391a0e1b1e4792f",
"to_name": null,
"type": null,
"value": {
"end": 7746,
"labels": [
"ANALYSIS"
],
"start": 7411,
"text": "It will thus be seen that where the Income-tax Officer has reason to believe that due to any act of the assessee a full and accurate declaration was not made by the assessee for any year, with the result that part of his income has escap- ed assessment for that year, the Income-tax Officer may issue a notice under cl.(a) at any time."
}
},
{
"from_name": null,
"id": "1f272cd097724b64ba16770b218c247d",
"to_name": null,
"type": null,
"value": {
"end": 7915,
"labels": [
"ANALYSIS"
],
"start": 7748,
"text": "The respondents' contention before the High Court was that the notice was bad because it had not complied with the two conditions laid down in the proviso to s. 34(1)."
}
},
{
"from_name": null,
"id": "9afb35f0bc974883916660a71c3b193e",
"to_name": null,
"type": null,
"value": {
"end": 8405,
"labels": [
"ANALYSIS"
],
"start": 7916,
"text": "Adverting to this contention the High Court has observed thus: \"Before the amendment of this section which was in force on the 27th March, 1957 the period of limitation of eight years was provided with regard to the issue of notices under Section 34(1) (a) and a period of four years for cases falling under Section 34(1)(b) By the amendment the period of limitation was removed and the Legislature provided that if the case fell under Section 34(1) (a) a notice can be served at any time."
}
},
{
"from_name": null,
"id": "19ca196917bf4199a8525d33df6a2004",
"to_name": null,
"type": null,
"value": {
"end": 8585,
"labels": [
"ANALYSIS"
],
"start": 8406,
"text": "But while removing any bar of limitation, the Legislature provided some safeguards for the assessee and these safeguards were three in number and they were set out in the proviso."
}
},
{
"from_name": null,
"id": "88553261810a4eb3ac16bdbfef7b86c3",
"to_name": null,
"type": null,
"value": {
"end": 9081,
"labels": [
"ANALYSIS"
],
"start": 8586,
"text": "The first safeguard was that a notice shall not be issued for any year prior to the year ending on the 31st day of March 1941; the second safeguard was that if eight years had elapsed then the notice should not be issued for an escaped income which aggregated to less than one lakh of rupees; and the third safeguard was that the Central Board of Revenue had to be satisfied on reasons to be recorded that this was a fit case for the issue of a notice, which was for a period beyond eight years."
}
},
{
"from_name": null,
"id": "dcca95c2a7704058951e66f3ac7c8276",
"to_name": null,
"type": null,
"value": {
"end": 9271,
"labels": [
"ANALYSIS"
],
"start": 9107,
"text": "Now, admittedly, this notice is for an amount which is less than a lakh of rupees and admittedly the Central Board of Revenue has not considered this matter at all."
}
},
{
"from_name": null,
"id": "44223def30eb453f88391a6a03ae8552",
"to_name": null,
"type": null,
"value": {
"end": 9581,
"labels": [
"ANALYSIS"
],
"start": 9272,
"text": "Therefore, there does not seem to be any answer to the contention put forward by the petitioner.\"\nThe High Court is right in saying that a notice cannot be issued where the income which has escaped assessment is less than a lakh of rupees and where more than eight years have elapsed from the assessment year."
}
},
{
"from_name": null,
"id": "cc85df83651a4955a017c60ca0f76b74",
"to_name": null,
"type": null,
"value": {
"end": 9711,
"labels": [
"ANALYSIS"
],
"start": 9582,
"text": "To this, however,there is one exception and that is where the matter would fall to be governed by the second proviso to s. 34(3)."
}
},
{
"from_name": null,
"id": "acad7bba79f148389d1f2f2570bf60d6",
"to_name": null,
"type": null,
"value": {
"end": 9763,
"labels": [
"ANALYSIS"
],
"start": 9712,
"text": "To this aspect we will, however, come little later."
}
},
{
"from_name": null,
"id": "2142f5ea8e0e4e7895638c9c3fe1d0df",
"to_name": null,
"type": null,
"value": {
"end": 9901,
"labels": [
"ANALYSIS"
],
"start": 9764,
"text": "But before that what we must consider is the view of the High Court that the sanction of the Central Board of Revenue was also necessary."
}
},
{
"from_name": null,
"id": "b69c09502aec470e8df37ea24568ee2f",
"to_name": null,
"type": null,
"value": {
"end": 10087,
"labels": [
"ANALYSIS"
],
"start": 9902,
"text": "Under cl. (iii) of the proviso to s. 34(1) a notice can issue only if the Central Board of Revenue is satisfied with the reasons recorded by the Income-tax Officer for issuing a notice."
}
},
{
"from_name": null,
"id": "a3c1ba83b89846cebc406ed0d851ffbc",
"to_name": null,
"type": null,
"value": {
"end": 10179,
"labels": [
"ANALYSIS"
],
"start": 10088,
"text": "For convenience we are describing this process as sanction of the Central Board of Revenue."
}
},
{
"from_name": null,
"id": "9c1f4f5eb47848fe96fdea7d2e21d9c3",
"to_name": null,
"type": null,
"value": {
"end": 10308,
"labels": [
"ANALYSIS"
],
"start": 10180,
"text": "The sanction under this clause is, however, necessary only where the notice in question is issued under cl. (ii) of the proviso."
}
},
{
"from_name": null,
"id": "11f99904a50e41d7ba82a3b9896edfd0",
"to_name": null,
"type": null,
"value": {
"end": 10407,
"labels": [
"ANALYSIS"
],
"start": 10309,
"text": "That is evidently what the Legislature meant when it says \"in any case falling under clause (ii)\"."
}
},
{
"from_name": null,
"id": "526a6754093d4f01af3d1481694a19bf",
"to_name": null,
"type": null,
"value": {
"end": 10576,
"labels": [
"ANALYSIS"
],
"start": 10408,
"text": "For, cl. (ii) has to be read with the opening words of the proviso: \"Provided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1)\"."
}
},
{
"from_name": null,
"id": "feccc11f8c21447f9f655be89df37c44",
"to_name": null,
"type": null,
"value": {
"end": 10711,
"labels": [
"ANALYSIS"
],
"start": 10577,
"text": "So read it will be clear that the words \"in any case\"\nused in cl. (iii) only mean a case in which notice can be issued under cl. (ii)."
}
},
{
"from_name": null,
"id": "71aefe6d15fb4294b0b7e096ed3520b7",
"to_name": null,
"type": null,
"value": {
"end": 10803,
"labels": [
"ANALYSIS"
],
"start": 10712,
"text": "Such a notice can be issued only when the escaped income is of one lakh of rupees and over."
}
},
{
"from_name": null,
"id": "3b0bee3560504356a6c3ffde948820c6",
"to_name": null,
"type": null,
"value": {
"end": 11118,
"labels": [
"ANALYSIS"
],
"start": 10803,
"text": "\nIt was, however, contended by Mr. Shroff that cl. (ii) of the proviso dealt not only with the escaped assessment of one lakh of rupees and over but also with assessments which were less than one lakh of rupees and that, therefore, even in the present case the sanction of the Central Board of Revenue was required."
}
},
{
"from_name": null,
"id": "228f52eeb27a460ca27eab8ca06485d7",
"to_name": null,
"type": null,
"value": {
"end": 11297,
"labels": [
"ANALYSIS"
],
"start": 11119,
"text": "By excluding action with respect to escaped assessment of less than one lakh of rupees, cl. (ii) can, in, one sense, be regarded as dealing with escaped assessments of this kind."
}
},
{
"from_name": null,
"id": "be18fe5365b84ff383067b0cdc29ec19",
"to_name": null,
"type": null,
"value": {
"end": 11475,
"labels": [
"ANALYSIS"
],
"start": 11298,
"text": "But it would be wrong to say that because of this, cl. (iii) requires the obtaining of the sanction of the Central Board of Revenue for a notice to be issued with respect to it."
}
},
{
"from_name": null,
"id": "165b4a59339d40da9b6b7633e1338423",
"to_name": null,
"type": null,
"value": {
"end": 11772,
"labels": [
"ANALYSIS"
],
"start": 11476,
"text": "As already pointed out, cl.\n(iii) requires such sanction where the notice is issued under cl. (ii) and when on a construction of cl. (ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue."
}
},
{
"from_name": null,
"id": "4187664b83d242539ccb60058f904a2d",
"to_name": null,
"type": null,
"value": {
"end": 12067,
"labels": [
"ANALYSIS"
],
"start": 11773,
"text": "If a notice is issued by virtue of some other provision such as the second proviso to sub-s. (3) of s. 34, it would be a notice \"in any other case\" referred to in cl. (iii) of the proviso to sub- s. (1) of s. 34 and in such a case the sanction which isrequired is only that of the Commissioner."
}
},
{
"from_name": null,
"id": "ec0a058a33de429eaa8845c20ca7b910",
"to_name": null,
"type": null,
"value": {
"end": 12237,
"labels": [
"ANALYSIS"
],
"start": 12068,
"text": "Such a sanction was obtained in this case and, therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue has not been obtained."
}
},
{
"from_name": null,
"id": "9d19ef6cacbc4c8fadd8f87d89d572b6",
"to_name": null,
"type": null,
"value": {
"end": 12290,
"labels": [
"ANALYSIS"
],
"start": 12238,
"text": "Now, we will come to the other aspect of the matter."
}
},
{
"from_name": null,
"id": "8bcc09706ced466d90a0576fb8ec8e9e",
"to_name": null,
"type": null,
"value": {
"end": 12592,
"labels": [
"ANALYSIS"
],
"start": 12290,
"text": "\nLimitation is no doubt placed upon the power of the Income- tax Officer by cl. (ii) of the first proviso which says that if eight years have elapsed after the expiry of that year no such notice can issue unless the income which has escaped assessment is likely to amount to one lakh of rupees or more."
}
},
{
"from_name": null,
"id": "0d16d95452574a7bb6d95b5d547026e7",
"to_name": null,
"type": null,
"value": {
"end": 12811,
"labels": [
"ANALYSIS"
],
"start": 12593,
"text": "Here admittedly the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment."
}
},
{
"from_name": null,
"id": "fcf1881a9ef7441e805a4b86ee5eaa35",
"to_name": null,
"type": null,
"value": {
"end": 12868,
"labels": [
"ANALYSIS"
],
"start": 12811,
"text": "\nClearly, therefore no notice could issue under cl. (ii)."
}
},
{
"from_name": null,
"id": "031effc9b41142d19ff719a4feac73bb",
"to_name": null,
"type": null,
"value": {
"end": 13000,
"labels": [
"ANALYSIS"
],
"start": 12868,
"text": "\nThe answer given by the Income-tax Officer, however, is that limitation is taken away by the second proviso to sub-s. (3) of s. 34."
}
},
{
"from_name": null,
"id": "fafc3630171d4d95ac85b6121883fec5",
"to_name": null,
"type": null,
"value": {
"end": 13054,
"labels": [
"STA"
],
"start": 13001,
"text": "We would quote s. 34(3) and the second proviso to it."
}
},
{
"from_name": null,
"id": "0d7253b2b6cd4779bb394cd23da7a171",
"to_name": null,
"type": null,
"value": {
"end": 13945,
"labels": [
"STA"
],
"start": 13055,
"text": "They run thus: \"No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (]A) of this section shall be made after the expiry of four years from the end of the year in which the income profits or gains were first assessable: Provided further that nothing contained in this seetion limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 27 or to an assessment or re-assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B. section 66 or section 66A.\"The"
}
},
{
"from_name": null,
"id": "c13b3793d7164beebf629d71dbaec38d",
"to_name": null,
"type": null,
"value": {
"end": 13952,
"labels": [
"ANALYSIS"
],
"start": 13946,
"text": "second"
}
},
{
"from_name": null,
"id": "70ad78814b3e47419e9d321ce45a32c9",
"to_name": null,
"type": null,
"value": {
"end": 14145,
"labels": [
"ANALYSIS"
],
"start": 13953,
"text": "proviso to s. 34(3) could be pressed in aid by the Income-tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a nigher Income-tax authority."
}
},
{
"from_name": null,
"id": "34bc20ba6b2149ddac7e57e14adc905e",
"to_name": null,
"type": null,
"value": {
"end": 14698,
"labels": [
"ANALYSIS"
],
"start": 14145,
"text": "\nDealing with this matter the High Court has observed as follows in its judgment: \"Now, when there was a limitation of eight years under section 34(1)(a) the second proviso to Section 34(3) has to be resorted.\n Section 34(3) had to be resorted to by the Income-tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income-tax Authority."
}
},
{
"from_name": null,
"id": "ffa4d7e9bce64647b1d74e04b71d0010",
"to_name": null,
"type": null,
"value": {
"end": 14855,
"labels": [
"ANALYSIS"
],
"start": 14699,
"text": "But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out."
}
},
{
"from_name": null,
"id": "ddd53713445d4bd0adc54e4bcaae872d",
"to_name": null,
"type": null,
"value": {
"end": 15138,
"labels": [
"ANALYSIS"
],
"start": 14855,
"text": "\n Therefore, whether a notice is issued as a result of a direction contained in any order of an Income-tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1)."
}
},
{
"from_name": null,
"id": "635f5b697ded4d7cb50d6ebd0d95373a",
"to_name": null,
"type": null,
"value": {
"end": 15296,
"labels": [
"ANALYSIS"
],
"start": 15139,
"text": "Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient."
}
},
{
"from_name": null,
"id": "843495a26dae4eb5b09eab43549ae758",
"to_name": null,
"type": null,
"value": {
"end": 15526,
"labels": [
"ANALYSIS"
],
"start": 15297,
"text": "Before the amendment a notice could be issued after eight years in respect of any escaped income, whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income-tax Authority."
}
},
{
"from_name": null,
"id": "a874735cb4e141aaa5a933bfe8abd06a",
"to_name": null,
"type": null,
"value": {
"end": 15586,
"labels": [
"ANALYSIS"
],
"start": 15527,
"text": "Now a direction is not necessary for the issue of a notice."
}
},
{
"from_name": null,
"id": "3cc89100c3df44e7a7620347107c843d",
"to_name": null,
"type": null,
"value": {
"end": 15900,
"labels": [
"ANALYSIS"
],
"start": 15587,
"text": "But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income- tax Authority no notice can be issued against the assessee if the escaped income is less than a lakh of rupees."
}
},
{
"from_name": null,
"id": "14716f0178ce49d38bc195879950737d",
"to_name": null,
"type": null,
"value": {
"end": 16060,
"labels": [
"ANALYSIS"
],
"start": 15901,
"text": "Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amend- ment."
}
},
{
"from_name": null,
"id": "dbae6ada0dcc431db948e29c5612a440",
"to_name": null,
"type": null,
"value": {
"end": 16325,
"labels": [
"ANALYSIS"
],
"start": 16061,
"text": "The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income-tax Authority provided the Cen- tral Board of Revenue has applied its mind to"
}
},
{
"from_name": null,
"id": "b1946b2734ab466a85eeae004c6abfa2",
"to_name": null,
"type": null,
"value": {
"end": 16569,
"labels": [
"ANALYSIS"
],
"start": 16326,
"text": "It would appear that the view of the High Court was that the provisions of the second proviso to s. 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed."
}
},
{
"from_name": null,
"id": "b4da9c26df5d408e8b9cdf2c319dbd26",
"to_name": null,
"type": null,
"value": {
"end": 16731,
"labels": [
"ANALYSIS"
],
"start": 16570,
"text": "Apparently, the High Court has overlooked the fact that the second proviso to sub-s. (3) of s. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956."
}
},
{
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"id": "b01f583789584973978582aac8da724b",
"to_name": null,
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"value": {
"end": 17008,
"labels": [
"ANALYSIS"
],
"start": 16732,
"text": "As it stood prior to these amendments it read thus: \"Provided further that nothing contained in this subsection shall apply to a re-assessment made under section 27 or in pursuance of an order under section 31, section 33. section 33A, section 33B, section 66 or section 66A.\""
}
},
{
"from_name": null,
"id": "1f826c080e5f4c3f80d32c5364979ac4",
"to_name": null,
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"value": {
"end": 17210,
"labels": [
"ANALYSIS"
],
"start": 17008,
"text": "\nBy the amendment of 1953, for the words \"sub-section\", the words \"section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made\" were substituted."
}
},
{
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"id": "bbd9e4328246469ead86f79ce34492cd",
"to_name": null,
"type": null,
"value": {
"end": 17274,
"labels": [
"ANALYSIS"
],
"start": 17211,
"text": "By the amendment of 1956 it now stands as already quoted by us."
}
},
{
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"id": "035f533d237649e1afe8337687c7053f",
"to_name": null,
"type": null,
"value": {
"end": 17509,
"labels": [
"ANALYSIS"
],
"start": 17275,
"text": "If the proviso in its present form applies here it would govern the whole of s.\n34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to s. 34(1)."
}
},
{
"from_name": null,
"id": "0503d43f9b46414e8aacd46e8d2689d1",
"to_name": null,
"type": null,
"value": {
"end": 17679,
"labels": [
"ANALYSIS"
],
"start": 17510,
"text": "The result, in our opinion. would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956,We"
}
},
{
"from_name": null,
"id": "182594e4b10244f1ab90b6399342d533",
"to_name": null,
"type": null,
"value": {
"end": 17782,
"labels": [
"ANALYSIS"
],
"start": 17680,
"text": "may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956."
}
},
{
"from_name": null,
"id": "45ede19052974e698df8773b227209da",
"to_name": null,
"type": null,
"value": {
"end": 18175,
"labels": [
"ANALYSIS"
],
"start": 17782,
"text": "\nApart from the view expressed by the learned Judges as regards the effect of the changes made in s. 34(1) with the provisos we have set out earlier a view which we have held is not correct-they aid not further consider the proper construction to be placed on the second proviso to s. 34(3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided."
}
},
{
"from_name": null,
"id": "d6e95c3d2a2940899a173b21d7642a05",
"to_name": null,
"type": null,
"value": {
"end": 18467,
"labels": [
"RATIO"
],
"start": 18175,
"text": "\nAs we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention prac- tically only to the construction of proviso (iii) to s.\n34(1) which was decided in favolur of the respondents and did not permit them to argue the other points raised by them."
}
},
{
"from_name": null,
"id": "2d37c4d4748642468a5f96b2c18ad441",
"to_name": null,
"type": null,
"value": {
"end": 18649,
"labels": [
"RATIO"
],
"start": 18468,
"text": "We do not propose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument."
}
},
{
"from_name": null,
"id": "de8f3f19821049949b2d9236ed4ab833",
"to_name": null,
"type": null,
"value": {
"end": 18728,
"labels": [
"RATIO"
],
"start": 18649,
"text": "\nFor the reasons stated above, the decision of the High Court is clearly wrong."
}
},
{
"from_name": null,
"id": "2bad12307e7e46e09560ea892a1a1157",
"to_name": null,
"type": null,
"value": {
"end": 18951,
"labels": [
"RPC"
],
"start": 18729,
"text": "We, therefore, allow the appeal, set aside the order of the High Court and remit the matter to it for the consideration of the other points which were raised before it by the respondents but upon which they were not heard."
}
},
{
"from_name": null,
"id": "9bccee6e6a6f4c678b787adf29499d7e",
"to_name": null,
"type": null,
"value": {
"end": 19048,
"labels": [
"RPC"
],
"start": 18952,
"text": "As regards costs we think that they should abide the result of the appeal before the High Court."
}
},
{
"from_name": null,
"id": "e6f153877b8c4750b6ea453ded02146e",
"to_name": null,
"type": null,
"value": {
"end": 19082,
"labels": [
"RPC"
],
"start": 19048,
"text": "\nAppeal allowed and cave remanded."
}
}
]
}
] | 4,195 | {
"text": "PETITIONER:\nK. C. THOMAS, FIRST INCOME-TAX OFFICER, BOMBAY\n\n Vs.\n\nRESPONDENT:\nVASANT HIRALAL SHAH & ORS.\n\nDATE OF JUDGMENT:\n29/01/1964\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nSINHA, BHUVNESHWAR P.(CJ)\nSUBBARAO, K.\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n\n1964 AIR 1034 1964 SCR (6) 437\n (20)\nCITATOR INFO :\n\nR 1965 SC 342\n\nACT:\nIncome Tax-Escaped income-Notice issued for assessment after\nexpiry of 8 years-If sanction required-Indian Income-tax\nAct, 1922 (11 of 1922). ss. 34(i), 34(ii), 34(3) proviso. as\namended by Act XXV of 1953 and Act XVII of 1956.\n\nHEADNOTE:\n\nThe appellant had issued notice to the respondents under s.\n\n34(1)( of the Income Tax Act, 1922 in respect of an escaped\n\nincome of Rs. 47,595 for the assessment year 1944-45. The\n\ncase of the respondents was that the impugned notice was bad\n\nbecause the Income-Tax Officer proceeded against the\n\nrespondents without obtaining the necessary sanction of the\n\nCentral Board of Revenue as required by cl. (iii) of the\n\nproviso to s. 34(1) of the Act. The respondents filed a\n\nwrit petition in the High Court challenging the notice\n\nissued under s. 34(1) of the Art. The respondents succeeded\n\nbefore the High Court.\n\nHeld: (i) The sanction under cl. (iii) of the proviso to\n\ns. 34(1) is, however, necessary only where the notice in\n\nquestion is issued under cl. (ii) of the proviso. That is\n\nevidently what the legislature meant when it said \"in any\n\ncase failing under cl. (ii)\". The words \"in any case\" used\n\nin cl. (iii) only mean a case in which notice can be issued\n\nunder cl. (ii). Such a notice can be issued only when the\n\nescaped income is of one lakh of rupees and over. Clause\n\n(iii) requires such sanction where the notice is issued\n\nunder cl. (ii) and when on a construction of cl. (ii), no\n\nnotice can be issued with respect to a class of escaped\n\nassessments, there can possibly be no requirement of the\n\nsanction of the Central Board of Revenue. If a notice is\n\nissued by virtue of some other provision sub as the second\n\nproviso to sub-s. (3) of s. 34, it would be a notice \"in any\n\nother case\" referred to in cl. (iii) of the proviso to sub-\n\ns. (1) of s. 34 and in such a case the sanction which is\n\nrequired is only that of the Commissioner. Such a sanction\n\n\nwas obtained in this case and therefore, the notice cannot\nbe said to be bad because the sanction of the Central Board\nof Revenue had not been obtained.\nIn the present case the income which has escaped assessment\nis below one lakh of rupees and more than eight years have\nelapsed since the assessment year in respect of which the\nincome is alleged to have escaped assessment. Clearly,\ntherefore, no notice could issue under cl. (ii).\n(ii) The High Court erred in holding that the provisions of\nthe second proviso to s. 34(3) would not apply to a case\nwhere the escaped assessment is of an amount less than a\nlakh of rupees and more than eight years have elapsed.\nApparently, the High Court has overlooked the fact that the\nsecond proviso to sub-s. (3) of s. 34 was amended first by\nAct 25 of 1953 and then by Act. 18 of 1956. The amendment\nof 1956 would govern the whole of s. 34(1) and would\nconsequently include even an escaped assessment with respect\nto which limitation is provided in cl. (ii) of the first\nproviso to s. 34(1). The result would be the same even if\nthe case fell to be governed by the Amending Act of 1953,\nthough not by that of the Amending Act of 1956.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 688 of 1962.\nAppeal by special leave from the judgment and order dated April 1, 1958 of the Bombay High Court in Misc. Application No. 202 of 1957.\nN. D. Karkhanis and R. N. Sachthey, for the appellant.\nI. N. Shroff for the respondents.\nJanuary 29, 1964. The Judgment of the Court was delivered by MUDHOLKAR J.-This is an appeal by special leave against the judgment of the Bombay High Court in a writ petition challenging the notice issued under s. 34(1) of the Indian Income-tax Act, 1922 by the First Income-tax Officer,Bombay, who is the appellant before us. In the writ petition various grounds were urged by the respondent in support of the convention that the notice was bad in law.\nThe High Court, however, dealt with only one of those contentions, accepted it, and did not permit the respon- dents' counsel Mr. Mehta to put forward the other conten- tions urged in the writ petition by the respondents.\nThe appellant had issued notice to the respondents under s.\n34(1)(a) of the Income-tax Act in respect of an escaped income of Rs. 47,595 for the assessment year 1944-45. This notice was issued by him on March 27, 1957. On behalf of the respondents, it is contended that the notice was bad because, though it was in respect of an amount of less than Rs. 1 lakh it was issued after the expiry of the assessment year and that the sanction of the Central Board of Revenue for issuing that notice had not been obtained by the Income- tax Officer as required by cl. (iii) of the proviso to s.\n34(1) of the Act. It is not disputed before us that the case falls under s. 34(1)(a). That provision reads thus: \"(1) If-- (a) the Income-tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under- assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depre- ciation allowance has been computed, or....\n he may in cases falling under clause (a) at any time . . . . . . serve on the assessee a notice containing all or any of the require- ments which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or re-assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection:\"\n We have quoted only the relevant portion. Then follows the first proviso which runs thus: \" provided that the Income-tax Officer shall not issue, a notice under clause (a) of sub-section (1) (i) for any year prior to the year ending on the 31st day of March 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment or have been underassessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending be- fore the 31st day of March 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice:\"\n It will thus be seen that where the Income-tax Officer has reason to believe that due to any act of the assessee a full and accurate declaration was not made by the assessee for any year, with the result that part of his income has escap- ed assessment for that year, the Income-tax Officer may issue a notice under cl.(a) at any time.\n The respondents' contention before the High Court was that the notice was bad because it had not complied with the two conditions laid down in the proviso to s. 34(1). Adverting to this contention the High Court has observed thus: \"Before the amendment of this section which was in force on the 27th March, 1957 the period of limitation of eight years was provided with regard to the issue of notices under Section 34(1) (a) and a period of four years for cases falling under Section 34(1)(b) By the amendment the period of limitation was removed and the Legislature provided that if the case fell under Section 34(1) (a) a notice can be served at any time. But while removing any bar of limitation, the Legislature provided some safeguards for the assessee and these safeguards were three in number and they were set out in the proviso. The first safeguard was that a notice shall not be issued for any year prior to the year ending on the 31st day of March 1941; the second safeguard was that if eight years had elapsed then the notice should not be issued for an escaped income which aggregated to less than one lakh of rupees; and the third safeguard was that the Central Board of Revenue had to be satisfied on reasons to be recorded that this was a fit case for the issue of a notice, which was for a period beyond eight years.\n Now, admittedly, this notice is for an amount which is less than a lakh of rupees and admittedly the Central Board of Revenue has not considered this matter at all. Therefore, there does not seem to be any answer to the contention put forward by the petitioner.\"\nThe High Court is right in saying that a notice cannot be issued where the income which has escaped assessment is less than a lakh of rupees and where more than eight years have elapsed from the assessment year. To this, however,there is one exception and that is where the matter would fall to be governed by the second proviso to s. 34(3). To this aspect we will, however, come little later. But before that what we must consider is the view of the High Court that the sanction of the Central Board of Revenue was also necessary. Under cl. (iii) of the proviso to s. 34(1) a notice can issue only if the Central Board of Revenue is satisfied with the reasons recorded by the Income-tax Officer for issuing a notice. For convenience we are describing this process as sanction of the Central Board of Revenue. The sanction under this clause is, however, necessary only where the notice in question is issued under cl. (ii) of the proviso. That is evidently what the Legislature meant when it says \"in any case falling under clause (ii)\". For, cl. (ii) has to be read with the opening words of the proviso: \"Provided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1)\". So read it will be clear that the words \"in any case\"\nused in cl. (iii) only mean a case in which notice can be issued under cl. (ii). Such a notice can be issued only when the escaped income is of one lakh of rupees and over.\nIt was, however, contended by Mr. Shroff that cl. (ii) of the proviso dealt not only with the escaped assessment of one lakh of rupees and over but also with assessments which were less than one lakh of rupees and that, therefore, even in the present case the sanction of the Central Board of Revenue was required. By excluding action with respect to escaped assessment of less than one lakh of rupees, cl. (ii) can, in, one sense, be regarded as dealing with escaped assessments of this kind. But it would be wrong to say that because of this, cl. (iii) requires the obtaining of the sanction of the Central Board of Revenue for a notice to be issued with respect to it. As already pointed out, cl.\n(iii) requires such sanction where the notice is issued under cl. (ii) and when on a construction of cl. (ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue. If a notice is issued by virtue of some other provision such as the second proviso to sub-s. (3) of s. 34, it would be a notice \"in any other case\" referred to in cl. (iii) of the proviso to sub- s. (1) of s. 34 and in such a case the sanction which isrequired is only that of the Commissioner. Such a sanction was obtained in this case and, therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue has not been obtained. Now, we will come to the other aspect of the matter.\nLimitation is no doubt placed upon the power of the Income- tax Officer by cl. (ii) of the first proviso which says that if eight years have elapsed after the expiry of that year no such notice can issue unless the income which has escaped assessment is likely to amount to one lakh of rupees or more. Here admittedly the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment.\nClearly, therefore no notice could issue under cl. (ii).\nThe answer given by the Income-tax Officer, however, is that limitation is taken away by the second proviso to sub-s. (3) of s. 34. We would quote s. 34(3) and the second proviso to it. They run thus: \"No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (]A) of this section shall be made after the expiry of four years from the end of the year in which the income profits or gains were first assessable: Provided further that nothing contained in this seetion limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 27 or to an assessment or re-assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B. section 66 or section 66A.\"The second proviso to s. 34(3) could be pressed in aid by the Income-tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a nigher Income-tax authority.\nDealing with this matter the High Court has observed as follows in its judgment: \"Now, when there was a limitation of eight years under section 34(1)(a) the second proviso to Section 34(3) has to be resorted.\n Section 34(3) had to be resorted to by the Income-tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income-tax Authority. But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out.\n Therefore, whether a notice is issued as a result of a direction contained in any order of an Income-tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1). Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient. Before the amendment a notice could be issued after eight years in respect of any escaped income, whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income-tax Authority. Now a direction is not necessary for the issue of a notice. But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income- tax Authority no notice can be issued against the assessee if the escaped income is less than a lakh of rupees. Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amend- ment. The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income-tax Authority provided the Cen- tral Board of Revenue has applied its mind to It would appear that the view of the High Court was that the provisions of the second proviso to s. 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub-s. (3) of s. 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956. As it stood prior to these amendments it read thus: \"Provided further that nothing contained in this subsection shall apply to a re-assessment made under section 27 or in pursuance of an order under section 31, section 33. section 33A, section 33B, section 66 or section 66A.\"\nBy the amendment of 1953, for the words \"sub-section\", the words \"section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made\" were substituted. By the amendment of 1956 it now stands as already quoted by us. If the proviso in its present form applies here it would govern the whole of s.\n34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to s. 34(1). The result, in our opinion. would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956,We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.\nApart from the view expressed by the learned Judges as regards the effect of the changes made in s. 34(1) with the provisos we have set out earlier a view which we have held is not correct-they aid not further consider the proper construction to be placed on the second proviso to s. 34(3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.\nAs we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention prac- tically only to the construction of proviso (iii) to s.\n34(1) which was decided in favolur of the respondents and did not permit them to argue the other points raised by them. We do not propose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.\nFor the reasons stated above, the decision of the High Court is clearly wrong. We, therefore, allow the appeal, set aside the order of the High Court and remit the matter to it for the consideration of the other points which were raised before it by the respondents but upon which they were not heard. As regards costs we think that they should abide the result of the appeal before the High Court.\nAppeal allowed and cave remanded.\n"
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"labels": [
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],
"start": 910,
"text": "Appellant"
}
},
{
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"id": "713776186d6448f69d8c41f5372ea4a6",
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"value": {
"end": 951,
"labels": [
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],
"start": 943,
"text": "Through:"
}
},
{
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"id": "d77c3699e32b41618fb6dff3f4cedfc7",
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"value": {
"end": 986,
"labels": [
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],
"start": 952,
"text": "Mr. Rahul Kaushik, Senior Standing"
}
},
{
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"id": "712e7a549ed44aba8e3cb1acab87696f",
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"value": {
"end": 1126,
"labels": [
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],
"start": 1019,
"text": "Counsel\n\n versus\n\n ROLLS ROYCE INDUSTRIAL POWER INDIA LTD...."
}
},
{
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"id": "a16ae2be9b3e4abb81fe6e189520f82c",
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"value": {
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"labels": [
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],
"start": 1127,
"text": "Respondent"
}
},
{
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"id": "21055dab39554e96a28860c59ea72b3d",
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"value": {
"end": 1168,
"labels": [
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],
"start": 1160,
"text": "Through:"
}
},
{
"from_name": null,
"id": "7377fbc8a2854cad95ba33c845a53feb",
"to_name": null,
"type": null,
"value": {
"end": 1200,
"labels": [
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],
"start": 1169,
"text": "Mr. M.S. Syali, Senior Advocate"
}
},
{
"from_name": null,
"id": "f7812e1230ba4f09ae0e108c351229a9",
"to_name": null,
"type": null,
"value": {
"end": 1254,
"labels": [
"PREAMBLE"
],
"start": 1232,
"text": "with Mr. Satyen Sethi,"
}
},
{
"from_name": null,
"id": "0852c8ce3342427d8fa50c5e5c9d9054",
"to_name": null,
"type": null,
"value": {
"end": 1325,
"labels": [
"PREAMBLE"
],
"start": 1255,
"text": "Mr. Mayank\n Negi & Mr. Arth Taran Panda,"
}
},
{
"from_name": null,
"id": "a652294874cb4409bace156d1fb79346",
"to_name": null,
"type": null,
"value": {
"end": 1366,
"labels": [
"PREAMBLE"
],
"start": 1325,
"text": "\n Advocates"
}
},
{
"from_name": null,
"id": "bfae8956935a44dca6b5aa64178a240b",
"to_name": null,
"type": null,
"value": {
"end": 1505,
"labels": [
"PREAMBLE"
],
"start": 1416,
"text": "AND\n\n\n\n\n\n+ ITA 1063/2011\n DIRECTOR OF INCOME"
}
},
{
"from_name": null,
"id": "c29d6fe5ae49466386e3e76c2b48a693",
"to_name": null,
"type": null,
"value": {
"end": 2158,
"labels": [
"PREAMBLE"
],
"start": 1506,
"text": "TAX INTERNATIONAL TAXATION-II\n ..... Appellant\n Through: Mr. Rahul Kaushik, Senior Standing\n Counsel\n versus\n\n ROLLS ROYCE INDUSTRIAL POWER INDIA LTD.... Respondent\n Through: Mr. M.S. Syali, Senior Advocate\n with Mr. Satyen Sethi, Mr. Mayank\n Negi & Mr. Arth Taran Panda,\n Advocates\n\n CORAM: JUSTICE S.MURALIDHAR\n JUSTICE CHANDER SHEKHAR\n\n ORDER"
}
},
{
"from_name": null,
"id": "cef0faa99b1d4c7d99323270e7a5afc6",
"to_name": null,
"type": null,
"value": {
"end": 2208,
"labels": [
"NONE"
],
"start": 2158,
"text": "\n % 18.05.2017"
}
},
{
"from_name": null,
"id": "92fea3197e104fd9bb61cd2cd0c725b2",
"to_name": null,
"type": null,
"value": {
"end": 2234,
"labels": [
"NONE"
],
"start": 2209,
"text": "Dr. S. Muralidhar, J.: 1."
}
},
{
"from_name": null,
"id": "c679705a3718481e939605f68e0e4e59",
"to_name": null,
"type": null,
"value": {
"end": 2549,
"labels": [
"FAC"
],
"start": 2235,
"text": "These are three appeals by the Revenue under Section 260A of the Income Tax Act, 1961 („Act‟) against the common order dated 5th October, 2010 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA Nos.\n1410, 1411 and 1413/Del/2007 relating to Assessment Years („AYs‟) 1998- 1999, 1999-2000 and 2001-2002.\n 2."
}
},
{
"from_name": null,
"id": "3887f889fdca4a218a0c86ae9de934d1",
"to_name": null,
"type": null,
"value": {
"end": 2753,
"labels": [
"FAC"
],
"start": 2550,
"text": "It must be mentioned at the outset that at the time of admission of these appeals, on 23rd March, 2012, there were 7, 4 and 6 questions of law framed in ITA Nos. 1058, 1061 and 1063 of 2011 respectively."
}
},
{
"from_name": null,
"id": "548de21567b844c288a03fbead9ba0a1",
"to_name": null,
"type": null,
"value": {
"end": 3011,
"labels": [
"FAC"
],
"start": 2754,
"text": "In each of the said appeals, the first question framed reads as under: “(1) Whether on the facts and circumstances of the case, ITAT was right in law in holding that assumption of jurisdiction under section 148 of the Income tax Act, 1961 was not valid?” 3."
}
},
{
"from_name": null,
"id": "4267bc4e16894379b447b9855ef1207c",
"to_name": null,
"type": null,
"value": {
"end": 3270,
"labels": [
"FAC"
],
"start": 3012,
"text": "The other questions pertain inter alia to the treatment of payments received by the Assessee from the operation and maintenance of power plant projects i.e. whether these receipts were taxable either as business income or as fee for technical services (FTS)."
}
},
{
"from_name": null,
"id": "1f56156f044d4a6fa5a9e357621cabdc",
"to_name": null,
"type": null,
"value": {
"end": 3454,
"labels": [
"ISSUE"
],
"start": 3271,
"text": "In these three appeals, however, the Court proposes to confine its examination to the first question viz., the validity of the assumption of jurisdiction under Section 148 of the Act."
}
},
{
"from_name": null,
"id": "808e327dddbb4d1eb4858a3caed67735",
"to_name": null,
"type": null,
"value": {
"end": 3620,
"labels": [
"ANALYSIS"
],
"start": 3456,
"text": "4. Having heard learned counsel for the parties, the Court is satisfied that the said question has, for reasons to follow, to be answered in favour of the Assessee."
}
},
{
"from_name": null,
"id": "479389600e9244f9901e74a984c45ec9",
"to_name": null,
"type": null,
"value": {
"end": 3822,
"labels": [
"ANALYSIS"
],
"start": 3621,
"text": "Resultantly all consequential assessment orders are rendered invalid thus obviating the need to examine the other questions that pertain to the additions made under the consequential assessment orders."
}
},
{
"from_name": null,
"id": "98b43ea049c64c0dbf04cbbe3ef20342",
"to_name": null,
"type": null,
"value": {
"end": 4051,
"labels": [
"ANALYSIS"
],
"start": 3823,
"text": "The Court however clarifies that the other questions framed in these appeals, and which arise in certain other connected appeals of the Revenue against the Assessee for other AYs are left open to be decided in the other appeals."
}
},
{
"from_name": null,
"id": "04130a8e131245d1a6505d09c8e6990f",
"to_name": null,
"type": null,
"value": {
"end": 4322,
"labels": [
"FAC"
],
"start": 4051,
"text": "\n 5. The Assessee, a company incorporated under the laws of the United Kingdom (U.K.), during the AYs in question, was engaged, inter alia, in the business of erection, commissioning, supervision, operation and maintenance of power plants."
}
},
{
"from_name": null,
"id": "a6c073c86fae471c84e232d83cadc7a9",
"to_name": null,
"type": null,
"value": {
"end": 4441,
"labels": [
"FAC"
],
"start": 4323,
"text": "The business activities in India were carried out by the Assessee through various projects, offices, located in India."
}
},
{
"from_name": null,
"id": "757a4aa91a444b1eb03d1e44d26f1bb2",
"to_name": null,
"type": null,
"value": {
"end": 4626,
"labels": [
"FAC"
],
"start": 4441,
"text": "\nThese, according to the Revenue constituted the Assessee's permanent establishment in India under Article 5 of the Double Taxation Avoidance Agreement (DTAA) between India and U.K.\n 6."
}
},
{
"from_name": null,
"id": "9de49a2fd0aa4bc7877386e167df3d08",
"to_name": null,
"type": null,
"value": {
"end": 4877,
"labels": [
"FAC"
],
"start": 4627,
"text": "The Assessee's returns for the three AYs in question i.e., AYs 1998-99, 1999-2000 and 2001-2002 were picked up for scrutiny and the assessments were completed by the Assessing Officer (AO) by passing assessment orders under Section 143(3) of the Act."
}
},
{
"from_name": null,
"id": "ab448164baa04811bcc8598498efb30d",
"to_name": null,
"type": null,
"value": {
"end": 5019,
"labels": [
"FAC"
],
"start": 4878,
"text": "Placed before the Court are copies of the questionnaires issued by the AO for the relevant AYs and the replies thereto filed by the Assessee."
}
},
{
"from_name": null,
"id": "d2012b3effea430c829a267fa67c6b19",
"to_name": null,
"type": null,
"value": {
"end": 5127,
"labels": [
"FAC"
],
"start": 5020,
"text": "These questionnaires refer to the nature of the transactions and the payments received in relation thereto."
}
},
{
"from_name": null,
"id": "721bea56f21f468ab460abbc7ef369e7",
"to_name": null,
"type": null,
"value": {
"end": 5336,
"labels": [
"FAC"
],
"start": 5127,
"text": "\n 7. For the Financial Year 2004-2005 , the Assessee filed applications dated 25th June, 2004 and 27th May, 2004 under Section 195(3) of the Act for issuance of nil deduction of Tax Deducted at Source („TDS‟)."
}
},
{
"from_name": null,
"id": "7f25da0289e144158c802f55cb736a9c",
"to_name": null,
"type": null,
"value": {
"end": 5485,
"labels": [
"FAC"
],
"start": 5337,
"text": "The Assistant Director of Income-Tax („ADIT‟) Circle-II (1), International Transactions, by an order dated 20th July, 2004 declined the application."
}
},
{
"from_name": null,
"id": "a8c864b29e5c4a09aff632a9b7c796cb",
"to_name": null,
"type": null,
"value": {
"end": 5671,
"labels": [
"FAC"
],
"start": 5486,
"text": "He, inter alia, proposed to initiate reassessment/revision proceedings under Sections 147/263 in respect of the earlier orders to bring the correct income to tax in accordance with law."
}
},
{
"from_name": null,
"id": "fc798af3dfe440d68de3bbb3f74543b1",
"to_name": null,
"type": null,
"value": {
"end": 5989,
"labels": [
"FAC"
],
"start": 5672,
"text": "The plea taken in this order was that payments received by the Assesse, pursuant to the Operations and Maintenance (O&M) Agreements should be treated as fees for technical services („FTS‟) within the meaning of Explanation 2 to Section 9(1)(vii) of the Act and Article 13(4) (c) of the DTAA between India and U.K.\n 8."
}
},
{
"from_name": null,
"id": "4cf0081c00b1412da9a9fa65e0c1836a",
"to_name": null,
"type": null,
"value": {
"end": 6110,
"labels": [
"FAC"
],
"start": 5990,
"text": "Aggrieved by the above order, the Petitioner applied to the Director of Income Tax („DIT‟) under Section 264 of the Act."
}
},
{
"from_name": null,
"id": "6506e455e3584c30a09625fdf83e72b3",
"to_name": null,
"type": null,
"value": {
"end": 6343,
"labels": [
"FAC"
],
"start": 6111,
"text": "By an order dated 20th December, 2004, the DIT set aside the order of the ADIT, holding that the “Assesse here is neither making available technical knowledge, experience nor is developing and transferring technical plan or design.”"
}
},
{
"from_name": null,
"id": "1bbb69631afb4612af015d1115c151c3",
"to_name": null,
"type": null,
"value": {
"end": 6513,
"labels": [
"FAC"
],
"start": 6344,
"text": "He concluded that the services rendered under the O&M Agreements \"cannot be considered as ancillary or subsidiary to the enjoyment of any right prescribed as „royalty‟.\""
}
},
{
"from_name": null,
"id": "5acaf5b3e0014276bcfbf6ec0619065b",
"to_name": null,
"type": null,
"value": {
"end": 6649,
"labels": [
"FAC"
],
"start": 6514,
"text": "Further, “under Article 13 therefore the fee for technical services does not fit into the nature of receipt the assessee is having.” 9."
}
},
{
"from_name": null,
"id": "50fc9b02807547ffb71096bd23b7b3d1",
"to_name": null,
"type": null,
"value": {
"end": 6842,
"labels": [
"FAC"
],
"start": 6650,
"text": "Notwithstanding the above orders, the AO proceeded to reopen the assessments under Section 147 read with 148 of the Act for the three AYs in question, i.e., 1998-1999, 1999-2000 and 2001-2002."
}
},
{
"from_name": null,
"id": "ddbfee5700724f4193bf5850235cac9e",
"to_name": null,
"type": null,
"value": {
"end": 6905,
"labels": [
"FAC"
],
"start": 6843,
"text": "The reasons therefor were issued by the AO on 28th March 2005."
}
},
{
"from_name": null,
"id": "2e5a1f9bc7c24844b6ec6836f9ccbd2a",
"to_name": null,
"type": null,
"value": {
"end": 7112,
"labels": [
"FAC"
],
"start": 6906,
"text": "It was noted inter alia by him therein that in the original assessment orders under Section 143(3) of the Act “no opinion with regard to taxation of these technical services has been formed by the then AO.”"
}
},
{
"from_name": null,
"id": "d97eb77f3f544726bc4d102a32614e42",
"to_name": null,
"type": null,
"value": {
"end": 7271,
"labels": [
"FAC"
],
"start": 7113,
"text": "It was further stated that “the facts relating to the nature of income being fees for technical services have never been brought to the notice of the AO.” 10."
}
},
{
"from_name": null,
"id": "8960a685125c4dd198e8090b9514327d",
"to_name": null,
"type": null,
"value": {
"end": 7382,
"labels": [
"FAC"
],
"start": 7272,
"text": "The Assessee objected to the reopening inter alia on the ground that it was based on mere „change of opinion‟."
}
},
{
"from_name": null,
"id": "4a8e6ce9e6204d08885003ff8371ab06",
"to_name": null,
"type": null,
"value": {
"end": 7455,
"labels": [
"FAC"
],
"start": 7383,
"text": "Its objections were rejected by an order dated 9th September, 2005.\n 11."
}
},
{
"from_name": null,
"id": "059d382032594d3e876dfe07d1178a77",
"to_name": null,
"type": null,
"value": {
"end": 7521,
"labels": [
"FAC"
],
"start": 7456,
"text": "The reassessments were completed by treating the payments as FTS."
}
},
{
"from_name": null,
"id": "e6acb9b4db234285bd059be537a8bb5d",
"to_name": null,
"type": null,
"value": {
"end": 7630,
"labels": [
"FAC"
],
"start": 7522,
"text": "The Assessee then carried the matter by way of appeals to the Commissioner of Income Tax (Appeals) [CIT(A)]."
}
},
{
"from_name": null,
"id": "42dd869d38fc43318da03924f6056456",
"to_name": null,
"type": null,
"value": {
"end": 8147,
"labels": [
"FAC"
],
"start": 7631,
"text": "By a common order dated 29th December, 2006 passed in the appeals pertaining to the three AYs in question, the CIT(A), relying on the decision of the Division Bench („DB‟) of this Court in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax, [2006] 281 ITR 394(Del), came to the conclusion that since the original assessment orders were silent on the aspect of treating the payments received by the Assessee as FTS, the jurisdictional pre-condition for attracting Section 147 stood fulfilled."
}
},
{
"from_name": null,
"id": "65be7d6ef5794ac3a6c095114b8e32a2",
"to_name": null,
"type": null,
"value": {
"end": 8217,
"labels": [
"FAC"
],
"start": 8149,
"text": "12. Aggrieved by the above order, the Assessee went before the ITAT."
}
},
{
"from_name": null,
"id": "c3421783af8c4943bfa19c44a5d23e9c",
"to_name": null,
"type": null,
"value": {
"end": 8436,
"labels": [
"FAC"
],
"start": 8218,
"text": "In the impugned order, the ITAT noted that while for AYs 1998-1999 and 1999-2000 the notices under Section 148 of the Act were issued after four years, the notice for the AY 2001-2002 had been issued within four years."
}
},
{
"from_name": null,
"id": "846805cbe2c84fdf827748ede383e344",
"to_name": null,
"type": null,
"value": {
"end": 8568,
"labels": [
"ANALYSIS"
],
"start": 8437,
"text": "The ITAT referred to the decision of the Full Bench („FB‟) of this Court in CIT v. Kelvinator of India Ltd. (2002) 256 ITR 1 (Del)."
}
},
{
"from_name": null,
"id": "4d825d43fb3e4bf5b3f4532094aa07ad",
"to_name": null,
"type": null,
"value": {
"end": 8962,
"labels": [
"ANALYSIS"
],
"start": 8569,
"text": "It also noted the decision of this Court in CIT vs. Eicher Ltd. (2007) 294 ITR 310(Del) where it was held that if the entire material had been placed by the Assessee before the AO at the time when the original assessment was made and the AO had applied his mind to material and accepted the view of the Assessee, then the assessment cannot be reopened merely on the basis of change of opinion."
}
},
{
"from_name": null,
"id": "663d040e61064378bacd402148eb7ab0",
"to_name": null,
"type": null,
"value": {
"end": 9152,
"labels": [
"ANALYSIS"
],
"start": 8962,
"text": "\n 13. The ITAT examined the assessment orders, queries raised by the AO and the other material on record and concluded that the Assessee had duly disclosed the very nature of its activities."
}
},
{
"from_name": null,
"id": "b232fbfd2abd4836815893b8308611aa",
"to_name": null,
"type": null,
"value": {
"end": 9392,
"labels": [
"ANALYSIS"
],
"start": 9153,
"text": "As regards the observation of the AO that the Assessee should have filed the accounts of each project individually, instead of filing the consolidated statement of accounts, the ITAT noted that the Assesse had been filing audited accounts."
}
},
{
"from_name": null,
"id": "3f61073746194ee3928f02d88251907c",
"to_name": null,
"type": null,
"value": {
"end": 9492,
"labels": [
"ANALYSIS"
],
"start": 9393,
"text": "It opined that “it was the duty of the AO to have examined this aspect in the scrutiny assessment.”"
}
},
{
"from_name": null,
"id": "32a5a0234b6e429e9b42312d65095de8",
"to_name": null,
"type": null,
"value": {
"end": 9615,
"labels": [
"ANALYSIS"
],
"start": 9493,
"text": "Further, the AO had called for information in that regard and the Assessee had submitted an explanation on its activities."
}
},
{
"from_name": null,
"id": "41b99339c0da41b7a4bbff86d3e3fa89",
"to_name": null,
"type": null,
"value": {
"end": 9720,
"labels": [
"ANALYSIS"
],
"start": 9616,
"text": "The ITAT, therefore, held that it was \"a different perception of the new incumbent on the same details.\""
}
},
{
"from_name": null,
"id": "ca0e07b4039746d2bcfd137f9d4963e2",
"to_name": null,
"type": null,
"value": {
"end": 9815,
"labels": [
"ANALYSIS"
],
"start": 9721,
"text": "Thus, the assessment has been reopened by the AO \"only on the basis of the change of opinion\"."
}
},
{
"from_name": null,
"id": "1175181924444f0bb1c057c00297f98f",
"to_name": null,
"type": null,
"value": {
"end": 9973,
"labels": [
"ANALYSIS"
],
"start": 9816,
"text": "Further, the ITAT noted that for the AYs 1998-1999 and 1999-2000, the AO was unable to point out which material facts had not been disclosed by the Assessee."
}
},
{
"from_name": null,
"id": "108271b1c3be461c81e1d3e319c6d1a0",
"to_name": null,
"type": null,
"value": {
"end": 10048,
"labels": [
"ANALYSIS"
],
"start": 9974,
"text": "The Assessee‟s appeals were allowed and the reassessment orders set aside."
}
},
{
"from_name": null,
"id": "c269def9b8f2499081b7326cc35b9f34",
"to_name": null,
"type": null,
"value": {
"end": 10226,
"labels": [
"ANALYSIS"
],
"start": 10048,
"text": "\n 14. This Court has heard the submissions of both Mr. Rahul Kaushik, learned Senior Standing Counsel for the Revenue and Mr. M.S. Syali, learned Senior Counsel for the Assessee."
}
},
{
"from_name": null,
"id": "6e37e322944242b8a4b9ef8ebd883b68",
"to_name": null,
"type": null,
"value": {
"end": 10382,
"labels": [
"ANALYSIS"
],
"start": 10227,
"text": "The Court has also perused the notices/questionnaires issued by the AO in the course of the assessment proceedings and the replies thereto by the Assessee."
}
},
{
"from_name": null,
"id": "b88770a68db248abb516d66ace84465f",
"to_name": null,
"type": null,
"value": {
"end": 10533,
"labels": [
"ANALYSIS"
],
"start": 10383,
"text": "The Court has also perused the original assessment orders passed under Section 143(3) of the Act and the reasons for the reopening of the assessments."
}
},
{
"from_name": null,
"id": "bde0bba4293a4df9aef8ee22cf77352e",
"to_name": null,
"type": null,
"value": {
"end": 10795,
"labels": [
"ANALYSIS"
],
"start": 10533,
"text": "\n 15. The main plank of the submission of the Revenue before the CIT(A), which has been adverted to by the ITAT in the impugned order, is the decision of the DB of this Court in Consolidated Photo and Finvest Ltd. v.\nAssistant Commissioner of Income-Tax (supra)."
}
},
{
"from_name": null,
"id": "46605902b90b405595d6bc275b5b67a1",
"to_name": null,
"type": null,
"value": {
"end": 10869,
"labels": [
"ANALYSIS"
],
"start": 10796,
"text": "In particular, reliance is placed on the following observations: “19....."
}
},
{
"from_name": null,
"id": "070bea6733fc49de82f0c1b14e732093",
"to_name": null,
"type": null,
"value": {
"end": 10985,
"labels": [
"ANALYSIS"
],
"start": 10869,
"text": "The argument that the proposed reopening of assessment was based only upon a change of opinion has not impressed us."
}
},
{
"from_name": null,
"id": "fe950a37b5a4453a9b2ff1dfeb4f4998",
"to_name": null,
"type": null,
"value": {
"end": 11149,
"labels": [
"ANALYSIS"
],
"start": 10986,
"text": "The assessment order did not admittedly address itself to the question which the assessing officer proposes to examine in the course of re- assessment proceedings."
}
},
{
"from_name": null,
"id": "5223fd52b1a148f888623bdb84257ccf",
"to_name": null,
"type": null,
"value": {
"end": 11480,
"labels": [
"ANALYSIS"
],
"start": 11150,
"text": "The submission of Mr. Vohra that even when the order of assessment did not record any explicit opinion on the aspects now sought to be examined, it must be presumed that those aspects were present to the mind of the assessing officer and had been held in favour of the assessee is too farfetched a proposition to merit acceptance."
}
},
{
"from_name": null,
"id": "e92e7054272849dda59cca1337a7ee4c",
"to_name": null,
"type": null,
"value": {
"end": 11767,
"labels": [
"ANALYSIS"
],
"start": 11481,
"text": "There may indeed be a presumption that the assessment proceedings have been regularly conducted, but there can be no presumption that even when the order of assessment is silent, all possible angles and aspects of a controversy had been examined and determined by the assessing officer."
}
},
{
"from_name": null,
"id": "a74cab4d462d457aafd45f1c80bf7c1a",
"to_name": null,
"type": null,
"value": {
"end": 11897,
"labels": [
"ANALYSIS"
],
"start": 11768,
"text": "It is trite that a matter in issue can be validly determined only upon application of mind by the authority determining the same."
}
},
{
"from_name": null,
"id": "876fd984cb5b4be7b2c32c95bd12d4ba",
"to_name": null,
"type": null,
"value": {
"end": 12052,
"labels": [
"ANALYSIS"
],
"start": 11898,
"text": "Application of mind is, in turn, best demonstrated by disclosure of mind, which is best done by giving reasons for the view which the authority is taking."
}
},
{
"from_name": null,
"id": "089789eb2a644f76bc202953bd371a86",
"to_name": null,
"type": null,
"value": {
"end": 12281,
"labels": [
"ANALYSIS"
],
"start": 12053,
"text": "In cases where the order passed by a statutory authority is silent as to the reasons for the conclusion it has drawn, it can well be said that the authority has not applied its mind to the issue before it nor formed any opinion."
}
},
{
"from_name": null,
"id": "91d4a05f2d07488597d2ec2af6168ff0",
"to_name": null,
"type": null,
"value": {
"end": 12530,
"labels": [
"ANALYSIS"
],
"start": 12282,
"text": "The principle that a mere change of opinion cannot be a basis for reopening computed assessments would be applicable only to situations where the assessing officer has applied his mind and taken a conscious decision on a particular matter in issue."
}
},
{
"from_name": null,
"id": "d6efb2847d6a4b7ab8bdd8e4974f243d",
"to_name": null,
"type": null,
"value": {
"end": 12718,
"labels": [
"ANALYSIS"
],
"start": 12531,
"text": "It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case."
}
},
{
"from_name": null,
"id": "b25481a26a2d4fc28056d8b0d385fd7d",
"to_name": null,
"type": null,
"value": {
"end": 12942,
"labels": [
"ANALYSIS"
],
"start": 12719,
"text": "It is in that view inconsequential whether or not the material necessary for taking a decision was available to the assessing officer either generally or in the form of a reply to the questionnaire served upon the assessed."
}
},
{
"from_name": null,
"id": "66c84ee69a6e4bdf8b7c3092780afd7a",
"to_name": null,
"type": null,
"value": {
"end": 13050,
"labels": [
"ANALYSIS"
],
"start": 12943,
"text": "What is important is whether the assessing officer had based on the material available to him taken a view."
}
},
{
"from_name": null,
"id": "0bd0265b5ad7472b868c339df4e5026e",
"to_name": null,
"type": null,
"value": {
"end": 13186,
"labels": [
"ANALYSIS"
],
"start": 13051,
"text": "If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion.” 16."
}
},
{
"from_name": null,
"id": "81e90fcc47874cc78414134ad3c80222",
"to_name": null,
"type": null,
"value": {
"end": 13506,
"labels": [
"ANALYSIS"
],
"start": 13187,
"text": "The fact of the matter is that later Benches of this Court, including two Full Benches in CIT v. Kelvinator of India Ltd.(supra) and CIT v. Usha International Ltd., (2012) 348 ITR 485 have disagreed with the view expressed by the DB in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra)."
}
},
{
"from_name": null,
"id": "bb3409e92dbf42668e533cfa90fa263d",
"to_name": null,
"type": null,
"value": {
"end": 13674,
"labels": [
"ANALYSIS"
],
"start": 13507,
"text": "In fact, the decision of the FB in CIT v. Kelvinator of India Ltd.(supra) was affirmed by the Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC)."
}
},
{
"from_name": null,
"id": "9c0d051921a3466ba37e310182fc4e62",
"to_name": null,
"type": null,
"value": {
"end": 13883,
"labels": [
"ANALYSIS"
],
"start": 13674,
"text": "\n 17. The Full Bench of this Court in CIT v. Usha International Ltd.(supra), specifically overruled the decision of the DB in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra)."
}
},
{
"from_name": null,
"id": "736a8b12d8e0438e894c3508e3081282",
"to_name": null,
"type": null,
"value": {
"end": 14242,
"labels": [
"ANALYSIS"
],
"start": 13884,
"text": "Even prior thereto, in KLM Royal Dutch Airlines v. ADIT [2007] 292 ITR 49, another DB of this Court noticed the anomaly that had resulted from the decision in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax (supra), which was contrary to other decisions, including the decision of the FB in CIT v. Kelvinator of India Ltd.(supra)."
}
},
{
"from_name": null,
"id": "bbea7f46b1f144808e5a0ac131f160ee",
"to_name": null,
"type": null,
"value": {
"end": 14337,
"labels": [
"ANALYSIS"
],
"start": 14243,
"text": "This was noticed by the DB in KLM Royal Dutch Airlines v. ADIT (supra) where it observed: “16."
}
},
{
"from_name": null,
"id": "2e961269ee60458d9ba924060ed8dccb",
"to_name": null,
"type": null,
"value": {
"end": 14433,
"labels": [
"ANALYSIS"
],
"start": 14338,
"text": "The Full Bench of this Court in Commissioner of Income-Tax v.\n Kelvinator of India Ltd."
}
},
{
"from_name": null,
"id": "5e7cb7c216fc43208d1cf700bf534197",
"to_name": null,
"type": null,
"value": {
"end": 14664,
"labels": [
"ANALYSIS"
],
"start": 14434,
"text": "[2002] 256 ITR 1 had opined that the amendments introduced into Section 147 with effect from 1.4.1989 have not altered the position that a mere change of opinion of the AO was not sufficient ground for embarking on a reassessment."
}
},
{
"from_name": null,
"id": "2005ef6f029c4488947fcc2b5645f1a9",
"to_name": null,
"type": null,
"value": {
"end": 14733,
"labels": [
"ANALYSIS"
],
"start": 14665,
"text": "Calcutta Discount was duly considered and applied by the Full Bench."
}
},
{
"from_name": null,
"id": "1259d998959f4a969b46d265c92f363b",
"to_name": null,
"type": null,
"value": {
"end": 14892,
"labels": [
"ANALYSIS"
],
"start": 14734,
"text": "The Full Bench further observed that an order of assessment must be presumed to have been passed by the AO concerned after due and proper application of mind."
}
},
{
"from_name": null,
"id": "6abfc5e00dfd4074944a10ec3dc3662c",
"to_name": null,
"type": null,
"value": {
"end": 15144,
"labels": [
"ANALYSIS"
],
"start": 14893,
"text": "In these circumstances the decision of the Division Bench in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax , inasmuch as it is irreconcilable with the views of the Full Bench, must be held not to lay down the correct law."
}
},
{
"from_name": null,
"id": "d52f0fda8ed046d186f3cc37ef8de06b",
"to_name": null,
"type": null,
"value": {
"end": 15299,
"labels": [
"ANALYSIS"
],
"start": 15145,
"text": "This is especially so since the assessment proceedings had not come to an end under the first sub-section of Section 143, but under the third Sub-section."
}
},
{
"from_name": null,
"id": "1851188d2be44e1297e518e81ed70765",
"to_name": null,
"type": null,
"value": {
"end": 15725,
"labels": [
"ANALYSIS"
],
"start": 15300,
"text": "A Division Bench of a particular High Court is fully bound by the view preferred by a larger Bench of that Court, regardless of the fact that another High Court prefers a different view in this case that of the Gujarat High Court as in Gruh Finance Ltd. v.\n Joint Commissioner of Income-Tax (Assessment) , Praful Chunilal Patel v. M.J. Makwana, Assistant CIT and Garden Silk Mills Ltd. v.\n Deputy CIT (No. 1)."
}
},
{
"from_name": null,
"id": "cb7af0bea2ad4a17bbe1bd33ae23757f",
"to_name": null,
"type": null,
"value": {
"end": 15840,
"labels": [
"ANALYSIS"
],
"start": 15726,
"text": "The Full Bench of this Court has taken into consideration both Praful Chunilal Patel as well as Garden Silk Mills."
}
},
{
"from_name": null,
"id": "c1d6e851f5024377b9d26976db2685a8",
"to_name": null,
"type": null,
"value": {
"end": 16241,
"labels": [
"ANALYSIS"
],
"start": 15840,
"text": "\n In Kelvinator the Full Bench had also analysed the earlier Division Bench decisions, namely, Jindal Photo Films Ltd. v. Deputy Commissioner of Income-Tax presided over by R.C. Lahoti J. (as learned Chief Justice of India then was) and Bawa Abhai Singh v.\n Deputy Commissioner of Income-Tax [2002] 253 ITR 83 comprising Arijit Pasayat and D.K. Jain JJ. (as their Lordships then were)."
}
},
{
"from_name": null,
"id": "1eecc1c859f64bc2b349bed00e56a2fd",
"to_name": null,
"type": null,
"value": {
"end": 16512,
"labels": [
"ANALYSIS"
],
"start": 16242,
"text": "It is quite possible that had the Court in Consolidated Photo been made aware of the consistent opinion of this Court in Jindal Photo and Bawa Abhai Singh, their conclusion may have been totally different, notwithstanding alternative view of the Gujarat High Court.” 18."
}
},
{
"from_name": null,
"id": "547766d30e244a6c8bd64ef80ca3294c",
"to_name": null,
"type": null,
"value": {
"end": 16691,
"labels": [
"ANALYSIS"
],
"start": 16513,
"text": "There is no manner of doubt that the decision of the DB of this Court in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra) is no longer good law."
}
},
{
"from_name": null,
"id": "bf61dec3d6684576add64a143d441176",
"to_name": null,
"type": null,
"value": {
"end": 16765,
"labels": [
"ANALYSIS"
],
"start": 16692,
"text": "The main plank of the Revenue's case before this Court, therefore, fails."
}
},
{
"from_name": null,
"id": "e8e73c10747c45ae9311b15badc37aa9",
"to_name": null,
"type": null,
"value": {
"end": 16895,
"labels": [
"ANALYSIS"
],
"start": 16766,
"text": "Nevertheless, the Court proceeds to examine the question of validity of the reopening of the assessments for the AYs in question."
}
},
{
"from_name": null,
"id": "ccb82cb3bd4b4cdf9718da947f2c8e82",
"to_name": null,
"type": null,
"value": {
"end": 17061,
"labels": [
"ANALYSIS"
],
"start": 16895,
"text": "\n 19. The fact of the matter is that during the course of the original assessments under Section 143 (3), the AO did serve upon the Assessee a detailed questionnaire."
}
},
{
"from_name": null,
"id": "84c9cbe5d7cc46e89c334281010444fb",
"to_name": null,
"type": null,
"value": {
"end": 17167,
"labels": [
"ANALYSIS"
],
"start": 17062,
"text": "The AO examined the nature of the transactions involving the Assessee and the payments received therefor."
}
},
{
"from_name": null,
"id": "645ed3a68b9c41ebb40fd18fc7c5198d",
"to_name": null,
"type": null,
"value": {
"end": 17218,
"labels": [
"ANALYSIS"
],
"start": 17168,
"text": "The reopening was not based on any fresh material."
}
},
{
"from_name": null,
"id": "6d978ab3094f454fbd1a7ba35e0775ea",
"to_name": null,
"type": null,
"value": {
"end": 17382,
"labels": [
"ANALYSIS"
],
"start": 17219,
"text": "By revisiting the same materials the successor AO now concluded that the payments received by the Assessee pursuant to the O&M Agreements should be treated as FTS."
}
},
{
"from_name": null,
"id": "9cb47944c54545228cc17f56f8832d83",
"to_name": null,
"type": null,
"value": {
"end": 17507,
"labels": [
"ANALYSIS"
],
"start": 17383,
"text": "In the circumstances, the view taken by a successor AO on the same material was indeed nothing but a mere change of opinion."
}
},
{
"from_name": null,
"id": "9ab313a0bae24c21af3de2167523b2d6",
"to_name": null,
"type": null,
"value": {
"end": 17947,
"labels": [
"ANALYSIS"
],
"start": 17508,
"text": "It is a well-settled legal proposition, as explained in Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191(SC) that once an Assessee has discharged the burden of not only producing the account books and other documents, but also the specific material relevant to the assessment, \"it is for the Income-tax Officer to draw the proper inferences of fact and law therefrom and the Assessee cannot further be called upon to do so for him.\" "
}
},
{
"from_name": null,
"id": "87ac79a666e2468ca0866a887a01825b",
"to_name": null,
"type": null,
"value": {
"end": 17999,
"labels": [
"ANALYSIS"
],
"start": 17947,
"text": "In Indian Oil Corporation v.\nITO [1986] 159 ITR 956."
}
},
{
"from_name": null,
"id": "7ee634e5f6a8496ca0249b07ed2a9aa4",
"to_name": null,
"type": null,
"value": {
"end": 18081,
"labels": [
"ANALYSIS"
],
"start": 18000,
"text": "the Court pertinently observed \"it is for the taxing authority to draw inference."
}
},
{
"from_name": null,
"id": "127dd54f85aa4e399a6b08778334067f",
"to_name": null,
"type": null,
"value": {
"end": 18138,
"labels": [
"ANALYSIS"
],
"start": 18082,
"text": "It is not necessary for the Assessee to draw inference.”"
}
},
{
"from_name": null,
"id": "f2eec410dc8e428da24479a4c5f92b69",
"to_name": null,
"type": null,
"value": {
"end": 18197,
"labels": [
"RATIO"
],
"start": 18139,
"text": "These observations apply on all fours to the case on hand."
}
},
{
"from_name": null,
"id": "5afa08de114d4551a91dfdd4142a205b",
"to_name": null,
"type": null,
"value": {
"end": 18341,
"labels": [
"RATIO"
],
"start": 18198,
"text": "Here the Assessee had discharged its burden of disclosing fully and truly all the material facts before the AO during the original assessments."
}
},
{
"from_name": null,
"id": "e010138677894e4cbc10d004abf296cd",
"to_name": null,
"type": null,
"value": {
"end": 18513,
"labels": [
"RATIO"
],
"start": 18342,
"text": "There was no basis for the successor AO to conclude that \"no opinion with regard to taxation\" of the payments received for the services rendered had been formed by the AO."
}
},
{
"from_name": null,
"id": "8e18b73267724008a6810e0957a4b846",
"to_name": null,
"type": null,
"value": {
"end": 18588,
"labels": [
"RATIO"
],
"start": 18514,
"text": "It is plain that the pre-condition for invoking Section 147 did not exist."
}
},
{
"from_name": null,
"id": "a465ea992b774d27a767175f3e77ed1d",
"to_name": null,
"type": null,
"value": {
"end": 18663,
"labels": [
"RATIO"
],
"start": 18589,
"text": "The assumption of jurisdiction under Section 148 of the Act was not valid."
}
},
{
"from_name": null,
"id": "fe81bc6701414482b0b6f947b5bf2eff",
"to_name": null,
"type": null,
"value": {
"end": 18823,
"labels": [
"RPC"
],
"start": 18663,
"text": "\n 20. Consequently, the question framed by this Court on the above aspect is answered in the affirmative, i.e., in favor of the Assesse and against the Revenue."
}
},
{
"from_name": null,
"id": "5ff9eb334b0144fc98274a9bd06c2643",
"to_name": null,
"type": null,
"value": {
"end": 18881,
"labels": [
"RPC"
],
"start": 18824,
"text": "The appeals are dismissed, but with no order as to costs."
}
},
{
"from_name": null,
"id": "bb1caff3e9dc40dcbb3cc03dec6318d6",
"to_name": null,
"type": null,
"value": {
"end": 18933,
"labels": [
"NONE"
],
"start": 18881,
"text": "\n S.MURALIDHAR, J CHANDER SHEKHAR, J MAY 18, 2017/tp"
}
}
]
}
] | 4,249 | {
"text": "$~1 to 3\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ ITA 1058/2011\n\n DIRECTOR OF INCOME TAX INTERNATIONAL TAXATION-II\n ..... Appellant\n Through: Mr. Rahul Kaushik, Senior Standing\n Counsel\n\n versus\n\n ROLLS ROYCE INDUSTRIAL POWER INDIA LTD.....Respondent\n Through: Mr. M.S. Syali, Senior Advocate\n with Mr. Satyen Sethi, Mr. Mayank\n Negi & Mr. Arth Taran Panda,\n Advocates\n\n WITH\n\n+ ITA 1061/2011\n\n DIRECTOR OF INCOME TAX INTERNATIONAL TAXATION-II\n ..... Appellant\n Through: Mr. Rahul Kaushik, Senior Standing\n Counsel\n\n versus\n\n ROLLS ROYCE INDUSTRIAL POWER INDIA LTD.... Respondent\n Through: Mr. M.S. Syali, Senior Advocate\n with Mr. Satyen Sethi, Mr. Mayank\n Negi & Mr. Arth Taran Panda,\n Advocates\n\n AND\n\n\n\n\n\n+ ITA 1063/2011\n DIRECTOR OF INCOME TAX INTERNATIONAL TAXATION-II\n ..... Appellant\n Through: Mr. Rahul Kaushik, Senior Standing\n Counsel\n versus\n\n ROLLS ROYCE INDUSTRIAL POWER INDIA LTD.... Respondent\n Through: Mr. M.S. Syali, Senior Advocate\n with Mr. Satyen Sethi, Mr. Mayank\n Negi & Mr. Arth Taran Panda,\n Advocates\n\n CORAM: JUSTICE S.MURALIDHAR\n JUSTICE CHANDER SHEKHAR\n\n ORDER\n % 18.05.2017 Dr. S. Muralidhar, J.: 1. These are three appeals by the Revenue under Section 260A of the Income Tax Act, 1961 („Act‟) against the common order dated 5th October, 2010 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA Nos.\n1410, 1411 and 1413/Del/2007 relating to Assessment Years („AYs‟) 1998- 1999, 1999-2000 and 2001-2002.\n 2. It must be mentioned at the outset that at the time of admission of these appeals, on 23rd March, 2012, there were 7, 4 and 6 questions of law framed in ITA Nos. 1058, 1061 and 1063 of 2011 respectively. In each of the said appeals, the first question framed reads as under: “(1) Whether on the facts and circumstances of the case, ITAT was right in law in holding that assumption of jurisdiction under section 148 of the Income tax Act, 1961 was not valid?” 3. The other questions pertain inter alia to the treatment of payments received by the Assessee from the operation and maintenance of power plant projects i.e. whether these receipts were taxable either as business income or as fee for technical services (FTS). In these three appeals, however, the Court proposes to confine its examination to the first question viz., the validity of the assumption of jurisdiction under Section 148 of the Act.\n 4. Having heard learned counsel for the parties, the Court is satisfied that the said question has, for reasons to follow, to be answered in favour of the Assessee. Resultantly all consequential assessment orders are rendered invalid thus obviating the need to examine the other questions that pertain to the additions made under the consequential assessment orders. The Court however clarifies that the other questions framed in these appeals, and which arise in certain other connected appeals of the Revenue against the Assessee for other AYs are left open to be decided in the other appeals.\n 5. The Assessee, a company incorporated under the laws of the United Kingdom (U.K.), during the AYs in question, was engaged, inter alia, in the business of erection, commissioning, supervision, operation and maintenance of power plants. The business activities in India were carried out by the Assessee through various projects, offices, located in India.\nThese, according to the Revenue constituted the Assessee's permanent establishment in India under Article 5 of the Double Taxation Avoidance Agreement (DTAA) between India and U.K.\n 6. The Assessee's returns for the three AYs in question i.e., AYs 1998-99, 1999-2000 and 2001-2002 were picked up for scrutiny and the assessments were completed by the Assessing Officer (AO) by passing assessment orders under Section 143(3) of the Act. Placed before the Court are copies of the questionnaires issued by the AO for the relevant AYs and the replies thereto filed by the Assessee. These questionnaires refer to the nature of the transactions and the payments received in relation thereto.\n 7. For the Financial Year 2004-2005 , the Assessee filed applications dated 25th June, 2004 and 27th May, 2004 under Section 195(3) of the Act for issuance of nil deduction of Tax Deducted at Source („TDS‟). The Assistant Director of Income-Tax („ADIT‟) Circle-II (1), International Transactions, by an order dated 20th July, 2004 declined the application. He, inter alia, proposed to initiate reassessment/revision proceedings under Sections 147/263 in respect of the earlier orders to bring the correct income to tax in accordance with law. The plea taken in this order was that payments received by the Assesse, pursuant to the Operations and Maintenance (O&M) Agreements should be treated as fees for technical services („FTS‟) within the meaning of Explanation 2 to Section 9(1)(vii) of the Act and Article 13(4) (c) of the DTAA between India and U.K.\n 8. Aggrieved by the above order, the Petitioner applied to the Director of Income Tax („DIT‟) under Section 264 of the Act. By an order dated 20th December, 2004, the DIT set aside the order of the ADIT, holding that the “Assesse here is neither making available technical knowledge, experience nor is developing and transferring technical plan or design.” He concluded that the services rendered under the O&M Agreements \"cannot be considered as ancillary or subsidiary to the enjoyment of any right prescribed as „royalty‟.\" Further, “under Article 13 therefore the fee for technical services does not fit into the nature of receipt the assessee is having.” 9. Notwithstanding the above orders, the AO proceeded to reopen the assessments under Section 147 read with 148 of the Act for the three AYs in question, i.e., 1998-1999, 1999-2000 and 2001-2002. The reasons therefor were issued by the AO on 28th March 2005. It was noted inter alia by him therein that in the original assessment orders under Section 143(3) of the Act “no opinion with regard to taxation of these technical services has been formed by the then AO.” It was further stated that “the facts relating to the nature of income being fees for technical services have never been brought to the notice of the AO.” 10. The Assessee objected to the reopening inter alia on the ground that it was based on mere „change of opinion‟. Its objections were rejected by an order dated 9th September, 2005.\n 11. The reassessments were completed by treating the payments as FTS. The Assessee then carried the matter by way of appeals to the Commissioner of Income Tax (Appeals) [CIT(A)]. By a common order dated 29th December, 2006 passed in the appeals pertaining to the three AYs in question, the CIT(A), relying on the decision of the Division Bench („DB‟) of this Court in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax, [2006] 281 ITR 394(Del), came to the conclusion that since the original assessment orders were silent on the aspect of treating the payments received by the Assessee as FTS, the jurisdictional pre-condition for attracting Section 147 stood fulfilled.\n 12. Aggrieved by the above order, the Assessee went before the ITAT. In the impugned order, the ITAT noted that while for AYs 1998-1999 and 1999-2000 the notices under Section 148 of the Act were issued after four years, the notice for the AY 2001-2002 had been issued within four years.\nThe ITAT referred to the decision of the Full Bench („FB‟) of this Court in CIT v. Kelvinator of India Ltd. (2002) 256 ITR 1 (Del). It also noted the decision of this Court in CIT vs. Eicher Ltd. (2007) 294 ITR 310(Del) where it was held that if the entire material had been placed by the Assessee before the AO at the time when the original assessment was made and the AO had applied his mind to material and accepted the view of the Assessee, then the assessment cannot be reopened merely on the basis of change of opinion.\n 13. The ITAT examined the assessment orders, queries raised by the AO and the other material on record and concluded that the Assessee had duly disclosed the very nature of its activities. As regards the observation of the AO that the Assessee should have filed the accounts of each project individually, instead of filing the consolidated statement of accounts, the ITAT noted that the Assesse had been filing audited accounts. It opined that “it was the duty of the AO to have examined this aspect in the scrutiny assessment.” Further, the AO had called for information in that regard and the Assessee had submitted an explanation on its activities. The ITAT, therefore, held that it was \"a different perception of the new incumbent on the same details.\" Thus, the assessment has been reopened by the AO \"only on the basis of the change of opinion\". Further, the ITAT noted that for the AYs 1998-1999 and 1999-2000, the AO was unable to point out which material facts had not been disclosed by the Assessee. The Assessee‟s appeals were allowed and the reassessment orders set aside.\n 14. This Court has heard the submissions of both Mr. Rahul Kaushik, learned Senior Standing Counsel for the Revenue and Mr. M.S. Syali, learned Senior Counsel for the Assessee. The Court has also perused the notices/questionnaires issued by the AO in the course of the assessment proceedings and the replies thereto by the Assessee. The Court has also perused the original assessment orders passed under Section 143(3) of the Act and the reasons for the reopening of the assessments.\n 15. The main plank of the submission of the Revenue before the CIT(A), which has been adverted to by the ITAT in the impugned order, is the decision of the DB of this Court in Consolidated Photo and Finvest Ltd. v.\nAssistant Commissioner of Income-Tax (supra). In particular, reliance is placed on the following observations: “19.....The argument that the proposed reopening of assessment was based only upon a change of opinion has not impressed us. The assessment order did not admittedly address itself to the question which the assessing officer proposes to examine in the course of re- assessment proceedings. The submission of Mr. Vohra that even when the order of assessment did not record any explicit opinion on the aspects now sought to be examined, it must be presumed that those aspects were present to the mind of the assessing officer and had been held in favour of the assessee is too farfetched a proposition to merit acceptance. There may indeed be a presumption that the assessment proceedings have been regularly conducted, but there can be no presumption that even when the order of assessment is silent, all possible angles and aspects of a controversy had been examined and determined by the assessing officer. It is trite that a matter in issue can be validly determined only upon application of mind by the authority determining the same. Application of mind is, in turn, best demonstrated by disclosure of mind, which is best done by giving reasons for the view which the authority is taking. In cases where the order passed by a statutory authority is silent as to the reasons for the conclusion it has drawn, it can well be said that the authority has not applied its mind to the issue before it nor formed any opinion. The principle that a mere change of opinion cannot be a basis for reopening computed assessments would be applicable only to situations where the assessing officer has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It is in that view inconsequential whether or not the material necessary for taking a decision was available to the assessing officer either generally or in the form of a reply to the questionnaire served upon the assessed. What is important is whether the assessing officer had based on the material available to him taken a view. If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion.” 16. The fact of the matter is that later Benches of this Court, including two Full Benches in CIT v. Kelvinator of India Ltd.(supra) and CIT v. Usha International Ltd., (2012) 348 ITR 485 have disagreed with the view expressed by the DB in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra). In fact, the decision of the FB in CIT v. Kelvinator of India Ltd.(supra) was affirmed by the Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC).\n 17. The Full Bench of this Court in CIT v. Usha International Ltd.(supra), specifically overruled the decision of the DB in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra). Even prior thereto, in KLM Royal Dutch Airlines v. ADIT [2007] 292 ITR 49, another DB of this Court noticed the anomaly that had resulted from the decision in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax (supra), which was contrary to other decisions, including the decision of the FB in CIT v. Kelvinator of India Ltd.(supra). This was noticed by the DB in KLM Royal Dutch Airlines v. ADIT (supra) where it observed: “16. The Full Bench of this Court in Commissioner of Income-Tax v.\n Kelvinator of India Ltd. [2002] 256 ITR 1 had opined that the amendments introduced into Section 147 with effect from 1.4.1989 have not altered the position that a mere change of opinion of the AO was not sufficient ground for embarking on a reassessment. Calcutta Discount was duly considered and applied by the Full Bench. The Full Bench further observed that an order of assessment must be presumed to have been passed by the AO concerned after due and proper application of mind. In these circumstances the decision of the Division Bench in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax , inasmuch as it is irreconcilable with the views of the Full Bench, must be held not to lay down the correct law. This is especially so since the assessment proceedings had not come to an end under the first sub-section of Section 143, but under the third Sub-section. A Division Bench of a particular High Court is fully bound by the view preferred by a larger Bench of that Court, regardless of the fact that another High Court prefers a different view in this case that of the Gujarat High Court as in Gruh Finance Ltd. v.\n Joint Commissioner of Income-Tax (Assessment) , Praful Chunilal Patel v. M.J. Makwana, Assistant CIT and Garden Silk Mills Ltd. v.\n Deputy CIT (No. 1). The Full Bench of this Court has taken into consideration both Praful Chunilal Patel as well as Garden Silk Mills.\n In Kelvinator the Full Bench had also analysed the earlier Division Bench decisions, namely, Jindal Photo Films Ltd. v. Deputy Commissioner of Income-Tax presided over by R.C. Lahoti J. (as learned Chief Justice of India then was) and Bawa Abhai Singh v.\n Deputy Commissioner of Income-Tax [2002] 253 ITR 83 comprising Arijit Pasayat and D.K. Jain JJ. (as their Lordships then were). It is quite possible that had the Court in Consolidated Photo been made aware of the consistent opinion of this Court in Jindal Photo and Bawa Abhai Singh, their conclusion may have been totally different, notwithstanding alternative view of the Gujarat High Court.” 18. There is no manner of doubt that the decision of the DB of this Court in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax(supra) is no longer good law. The main plank of the Revenue's case before this Court, therefore, fails. Nevertheless, the Court proceeds to examine the question of validity of the reopening of the assessments for the AYs in question.\n 19. The fact of the matter is that during the course of the original assessments under Section 143 (3), the AO did serve upon the Assessee a detailed questionnaire. The AO examined the nature of the transactions involving the Assessee and the payments received therefor. The reopening was not based on any fresh material. By revisiting the same materials the successor AO now concluded that the payments received by the Assessee pursuant to the O&M Agreements should be treated as FTS. In the circumstances, the view taken by a successor AO on the same material was indeed nothing but a mere change of opinion. It is a well-settled legal proposition, as explained in Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191(SC) that once an Assessee has discharged the burden of not only producing the account books and other documents, but also the specific material relevant to the assessment, \"it is for the Income-tax Officer to draw the proper inferences of fact and law therefrom and the Assessee cannot further be called upon to do so for him.\" In Indian Oil Corporation v.\nITO [1986] 159 ITR 956. the Court pertinently observed \"it is for the taxing authority to draw inference. It is not necessary for the Assessee to draw inference.” These observations apply on all fours to the case on hand. Here the Assessee had discharged its burden of disclosing fully and truly all the material facts before the AO during the original assessments. There was no basis for the successor AO to conclude that \"no opinion with regard to taxation\" of the payments received for the services rendered had been formed by the AO. It is plain that the pre-condition for invoking Section 147 did not exist. The assumption of jurisdiction under Section 148 of the Act was not valid.\n 20. Consequently, the question framed by this Court on the above aspect is answered in the affirmative, i.e., in favor of the Assesse and against the Revenue. The appeals are dismissed, but with no order as to costs.\n S.MURALIDHAR, J CHANDER SHEKHAR, J MAY 18, 2017/tp "
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"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY:\n NAGPUR BENCH: NAGPUR\n\n CRIMINAL APPEAL NO.85 OF 2004\n APELLANT:\n\n Chandrashekhar s/o Bhagwan Meshram, aged\n about 43 years, occupation : service, r/o\n Bandhona, Tahsil Dhanora, district : Gadchiroli.\n\n VERSUS\n RESPONDENT:\n\n State of Maharashtra, through its Police Station\n Officer, Gadchiroli, District : Gadchiroli.\n =========================================="
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"text": "==\n Mr. Anand Parchure, advocate for appellant\n Mr. S.S. Doifode, A P P for state"
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"text": "==\n CORARM : M.N. GILANI, J.\n DATE: 12/4/2012\n ORAL JUDGMENT"
}
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{
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"labels": [
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],
"start": 930,
"text": "This appeal arises out of the judgment and order dated 22.1.2004, passed by Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No.22/2009 whereby the appellant was convicted for an offence under section 376(1) of the Indian Penal Code and sentenced to suffer R.I. for seven years and to pay fine of RS.2,000/-, in default to suffer R.I. for six months.\n 2]"
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],
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"text": "The prosecution case as unfolded in the first information report is thus: the accused was a teacher in a School at village Muska, tahsil Dhanora, district: Gadchiroli."
}
},
{
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"id": "c0d85706e8ad4dc090f87553b8e156a4",
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],
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"text": "Victim and her parents reside in the same village."
}
},
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"text": "They were acquainted with the accused."
}
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"labels": [
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"text": "At the relevant time the age of the victim was 16 years."
}
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{
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"labels": [
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],
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"text": "She had patches of leucoderma (white patches) on her forehead and hand."
}
},
{
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"id": "5fa673ebfb3746b0af577b2566c36914",
"to_name": null,
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"end": 1837,
"labels": [
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],
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"text": "The accused suggested to her parents that he was acquainted with some doctor at Nagpur who would be able to provide treatment to the girl."
}
},
{
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"id": "1c9242fc972548b1aafcda003f175fec",
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"value": {
"end": 1951,
"labels": [
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],
"start": 1838,
"text": "Accused carried girl to Nagpur and for meeting the expenses of the treatment obtained Rs.2,000/- from her father."
}
},
{
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"id": "b004997c14e447c191a75fd6fe0c3290",
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"value": {
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"labels": [
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],
"start": 1952,
"text": "On the way to Nagpur they stayed in a lodge at Gadchiroli."
}
},
{
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"id": "10a09381bc804755883ec7f78e17e3ca",
"to_name": null,
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"value": {
"end": 2092,
"labels": [
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],
"start": 2011,
"text": "It is alleged that in the night the accused had sexual intercourse with the girl."
}
},
{
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"id": "ee5fae3a77154b79a95f0c2bdc58282f",
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"value": {
"end": 2159,
"labels": [
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],
"start": 2093,
"text": "Thereafter she was carried to Nagpur and the doctor was consulted."
}
},
{
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"value": {
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"labels": [
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],
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"text": "After 15-20 days of this incident again the girl accompanied the accused for going to Nagpur."
}
},
{
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"value": {
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"labels": [
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],
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"text": "Since they could not meet the doctor they were required to make halt in the lodge in the night."
}
},
{
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"id": "3e1b922377ab436f921cc5d41e17e772",
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"labels": [
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],
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"text": "Again the accused had sexual intercourse with the girl."
}
},
{
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"to_name": null,
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"labels": [
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],
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"text": "She conceived form him."
}
},
{
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"value": {
"end": 2607,
"labels": [
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],
"start": 2429,
"text": "\n Ultimately, on 28.8.1997 the first information report came to be lodged and on that basis the offence under section 376 of Indian Penal Code came to be registered."
}
},
{
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"id": "16ef32929b604021bbd65a7765ca1f83",
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"value": {
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"labels": [
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],
"start": 2622,
"text": "3] Victim was examined by the Medical Officer."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 2710,
"labels": [
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],
"start": 2669,
"text": "She was found carrying fetus of 22 weeks."
}
},
{
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"id": "f332db77bcaa46b687c9f71f04a8880e",
"to_name": null,
"type": null,
"value": {
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"labels": [
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],
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"text": "Her radiological examination revealed that she was in between 16-18 years of age."
}
},
{
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"labels": [
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],
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"text": "After investigation the charge sheet was submitted."
}
},
{
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"labels": [
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],
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"text": "The Additional Sessions Judge framed and explained the charge to the accused."
}
},
{
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"to_name": null,
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"labels": [
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],
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"text": "He pleaded not guilty and claimed to be tried."
}
},
{
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"to_name": null,
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"value": {
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"labels": [
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],
"start": 2970,
"text": "The prosecution examined 7 witnesses."
}
},
{
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"id": "fb2c113cfca7469ba2425386b7878713",
"to_name": null,
"type": null,
"value": {
"end": 3161,
"labels": [
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],
"start": 3008,
"text": "After considering the evidence, learned Additional Sessions Judge held that sexual intercourse committed by the accused with victim was against her will."
}
},
{
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"id": "6c2186cb05f640c9a9ce1e35cfc7b4ca",
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"end": 3230,
"labels": [
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],
"start": 3162,
"text": "He therefore, proceeded to convict and sentence him as stated above."
}
},
{
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"to_name": null,
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"value": {
"end": 3385,
"labels": [
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],
"start": 3245,
"text": "4] The learned counsel for the appellant assails the judgment impugned mainly on the ground that it is based upon conjunctures and surmises."
}
},
{
"from_name": null,
"id": "110bf4b5ebe44b8592dd6f2aed60835c",
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"labels": [
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],
"start": 3386,
"text": "The inference drawn by the learned Additional Sessions Judge that the sexual intercourse was without consent of the victim is inconsistent with the material placed on record."
}
},
{
"from_name": null,
"id": "5b73e33cbcfb4ee4bed53a580b752d25",
"to_name": null,
"type": null,
"value": {
"end": 3643,
"labels": [
"ARG_PETITIONER"
],
"start": 3561,
"text": "According to him, the victim being above 16 years of age her consent was material."
}
},
{
"from_name": null,
"id": "d1721f5ac74e4015a5493c950c5884c0",
"to_name": null,
"type": null,
"value": {
"end": 3868,
"labels": [
"ARG_PETITIONER"
],
"start": 3644,
"text": "Her conduct in accompanying the accused, staying with him in the lodge not once, but twice and not lodging any protest till she noticed that she was pregnant, only point out that she had consented for the sexual intercourse."
}
},
{
"from_name": null,
"id": "6862d8eb8c2146148e07b5f501807df4",
"to_name": null,
"type": null,
"value": {
"end": 4057,
"labels": [
"ARG_PETITIONER"
],
"start": 3868,
"text": "\n According to the learned counsel this material aspect involved in the case has been ignored by the learned Additional Sessions Judge and thus committed an error in convicting the accused."
}
},
{
"from_name": null,
"id": "4e7816fd30d043f2b60b16b4b5f8297c",
"to_name": null,
"type": null,
"value": {
"end": 4150,
"labels": [
"ARG_RESPONDENT"
],
"start": 4075,
"text": "Learned A.P.P. supported the judgment and order of conviction and sentence."
}
},
{
"from_name": null,
"id": "b1ece7950940431d88491b58e6f38654",
"to_name": null,
"type": null,
"value": {
"end": 4264,
"labels": [
"ARG_RESPONDENT"
],
"start": 4151,
"text": "According to him accused taking advantage of the position, carried the girl with him for providing her treatment."
}
},
{
"from_name": null,
"id": "47b03412682d4a55a10583281f0beae6",
"to_name": null,
"type": null,
"value": {
"end": 4351,
"labels": [
"ARG_RESPONDENT"
],
"start": 4265,
"text": "He took undue advantage of her helplessness and committed sexual intercourse with her."
}
},
{
"from_name": null,
"id": "a4d1738e8e194d6e9f867f8be8e0a872",
"to_name": null,
"type": null,
"value": {
"end": 4446,
"labels": [
"ARG_RESPONDENT"
],
"start": 4352,
"text": "On the second occasion also against the will of the victim he had sexual intercourse with her."
}
},
{
"from_name": null,
"id": "29945da675fe463394fed0ce06137a23",
"to_name": null,
"type": null,
"value": {
"end": 4520,
"labels": [
"ARG_RESPONDENT"
],
"start": 4447,
"text": "When she conceived, he disowned paternity and fled away from the village."
}
},
{
"from_name": null,
"id": "f7de6b8bb5284e3daef1f47f9a9ccf74",
"to_name": null,
"type": null,
"value": {
"end": 4694,
"labels": [
"ARG_RESPONDENT"
],
"start": 4521,
"text": "He therefore, contended that the learned Additional Sessions Judge was right in convicting the accused for the offence punishable under section 376 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "34b5b511707a49ecbde05ccd821c0fba",
"to_name": null,
"type": null,
"value": {
"end": 4843,
"labels": [
"FAC"
],
"start": 4709,
"text": "6] The victim narrated the first incident of the accused committing sexual intercourse with her as under: \"The accused came on my cot."
}
},
{
"from_name": null,
"id": "e1beb326b27e4106afa91dc110bd1cee",
"to_name": null,
"type": null,
"value": {
"end": 4866,
"labels": [
"FAC"
],
"start": 4844,
"text": "Due to this I woke up."
}
},
{
"from_name": null,
"id": "67039845e02b41d5a3648690115ea95c",
"to_name": null,
"type": null,
"value": {
"end": 4885,
"labels": [
"FAC"
],
"start": 4867,
"text": "Accused caught me."
}
},
{
"from_name": null,
"id": "d82d9644447247bca1332bc9a3268088",
"to_name": null,
"type": null,
"value": {
"end": 4984,
"labels": [
"FAC"
],
"start": 4886,
"text": "Accused stated me as nobody is here, and stated me to allow him for committing sexual intercourse."
}
},
{
"from_name": null,
"id": "e8d14f98096f4aea9dfd976fe3693653",
"to_name": null,
"type": null,
"value": {
"end": 5014,
"labels": [
"FAC"
],
"start": 4985,
"text": "I refused for the sexual act."
}
},
{
"from_name": null,
"id": "1b0d2eb5110f4e1d967c2a525ff45faf",
"to_name": null,
"type": null,
"value": {
"end": 5095,
"labels": [
"FAC"
],
"start": 5015,
"text": "I stated him as to why he is not feeling shame for asking me about the evil act."
}
},
{
"from_name": null,
"id": "dd67eaae5c1a40fb9eaadb9d9b8112fd",
"to_name": null,
"type": null,
"value": {
"end": 5141,
"labels": [
"FAC"
],
"start": 5096,
"text": "Accused committed sexual intercourse with me."
}
},
{
"from_name": null,
"id": "3cf31c9a7943423db0ec8a56b2052817",
"to_name": null,
"type": null,
"value": {
"end": 5191,
"labels": [
"FAC"
],
"start": 5142,
"text": "The accused committed sexual intercourse with me."
}
},
{
"from_name": null,
"id": "51b3443b345043f89f57212dd1aa48c4",
"to_name": null,
"type": null,
"value": {
"end": 5250,
"labels": [
"FAC"
],
"start": 5192,
"text": "The accused committed sexual intercourse with me forcibly."
}
},
{
"from_name": null,
"id": "c3b581d99b194f6584b9b1cb78d7b0fc",
"to_name": null,
"type": null,
"value": {
"end": 5305,
"labels": [
"FAC"
],
"start": 5251,
"text": "Accused committed sexual intercourse with me forcibly."
}
},
{
"from_name": null,
"id": "55a2fdc4b0da4109a3976627fbead9bc",
"to_name": null,
"type": null,
"value": {
"end": 5371,
"labels": [
"FAC"
],
"start": 5306,
"text": "Accused stated me that he will see if any wrong happened with me."
}
},
{
"from_name": null,
"id": "006987d92bba4b8f9cf5e7df9cacb19d",
"to_name": null,
"type": null,
"value": {
"end": 5430,
"labels": [
"FAC"
],
"start": 5372,
"text": "The accused committed sexual intercourse with me forcibly."
}
},
{
"from_name": null,
"id": "f941e3e77e504238ac1ca9c113a6c168",
"to_name": null,
"type": null,
"value": {
"end": 5496,
"labels": [
"FAC"
],
"start": 5431,
"text": "Accused stated me that he will see if any wrong happened with me."
}
},
{
"from_name": null,
"id": "0e5488c5d49046a6a9d53a8642fa458a",
"to_name": null,
"type": null,
"value": {
"end": 5566,
"labels": [
"FAC"
],
"start": 5497,
"text": "I was weeping when accused was committing sexual intercourse with me."
}
},
{
"from_name": null,
"id": "6a3a967659ca44db9574d7c682175ffe",
"to_name": null,
"type": null,
"value": {
"end": 5644,
"labels": [
"FAC"
],
"start": 5567,
"text": "Due to threatening of accused, I had not stated anybody about this incident.\""
}
},
{
"from_name": null,
"id": "2e53c7b756e34798aa2cc79b5412ea0c",
"to_name": null,
"type": null,
"value": {
"end": 5782,
"labels": [
"FAC"
],
"start": 5659,
"text": "About the second incident, she narrated as under: \"After one month, again accused came to my house for taking me at Nagpur."
}
},
{
"from_name": null,
"id": "e16836cc7bf24046b9943232223773c3",
"to_name": null,
"type": null,
"value": {
"end": 5822,
"labels": [
"FAC"
],
"start": 5783,
"text": "Alongwith accused I had gone to Nagpur."
}
},
{
"from_name": null,
"id": "6c92ddd985b54a64b6756ea32569299b",
"to_name": null,
"type": null,
"value": {
"end": 5858,
"labels": [
"FAC"
],
"start": 5823,
"text": "I was not intending to go with him."
}
},
{
"from_name": null,
"id": "bd511e28d34641c7ac8d78054e418c9a",
"to_name": null,
"type": null,
"value": {
"end": 5915,
"labels": [
"FAC"
],
"start": 5859,
"text": "On the say of my parents, I had gone with him at Nagpur."
}
},
{
"from_name": null,
"id": "d4bb16976ebd4bf081e7db4f3c2a64fa",
"to_name": null,
"type": null,
"value": {
"end": 5974,
"labels": [
"FAC"
],
"start": 5916,
"text": "At about 2.30 p.m. along with accused I reached at Nagpur."
}
},
{
"from_name": null,
"id": "7868da0c43994fadae4a2d9c8b58395a",
"to_name": null,
"type": null,
"value": {
"end": 6051,
"labels": [
"FAC"
],
"start": 5975,
"text": "We had gone to the hospital, but the doctor was not present in the hospital."
}
},
{
"from_name": null,
"id": "c42833023be64da394667862095f0b2a",
"to_name": null,
"type": null,
"value": {
"end": 6090,
"labels": [
"FAC"
],
"start": 6052,
"text": "Accused taken me in a lodge at Nagpur."
}
},
{
"from_name": null,
"id": "dbf26cf467784c42b4c02566b9bd2458",
"to_name": null,
"type": null,
"value": {
"end": 6143,
"labels": [
"FAC"
],
"start": 6091,
"text": "Accused made his signature in the register of lodge."
}
},
{
"from_name": null,
"id": "0b9f6076475e4a3ca0ddf916d91cb076",
"to_name": null,
"type": null,
"value": {
"end": 6185,
"labels": [
"FAC"
],
"start": 6144,
"text": "There were two cots in the room of lodge."
}
},
{
"from_name": null,
"id": "18fd8c96c70e4a14a4f4287fbce27599",
"to_name": null,
"type": null,
"value": {
"end": 6224,
"labels": [
"FAC"
],
"start": 6186,
"text": "At about 9 p.m. I was lying on my cot."
}
},
{
"from_name": null,
"id": "428be0dc622d4cea825aaa009e126951",
"to_name": null,
"type": null,
"value": {
"end": 6310,
"labels": [
"FAC"
],
"start": 6225,
"text": "On the next morning, we had gone to hospital and thereafter came back to our village."
}
},
{
"from_name": null,
"id": "5d2f7517c854428babf7d3edead0b009",
"to_name": null,
"type": null,
"value": {
"end": 6383,
"labels": [
"FAC"
],
"start": 6311,
"text": "The accused had not committed sexual intercourse with me at that night.\""
}
},
{
"from_name": null,
"id": "9ec23ef4b03047ccb3c22f5b64393978",
"to_name": null,
"type": null,
"value": {
"end": 6400,
"labels": [
"FAC"
],
"start": 6383,
"text": "\n 7]"
}
},
{
"from_name": null,
"id": "1e7ace0bf5ed4941850490622ce61c13",
"to_name": null,
"type": null,
"value": {
"end": 6590,
"labels": [
"FAC"
],
"start": 6401,
"text": "It is only when the learned A.P.P. was allowed to put leading question to this witness she had stated that on the second occasion also the accused had committed sexual intercourse with her."
}
},
{
"from_name": null,
"id": "54a1013f47e74744809f93cf72e834ea",
"to_name": null,
"type": null,
"value": {
"end": 6693,
"labels": [
"FAC"
],
"start": 6591,
"text": "The relevant part of her testimony is reproduced below: \"I stated about adopting pregnancy to accused."
}
},
{
"from_name": null,
"id": "9ae3a6b8b6d14c4888a380a5ca2a1e50",
"to_name": null,
"type": null,
"value": {
"end": 6742,
"labels": [
"FAC"
],
"start": 6694,
"text": "he stated that he will cause terminate the same."
}
},
{
"from_name": null,
"id": "b4cf486a31084cdd9a19685ff641b4df",
"to_name": null,
"type": null,
"value": {
"end": 6780,
"labels": [
"FAC"
],
"start": 6743,
"text": "Thereafter the accused was absconded."
}
},
{
"from_name": null,
"id": "5a1ecb7e9b7647c29ad919a90f12df8a",
"to_name": null,
"type": null,
"value": {
"end": 6858,
"labels": [
"FAC"
],
"start": 6781,
"text": "There was meeting in the village about adopting (conceiving) pregnancy by me."
}
},
{
"from_name": null,
"id": "7c48ee5aa36f40d3b8aa2e5fda00216d",
"to_name": null,
"type": null,
"value": {
"end": 6930,
"labels": [
"FAC"
],
"start": 6859,
"text": "At that time I stated the name of accused as he caused pregnancy to me."
}
},
{
"from_name": null,
"id": "ff2c836aa8ca474fac4eac9380cd85eb",
"to_name": null,
"type": null,
"value": {
"end": 6989,
"labels": [
"FAC"
],
"start": 6931,
"text": "Prior to lodging the report, accused brought me at Armori."
}
},
{
"from_name": null,
"id": "ff2fe410d3ef46de8cfbb7ee7ba9e9f7",
"to_name": null,
"type": null,
"value": {
"end": 7035,
"labels": [
"FAC"
],
"start": 6990,
"text": "He had taken me for terminating my pregnancy."
}
},
{
"from_name": null,
"id": "cc8ef2c47ed84b968aa6e23c53322472",
"to_name": null,
"type": null,
"value": {
"end": 7178,
"labels": [
"FAC"
],
"start": 7036,
"text": "As the accused had not came to meeting and absconded after causing pregnancy to me, therefore, I have gone to police station.\"\n 8"
}
},
{
"from_name": null,
"id": "6b4579ff2c654e698af3cb7718e3fc04",
"to_name": null,
"type": null,
"value": {
"end": 7331,
"labels": [
"FAC"
],
"start": 7178,
"text": "] In the first information report, it is mentioned that: \"R;kuarj eyk xHkZ jkfgY;kus eh R;kl ;k ckcr yodj dkgh rjh dj.;kl lkafxrys- ijarw R;kus eyk ?kkc:"
}
},
{
"from_name": null,
"id": "33ade65d35704d72863ab3bad7cc93c6",
"to_name": null,
"type": null,
"value": {
"end": 7557,
"labels": [
"FAC"
],
"start": 7332,
"text": "udks eh ikMwu nsbZu vls lkafxrys- R;kus dkghp u dsY;kus xHkZ 5 efgU;kpk >kY;kewGs eh gh xks\"V ek>s Hkk +_\"kh o ds'ko ;kauk lkafxryh- rlsp esJke gs xkokrwu Qjkj >kY;kus eh ek>s Hkkoklkscr iksyhl LVs'kuyk ;su fjiksVZ nsr vkgs-\""
}
},
{
"from_name": null,
"id": "b800cc1edc06433e937ec8f058630013",
"to_name": null,
"type": null,
"value": {
"end": 7706,
"labels": [
"ANALYSIS"
],
"start": 7575,
"text": "What emerged from the above is that the victim who was aged more than 16 years voluntarily accompanied accused without any protest."
}
},
{
"from_name": null,
"id": "1668f268ed9546cd95f3e4ea8d5b7053",
"to_name": null,
"type": null,
"value": {
"end": 7771,
"labels": [
"ANALYSIS"
],
"start": 7707,
"text": "She agreed to spend night with him in room, not once, but twice."
}
},
{
"from_name": null,
"id": "8f2389a524b94d85b63695b09bbb9da4",
"to_name": null,
"type": null,
"value": {
"end": 7824,
"labels": [
"ANALYSIS"
],
"start": 7771,
"text": "\n When they returned back, she kept mum."
}
},
{
"from_name": null,
"id": "d861af2f006e41d18f53586646d184e6",
"to_name": null,
"type": null,
"value": {
"end": 7895,
"labels": [
"ANALYSIS"
],
"start": 7825,
"text": "After one month she again agreed to accompany him without any protest."
}
},
{
"from_name": null,
"id": "5f538b2ae36344019643109e1d26baf3",
"to_name": null,
"type": null,
"value": {
"end": 8034,
"labels": [
"ANALYSIS"
],
"start": 7896,
"text": "During her examination in chief she categorically stated that on the second occasion the accused did not have sexual intercourse with her."
}
},
{
"from_name": null,
"id": "adb3a178c6ac49e9bf8f32c8588c65ba",
"to_name": null,
"type": null,
"value": {
"end": 8085,
"labels": [
"ANALYSIS"
],
"start": 8035,
"text": "For that reason leading questions were put to her."
}
},
{
"from_name": null,
"id": "435a84817aac4aabb4f409e08d78049b",
"to_name": null,
"type": null,
"value": {
"end": 8125,
"labels": [
"ANALYSIS"
],
"start": 8086,
"text": "After returning the house she kept mum."
}
},
{
"from_name": null,
"id": "d38d960ce1a04500b1377c1c27ff93a8",
"to_name": null,
"type": null,
"value": {
"end": 8237,
"labels": [
"ANALYSIS"
],
"start": 8126,
"text": "Only because she conceived and accused did not help her in getting the pregnancy terminated, she lodged report."
}
},
{
"from_name": null,
"id": "02df803a3517475582ebe17b5417c5cd",
"to_name": null,
"type": null,
"value": {
"end": 8489,
"labels": [
"ANALYSIS"
],
"start": 8238,
"text": "In that view of the matter, the findings recorded by the learned Additional Sessions Judge in paragraph 24 of the judgment that there was no valid consent on the part of the victim, are misconceived and inconsistent with the evidence placed on record."
}
},
{
"from_name": null,
"id": "76b81679b2374cdab02803e4b9716e0a",
"to_name": null,
"type": null,
"value": {
"end": 8661,
"labels": [
"FAC"
],
"start": 8504,
"text": "10] P.W.2 the father of the victim admitted in cross- examination that: \"My daughter stated about the pregnancy and, therefore, there was meeting of panchas."
}
},
{
"from_name": null,
"id": "3e6f9b6821684d88bbd1b049f049c71e",
"to_name": null,
"type": null,
"value": {
"end": 8693,
"labels": [
"FAC"
],
"start": 8662,
"text": "I had not gone to the meeting.\""
}
},
{
"from_name": null,
"id": "9fa446790e6f46c0b2254df304e0eadf",
"to_name": null,
"type": null,
"value": {
"end": 9215,
"labels": [
"PRE_RELIED"
],
"start": 8708,
"text": "11] In case of Jintudas ..vs.. State of Asam reported in 2003 Cri.L.J. 1411 the Learned Single Judge of the Gauhati High Court while dealing with the case involving similar facts and after considering evidence relating to the conduct of the victim observed that: \"If a full grown woman consents to act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact."
}
},
{
"from_name": null,
"id": "569a6a767522413dacd73dba06f0fa2a",
"to_name": null,
"type": null,
"value": {
"end": 9337,
"labels": [
"PRE_RELIED"
],
"start": 9216,
"text": "In such facts and circumstances, the irresistible conclusion is that the accused had sexual intercourse with her consent."
}
},
{
"from_name": null,
"id": "375f709c6f4a4328a9e74e7978cc2273",
"to_name": null,
"type": null,
"value": {
"end": 9511,
"labels": [
"PRE_RELIED"
],
"start": 9338,
"text": "More so, when this act has been corroborated by circumstances that she did not tell anybody about the sexual intercourse with the accused appellant till she became pregnant."
}
},
{
"from_name": null,
"id": "1e7a3d1d653841e4881460a73e39642a",
"to_name": null,
"type": null,
"value": {
"end": 9676,
"labels": [
"PRE_RELIED"
],
"start": 9511,
"text": "\n In such a case conviction of accused for offence of rape is not proper.\"\n 12] In case of Vettikuzhiyil Jaison alias Jose ..vs..\n "
}
},
{
"from_name": null,
"id": "ad57b2d3d0a248c5b7f3addcbbed1d56",
"to_name": null,
"type": null,
"value": {
"end": 9890,
"labels": [
"PRE_RELIED"
],
"start": 9676,
"text": "The State, reported in 2003 Cri.L.J. 2482 the learned Single Judge of the Kerla High Court held that : \"Evidence on record shows that prosecutrix was above 16 years of age on date of commission of alleged offence -"
}
},
{
"from_name": null,
"id": "7344502ae7da4fcfb052117c50521e8b",
"to_name": null,
"type": null,
"value": {
"end": 10262,
"labels": [
"PRE_RELIED"
],
"start": 9891,
"text": "According to prosecutrix accused had sexual intercourse with her on three occasions - Prosecutrix, however, not divulging incident to anybody till she was found pregnant by doctor - Prosecutrix not even offered resistance when accused attempted to have sexual intercourse with her in her own house Nor raised alarm to draw attention of neighbours or escaped from house "
}
},
{
"from_name": null,
"id": "d0be9a7c1dac4ab38bb19cd7ee2ef816",
"to_name": null,
"type": null,
"value": {
"end": 10303,
"labels": [
"PRE_RELIED"
],
"start": 10262,
"text": "No marks of injury found on private parts"
}
},
{
"from_name": null,
"id": "818e52c465cb4c52bd10a6a5e8d436f0",
"to_name": null,
"type": null,
"value": {
"end": 10380,
"labels": [
"PRE_RELIED"
],
"start": 10305,
"text": "Held, entire conduct of prosecutrix shows that she was a consenting party.\""
}
},
{
"from_name": null,
"id": "89b2c43a27b54870b7b7924aed3123c3",
"to_name": null,
"type": null,
"value": {
"end": 10677,
"labels": [
"PRE_RELIED"
],
"start": 10380,
"text": "\n 13] In case of Uday ..vs..State of Karnataka reported in (2003)4 SCC 46, their lordship explained the term 'consent' occurring under section 90 and held that \"burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them\".\n 14]"
}
},
{
"from_name": null,
"id": "5855bd578bf84677bdb0a5bc47b581c6",
"to_name": null,
"type": null,
"value": {
"end": 10771,
"labels": [
"RATIO"
],
"start": 10678,
"text": "In order to prove that victim conceived from the accused the prosecution adduced no evidence."
}
},
{
"from_name": null,
"id": "13d93641689a43009c3508904fb97064",
"to_name": null,
"type": null,
"value": {
"end": 10866,
"labels": [
"RATIO"
],
"start": 10772,
"text": "Even the elimination test based on the blood groups was not carried out much less D.N.A. test."
}
},
{
"from_name": null,
"id": "d08eb306804843d2a54619dc1e558269",
"to_name": null,
"type": null,
"value": {
"end": 11055,
"labels": [
"RATIO"
],
"start": 10867,
"text": "Considering the evidence brought on record it is difficult to subscribe to the findings of the learned Additional Sessions Judge that there was no valid consent for the sexual intercourse."
}
},
{
"from_name": null,
"id": "65747952980b4d7eb3841cd50ad58027",
"to_name": null,
"type": null,
"value": {
"end": 11103,
"labels": [
"RATIO"
],
"start": 11056,
"text": "In that view of the matter the appeal succeeds."
}
},
{
"from_name": null,
"id": "69265a78eac14fa1ba4c468e834096d3",
"to_name": null,
"type": null,
"value": {
"end": 11121,
"labels": [
"RPC"
],
"start": 11103,
"text": "\n 15]"
}
},
{
"from_name": null,
"id": "ed768c7bff744ee1b2c2d62f9e07b706",
"to_name": null,
"type": null,
"value": {
"end": 11144,
"labels": [
"RPC"
],
"start": 11122,
"text": "The appeal is allowed."
}
},
{
"from_name": null,
"id": "7f103af260654bf2a2d7fb972704b86e",
"to_name": null,
"type": null,
"value": {
"end": 11265,
"labels": [
"RPC"
],
"start": 11145,
"text": "The judgment and order of conviction of the accused for the offence punishable under section 376 of I.P.C. is set aside."
}
},
{
"from_name": null,
"id": "3aebd4b0128941c8a2995c3c84f96496",
"to_name": null,
"type": null,
"value": {
"end": 11297,
"labels": [
"RPC"
],
"start": 11266,
"text": "The appellant stands acquitted."
}
},
{
"from_name": null,
"id": "d6ae7ae1cf1345578533331534ac2bff",
"to_name": null,
"type": null,
"value": {
"end": 11351,
"labels": [
"RPC"
],
"start": 11298,
"text": "Bail bonds executed by the appellant stand cancelled."
}
},
{
"from_name": null,
"id": "8c9bc33fd2314186b3cb29cd11298cd1",
"to_name": null,
"type": null,
"value": {
"end": 11365,
"labels": [
"NONE"
],
"start": 11351,
"text": "\n JUDGE SMP.\n "
}
}
]
}
] | 4,142 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY:\n NAGPUR BENCH: NAGPUR\n\n CRIMINAL APPEAL NO.85 OF 2004\n APELLANT:\n\n Chandrashekhar s/o Bhagwan Meshram, aged\n about 43 years, occupation : service, r/o\n Bandhona, Tahsil Dhanora, district : Gadchiroli.\n\n VERSUS\n RESPONDENT:\n\n State of Maharashtra, through its Police Station\n Officer, Gadchiroli, District : Gadchiroli.\n ============================================\n Mr. Anand Parchure, advocate for appellant\n Mr. S.S. Doifode, A P P for state\n ============================================\n CORARM : M.N. GILANI, J.\n DATE: 12/4/2012\n ORAL JUDGMENT\n This appeal arises out of the judgment and order dated 22.1.2004, passed by Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No.22/2009 whereby the appellant was convicted for an offence under section 376(1) of the Indian Penal Code and sentenced to suffer R.I. for seven years and to pay fine of RS.2,000/-, in default to suffer R.I. for six months.\n 2] The prosecution case as unfolded in the first information report is thus: the accused was a teacher in a School at village Muska, tahsil Dhanora, district: Gadchiroli. Victim and her parents reside in the same village. They were acquainted with the accused. At the relevant time the age of the victim was 16 years. She had patches of leucoderma (white patches) on her forehead and hand. The accused suggested to her parents that he was acquainted with some doctor at Nagpur who would be able to provide treatment to the girl. Accused carried girl to Nagpur and for meeting the expenses of the treatment obtained Rs.2,000/- from her father. On the way to Nagpur they stayed in a lodge at Gadchiroli. It is alleged that in the night the accused had sexual intercourse with the girl. Thereafter she was carried to Nagpur and the doctor was consulted. After 15-20 days of this incident again the girl accompanied the accused for going to Nagpur. Since they could not meet the doctor they were required to make halt in the lodge in the night. Again the accused had sexual intercourse with the girl. She conceived form him.\n Ultimately, on 28.8.1997 the first information report came to be lodged and on that basis the offence under section 376 of Indian Penal Code came to be registered.\n 3] Victim was examined by the Medical Officer. She was found carrying fetus of 22 weeks. Her radiological examination revealed that she was in between 16-18 years of age. After investigation the charge sheet was submitted. The Additional Sessions Judge framed and explained the charge to the accused. He pleaded not guilty and claimed to be tried. The prosecution examined 7 witnesses. After considering the evidence, learned Additional Sessions Judge held that sexual intercourse committed by the accused with victim was against her will. He therefore, proceeded to convict and sentence him as stated above.\n 4] The learned counsel for the appellant assails the judgment impugned mainly on the ground that it is based upon conjunctures and surmises. The inference drawn by the learned Additional Sessions Judge that the sexual intercourse was without consent of the victim is inconsistent with the material placed on record. According to him, the victim being above 16 years of age her consent was material. Her conduct in accompanying the accused, staying with him in the lodge not once, but twice and not lodging any protest till she noticed that she was pregnant, only point out that she had consented for the sexual intercourse.\n According to the learned counsel this material aspect involved in the case has been ignored by the learned Additional Sessions Judge and thus committed an error in convicting the accused.\n 5] Learned A.P.P. supported the judgment and order of conviction and sentence. According to him accused taking advantage of the position, carried the girl with him for providing her treatment. He took undue advantage of her helplessness and committed sexual intercourse with her. On the second occasion also against the will of the victim he had sexual intercourse with her. When she conceived, he disowned paternity and fled away from the village. He therefore, contended that the learned Additional Sessions Judge was right in convicting the accused for the offence punishable under section 376 of the Indian Penal Code.\n 6] The victim narrated the first incident of the accused committing sexual intercourse with her as under: \"The accused came on my cot. Due to this I woke up. Accused caught me. Accused stated me as nobody is here, and stated me to allow him for committing sexual intercourse. I refused for the sexual act. I stated him as to why he is not feeling shame for asking me about the evil act. Accused committed sexual intercourse with me. The accused committed sexual intercourse with me. The accused committed sexual intercourse with me forcibly. Accused committed sexual intercourse with me forcibly. Accused stated me that he will see if any wrong happened with me. The accused committed sexual intercourse with me forcibly. Accused stated me that he will see if any wrong happened with me. I was weeping when accused was committing sexual intercourse with me. Due to threatening of accused, I had not stated anybody about this incident.\"\n About the second incident, she narrated as under: \"After one month, again accused came to my house for taking me at Nagpur. Alongwith accused I had gone to Nagpur. I was not intending to go with him. On the say of my parents, I had gone with him at Nagpur. At about 2.30 p.m. along with accused I reached at Nagpur. We had gone to the hospital, but the doctor was not present in the hospital. Accused taken me in a lodge at Nagpur. Accused made his signature in the register of lodge. There were two cots in the room of lodge. At about 9 p.m. I was lying on my cot. On the next morning, we had gone to hospital and thereafter came back to our village. The accused had not committed sexual intercourse with me at that night.\"\n 7] It is only when the learned A.P.P. was allowed to put leading question to this witness she had stated that on the second occasion also the accused had committed sexual intercourse with her. The relevant part of her testimony is reproduced below: \"I stated about adopting pregnancy to accused. he stated that he will cause terminate the same. Thereafter the accused was absconded. There was meeting in the village about adopting (conceiving) pregnancy by me. At that time I stated the name of accused as he caused pregnancy to me. Prior to lodging the report, accused brought me at Armori. He had taken me for terminating my pregnancy. As the accused had not came to meeting and absconded after causing pregnancy to me, therefore, I have gone to police station.\"\n 8] In the first information report, it is mentioned that: \"R;kuarj eyk xHkZ jkfgY;kus eh R;kl ;k ckcr yodj dkgh rjh dj.;kl lkafxrys- ijarw R;kus eyk ?kkc: udks eh ikMwu nsbZu vls lkafxrys- R;kus dkghp u dsY;kus xHkZ 5 efgU;kpk >kY;kewGs eh gh xks\"V ek>s Hkk +_\"kh o ds'ko ;kauk lkafxryh- rlsp esJke gs xkokrwu Qjkj >kY;kus eh ek>s Hkkoklkscr iksyhl LVs'kuyk ;su fjiksVZ nsr vkgs-\"\n 9] What emerged from the above is that the victim who was aged more than 16 years voluntarily accompanied accused without any protest. She agreed to spend night with him in room, not once, but twice.\n When they returned back, she kept mum. After one month she again agreed to accompany him without any protest. During her examination in chief she categorically stated that on the second occasion the accused did not have sexual intercourse with her. For that reason leading questions were put to her. After returning the house she kept mum. Only because she conceived and accused did not help her in getting the pregnancy terminated, she lodged report. In that view of the matter, the findings recorded by the learned Additional Sessions Judge in paragraph 24 of the judgment that there was no valid consent on the part of the victim, are misconceived and inconsistent with the evidence placed on record.\n 10] P.W.2 the father of the victim admitted in cross- examination that: \"My daughter stated about the pregnancy and, therefore, there was meeting of panchas. I had not gone to the meeting.\"\n 11] In case of Jintudas ..vs.. State of Asam reported in 2003 Cri.L.J. 1411 the Learned Single Judge of the Gauhati High Court while dealing with the case involving similar facts and after considering evidence relating to the conduct of the victim observed that: \"If a full grown woman consents to act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. In such facts and circumstances, the irresistible conclusion is that the accused had sexual intercourse with her consent. More so, when this act has been corroborated by circumstances that she did not tell anybody about the sexual intercourse with the accused appellant till she became pregnant.\n In such a case conviction of accused for offence of rape is not proper.\"\n 12] In case of Vettikuzhiyil Jaison alias Jose ..vs..\n The State, reported in 2003 Cri.L.J. 2482 the learned Single Judge of the Kerla High Court held that : \"Evidence on record shows that prosecutrix was above 16 years of age on date of commission of alleged offence - According to prosecutrix accused had sexual intercourse with her on three occasions - Prosecutrix, however, not divulging incident to anybody till she was found pregnant by doctor - Prosecutrix not even offered resistance when accused attempted to have sexual intercourse with her in her own house Nor raised alarm to draw attention of neighbours or escaped from house No marks of injury found on private parts Held, entire conduct of prosecutrix shows that she was a consenting party.\"\n 13] In case of Uday ..vs..State of Karnataka reported in (2003)4 SCC 46, their lordship explained the term 'consent' occurring under section 90 and held that \"burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them\".\n 14] In order to prove that victim conceived from the accused the prosecution adduced no evidence. Even the elimination test based on the blood groups was not carried out much less D.N.A. test. Considering the evidence brought on record it is difficult to subscribe to the findings of the learned Additional Sessions Judge that there was no valid consent for the sexual intercourse. In that view of the matter the appeal succeeds.\n 15] The appeal is allowed. The judgment and order of conviction of the accused for the offence punishable under section 376 of I.P.C. is set aside. The appellant stands acquitted. Bail bonds executed by the appellant stand cancelled.\n JUDGE SMP.\n "
} |
{
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{
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{
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"end": 95,
"labels": [
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"start": 0,
"text": "PETITIONER:\nSTATE OF ASSAM\n\nVs.\n\nRESPONDENT:\nMUHIM BARKATAKI & ANR.\n\nDATE OF JUDGMENT20/10/1986"
}
},
{
"from_name": "label",
"id": "78b3d0d9b2f94d0db1cd90c9b4e80b2f",
"to_name": "text",
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"labels": [
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"start": 97,
"text": "BENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSEN, A.P. (J)\n\nCITATION: 1986 SCR (3)1038\n 1987 AIR 98 JT 1986 664\n 1986 SCC (4) 439\n 1986 SCALE (2)607\n\nACT:\n Indian Penal Code, 1860: ss. 34, 302 & 436-Offences\n\nunder-Dying declaration of deceased-Conviction of accused-\nValidity of.\n\n Evidence Act, 1872: s. 32-Dying declaration made before\nwitnesses while suffering severe pain from grievous burn\ninjuries-Whether truthful and reliable.\n\n Criminal Procedure Code, 1973: s. 311-Police Officer-\nWhether could be examined as court witness-Witness found\nindependent, disinterested, trustworthy and reliable.\n\nHEADNOTE:\n The prosecution alleged that the accused-respondents\n\nset fire to deceased's body and his shop after sprink ling\nkerosene oil, that on seeing the fire P. Ws. 4, 5 and 6\nrushed to the place and put off the fire from the body of\nthe deceased who had come out of the shop ablaze, and that\nC.W. 1, the Assistant Sub-Inspector of Police, who was on\nlaw and order duty also came to the place of occurrence\nsimultaneously and witnessed the incident."
}
},
{
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"id": "599dd666283d49598e03edf36c7e3bef",
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"value": {
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"labels": [
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],
"start": 1209,
"text": "The deceased made\na dying declaration before these witnesses stating that the\nsaid two accused had set fire to his body after pouring\nkerosene."
}
},
{
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"id": "864519d7fd814ba38fc2972e10b0281e",
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"labels": [
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],
"start": 1353,
"text": "One of the accused was caught hold of by the\npublic red handed at the shop whereas the other accused fled\naway."
}
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{
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"id": "4ef419d0967f4274949b63c6fe0012cc",
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"text": "The Officer-in-charge of Police Station was informed\nof the incident on the telephone."
}
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"text": "The deceased was removed\nto the hospital where he later died."
}
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"text": "Cases of murder and\narson were thereafter registered against the accused."
}
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"to_name": "text",
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"labels": [
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"start": 1688,
"text": "P.Ws.\n4 and 6 made statements under s. 164 Cr. P.C. before the\nMagistrate and deposed to the factum of dying declaration\nmade by the deceased implicating the accused."
}
},
{
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"labels": [
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"start": 1854,
"text": "\n\n The Sessions Court after considering the evidences of\nP.W. 4 and C.W. 1 as well as the statements recorded under\ns. 164 Cr. P.C. accepted the dying declaration made by the\ndeceased and convicted the accused under s. 302 read with s.\n34 I.P.C. and sentenced them to\n1039\nrigorous imprisonment for life."
}
},
{
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"end": 2255,
"labels": [
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],
"start": 2167,
"text": "They were further convicted\nand sentenced under s. 436 read with s. 34 I.P.C.\n\n "
}
},
{
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"id": "2dc0b55bfdb94286989dfc6e0f84048a",
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"end": 2676,
"labels": [
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],
"start": 2255,
"text": "The High Court on appeal, however, found that the\nprosecution had failed to prove beyond doubt the offences\n\nfor which the appellants were charged, that the entire\nevidence in the case was circumstantial as there was no eye\nwitness to the occurrence, that the evidence of P.W. 4 as to\nthe dying declaration was wholly unreliable, and therefore,\nset aside the conviction and sentence passed against the\naccused.\n\n "
}
},
{
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"to_name": "text",
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"value": {
"end": 2991,
"labels": [
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],
"start": 2676,
"text": "The appeal by the State to this Court was opposed by\nthe accusedrespondents contending that there was no evidence\nto show that the deceased made the dying declaration and\neven if such a declaration has been made the same having not\nbeen corroborated cannot be taken into consideration in\nconvicting them.\n\n "
}
},
{
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"to_name": "text",
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"end": 3021,
"labels": [
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],
"start": 2991,
"text": "Allowing the Appeal, the Court"
}
},
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"labels": [
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],
"start": 3021,
"text": ",\n^\n\n HELD:"
}
},
{
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"value": {
"end": 3098,
"labels": [
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],
"start": 3041,
"text": "The accused were rightly convicted by the\nSessions Court."
}
},
{
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"id": "d726cbf88f704eb9843bd1b82c00af4d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3182,
"labels": [
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],
"start": 3099,
"text": "The prosecution has proved beyond reasonable\ndoubt the charges framed against them."
}
},
{
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"to_name": "text",
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"end": 3269,
"labels": [
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],
"start": 3183,
"text": "The order of\nacquittal passed by the High Court is, therefore, liable to\nbe set aside."
}
},
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"to_name": "text",
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"value": {
"end": 3476,
"labels": [
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],
"start": 3270,
"text": "[1048G]\n\n The dying declaration made by the deceased while he was\nsuffering severe pain from grievous injuries clearly\nimplicating the two accused persons as his assailants is\ntruthful and reliable."
}
},
{
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"value": {
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"labels": [
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],
"start": 3477,
"text": "[1048E]\n\n The eye witnesses, P. Ws. 4, 5 and 6 and C.W. 1 had\nundoubtedly arrived at the place of occurrence immediately\non seeing the fire."
}
},
{
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"labels": [
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],
"start": 3626,
"text": "They had seen that the shop was ablaze\nand there was fire on the person of the deceased."
}
},
{
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"to_name": "text",
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"value": {
"end": 3936,
"labels": [
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],
"start": 3715,
"text": "Then there\nis the specific evidence of P.W. 4 and C.W. 1 that the\ndeceased was crying a lot in pain due to burn injuries and\nthat he stated clearly that the accused persons poured\nkerosene on him and set fire to his body."
}
},
{
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"id": "18089702f2fc4f8abf5ce2995bfc5b30",
"to_name": "text",
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"value": {
"end": 4067,
"labels": [
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],
"start": 3937,
"text": "There are also the\nstatements of P.W. 4 and 6 made under s. 164 Cr. P.C. to the\neffect that the deceased made a dying declaration."
}
},
{
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"id": "95b45e78dd484365813bbc249c87716d",
"to_name": "text",
"type": "labels",
"value": {
"end": 4261,
"labels": [
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],
"start": 4068,
"text": "P.W. 2,\nwho held post mortem on the body of the deceased has stated\nin his evidence that a person sustaining burn injuries of\nsuch nature may have been conscious for some time before his\ndeath."
}
},
{
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"id": "4020bbad555648919619c81b0cc8f700",
"to_name": "text",
"type": "labels",
"value": {
"end": 4456,
"labels": [
"PREAMBLE"
],
"start": 4262,
"text": "It cannot, therefore, be ruled out that the deceased\nwas conscious in spite of the burn injuries on his person\nand he could speak and make dying declaration as testified\nto by P.W. 4 and C.W. 1."
}
},
{
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"id": "0cafbfe81a72485c91fd76c699092f42",
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"end": 4473,
"labels": [
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],
"start": 4457,
"text": "[1046A-D; 1045E]"
}
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"end": 4582,
"labels": [
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],
"start": 4473,
"text": "\n\n There is no infirmity in the action of the Sessions\nCourt treating\n1040\nC.W. 1 as a court witness."
}
},
{
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"id": "6a124e5bdac24152a6aa36ca98fe624d",
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"end": 4794,
"labels": [
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],
"start": 4583,
"text": "It has assigned cogent reasons as\nto why P.W. 1 was examined as a court witness under the\nprovisions of s. 311 Cr. P.C. He has been found an\nindependent and disinterested witness, to be reliable and\ntrustworthy."
}
},
{
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"id": "47dec6b2a18447a8a12934dea3248807",
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"end": 4893,
"labels": [
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],
"start": 4795,
"text": "He was an important witness of the case and his\nexamination was for the just decision of the case."
}
},
{
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"id": "1c9f9fb531474454939c7d9106824a89",
"to_name": "text",
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"value": {
"end": 5042,
"labels": [
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],
"start": 4894,
"text": "His\nevidence has full corroborations with another independent\nand distinterested witness, P.W. 4, who was also found to be\ntrustworthy and reliable."
}
},
{
"from_name": "label",
"id": "ca9e93d36a664c4eb8bf5bbb039f2324",
"to_name": "text",
"type": "labels",
"value": {
"end": 5142,
"labels": [
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],
"start": 5043,
"text": "The evidence of C.W. 1 cannot,\ntherefore, be underestimated merely because he was a police\nofficer."
}
},
{
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"id": "292d0ad8efd343ceb600d1a82437a90e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5163,
"labels": [
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],
"start": 5143,
"text": "[1046E-G]\n\n "
}
},
{
"from_name": "label",
"id": "50d14dada3a14e4ab64da1f949d47835",
"to_name": "text",
"type": "labels",
"value": {
"end": 5295,
"labels": [
"PREAMBLE"
],
"start": 5163,
"text": "The Court of appeal has acted illegally in discarding\nthe evidence of P.W. 4 as well as his statement recorded\nunder s. 164 Cr. P.C."
}
},
{
"from_name": "label",
"id": "0f8a4d0db8bb41cf86f261c97ef18f8d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5480,
"labels": [
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],
"start": 5296,
"text": "There is no criticism regarding the\nevidence of this witness on behalf of the respondents as to\nwhy his testimony regarding the dying declaration shall not\nbe taken into consideration."
}
},
{
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"id": "89037b77ccfe4f79961f3c1366535100",
"to_name": "text",
"type": "labels",
"value": {
"end": 5508,
"labels": [
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],
"start": 5481,
"text": "[1044H; 1045A-B]\n\n "
}
},
{
"from_name": "label",
"id": "927831f2703b4f7b93f5890a0ec789da",
"to_name": "text",
"type": "labels",
"value": {
"end": 5706,
"labels": [
"PREAMBLE"
],
"start": 5508,
"text": "There is also the testimony of P.W. 4 and C.W. 1 that\none of the accused was caught hold red handed at the spot\nand was detained by the public while the other fled away\nfrom the place of occurrence."
}
},
{
"from_name": "label",
"id": "dca7c8d496a84f578a9e8c466feb9ce4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5727,
"labels": [
"PREAMBLE"
],
"start": 5707,
"text": "[1043F-G]\n\n "
}
},
{
"from_name": "label",
"id": "be7de23f01214ee190913cbfe561cce1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6235,
"labels": [
"PREAMBLE"
],
"start": 5727,
"text": "All these lead to the only conclusion that the two\n\n\naccused persons poured kerosene in the shop as well as on\nthe deceased and set them on fire [1047C-D]\n\n Ramnath Madho Prasad & Ors. v. State of Madhya Pradesh,\nAIR 1953 SC 420; Khushal Rao v. State of Bombay, [1958] SCR\n552; Kusa & Ors. v. State of Orissa, AIR 1980 SC 559 at 562\npara 9; State of Assam v. Muaizuddin Ahmed, [1983] 2 SCC 14\nat 19 para 10; and Jayaraj v. State of Tamil Nadu, AIR 1976\nSC 1519 at 1522 para 16 referred to.\n\nJUDGMENT:"
}
},
{
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"id": "dc237576fc5f43abb52c9d788d2cae4d",
"to_name": "text",
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"value": {
"end": 6406,
"labels": [
"NONE"
],
"start": 6235,
"text": " CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 271 of 1986 From the Judgment and Order dated 31.1. 1985 of the Gauhati High Court in Cr. A. No. 66 of 1983."
}
},
{
"from_name": "label",
"id": "93f0ce09003a4215bc118298201cf07e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6445,
"labels": [
"NONE"
],
"start": 6406,
"text": "\n S.K. Nandy for the Appellant."
}
},
{
"from_name": "label",
"id": "c9a33aa4c011463ab25251358cfcf503",
"to_name": "text",
"type": "labels",
"value": {
"end": 6519,
"labels": [
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],
"start": 6445,
"text": "\n R.K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents."
}
},
{
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"id": "bfa1c81e33e049358fd444073101f077",
"to_name": "text",
"type": "labels",
"value": {
"end": 6589,
"labels": [
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],
"start": 6519,
"text": "\n The Judgment of the Court was delivered by 1041 B.C. Ray, J."
}
},
{
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"id": "39479b4ff8b24970abf896c934409548",
"to_name": "text",
"type": "labels",
"value": {
"end": 6892,
"labels": [
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],
"start": 6590,
"text": "This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec. 302 read with Sec.\n34 I.P.C. as well as under Sec. 436 read with Sec. 34 of Indian Penal Code, 1860.\n "
}
},
{
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"id": "88ed11c83218423aaa58782a4577edb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 7191,
"labels": [
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],
"start": 6892,
"text": "The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosine oil in the shop as well as on the person of Nagen Dey and then set fire."
}
},
{
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"id": "e752e73d28504120a4838db620516ad6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7274,
"labels": [
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],
"start": 7192,
"text": "Immediately fire caught and spread over the shop as well on the body of Nagen Dey."
}
},
{
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"id": "9f73069772724429a6d52c6c43d450df",
"to_name": "text",
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"value": {
"end": 7460,
"labels": [
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],
"start": 7275,
"text": "The shop was a Guliamal (grocery) shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na-Ali Road of Jorhat Town in front of M/s Baruah Printers."
}
},
{
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"id": "88209b7097e240ff8f1747db2f987611",
"to_name": "text",
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"value": {
"end": 7540,
"labels": [
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],
"start": 7461,
"text": "Nagen Dey came out of the shop house with ablazing condition all over his body."
}
},
{
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"id": "9a18b7a6aba744e1bdb59d0624eccf2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7768,
"labels": [
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],
"start": 7541,
"text": "The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body."
}
},
{
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"id": "d9a3edaee77443f4ac3c8675a6e5b9d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7974,
"labels": [
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],
"start": 7769,
"text": "Pradip Jyoti Sarma, Assistant Sub-Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey."
}
},
{
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"id": "f5753ec91af64f6f885a8196c8009e1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 8189,
"labels": [
"FAC"
],
"start": 7975,
"text": "Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil."
}
},
{
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"id": "bf3fa02f1314449fb26c8819ba875344",
"to_name": "text",
"type": "labels",
"value": {
"end": 8417,
"labels": [
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],
"start": 8190,
"text": "It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away."
}
},
{
"from_name": "label",
"id": "897f6b9dd51d49f29ffed540a0fb6e4b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8528,
"labels": [
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],
"start": 8418,
"text": "Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital."
}
},
{
"from_name": "label",
"id": "1851c12af4b5499fa34d0666c0f9b74e",
"to_name": "text",
"type": "labels",
"value": {
"end": 8652,
"labels": [
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],
"start": 8528,
"text": "\nAccused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub-Inspector of Police."
}
},
{
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"id": "3542a404886640fb8aeae560cfd29e64",
"to_name": "text",
"type": "labels",
"value": {
"end": 8879,
"labels": [
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],
"start": 8653,
"text": "The information of the incident was received over telephone message at 7.15 p.m. by the Officer-Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m.\n"
}
},
{
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"id": "495cddfbb8cd43529749fcce9fc8899d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8983,
"labels": [
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],
"start": 8879,
"text": "The Town Sub-Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot."
}
},
{
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"id": "a8bab34a335c415a95a9fd5007a12001",
"to_name": "text",
"type": "labels",
"value": {
"end": 8991,
"labels": [
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],
"start": 8984,
"text": "Sri P.\n"
}
},
{
"from_name": "label",
"id": "5fca609ea8134ebab8d6aeb11d65bbb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 9129,
"labels": [
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],
"start": 8991,
"text": "Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station."
}
},
{
"from_name": "label",
"id": "b22c6b4c089f4d62b3c2d6f7326912cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9313,
"labels": [
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],
"start": 9130,
"text": "He then informed the facts of occurrence to the Officer-incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m."
}
},
{
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"id": "2c6c328819c8412f9b04674eba745eea",
"to_name": "text",
"type": "labels",
"value": {
"end": 9420,
"labels": [
"FAC"
],
"start": 9314,
"text": "one Sri 1042 Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext.5) with Jorhat Police Station."
}
},
{
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"id": "fa0855ca0fb843d3a06f973e4ea75e39",
"to_name": "text",
"type": "labels",
"value": {
"end": 9515,
"labels": [
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],
"start": 9421,
"text": "Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta."
}
},
{
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"id": "82158c109f03402486d3c7c1a84a595d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9578,
"labels": [
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],
"start": 9516,
"text": "Investigation was carried on by Shri Prafulla Kumar Khatoniar."
}
},
{
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"id": "8b0b713a3b764fb092070eb0f55708ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 9744,
"labels": [
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],
"start": 9579,
"text": "The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the court for recording their statements under Sec. 164 of the Criminal Procedure Code."
}
},
{
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"id": "a3d045e88a9b46c18d8c2b08a1587b18",
"to_name": "text",
"type": "labels",
"value": {
"end": 9849,
"labels": [
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],
"start": 9745,
"text": "The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978."
}
},
{
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"id": "13bfeddbfad6468e8999d5c9e3d4983f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10059,
"labels": [
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],
"start": 9851,
"text": "The Sessions Judge found that the message received over telephone was an information relating to commission of cognizable offence and same was entered into General Diary of the Police Station as Entry No. 47."
}
},
{
"from_name": "label",
"id": "7abb4c34f3bc427fb7728c414d61629b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10332,
"labels": [
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],
"start": 10060,
"text": "On the basis of this information the investigation of the case was entrusted to the Town Sub-Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night."
}
},
{
"from_name": "label",
"id": "86fe2d8b0a3b43888ff67ada17bac27a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10530,
"labels": [
"FAC"
],
"start": 10333,
"text": "Subsequent information of Montu Chandra Dey on 3rd November, 1978 are nothing but statements during the course of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code."
}
},
{
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"id": "41d5f930f71c4f229719bd25eb5b562d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10647,
"labels": [
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],
"start": 10531,
"text": "It has, therefore, been held that Exhibit 5 cannot be recoganized as the First Information Report of the occurrence."
}
},
{
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"id": "72b85a571acd492fabcc2e38a236a6e3",
"to_name": "text",
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"value": {
"end": 10759,
"labels": [
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],
"start": 10648,
"text": "The General Diary Entry No. 47 which is proved as Ext. 7(1), is the First Information Report of the occurrence."
}
},
{
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"id": "b629f9d20893402c8d99dbb5d37053be",
"to_name": "text",
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"value": {
"end": 11147,
"labels": [
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],
"start": 10759,
"text": "\n The Sessions Judge duly considered the evidences of P.W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as the statements under Sec. 164 recorded by the Judicial Magistrate, P.W. 8 on 7.11.1978 and accepted the dying declaration made by the deceased Nagen Dey implicating the accused Muhim Barkataki and Dulu Dutta as pouring kerosine oil on his body and setting fire to his person."
}
},
{
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"id": "a852c48e843440f096a7c3303611889a",
"to_name": "text",
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"value": {
"end": 11436,
"labels": [
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],
"start": 11148,
"text": "P.W. 6 Kiran Saikia also stated in his statement under Sec. 164 of Criminal Procedure Code before the Judicial Magistrate, that Nagen Dey, deceased made a dying declaration that these two accused persons sprinkled kerosine over the body of the deceased Nagen Dey and then set fire to him."
}
},
{
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"id": "3ffbb1e1b80c497e8419c880124e0896",
"to_name": "text",
"type": "labels",
"value": {
"end": 11599,
"labels": [
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],
"start": 11437,
"text": "These witnesses also proved that the accused Muhim Barkataki was caught hold of red handed at the place of occurrence whereas Dulu Dutta fled away from the place."
}
},
{
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"id": "3bc972161f194874a8aae29e615817a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11768,
"labels": [
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],
"start": 11600,
"text": "The Sessions Judge, therefore, convicted both the accused under sec. 302 read with Sec. 34 of the Indian Penal Code and sentence them to rigorous imprisonment for life."
}
},
{
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"id": "ed105d139640421f8eab6815c6cef172",
"to_name": "text",
"type": "labels",
"value": {
"end": 11957,
"labels": [
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],
"start": 11769,
"text": "The accused persons were further convicted and sentenced under Sec. 436 read with Sec. 34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each."
}
},
{
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"id": "0421bd008a264887930636410d92774a",
"to_name": "text",
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"value": {
"end": 12000,
"labels": [
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],
"start": 11958,
"text": "Both the sentences shall run concurrently."
}
},
{
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"id": "81ce4b45045040c1a19c0d3f3d21d771",
"to_name": "text",
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"value": {
"end": 12170,
"labels": [
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],
"start": 12000,
"text": "\n1043 Against this judgment and order of conviction and sentence the accused person preferred an appeal being Criminal Appeal No. 66 of 1983 in the High Court of Gauhati."
}
},
{
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"id": "32a79dce07204ff8bdfd8164eafe79e9",
"to_name": "text",
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"value": {
"end": 12454,
"labels": [
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],
"start": 12171,
"text": "The High Court proceeded on the footing that entire evidence in the case was circumstantial as there was no eye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration."
}
},
{
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"id": "6ab02f455b03416e9710834b9971e019",
"to_name": "text",
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"value": {
"end": 12834,
"labels": [
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],
"start": 12455,
"text": "The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself."
}
},
{
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"id": "6a60b7f2103f4919b946d256163b3e94",
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"value": {
"end": 12971,
"labels": [
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],
"start": 12835,
"text": "The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged."
}
},
{
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"id": "adb91477e98849f4a3fd780d936c35b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 13076,
"labels": [
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],
"start": 12972,
"text": "The conviction and sentence passed against the accused persons was set aside and the appeal was allowed."
}
},
{
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"id": "df3110cbd0314a9aa27304cc49139b25",
"to_name": "text",
"type": "labels",
"value": {
"end": 13255,
"labels": [
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],
"start": 13076,
"text": "\n There is no dispute that the shop of deceased Nagen Dey situated by the side of Na-Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine."
}
},
{
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"id": "01454aad53ab41d78f603f118935162b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13396,
"labels": [
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],
"start": 13255,
"text": "\nEye witnesses P.W. 4-Arun Barua, P.W. 6-Kiran Saikia and P.W. 5-Prabin Barua came to the place of occurrence immediately on seeing the fire."
}
},
{
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"id": "5d38af7a478f42d5a0350aebf4037a50",
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"value": {
"end": 13733,
"labels": [
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],
"start": 13397,
"text": "It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey."
}
},
{
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"id": "aff7bcc6007445a1ae9fe59071e6a59a",
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"value": {
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"labels": [
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],
"start": 13734,
"text": "It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub-Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire."
}
},
{
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"labels": [
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],
"start": 14053,
"text": "It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence."
}
},
{
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"labels": [
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],
"start": 14283,
"text": "It is also evident from the G.D.\nEntry No. 47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil."
}
},
{
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"value": {
"end": 14798,
"labels": [
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],
"start": 14602,
"text": "One of the accused persons was caught hold of by local rija (public) while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary."
}
},
{
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"labels": [
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],
"start": 14798,
"text": "\n1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7(1)."
}
},
{
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],
"start": 14875,
"text": "It also appeared that immediately after the enquiry and investigation into the incident the Town Sub- Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na-Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt."
}
},
{
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"value": {
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"labels": [
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],
"start": 15285,
"text": "Nagen Dey was the owner of the shop who also was set on fire."
}
},
{
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"id": "d163ec3d1cb74a9db9a1e00e551869f3",
"to_name": "text",
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"value": {
"end": 15499,
"labels": [
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],
"start": 15347,
"text": "It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station."
}
},
{
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"id": "54662d043a23489bb3fce7cb34ab39b0",
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"end": 15575,
"labels": [
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],
"start": 15500,
"text": "This G.D.\nEntry No. 50 was proved by P.W. 7 and it was marked as Ext.\n7(2)."
}
},
{
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"id": "9df0642f1e5c407db301e21759323446",
"to_name": "text",
"type": "labels",
"value": {
"end": 15905,
"labels": [
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],
"start": 15576,
"text": "It also appears that the witnesses P.W. 4-Arun Barua, P.W. 5-Prabin Barua, P.W. 6-Kiran Saikia and C.W.1-Pradip Joyti Sarma who was on duty on that Na-Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a complete ablazing state all over his body."
}
},
{
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"id": "7227feecd13940eda4f4bdeabe0ca325",
"to_name": "text",
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"value": {
"end": 16090,
"labels": [
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],
"start": 15906,
"text": "It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was conscious and was crying out due to burning pain."
}
},
{
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"id": "10a8b25170e341aa8c149050ed20c1f6",
"to_name": "text",
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"value": {
"end": 16267,
"labels": [
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],
"start": 16091,
"text": "It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants."
}
},
{
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"id": "9a59ba56ce2e48dca1b3992273ba8b6d",
"to_name": "text",
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"value": {
"end": 16631,
"labels": [
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],
"start": 16268,
"text": "It is also evident from Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8) recorded the statements of Arun Barua (P.W. 4) and Kiran Saikia (P.W. 6) on 7.11.1978 under Sec. 164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him."
}
},
{
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"id": "d6b7a8906b604a1d971cbb7f1cb606ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 16746,
"labels": [
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],
"start": 16632,
"text": "P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey."
}
},
{
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"id": "c0be6571dc7e469ab6b4e8f35eadcf40",
"to_name": "text",
"type": "labels",
"value": {
"end": 16935,
"labels": [
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],
"start": 16747,
"text": "Of course P.W. 6 Kiran Saikia tried to contradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey."
}
},
{
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"id": "cc486a91599c494486eb6f028f98d39b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17059,
"labels": [
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],
"start": 16936,
"text": "He admitted in his examination-in-chief that he made a statement about this incident before the Magistrate of Jorhat Court."
}
},
{
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"id": "836f480eaa724a2eabe338d500dea4ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 17119,
"labels": [
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],
"start": 17060,
"text": "Exhibit 4 is his statement and Ext. 4 (2) is his signature."
}
},
{
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"id": "1332bb0b833b42df9d46ddfbe177a9f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 17185,
"labels": [
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],
"start": 17120,
"text": "He further stated that the Magistrate has recorded his statement."
}
},
{
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"id": "19490dfeda4d48e58bfc52cbc6c9ba80",
"to_name": "text",
"type": "labels",
"value": {
"end": 17311,
"labels": [
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],
"start": 17186,
"text": "But in cross-examination he contradicted himself by saying that he was tutored by the police to say so before the Magistrate."
}
},
{
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"id": "f9466d6100aa405abf05f76b11424202",
"to_name": "text",
"type": "labels",
"value": {
"end": 17637,
"labels": [
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],
"start": 17312,
"text": "Even if his statement is not taken into consideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate (Ext. 3) as well as his deposition which clearly corroborates his statement before the Magistrate about the dying declaration made by the deceased implicating the two accused persons as his assailants."
}
},
{
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"id": "65c04d13b1104e9790451cbcc90a1f87",
"to_name": "text",
"type": "labels",
"value": {
"end": 18045,
"labels": [
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],
"start": 17638,
"text": "The court of appeal below has acted 1045 illegally in discarding the evidence of P.W. 4 as well as his statement recorded under Sec. 164 of the Criminal Procedure Code by the Judicial Magistrate on the flimsy ground that it was not reliable because he contradicted his statement made before the Police that these three persons (the two accused and the deceased Nagen Dey) used to take liquor and play cards."
}
},
{
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"id": "c76348bfbfbc4f09848b871fa700a2c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 18317,
"labels": [
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],
"start": 18046,
"text": "Moreover C.W. 1 Pradip Jyoti Sarma who came to the place of occurrence a few minutes after the arrival of P.W. 4 and P.W. 6 at the place of occurrence has stated in his evidence that he saw the body of the deceased under fire and the deceased is crying out of burnt pain."
}
},
{
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"id": "a065ff6031804ee380e8d47ed2a9e5d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 18454,
"labels": [
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],
"start": 18318,
"text": "He implicated in his dying declaration that Muhim Barkataki and Dulu Dutta had set fire on his person after pouring kerosine oil on him."
}
},
{
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"id": "c866fc2d37934dc5adaec95eb00bf9fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 18596,
"labels": [
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],
"start": 18455,
"text": "He also stated that at the place of occurrence he found that the accused Muhim Barkataki was caught by the public and he was being assaulted."
}
},
{
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"id": "3aa38b3e783047afbd3531dd7b14de4a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18719,
"labels": [
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],
"start": 18597,
"text": "He further stated that to save Muhim Barkataki from assultant he handed him over to the Police Constable who was with him."
}
},
{
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"id": "2ef5676fd4894077bdb48d737b1c2fb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 18781,
"labels": [
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],
"start": 18720,
"text": "He also deposed that Nagen Dey has sense and he was speaking."
}
},
{
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"id": "a5a88ff3acde49419c8f0329dd340a4c",
"to_name": "text",
"type": "labels",
"value": {
"end": 18879,
"labels": [
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],
"start": 18782,
"text": "There was no cross- examination of this witness as to the dying declaration made by the deceased."
}
},
{
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"id": "9aa9f8f6564b454b8bb889ab896794ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 18989,
"labels": [
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],
"start": 18880,
"text": "This witness further stated that he came to the Thana in the night and told the inspector about the incident."
}
},
{
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"id": "201726a54fa74b42b60508d89d91beab",
"to_name": "text",
"type": "labels",
"value": {
"end": 19081,
"labels": [
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],
"start": 18990,
"text": "He also stated that he did not know whether O.C.\nrecorded this in the General Diary or not."
}
},
{
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"id": "7bf6d3a8e8654395bdaabbc08ce4822f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19290,
"labels": [
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],
"start": 19082,
"text": "P.W. 2 Dr.\nJibakanta Borah who hold post-mortum on the body of the deceased has stated in his evidence that a person sustaining burnt injuries of such nature may have consciousness for some time before death."
}
},
{
"from_name": "label",
"id": "371c8331c10c4aa98c2c85e61885a75e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19524,
"labels": [
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],
"start": 19291,
"text": "It cannot, therefore, be ruled out that the deceased Nagen Dey was conscious in spite of the severe burnt injuries on his person and he could speak and could make dying declaration as testified to by the witnesses P.W. 4, and C.W. 1."
}
},
{
"from_name": "label",
"id": "1096d41e8eea4025886908f6c3f9a825",
"to_name": "text",
"type": "labels",
"value": {
"end": 19846,
"labels": [
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],
"start": 19525,
"text": "It has been tried to be urged before us by the learned counsel on behalf of the respondents that there is no evidence to show that the deceased Nagen Dey made a dying declaration as has been alleged as the General Diary Entry was not produced to show such statement of C.W. 1 about the dying declaration recorded therein."
}
},
{
"from_name": "label",
"id": "c40a734237654bf68092983408b2af98",
"to_name": "text",
"type": "labels",
"value": {
"end": 20021,
"labels": [
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],
"start": 19847,
"text": "Moreover even if such a dying declaration has been made the same being not corroborated cannot be taken into consideration by the court in convicting the accused respondents."
}
},
{
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"id": "1d63747a50614ebfa25d8f5469018c71",
"to_name": "text",
"type": "labels",
"value": {
"end": 20218,
"labels": [
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],
"start": 20022,
"text": "It has been further submitted that the court of appeal below rightly discarded the alleged dying declaration as being not corroborated by any other evidence and duly acquitted the accused persons."
}
},
{
"from_name": "label",
"id": "1ede464810b841d6bff356304541ad0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20431,
"labels": [
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],
"start": 20220,
"text": "We have considered and appraised thoroughly the evidence on record and on an overall assessment of the same, we hold that the prosecution has proved beyond reasonable doubt, the charges framed 1046 against them."
}
},
{
"from_name": "label",
"id": "adf3e0fc0f724b6c80bf3348d9e08188",
"to_name": "text",
"type": "labels",
"value": {
"end": 20540,
"labels": [
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],
"start": 20432,
"text": "The order of acquittal passed by the High Court is liable to be set aside for the reasons stated here after."
}
},
{
"from_name": "label",
"id": "5d74b954e5334676a35af856818a2540",
"to_name": "text",
"type": "labels",
"value": {
"end": 20742,
"labels": [
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],
"start": 20541,
"text": "Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978."
}
},
{
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"id": "2916b10f5dad40c988dc352722e5fd4d",
"to_name": "text",
"type": "labels",
"value": {
"end": 20842,
"labels": [
"ANALYSIS"
],
"start": 20743,
"text": "All these witnesses have seen that the shop is ablaze and there is fire on the person of Nagen Dey."
}
},
{
"from_name": "label",
"id": "963752c8545240a091c4e40b86db219a",
"to_name": "text",
"type": "labels",
"value": {
"end": 21037,
"labels": [
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],
"start": 20843,
"text": "It is also the specific evidence of P.W. 4 Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the Jorhat Thana at Jorhat Town in law and order duty on that day."
}
},
{
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"id": "9709e3f69994453fb42487cc0c79a89f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21284,
"labels": [
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],
"start": 21038,
"text": "All these eye witnesses P.W.\n4 and C.W. 1 also stated that Nagen Dey was crying a lot in pain out of burnt injuries and he stated clearly that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil on him and set fire on his body."
}
},
{
"from_name": "label",
"id": "27c6e8f847dd47e8a740d1bac08ff282",
"to_name": "text",
"type": "labels",
"value": {
"end": 21387,
"labels": [
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],
"start": 21285,
"text": "So far as depositions of P.W. 4 and C.W. 1 are considered there is no cross-examination on this point."
}
},
{
"from_name": "label",
"id": "0526e23e10f8433397b78e3a6ee012d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 21665,
"labels": [
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],
"start": 21388,
"text": "Further more, P.W. 4 and P.W. 6 made statements Exts. 3 and 4 under Sec. 164 of Criminal Procedure Code before the Chief Judicial Magistrate of Jorhat (P.W. 8) to the effect that the deceased Nagen Dey made a dying declaration implicating the accused persons as his assailants."
}
},
{
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"id": "51a1b6b928de435885e530c89ab9b679",
"to_name": "text",
"type": "labels",
"value": {
"end": 21828,
"labels": [
"ANALYSIS"
],
"start": 21666,
"text": "This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addl. Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia (P.W. 8)."
}
},
{
"from_name": "label",
"id": "ec960b9a5936445398c37781a8b9075f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21936,
"labels": [
"ANALYSIS"
],
"start": 21828,
"text": "\nOf course, P.W. 6 Kiran Saikia tried to contradict his statement made before the Chief Judicial Magistrate."
}
},
{
"from_name": "label",
"id": "fa2b25afb1384881a11b0e6f18f7ce15",
"to_name": "text",
"type": "labels",
"value": {
"end": 22193,
"labels": [
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],
"start": 21937,
"text": "As regards the evidence of C.W. 1 it has been tried to be contended that his statement before the O.C. of the Police Station that the deceased made a dying declaration cannot be accepted as there is nothing to show that this was recorded in the G.D. Entry."
}
},
{
"from_name": "label",
"id": "bf34d13a1c2c46a5a178ffe62fd70905",
"to_name": "text",
"type": "labels",
"value": {
"end": 22423,
"labels": [
"ANALYSIS"
],
"start": 22194,
"text": "This statement cannot be accepted inasmuch as the learned Sessions Judge has assigned cogent reasons as to why Pradip Jyoti Sarma was examined as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure."
}
},
{
"from_name": "label",
"id": "28f83d65217846d9b4abc29591728123",
"to_name": "text",
"type": "labels",
"value": {
"end": 22559,
"labels": [
"ANALYSIS"
],
"start": 22424,
"text": "It has been clearly found that Shri Sarma was an independent and disinterested witness and he was found to be reliable and trustworthy."
}
},
{
"from_name": "label",
"id": "bff69da86ebd44fe82d4382ba8aca9d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 22872,
"labels": [
"ANALYSIS"
],
"start": 22560,
"text": "It has been also found that Shri Pradip Jyoti Sarma is an important witness of the case and his examination was for the just decision of the case and his evidence has full corroboration with another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness."
}
},
{
"from_name": "label",
"id": "c4c37669179c414ea24f01fc8c17f7c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 22977,
"labels": [
"ANALYSIS"
],
"start": 22873,
"text": "The evidence of Shri Pradip Jyoti Sarma cannot be under-estimated merely because he is a police officer."
}
},
{
"from_name": "label",
"id": "28f86c599d7c4e69b7c5cdfffbc20aad",
"to_name": "text",
"type": "labels",
"value": {
"end": 23155,
"labels": [
"ANALYSIS"
],
"start": 22978,
"text": "The Sessions Judge also stated in his order that the reasons for examining him as a court witness had been elaborately recorded in the order-sheet dated 17.2.1982 and 22.3.1983."
}
},
{
"from_name": "label",
"id": "679203259a0d4e279ac23ebdc735b91d",
"to_name": "text",
"type": "labels",
"value": {
"end": 23409,
"labels": [
"ANALYSIS"
],
"start": 23155,
"text": "\nTherefore, considering this finding of the Sessions Judge we hold that there is no infirmity in the findings of the Sessions Judge in treating Pradip Jyoti 1047 Sarma as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure."
}
},
{
"from_name": "label",
"id": "998926229ed4493d80ba4adeee83b3fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 23641,
"labels": [
"ANALYSIS"
],
"start": 23410,
"text": "There is no criticism regarding the evidence of P.W. 4 on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration apart from the evidence of C.W. 1 Pradip Jyoti Sarma."
}
},
{
"from_name": "label",
"id": "550a3736ed95401ea8f46df06864c57a",
"to_name": "text",
"type": "labels",
"value": {
"end": 23976,
"labels": [
"ANALYSIS"
],
"start": 23642,
"text": "Moreover it is evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6 recorded under Sec. 164 of the Code of Criminal Procedure by the Addl. Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4 and 6 clearly stated about the dying declaration made by Nagen Dey implicating both the accused as his assailants."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 24172,
"labels": [
"ANALYSIS"
],
"start": 23977,
"text": "Along with this testimony of P.W.\n4 and C.W. 1 that Muhim Barkataki was caught hold red handed on the spot and was detained by the public while Dullu Dutta fled away from the place of occurrence."
}
},
{
"from_name": "label",
"id": "9d4632b72bfc4a06aa3919f0ef59d4b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 24444,
"labels": [
"ANALYSIS"
],
"start": 24173,
"text": "All these clearly go to prove the prosecution case beyond any reasonable doubt and it leads to the only conclusion that these two accused persons poured kerosine oil in the shop as well as sprinkled kerosine oil on him and set fire on the deceased as well as to the shop."
}
},
{
"from_name": "label",
"id": "7164059d217a4e5496e44d0d8d4e2378",
"to_name": "text",
"type": "labels",
"value": {
"end": 24671,
"labels": [
"ANALYSIS"
],
"start": 24445,
"text": "It has been tried to be contended that the dying declaration as referred to by P.W. 4 in his deposition has not been corroborated by any independent witness and as such the same cannot be relied upon in convicting the accused."
}
},
{
"from_name": "label",
"id": "6a5b32e5843a4fd1883e5b518366c5ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 25262,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24672,
"text": "In support of this submission reference has been made to the decision reported in Ramnath Madho Prasad & Ors.\nv. State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it has been observed: \"It is settled law that it is not safe to convict and accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might be well drawing upon his imagination while he was making the declaration."
}
},
{
"from_name": "label",
"id": "b2fdc515c3ed4793827092b7e0b5a125",
"to_name": "text",
"type": "labels",
"value": {
"end": 25400,
"labels": [
"PRE_NOT_RELIED"
],
"start": 25263,
"text": "It is in this light that the different dying declaration made by the deceased and sought to be proved in the case have to be considered.\""
}
},
{
"from_name": "label",
"id": "979ea9a108a9444f8f1e6419ce0d0409",
"to_name": "text",
"type": "labels",
"value": {
"end": 25565,
"labels": [
"PRE_RELIED"
],
"start": 25400,
"text": "\nThis observation has been overruled being in the nature of obiter dicta by this Court in a subsequent decision in Khushal Rao v. State of Bombay, [1958] S.C.R. 552."
}
},
{
"from_name": "label",
"id": "9df32404c50444bf801ecec20d84bb32",
"to_name": "text",
"type": "labels",
"value": {
"end": 25686,
"labels": [
"PRE_RELIED"
],
"start": 25566,
"text": "The same view was taken by this Court in the case of Kusa & Ors. v.\nState of Orissa, A.I.R. 1980 S.C. 559 at 562 para 9."
}
},
{
"from_name": "label",
"id": "fa30199bf09a42f99c10044bdcc429a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 26157,
"labels": [
"PRE_RELIED"
],
"start": 25687,
"text": "It is pertinent to refer to the observation of this Court on this point made in State of Assam v. Muaizuddin Ahmed, [1983] 2 S.C.C. 14 at 19 para 10 which are in the following terms: 1048 \"Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.\""
}
},
{
"from_name": "label",
"id": "b5a12f689dea423abffbe403b1a8d5d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26537,
"labels": [
"PRE_RELIED"
],
"start": 26157,
"text": "\nIt has been observed by this Court in Jayarajl v. State of Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which reads: \"When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdoman) and words were scare, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who stabed him."
}
},
{
"from_name": "label",
"id": "c35dc59d97074e2f9f0155e07be919dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 26849,
"labels": [
"PRE_RELIED"
],
"start": 26538,
"text": "The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the occular account given by the eyewitness.\""
}
},
{
"from_name": "label",
"id": "5c8aebac99ce4107a60c2100947e7f03",
"to_name": "text",
"type": "labels",
"value": {
"end": 27116,
"labels": [
"RATIO"
],
"start": 26849,
"text": "\n In the instant case we have carefully considered the evidences of P.W. 4 as well as of C.W. 1 and we are clearly of the opinion that the deceased Nagen Dey made the dying declaration in question clearly implicating the two accused persons as his assailants."
}
},
{
"from_name": "label",
"id": "45db79b7662f4444ba58f68592ff5806",
"to_name": "text",
"type": "labels",
"value": {
"end": 27243,
"labels": [
"RATIO"
],
"start": 27117,
"text": "The dying declaration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable."
}
},
{
"from_name": "label",
"id": "0ce7a2faf66e48fb87bd1e34ff911caa",
"to_name": "text",
"type": "labels",
"value": {
"end": 27621,
"labels": [
"ANALYSIS"
],
"start": 27244,
"text": "Therefore, on an overall as sessment of evidences recorded particularly the evidence of P.W. 4 and C.W. 1 and also the statements recorded under Sec. 164 of Criminal Procedure Code Exts. 6 and 4, we find that the charges under Sec. 382/34 and Sec. 436/34 of the Indian Penal Code, 1860 has been proved by the prosecution beyond reasonable doubt against the two accused persons."
}
},
{
"from_name": "label",
"id": "835ee6cbfe4f4da08ae02d39627fbaac",
"to_name": "text",
"type": "labels",
"value": {
"end": 27834,
"labels": [
"ANALYSIS"
],
"start": 27621,
"text": "\n They were rightly convicted by the Sessions Judge and sentence to rigorous imprisonment for life under Sec. 302/34 I.P.C. and also to rigorous imprisonment for 5 years under Sec. 436/34 of the Indian Penal Code."
}
},
{
"from_name": "label",
"id": "96c0137b2ea04aa689704b42c7d5597d",
"to_name": "text",
"type": "labels",
"value": {
"end": 27876,
"labels": [
"ANALYSIS"
],
"start": 27835,
"text": "Both the sentences will run concurrently."
}
},
{
"from_name": "label",
"id": "9fbc5fcee66d4412a8826fcfd761d4e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 28061,
"labels": [
"RPC"
],
"start": 27877,
"text": "The judgment and order of acquittal passed by the High Court is hereby set aside and the judgment and order of conviction and sentence awarded by the Sessions Judge is hereby affirmed."
}
},
{
"from_name": "label",
"id": "770227d53536481889f00166f21cb3af",
"to_name": "text",
"type": "labels",
"value": {
"end": 28149,
"labels": [
"RPC"
],
"start": 28062,
"text": "Let warrant of arrest issue forthwith against the accused for serving out the sentence."
}
},
{
"from_name": "label",
"id": "30b44b6f8cb247f79e3d193f4fe250fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 28187,
"labels": [
"NONE"
],
"start": 28149,
"text": "\n P.S.S. Appeal allowed."
}
},
{
"from_name": "label",
"id": "632a14205afd4077879f2c9c0e485fde",
"to_name": "text",
"type": "labels",
"value": {
"end": 28193,
"labels": [
"NONE"
],
"start": 28187,
"text": "\n 1049"
}
}
]
}
] | 1,758 | {
"text": "PETITIONER:\nSTATE OF ASSAM\n\nVs.\n\nRESPONDENT:\nMUHIM BARKATAKI & ANR.\n\nDATE OF JUDGMENT20/10/1986\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSEN, A.P. (J)\n\nCITATION: 1986 SCR (3)1038\n 1987 AIR 98 JT 1986 664\n 1986 SCC (4) 439\n 1986 SCALE (2)607\n\nACT:\n Indian Penal Code, 1860: ss. 34, 302 & 436-Offences\n\nunder-Dying declaration of deceased-Conviction of accused-\nValidity of.\n\n Evidence Act, 1872: s. 32-Dying declaration made before\nwitnesses while suffering severe pain from grievous burn\ninjuries-Whether truthful and reliable.\n\n Criminal Procedure Code, 1973: s. 311-Police Officer-\nWhether could be examined as court witness-Witness found\nindependent, disinterested, trustworthy and reliable.\n\nHEADNOTE:\n The prosecution alleged that the accused-respondents\n\nset fire to deceased's body and his shop after sprink ling\nkerosene oil, that on seeing the fire P. Ws. 4, 5 and 6\nrushed to the place and put off the fire from the body of\nthe deceased who had come out of the shop ablaze, and that\nC.W. 1, the Assistant Sub-Inspector of Police, who was on\nlaw and order duty also came to the place of occurrence\nsimultaneously and witnessed the incident. The deceased made\na dying declaration before these witnesses stating that the\nsaid two accused had set fire to his body after pouring\nkerosene. One of the accused was caught hold of by the\npublic red handed at the shop whereas the other accused fled\naway. The Officer-in-charge of Police Station was informed\nof the incident on the telephone. The deceased was removed\nto the hospital where he later died. Cases of murder and\narson were thereafter registered against the accused. P.Ws.\n4 and 6 made statements under s. 164 Cr. P.C. before the\nMagistrate and deposed to the factum of dying declaration\nmade by the deceased implicating the accused.\n\n The Sessions Court after considering the evidences of\nP.W. 4 and C.W. 1 as well as the statements recorded under\ns. 164 Cr. P.C. accepted the dying declaration made by the\ndeceased and convicted the accused under s. 302 read with s.\n34 I.P.C. and sentenced them to\n1039\nrigorous imprisonment for life. They were further convicted\nand sentenced under s. 436 read with s. 34 I.P.C.\n\n The High Court on appeal, however, found that the\nprosecution had failed to prove beyond doubt the offences\n\nfor which the appellants were charged, that the entire\nevidence in the case was circumstantial as there was no eye\nwitness to the occurrence, that the evidence of P.W. 4 as to\nthe dying declaration was wholly unreliable, and therefore,\nset aside the conviction and sentence passed against the\naccused.\n\n The appeal by the State to this Court was opposed by\nthe accusedrespondents contending that there was no evidence\nto show that the deceased made the dying declaration and\neven if such a declaration has been made the same having not\nbeen corroborated cannot be taken into consideration in\nconvicting them.\n\n Allowing the Appeal, the Court,\n^\n\n HELD: The accused were rightly convicted by the\nSessions Court. The prosecution has proved beyond reasonable\ndoubt the charges framed against them. The order of\nacquittal passed by the High Court is, therefore, liable to\nbe set aside. [1048G]\n\n The dying declaration made by the deceased while he was\nsuffering severe pain from grievous injuries clearly\nimplicating the two accused persons as his assailants is\ntruthful and reliable. [1048E]\n\n The eye witnesses, P. Ws. 4, 5 and 6 and C.W. 1 had\nundoubtedly arrived at the place of occurrence immediately\non seeing the fire. They had seen that the shop was ablaze\nand there was fire on the person of the deceased. Then there\nis the specific evidence of P.W. 4 and C.W. 1 that the\ndeceased was crying a lot in pain due to burn injuries and\nthat he stated clearly that the accused persons poured\nkerosene on him and set fire to his body. There are also the\nstatements of P.W. 4 and 6 made under s. 164 Cr. P.C. to the\neffect that the deceased made a dying declaration. P.W. 2,\nwho held post mortem on the body of the deceased has stated\nin his evidence that a person sustaining burn injuries of\nsuch nature may have been conscious for some time before his\ndeath. It cannot, therefore, be ruled out that the deceased\nwas conscious in spite of the burn injuries on his person\nand he could speak and make dying declaration as testified\nto by P.W. 4 and C.W. 1. [1046A-D; 1045E]\n\n There is no infirmity in the action of the Sessions\nCourt treating\n1040\nC.W. 1 as a court witness. It has assigned cogent reasons as\nto why P.W. 1 was examined as a court witness under the\nprovisions of s. 311 Cr. P.C. He has been found an\nindependent and disinterested witness, to be reliable and\ntrustworthy. He was an important witness of the case and his\nexamination was for the just decision of the case. His\nevidence has full corroborations with another independent\nand distinterested witness, P.W. 4, who was also found to be\ntrustworthy and reliable. The evidence of C.W. 1 cannot,\ntherefore, be underestimated merely because he was a police\nofficer. [1046E-G]\n\n The Court of appeal has acted illegally in discarding\nthe evidence of P.W. 4 as well as his statement recorded\nunder s. 164 Cr. P.C. There is no criticism regarding the\nevidence of this witness on behalf of the respondents as to\nwhy his testimony regarding the dying declaration shall not\nbe taken into consideration. [1044H; 1045A-B]\n\n There is also the testimony of P.W. 4 and C.W. 1 that\none of the accused was caught hold red handed at the spot\nand was detained by the public while the other fled away\nfrom the place of occurrence. [1043F-G]\n\n All these lead to the only conclusion that the two\n\n\naccused persons poured kerosene in the shop as well as on\nthe deceased and set them on fire [1047C-D]\n\n Ramnath Madho Prasad & Ors. v. State of Madhya Pradesh,\nAIR 1953 SC 420; Khushal Rao v. State of Bombay, [1958] SCR\n552; Kusa & Ors. v. State of Orissa, AIR 1980 SC 559 at 562\npara 9; State of Assam v. Muaizuddin Ahmed, [1983] 2 SCC 14\nat 19 para 10; and Jayaraj v. State of Tamil Nadu, AIR 1976\nSC 1519 at 1522 para 16 referred to.\n\nJUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 271 of 1986 From the Judgment and Order dated 31.1. 1985 of the Gauhati High Court in Cr. A. No. 66 of 1983.\n S.K. Nandy for the Appellant.\n R.K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents.\n The Judgment of the Court was delivered by 1041 B.C. Ray, J. This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec. 302 read with Sec.\n34 I.P.C. as well as under Sec. 436 read with Sec. 34 of Indian Penal Code, 1860.\n The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosine oil in the shop as well as on the person of Nagen Dey and then set fire. Immediately fire caught and spread over the shop as well on the body of Nagen Dey. The shop was a Guliamal (grocery) shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na-Ali Road of Jorhat Town in front of M/s Baruah Printers. Nagen Dey came out of the shop house with ablazing condition all over his body. The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body. Pradip Jyoti Sarma, Assistant Sub-Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey. Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil. It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away. Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital.\nAccused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub-Inspector of Police. The information of the incident was received over telephone message at 7.15 p.m. by the Officer-Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m.\nThe Town Sub-Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot. Sri P.\nKhatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station. He then informed the facts of occurrence to the Officer-incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri 1042 Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext.5) with Jorhat Police Station. Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta. Investigation was carried on by Shri Prafulla Kumar Khatoniar. The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the court for recording their statements under Sec. 164 of the Criminal Procedure Code. The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978.\n The Sessions Judge found that the message received over telephone was an information relating to commission of cognizable offence and same was entered into General Diary of the Police Station as Entry No. 47. On the basis of this information the investigation of the case was entrusted to the Town Sub-Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night. Subsequent information of Montu Chandra Dey on 3rd November, 1978 are nothing but statements during the course of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code. It has, therefore, been held that Exhibit 5 cannot be recoganized as the First Information Report of the occurrence. The General Diary Entry No. 47 which is proved as Ext. 7(1), is the First Information Report of the occurrence.\n The Sessions Judge duly considered the evidences of P.W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as the statements under Sec. 164 recorded by the Judicial Magistrate, P.W. 8 on 7.11.1978 and accepted the dying declaration made by the deceased Nagen Dey implicating the accused Muhim Barkataki and Dulu Dutta as pouring kerosine oil on his body and setting fire to his person. P.W. 6 Kiran Saikia also stated in his statement under Sec. 164 of Criminal Procedure Code before the Judicial Magistrate, that Nagen Dey, deceased made a dying declaration that these two accused persons sprinkled kerosine over the body of the deceased Nagen Dey and then set fire to him. These witnesses also proved that the accused Muhim Barkataki was caught hold of red handed at the place of occurrence whereas Dulu Dutta fled away from the place. The Sessions Judge, therefore, convicted both the accused under sec. 302 read with Sec. 34 of the Indian Penal Code and sentence them to rigorous imprisonment for life. The accused persons were further convicted and sentenced under Sec. 436 read with Sec. 34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each. Both the sentences shall run concurrently.\n1043 Against this judgment and order of conviction and sentence the accused person preferred an appeal being Criminal Appeal No. 66 of 1983 in the High Court of Gauhati.\nThe High Court proceeded on the footing that entire evidence in the case was circumstantial as there was no eye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration. The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself. The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged. The conviction and sentence passed against the accused persons was set aside and the appeal was allowed.\n There is no dispute that the shop of deceased Nagen Dey situated by the side of Na-Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine.\nEye witnesses P.W. 4-Arun Barua, P.W. 6-Kiran Saikia and P.W. 5-Prabin Barua came to the place of occurrence immediately on seeing the fire. It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey. It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub-Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire. It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence. It is also evident from the G.D.\nEntry No. 47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil. One of the accused persons was caught hold of by local rija (public) while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary.\n1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7(1). It also appeared that immediately after the enquiry and investigation into the incident the Town Sub- Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na-Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt. Nagen Dey was the owner of the shop who also was set on fire. It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station. This G.D.\nEntry No. 50 was proved by P.W. 7 and it was marked as Ext.\n7(2). It also appears that the witnesses P.W. 4-Arun Barua, P.W. 5-Prabin Barua, P.W. 6-Kiran Saikia and C.W.1-Pradip Joyti Sarma who was on duty on that Na-Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a complete ablazing state all over his body. It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was conscious and was crying out due to burning pain. It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants. It is also evident from Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8) recorded the statements of Arun Barua (P.W. 4) and Kiran Saikia (P.W. 6) on 7.11.1978 under Sec. 164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him. P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey. Of course P.W. 6 Kiran Saikia tried to contradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey. He admitted in his examination-in-chief that he made a statement about this incident before the Magistrate of Jorhat Court. Exhibit 4 is his statement and Ext. 4 (2) is his signature. He further stated that the Magistrate has recorded his statement. But in cross-examination he contradicted himself by saying that he was tutored by the police to say so before the Magistrate. Even if his statement is not taken into consideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate (Ext. 3) as well as his deposition which clearly corroborates his statement before the Magistrate about the dying declaration made by the deceased implicating the two accused persons as his assailants. The court of appeal below has acted 1045 illegally in discarding the evidence of P.W. 4 as well as his statement recorded under Sec. 164 of the Criminal Procedure Code by the Judicial Magistrate on the flimsy ground that it was not reliable because he contradicted his statement made before the Police that these three persons (the two accused and the deceased Nagen Dey) used to take liquor and play cards. Moreover C.W. 1 Pradip Jyoti Sarma who came to the place of occurrence a few minutes after the arrival of P.W. 4 and P.W. 6 at the place of occurrence has stated in his evidence that he saw the body of the deceased under fire and the deceased is crying out of burnt pain. He implicated in his dying declaration that Muhim Barkataki and Dulu Dutta had set fire on his person after pouring kerosine oil on him. He also stated that at the place of occurrence he found that the accused Muhim Barkataki was caught by the public and he was being assaulted. He further stated that to save Muhim Barkataki from assultant he handed him over to the Police Constable who was with him. He also deposed that Nagen Dey has sense and he was speaking. There was no cross- examination of this witness as to the dying declaration made by the deceased. This witness further stated that he came to the Thana in the night and told the inspector about the incident. He also stated that he did not know whether O.C.\nrecorded this in the General Diary or not. P.W. 2 Dr.\nJibakanta Borah who hold post-mortum on the body of the deceased has stated in his evidence that a person sustaining burnt injuries of such nature may have consciousness for some time before death. It cannot, therefore, be ruled out that the deceased Nagen Dey was conscious in spite of the severe burnt injuries on his person and he could speak and could make dying declaration as testified to by the witnesses P.W. 4, and C.W. 1. It has been tried to be urged before us by the learned counsel on behalf of the respondents that there is no evidence to show that the deceased Nagen Dey made a dying declaration as has been alleged as the General Diary Entry was not produced to show such statement of C.W. 1 about the dying declaration recorded therein. Moreover even if such a dying declaration has been made the same being not corroborated cannot be taken into consideration by the court in convicting the accused respondents. It has been further submitted that the court of appeal below rightly discarded the alleged dying declaration as being not corroborated by any other evidence and duly acquitted the accused persons.\n We have considered and appraised thoroughly the evidence on record and on an overall assessment of the same, we hold that the prosecution has proved beyond reasonable doubt, the charges framed 1046 against them. The order of acquittal passed by the High Court is liable to be set aside for the reasons stated here after. Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978. All these witnesses have seen that the shop is ablaze and there is fire on the person of Nagen Dey. It is also the specific evidence of P.W. 4 Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the Jorhat Thana at Jorhat Town in law and order duty on that day. All these eye witnesses P.W.\n4 and C.W. 1 also stated that Nagen Dey was crying a lot in pain out of burnt injuries and he stated clearly that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil on him and set fire on his body. So far as depositions of P.W. 4 and C.W. 1 are considered there is no cross-examination on this point. Further more, P.W. 4 and P.W. 6 made statements Exts. 3 and 4 under Sec. 164 of Criminal Procedure Code before the Chief Judicial Magistrate of Jorhat (P.W. 8) to the effect that the deceased Nagen Dey made a dying declaration implicating the accused persons as his assailants. This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addl. Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia (P.W. 8).\nOf course, P.W. 6 Kiran Saikia tried to contradict his statement made before the Chief Judicial Magistrate. As regards the evidence of C.W. 1 it has been tried to be contended that his statement before the O.C. of the Police Station that the deceased made a dying declaration cannot be accepted as there is nothing to show that this was recorded in the G.D. Entry. This statement cannot be accepted inasmuch as the learned Sessions Judge has assigned cogent reasons as to why Pradip Jyoti Sarma was examined as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure. It has been clearly found that Shri Sarma was an independent and disinterested witness and he was found to be reliable and trustworthy. It has been also found that Shri Pradip Jyoti Sarma is an important witness of the case and his examination was for the just decision of the case and his evidence has full corroboration with another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness. The evidence of Shri Pradip Jyoti Sarma cannot be under-estimated merely because he is a police officer. The Sessions Judge also stated in his order that the reasons for examining him as a court witness had been elaborately recorded in the order-sheet dated 17.2.1982 and 22.3.1983.\nTherefore, considering this finding of the Sessions Judge we hold that there is no infirmity in the findings of the Sessions Judge in treating Pradip Jyoti 1047 Sarma as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure. There is no criticism regarding the evidence of P.W. 4 on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration apart from the evidence of C.W. 1 Pradip Jyoti Sarma. Moreover it is evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6 recorded under Sec. 164 of the Code of Criminal Procedure by the Addl. Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4 and 6 clearly stated about the dying declaration made by Nagen Dey implicating both the accused as his assailants. Along with this testimony of P.W.\n4 and C.W. 1 that Muhim Barkataki was caught hold red handed on the spot and was detained by the public while Dullu Dutta fled away from the place of occurrence. All these clearly go to prove the prosecution case beyond any reasonable doubt and it leads to the only conclusion that these two accused persons poured kerosine oil in the shop as well as sprinkled kerosine oil on him and set fire on the deceased as well as to the shop. It has been tried to be contended that the dying declaration as referred to by P.W. 4 in his deposition has not been corroborated by any independent witness and as such the same cannot be relied upon in convicting the accused. In support of this submission reference has been made to the decision reported in Ramnath Madho Prasad & Ors.\nv. State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it has been observed: \"It is settled law that it is not safe to convict and accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might be well drawing upon his imagination while he was making the declaration. It is in this light that the different dying declaration made by the deceased and sought to be proved in the case have to be considered.\"\nThis observation has been overruled being in the nature of obiter dicta by this Court in a subsequent decision in Khushal Rao v. State of Bombay, [1958] S.C.R. 552. The same view was taken by this Court in the case of Kusa & Ors. v.\nState of Orissa, A.I.R. 1980 S.C. 559 at 562 para 9. It is pertinent to refer to the observation of this Court on this point made in State of Assam v. Muaizuddin Ahmed, [1983] 2 S.C.C. 14 at 19 para 10 which are in the following terms: 1048 \"Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.\"\nIt has been observed by this Court in Jayarajl v. State of Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which reads: \"When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdoman) and words were scare, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who stabed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the occular account given by the eyewitness.\"\n In the instant case we have carefully considered the evidences of P.W. 4 as well as of C.W. 1 and we are clearly of the opinion that the deceased Nagen Dey made the dying declaration in question clearly implicating the two accused persons as his assailants. The dying declaration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable. Therefore, on an overall as sessment of evidences recorded particularly the evidence of P.W. 4 and C.W. 1 and also the statements recorded under Sec. 164 of Criminal Procedure Code Exts. 6 and 4, we find that the charges under Sec. 382/34 and Sec. 436/34 of the Indian Penal Code, 1860 has been proved by the prosecution beyond reasonable doubt against the two accused persons.\n They were rightly convicted by the Sessions Judge and sentence to rigorous imprisonment for life under Sec. 302/34 I.P.C. and also to rigorous imprisonment for 5 years under Sec. 436/34 of the Indian Penal Code. Both the sentences will run concurrently. The judgment and order of acquittal passed by the High Court is hereby set aside and the judgment and order of conviction and sentence awarded by the Sessions Judge is hereby affirmed. Let warrant of arrest issue forthwith against the accused for serving out the sentence.\n P.S.S. Appeal allowed.\n 1049 "
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"text": "3. Venkatesha,\n S/o."
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"text": "4. M. Manjunatha,\n S/"
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"text": "[BY : SRI H.D.N.K., ADVOCATE]\n\nDEFENDANTS/S V/S\n ::\n\n 1."
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"text": "Aged about 48 years,\n R/"
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"text": "at #. 49, Alanahalli Village,"
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"text": "\n\n 2. Smt. Chikkamma,\n W/o."
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"text": "Siddaraju,\n "
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"id": "d08354e2cbe143ea9bfdd6beea249d1a",
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"labels": [
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"start": 1843,
"text": "R/at #. 27, Yaraganahalli Village,"
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"labels": [
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"text": "Kasaba Hobli, Mysuru Taluk.\n\n 3. M.C. Nagaraju,\n S/"
}
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"type": null,
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"end": 2009,
"labels": [
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"start": 1977,
"text": "o. Chikkanna,\n "
}
},
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"id": "91182d32afb847c48370236ddbbc05be",
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"labels": [
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"text": "Aged about 40 years,\n R"
}
},
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"id": "dcafe0085a6c4b40aa6defee1f75efc7",
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"end": 2087,
"labels": [
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"text": "/o Alagodu Village,\n "
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},
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"text": "Arakere Hobli,\n Srirangapatna Taluk,\n "
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"text": "Mandya District."
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"text": "\n\n 4. A.J. Appugowda,\n S/o."
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"text": "Javaregowda,"
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"text": "Aged about 57 years,\n R/o"
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},
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"text": "Kallahalli Village,"
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"labels": [
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"text": "\n 6th cross,"
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"labels": [
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"start": 2326,
"text": "V.V.Nagar,"
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},
{
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"text": "\n Mandya City."
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"labels": [
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"start": 2361,
"text": "\n\n[DEFENDANTS NO.1 & 2 BY : SRI H.S.M.S., ADVOCATE\n DEFENDANTS NO.3 & 4 BY : SRI O.S.B., ADVOCATE]"
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},
{
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"end": 2508,
"labels": [
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"start": 2459,
"text": "\n\nDate of institution of the suit 25.08.2014"
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"end": 2569,
"labels": [
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"start": 2508,
"text": "\n\nNature of the suit Declaration and Injunction"
}
},
{
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"end": 2618,
"labels": [
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"start": 2569,
"text": "\n\nDate of the commencement 07.07.2015"
}
},
{
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"id": "e829ed4131e7477a8ebe84ed540f12cc",
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"end": 2640,
"labels": [
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"start": 2618,
"text": "\nof recording evidence"
}
},
{
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"id": "a0ffb36aed74417b920847b72814c43a",
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"value": {
"end": 2720,
"labels": [
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],
"start": 2640,
"text": "\n\nDate on which the Judgment 31.10.2019\nwas pronounced\n\nTotal Duration"
}
},
{
"from_name": null,
"id": "3e0e420b16524b6c9dfe6eb5b1b16025",
"to_name": null,
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"value": {
"end": 2760,
"labels": [
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],
"start": 2721,
"text": " Year/s Month/s Day/s"
}
},
{
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"id": "f00ded8a47d6495c933369b14eea07c8",
"to_name": null,
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"labels": [
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"text": "\n 06"
}
},
{
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"end": 2905,
"labels": [
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],
"start": 2814,
"text": "\n 05 02\n\n "
}
},
{
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"end": 2914,
"labels": [
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"start": 2905,
"text": "(SANTHOSH"
}
},
{
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"id": "5ccd2abe585944b0b7abfe1217fa50be",
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"value": {
"end": 2931,
"labels": [
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],
"start": 2915,
"text": "KUMAR SHETTY N.)"
}
},
{
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"id": "522b13deccfa4046abba7f6f97ad51d7",
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"value": {
"end": 3106,
"labels": [
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],
"start": 2931,
"text": "\n II ADDL.SENIOR CIVIL JUDGE & CJM.,\n\n MYSURU.\n\n "
}
},
{
"from_name": null,
"id": "b116794868914474b6a0034cb66ad8a9",
"to_name": null,
"type": null,
"value": {
"end": 3125,
"labels": [
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],
"start": 3106,
"text": ": J U D G M E N T :"
}
},
{
"from_name": null,
"id": "1564f587521c4627b551f89b2c2265ef",
"to_name": null,
"type": null,
"value": {
"end": 3390,
"labels": [
"FAC"
],
"start": 3126,
"text": "This is a suit filed by the plaintiffs for the relief of declaration of their title and Permanent Injunction to restrain the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property and for the costs of the suit.\n 2."
}
},
{
"from_name": null,
"id": "9b4743e8fb9f461b8107a618216e08a1",
"to_name": null,
"type": null,
"value": {
"end": 3688,
"labels": [
"FAC"
],
"start": 3391,
"text": "The brief facts of the case of the plaintiffs is that, the suit schedule property bearing Sy.No.9/3 measuring 2 acres 9 guntas, situated at Yaraganalli Village, Mysuru Taluk morefully described in the plaint schedule, originally belonged to Smt. Laxmamma and Venkategowda of Yaraganahalli Village."
}
},
{
"from_name": null,
"id": "3aa0c90bad504274b45cdedec275e511",
"to_name": null,
"type": null,
"value": {
"end": 3773,
"labels": [
"FAC"
],
"start": 3689,
"text": "On 27.06.1946, the grand mother of defendants No.1 and 2 by name Smt. Muddamma, W/o."
}
},
{
"from_name": null,
"id": "4e91a1bacd3e4d5d900063932085bb2c",
"to_name": null,
"type": null,
"value": {
"end": 4037,
"labels": [
"FAC"
],
"start": 3773,
"text": "\nChikkegowda had purchased the suit schedule property from the said Laxmamma and Venkategowda under a Registered Sale Deed and thereby khata came to be changed in her name and she was in possession and enjoyment of the suit schedule property as its absolute owner."
}
},
{
"from_name": null,
"id": "ad36801942d14afbac629fc267cfaa6a",
"to_name": null,
"type": null,
"value": {
"end": 4224,
"labels": [
"FAC"
],
"start": 4038,
"text": "Thereafter, the said Muddamma along with her son and grand son mortgaged the suit schedule property in favour of one Chikkegowda, S/o. Basavegowda of Yaraganahalli Village on 10.06.1956."
}
},
{
"from_name": null,
"id": "522f8686bf554488ac7ae561d359b78d",
"to_name": null,
"type": null,
"value": {
"end": 4266,
"labels": [
"FAC"
],
"start": 4225,
"text": "On 20.01.1962, the mortgage was redeemed."
}
},
{
"from_name": null,
"id": "95b8f441fb9a49d1a3bc8dafa9766a55",
"to_name": null,
"type": null,
"value": {
"end": 4531,
"labels": [
"FAC"
],
"start": 4266,
"text": "\nOn 18.01.1962, the said Muddamma and her son Chikkegowda and grand son Madegowda all together executed a Registered Mortgage Deed in favour of one Thimmaiah, S/o. Sepoy Thimmaiah, in respect of the suit schedule property and possession was delivered in his favour."
}
},
{
"from_name": null,
"id": "44e02be1b94d4267b5d9c0a351a64bcc",
"to_name": null,
"type": null,
"value": {
"end": 4834,
"labels": [
"FAC"
],
"start": 4532,
"text": "Thereafter, the grand father of defendants No.1 and 2 by name Chikkegowda and their father Madegowda, to discharge the loan taken from Thimmaiah sold the suit schedule property in favour of the grand mother of plaintiffs by name Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963."
}
},
{
"from_name": null,
"id": "5c8121ce146640dcb9012c6a01b566ee",
"to_name": null,
"type": null,
"value": {
"end": 4851,
"labels": [
"FAC"
],
"start": 4835,
"text": "Muddamma, W/o.\n "
}
},
{
"from_name": null,
"id": "12960bc1e6f14048ac88c38f63ece77e",
"to_name": null,
"type": null,
"value": {
"end": 4969,
"labels": [
"FAC"
],
"start": 4851,
"text": "Thimmegowda herself paid the mortgaged money in favour of Thimmaiah and took possession of the suit schedule property."
}
},
{
"from_name": null,
"id": "c731b63160da42659cce158d27792c05",
"to_name": null,
"type": null,
"value": {
"end": 5089,
"labels": [
"FAC"
],
"start": 4970,
"text": "Accordingly, Khata came to be changed in her name and she was enjoyed the suit schedule property as its absolute owner."
}
},
{
"from_name": null,
"id": "f6c1e6be0a474c12aad4088318b332b5",
"to_name": null,
"type": null,
"value": {
"end": 5388,
"labels": [
"FAC"
],
"start": 5090,
"text": "After her death the khata came to be changed in the name of her son Moganna, who was none other than the husband of plaintiff No.1 and father of plaintiffs No.2 to 5 and he was in exclusive possession and enjoyment over the suit schedule property as it is absolute owners and he died on 24.07.1993."
}
},
{
"from_name": null,
"id": "c7f8c710524243729259c7ad2ebc6cb8",
"to_name": null,
"type": null,
"value": {
"end": 5473,
"labels": [
"FAC"
],
"start": 5389,
"text": "Thereafter, the plaintiffs became the absolute owners of the suit schedule property."
}
},
{
"from_name": null,
"id": "db789a9db8824e64a5ffccfc035aefcf",
"to_name": null,
"type": null,
"value": {
"end": 5582,
"labels": [
"FAC"
],
"start": 5473,
"text": "\nAfter his death the plaintiffs made an application before Tahasildar to get change the khata in their names."
}
},
{
"from_name": null,
"id": "fc00b7cfa00e4423930fc61a42fec782",
"to_name": null,
"type": null,
"value": {
"end": 5733,
"labels": [
"FAC"
],
"start": 5583,
"text": "But the defendants No.1 and 2 without having any manner of right, title, interest or possession over the suit schedule property filed their objection."
}
},
{
"from_name": null,
"id": "cb674f77b71d43a6a631d5550fafc0a3",
"to_name": null,
"type": null,
"value": {
"end": 5831,
"labels": [
"FAC"
],
"start": 5734,
"text": "But, their objection came to be rejected and khatha came to be changed in the name of plaintiffs."
}
},
{
"from_name": null,
"id": "0ecc7de42f1c4eaf93a5e354d580f2ec",
"to_name": null,
"type": null,
"value": {
"end": 6008,
"labels": [
"RLC"
],
"start": 5831,
"text": "\nThereafter, the defendants No.1 and 2 filed a suit against the plaintiffs on the file of II Addl. Civil Judge, Mysuru for the relief of Permanent Injunction in O.S.No.221/1997."
}
},
{
"from_name": null,
"id": "97389e30a7824a599bdae02f18b45bc9",
"to_name": null,
"type": null,
"value": {
"end": 6054,
"labels": [
"RLC"
],
"start": 6009,
"text": "On 18.10.2011, the suit came to be dismissed."
}
},
{
"from_name": null,
"id": "c9705695410144ad86b5f062d55f9280",
"to_name": null,
"type": null,
"value": {
"end": 6145,
"labels": [
"FAC"
],
"start": 6055,
"text": "Against the said judgement and decree the defendants No.1 and 2 did not prefer any Appeal."
}
},
{
"from_name": null,
"id": "125bd2012ec74f34b024d1804a7cc7bb",
"to_name": null,
"type": null,
"value": {
"end": 6363,
"labels": [
"FAC"
],
"start": 6146,
"text": "But the defendants preferred an Appeal before the Assistant Commissioner by challenging the khata effected in the name of Moganna the husband of plaintiff No.1 and father of plaintiffs No.2 to 5, in RRT No.69/2004 05."
}
},
{
"from_name": null,
"id": "3bb464762e3949218fa3aa42f3171634",
"to_name": null,
"type": null,
"value": {
"end": 6471,
"labels": [
"RLC"
],
"start": 6364,
"text": "After hearing, the learned Assistant Commissioner has remanded the matter for Tahasildar for fresh enquiry."
}
},
{
"from_name": null,
"id": "0821f88394d540c39e7d68feb3012c26",
"to_name": null,
"type": null,
"value": {
"end": 6611,
"labels": [
"RLC"
],
"start": 6471,
"text": "\nAccordingly, RRC No.21/200607 was reheard by Tahasildar and he passed an order on 04.02.2010 to change the khata in the name of defendants."
}
},
{
"from_name": null,
"id": "c596630d07e54e6088b138860802d6e3",
"to_name": null,
"type": null,
"value": {
"end": 6852,
"labels": [
"FAC"
],
"start": 6612,
"text": "Against the said order the plaintiffs preferred RRT No.257/200910 and when the said Appeal was pending before the Assistant Commissioner the suit instituted by the defendants No.1 and 2 against the plaintiffs in O.S.No.221/1997 was pending."
}
},
{
"from_name": null,
"id": "54476bfe62f746f2be4add3baaa70758",
"to_name": null,
"type": null,
"value": {
"end": 7023,
"labels": [
"FAC"
],
"start": 6853,
"text": "Considering the same the learned Assistant Commissioner remanded the matter to the Tahasildar to pass the order as per the findings of the Civil Court in O.S.No.221/1997."
}
},
{
"from_name": null,
"id": "f90210da9d7c4f6a89d42c0de00ee14e",
"to_name": null,
"type": null,
"value": {
"end": 7170,
"labels": [
"FAC"
],
"start": 7024,
"text": "After dismissal of the said suit, the plaintiffs made their representation on 25.11.2011, requesting the Tahasildar to effect khata in their name."
}
},
{
"from_name": null,
"id": "5786025cb53b40e19af91eddfc195bc7",
"to_name": null,
"type": null,
"value": {
"end": 7328,
"labels": [
"FAC"
],
"start": 7171,
"text": "But he has issued an endorsement on 09.09.2012 stating that, there is no order by the Civil Court with a direction to change khata in the name of plaintiffs."
}
},
{
"from_name": null,
"id": "a7882d649f534a4b93f36c299710c6cf",
"to_name": null,
"type": null,
"value": {
"end": 7487,
"labels": [
"FAC"
],
"start": 7329,
"text": "Hence, once again the plaintiffs preferred an Appeal in RRT No.8/2012/13, before the learned Assistant Commissioner and it came to be dismissed on 19.06.2013."
}
},
{
"from_name": null,
"id": "1aed127679ba42e08671dd869f276545",
"to_name": null,
"type": null,
"value": {
"end": 7651,
"labels": [
"FAC"
],
"start": 7488,
"text": "Against the said order, the plaintiffs have preferred Revision Petition No.33/201314, before the Deputy Commissioner, Mysuru and same is pending for consideration."
}
},
{
"from_name": null,
"id": "34d7213ed2a049f495562cbc8a2821fa",
"to_name": null,
"type": null,
"value": {
"end": 7877,
"labels": [
"FAC"
],
"start": 7652,
"text": "The defendants No.1 and 2 by taking undue advantage of Mutation order in MR.No.8/200910 started interfering with the possession of the plaintiffs and executed a Sale agreement on 28.07.2014 in favour of defendants No.3 and 4."
}
},
{
"from_name": null,
"id": "9d6b2c2b7ff246caa987d9bb3442b55b",
"to_name": null,
"type": null,
"value": {
"end": 7946,
"labels": [
"FAC"
],
"start": 7878,
"text": "Hence, defendants No.3 and 4 have been made as parties to this suit."
}
},
{
"from_name": null,
"id": "10eaea76030b4e22b747a1eb654b7a54",
"to_name": null,
"type": null,
"value": {
"end": 8037,
"labels": [
"FAC"
],
"start": 7947,
"text": "The defendants have no manner of right, title or interest over the suit schedule property."
}
},
{
"from_name": null,
"id": "26d25963433a4d05a99431d8d42c673e",
"to_name": null,
"type": null,
"value": {
"end": 8124,
"labels": [
"FAC"
],
"start": 8037,
"text": "\nMuddamma, W/o. Chikkegowda never executed any Will in favour of defendants No.1 and 2."
}
},
{
"from_name": null,
"id": "788766f695a442c8907a158d22ff1e1f",
"to_name": null,
"type": null,
"value": {
"end": 8301,
"labels": [
"FAC"
],
"start": 8125,
"text": "The defendants No.1 and 2 by creating fictitious Death Certificate of their grand mother created documents in their favour and trying to snatch away the suit schedule property."
}
},
{
"from_name": null,
"id": "563d6082f79b4351bdcaf6e9f08e3747",
"to_name": null,
"type": null,
"value": {
"end": 8345,
"labels": [
"FAC"
],
"start": 8302,
"text": "Hence, the suit for aforementioned reliefs."
}
},
{
"from_name": null,
"id": "5f205e5ea4264d939b9f44047d8b0153",
"to_name": null,
"type": null,
"value": {
"end": 8726,
"labels": [
"FAC"
],
"start": 8345,
"text": "\n 3. In response to the summons, the defendants No.1 and 2 appeared through their counsel and filed their Written Statement and admitted that, their grand mother Muddamma, W/o. Chikkegowda purchased the suit schedule property from its erstwhile owner Smt. Laxmamma, W/o. Doddaputtegowda and her son Venkategowda and thereby Khata came to be changed in her name as per MR.No.6/1946."
}
},
{
"from_name": null,
"id": "c48908241966498da3c1ef58df997a74",
"to_name": null,
"type": null,
"value": {
"end": 8969,
"labels": [
"FAC"
],
"start": 8727,
"text": "On 15.06.1973, said Muddamma, W/o.\nChikkegowda executed a Will in favour of defendants No.1 and 2 and bequeathed 1 acre 6 guntas of land in favour of defendant No.1 and 1 acre of land in favour of defendant No.2 in the suit schedule property."
}
},
{
"from_name": null,
"id": "1a522b4ce77b4972be6be72c6260daf9",
"to_name": null,
"type": null,
"value": {
"end": 9163,
"labels": [
"FAC"
],
"start": 8970,
"text": "On 01.01.1976, their grand mother Muddamma, W/o. Chikkegowda died and by virtue of the Will the defendants No.1 and 2 became the absolute owners and in possession of the suit schedule property."
}
},
{
"from_name": null,
"id": "68b648f6dbfe45fdac449d5e6e917d7b",
"to_name": null,
"type": null,
"value": {
"end": 9357,
"labels": [
"FAC"
],
"start": 9164,
"text": "Eventhough, the plaintiffs have no manner of right, title and interest over the suit schedule property, colluding with the Revenue officials got created Khata in their names in the year 198384."
}
},
{
"from_name": null,
"id": "43580902460f43e197f85bbed27d270b",
"to_name": null,
"type": null,
"value": {
"end": 9507,
"labels": [
"FAC"
],
"start": 9358,
"text": "When the said fact came to the notice of defendants No.1 and 2, they got changed the khata as per M.R.No.8/2009 in their names by producing the Will."
}
},
{
"from_name": null,
"id": "b192b806c02a46f5b91c5ac48bbbfbb3",
"to_name": null,
"type": null,
"value": {
"end": 9678,
"labels": [
"FAC"
],
"start": 9507,
"text": "\nFurther contended that, the suit is barred by Limitation and suit was not properly valued and Court Fee paid is insufficient and thereby prayed for dismissal of the suit."
}
},
{
"from_name": null,
"id": "6ce9ec032b044791b33e17cd130def4b",
"to_name": null,
"type": null,
"value": {
"end": 9863,
"labels": [
"FAC"
],
"start": 9680,
"text": "4. In response to the summons, the defendants No.3 and 4 appeared through their counsel and filed their Written Statement and reiterated the contention taken by defendants No.1 and 2."
}
},
{
"from_name": null,
"id": "5a129663bda64e45a8893631977537a0",
"to_name": null,
"type": null,
"value": {
"end": 10124,
"labels": [
"FAC"
],
"start": 9864,
"text": "Further contended that, the defendants No.1 and 2 being the absolute owners, in possession of the suit schedule property offered to sell the same in favour of defendants No.3 and 4 and thereby executed a Registered Sale Agreement in their favour on 28.07.2014."
}
},
{
"from_name": null,
"id": "980ea15c3a4b43bcb332cd1d309fef99",
"to_name": null,
"type": null,
"value": {
"end": 10201,
"labels": [
"FAC"
],
"start": 10125,
"text": "Further contended that, the suit is bad for nonjoinder of necessary parties."
}
},
{
"from_name": null,
"id": "e31b1b0bfd624637940ca1072dd050a9",
"to_name": null,
"type": null,
"value": {
"end": 10264,
"labels": [
"FAC"
],
"start": 10202,
"text": "Hence, amongst other grounds prayed for dismissal of the suit."
}
},
{
"from_name": null,
"id": "2674c661d7f843b49edd78a2c02d143e",
"to_name": null,
"type": null,
"value": {
"end": 10398,
"labels": [
"ISSUE"
],
"start": 10264,
"text": "\n 5. On the basis of the pleadings of the parties, my PredecessorinOffice has framed the following issues for determination: ISSUES 1."
}
},
{
"from_name": null,
"id": "3d032186b6e04b578a63b3fc20555b8e",
"to_name": null,
"type": null,
"value": {
"end": 10509,
"labels": [
"ISSUE"
],
"start": 10399,
"text": "Whether the plaintiffs prove that, they are the absolute owners, in possession of the suit schedule property ?"
}
},
{
"from_name": null,
"id": "f2afa6a019d14df48c90c7147958df9c",
"to_name": null,
"type": null,
"value": {
"end": 10627,
"labels": [
"ISSUE"
],
"start": 10509,
"text": "\n 2. Whether the plaintiffs further prove the alleged interference by the defendants over the suit schedule property ?"
}
},
{
"from_name": null,
"id": "f3b35fe5bb9e40a8bee4fb9e36aaf723",
"to_name": null,
"type": null,
"value": {
"end": 10694,
"labels": [
"ISSUE"
],
"start": 10629,
"text": "3. Whether the suit of the plaintiff is barred by Limitation?\n 4."
}
},
{
"from_name": null,
"id": "783caca47b71444bad72283099c544ca",
"to_name": null,
"type": null,
"value": {
"end": 10737,
"labels": [
"ISSUE"
],
"start": 10695,
"text": "Whether the Court Fee paid is sufficient ?"
}
},
{
"from_name": null,
"id": "e738a190b7574a05867bb0b9f834e0a8",
"to_name": null,
"type": null,
"value": {
"end": 10892,
"labels": [
"ISSUE"
],
"start": 10739,
"text": "5. Whether the defendants No.1 and 2 prove that, the suit schedule property was the selfacquired property of deceased Muddama, W/o Chikkegowda ?"
}
},
{
"from_name": null,
"id": "cc0ae7d74214453aa96010a8647e53b8",
"to_name": null,
"type": null,
"value": {
"end": 11057,
"labels": [
"ISSUE"
],
"start": 10894,
"text": "6. Whether the defendants No.1 and 2 further proves that deceased Muddamma executed a Will in their favour in respect of the suit schedule property on 15.06.1973 ?"
}
},
{
"from_name": null,
"id": "da9398c953ce41f6be2187e5f540b8a0",
"to_name": null,
"type": null,
"value": {
"end": 11149,
"labels": [
"ISSUE"
],
"start": 11059,
"text": "7. Whether the plaintiffs are entitled for the reliefs as sought for in the present suit ?"
}
},
{
"from_name": null,
"id": "9d87d3fe6179470eb51af7b5bafea92f",
"to_name": null,
"type": null,
"value": {
"end": 11176,
"labels": [
"ISSUE"
],
"start": 11151,
"text": "8. What Order or Decree ?"
}
},
{
"from_name": null,
"id": "9167f77c21c349598b454de9d5e85d35",
"to_name": null,
"type": null,
"value": {
"end": 11321,
"labels": [
"FAC"
],
"start": 11178,
"text": "6. In order to prove their case, the plaintiff No.2 and two independent witnesses by name Ramesh and Srinivas have been examined as PWs.1 to 3."
}
},
{
"from_name": null,
"id": "be50ebada793451aa47b27f49bfd4307",
"to_name": null,
"type": null,
"value": {
"end": 11387,
"labels": [
"FAC"
],
"start": 11322,
"text": "The Tahasildar was summoned in their favour examined him as PW.4."
}
},
{
"from_name": null,
"id": "34414788646549ddaa55c3e407f8dfce",
"to_name": null,
"type": null,
"value": {
"end": 11463,
"labels": [
"FAC"
],
"start": 11388,
"text": "Ex.P.1 to P51 are marked on behalf of the plaintiffs and closed their side."
}
},
{
"from_name": null,
"id": "0c79afe017fd46d7a7596fbe7ff897dd",
"to_name": null,
"type": null,
"value": {
"end": 11649,
"labels": [
"FAC"
],
"start": 11465,
"text": "7. On behalf of the Defendants, defendants No.2 and 3 and one witness by name Harish have been examined as DWs.1 to 3 and Ex.D1 to 67 were marked on their behalf and closed their side."
}
},
{
"from_name": null,
"id": "b2a50d85f590409e8a8d102ffeedf30f",
"to_name": null,
"type": null,
"value": {
"end": 11723,
"labels": [
"NONE"
],
"start": 11649,
"text": "\n 8. Heard the arguments of learned counsel for plaintiffs and Defendants."
}
},
{
"from_name": null,
"id": "464e180db9374e93882084a69518801e",
"to_name": null,
"type": null,
"value": {
"end": 11814,
"labels": [
"NONE"
],
"start": 11724,
"text": "The learned counsel for plaintiffs and defendants No.1 and 2 filed their Written Argument."
}
},
{
"from_name": null,
"id": "7f3145f78cb442c7b9fea5b07e983d1a",
"to_name": null,
"type": null,
"value": {
"end": 12317,
"labels": [
"ANALYSIS"
],
"start": 11814,
"text": "\n 9. My findings on the above Issues are as under: ISSUE NO.1 : In the Affirmative ISSUE NO.2 : In the Affirmative ISSUE NO.3 : In the Negative ISSUE NO.4 : In the Affirmative ISSUE NO.5 : In the Negative ISSUE NO.6 : In the Negative ISSUE NO.7 : In the Affirmative ISSUE NO.8 : AS PER FINAL ORDER below for the following ; : R E A S O N S : 10. Issues No.1 to 3, 5 and 6 : Since all these issues are interconnected, they are taken up together for common discussion to avoid repetition of facts."
}
},
{
"from_name": null,
"id": "323c301fbd9844e1985107b81b6414ea",
"to_name": null,
"type": null,
"value": {
"end": 12441,
"labels": [
"ANALYSIS"
],
"start": 12318,
"text": "Before looking into the point in controversy, first of all it is just and necessary to ascertain some of the admitted fact."
}
},
{
"from_name": null,
"id": "bf991598a2574e15a9291a6ea6543fd7",
"to_name": null,
"type": null,
"value": {
"end": 12556,
"labels": [
"ANALYSIS"
],
"start": 12442,
"text": "It is not in dispute that, originally the suit schedule property belonged to one Laxmamma, W/o. Doddavenkategowda."
}
},
{
"from_name": null,
"id": "f0e0395dc74740b19f253b327cce500e",
"to_name": null,
"type": null,
"value": {
"end": 12615,
"labels": [
"ANALYSIS"
],
"start": 12557,
"text": "It is also not in dispute that, Muddamma, W/o. Chikkegowda"
}
},
{
"from_name": null,
"id": "7c7d95c92b6347a08e52d97ac009a2cd",
"to_name": null,
"type": null,
"value": {
"end": 12818,
"labels": [
"ANALYSIS"
],
"start": 12616,
"text": "had purchased the suit schedule property from said Laxmamma and her son Venkategowda under a Registered Sale Deed dated 27.06.1946 and Khata came to be changed in the name of Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "45f4f3ddd4ce4617a17c5eeb2a398b88",
"to_name": null,
"type": null,
"value": {
"end": 12931,
"labels": [
"ANALYSIS"
],
"start": 12819,
"text": "It is also not in dispute that, defendants No.1 and 2 are the grand children of said Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "d7b763640b224756914a67cba43a542c",
"to_name": null,
"type": null,
"value": {
"end": 13210,
"labels": [
"ANALYSIS"
],
"start": 12932,
"text": "It is further admitted that, the said Muddamma, W/o. Chikkegowda mortgaged the suit schedule property in favour of one Chikkegowda, S/o. Basavegowda and in favour of Sepoy Thimmaiah, S/o. Thimmaiah under a Registered Mortgage Deeds dated 10.06.1956 and 18.01.1962, respectively."
}
},
{
"from_name": null,
"id": "858f01f2a4df491398bd233a8b87d428",
"to_name": null,
"type": null,
"value": {
"end": 13303,
"labels": [
"ANALYSIS"
],
"start": 13210,
"text": "\nFurther contention of the plaintiffs is that, after the death of Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "f37ec970cb864a0ab05ef11e1da18cdf",
"to_name": null,
"type": null,
"value": {
"end": 13321,
"labels": [
"ANALYSIS"
],
"start": 13304,
"text": "Chikkegowda, S/o."
}
},
{
"from_name": null,
"id": "850dca675dad41b39f42a863159e39fa",
"to_name": null,
"type": null,
"value": {
"end": 13472,
"labels": [
"ANALYSIS"
],
"start": 13321,
"text": "\nBogegowda and his son Madegowda sold the suit schedule property in favour of Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963."
}
},
{
"from_name": null,
"id": "0933c4781b7c494aba0f5e95ee6bcc5e",
"to_name": null,
"type": null,
"value": {
"end": 13712,
"labels": [
"ANALYSIS"
],
"start": 13473,
"text": "After the death of Muddamma, W/o. Thimmegowda her only son Moganna became the absolute owner, in possession of the suit schedule property and khata came to be changed in his name under I.H.R.No.2/199596 and said Moganna died on 12.02.2003."
}
},
{
"from_name": null,
"id": "632f6fc612b9491e99bdb1196adac4f8",
"to_name": null,
"type": null,
"value": {
"end": 13878,
"labels": [
"ANALYSIS"
],
"start": 13713,
"text": "The plaintiffs No.1 to 5 being the widow and children of said Moganna inherited the suit schedule property and became the absolute owners, in possession of the same."
}
},
{
"from_name": null,
"id": "40cbe2bcd7f843af99358bcad293fa2a",
"to_name": null,
"type": null,
"value": {
"end": 14024,
"labels": [
"ANALYSIS"
],
"start": 13879,
"text": "The further case of the plaintiffs that, after the death of Moganna, the plaintiffs approached the Tahasildar for change of khata in their names."
}
},
{
"from_name": null,
"id": "05adb24b8ccd44a9af0a8e338feeefee",
"to_name": null,
"type": null,
"value": {
"end": 14203,
"labels": [
"ANALYSIS"
],
"start": 14025,
"text": "Even though the defendants No.1 and 2 did not possession any manner of right, title or interest over the suit schedule property resisted their application by filing an objection."
}
},
{
"from_name": null,
"id": "956e69c71b1143a8851b9d3897b76146",
"to_name": null,
"type": null,
"value": {
"end": 14289,
"labels": [
"ANALYSIS"
],
"start": 14204,
"text": "But their objection came to be rejected and khata was made in the name of plaintiffs."
}
},
{
"from_name": null,
"id": "f57943a4c13c4a539c11b2225eef17aa",
"to_name": null,
"type": null,
"value": {
"end": 14559,
"labels": [
"ANALYSIS"
],
"start": 14290,
"text": "Thereafter, the defendants No.1 and 2 instituted a suit against the plaintiffs for the relief of bare Injunction, which came to be dismissed and thereafter lot of litigations continued between plaintiffs and defendants No.1 and 2 before the various revenue Authorities."
}
},
{
"from_name": null,
"id": "9af77a4503854d0d91a30a97dde9aef5",
"to_name": null,
"type": null,
"value": {
"end": 14644,
"labels": [
"ANALYSIS"
],
"start": 14560,
"text": "Hence, they ventured to file this suit for the relief of declaration of their title."
}
},
{
"from_name": null,
"id": "f3ea5821178945a08774c5c2a8b94704",
"to_name": null,
"type": null,
"value": {
"end": 14741,
"labels": [
"ANALYSIS"
],
"start": 14644,
"text": "\n 11. In his evidence, PW.1 to some extent deposed in accordance with the case of the plaintiffs."
}
},
{
"from_name": null,
"id": "97092575d04c41a4a841e863f5f7526b",
"to_name": null,
"type": null,
"value": {
"end": 14893,
"labels": [
"ANALYSIS"
],
"start": 14742,
"text": "Both Pws.2 and 3, the residents of Yaraganahalli Village, deposed that, the suit schedule properties are in possession and enjoyment of the plaintiffs."
}
},
{
"from_name": null,
"id": "266632166bd44e34a748fa065239466f",
"to_name": null,
"type": null,
"value": {
"end": 15019,
"labels": [
"ANALYSIS"
],
"start": 14894,
"text": "PW.4 Ramesh Babu, the Tahasildar, Mysuru deposed that, the Death Register for the year 1946 is not available in their office."
}
},
{
"from_name": null,
"id": "91232f384c894305b96a7bd3a7d18100",
"to_name": null,
"type": null,
"value": {
"end": 15133,
"labels": [
"ANALYSIS"
],
"start": 15020,
"text": "The report submitted by him in that regard was marked through him at Ex.C.1 and his signature marked as Ex.C1(a)."
}
},
{
"from_name": null,
"id": "acfa06a89e0a4478af27c97577f5dad6",
"to_name": null,
"type": null,
"value": {
"end": 15223,
"labels": [
"ANALYSIS"
],
"start": 15134,
"text": "Further deposed that, Ex.P.28 the Nonavailability Certificate was issued in their office."
}
},
{
"from_name": null,
"id": "5fd4794d9a984f25980631667db0925f",
"to_name": null,
"type": null,
"value": {
"end": 15329,
"labels": [
"ANALYSIS"
],
"start": 15224,
"text": "He also deposed that, Ex.D.8 Death Certificate produced by the defendants was not issued in their office."
}
},
{
"from_name": null,
"id": "a0dfc435273d4ceab7d5a8701ccf8b5f",
"to_name": null,
"type": null,
"value": {
"end": 15652,
"labels": [
"ANALYSIS"
],
"start": 15329,
"text": "\n 12. Percontra, the defendants No.1 and 2 have taken specific defence that, the suit schedule property was the self acquired property of their grand mother Muddamma, W/o.\nChikkegowda and they were under the care of their grand mother Muddamma and they assisted their grand mother in cultivating the suit schedule property."
}
},
{
"from_name": null,
"id": "06a9fc87f7bb4444a07624e60bbb0291",
"to_name": null,
"type": null,
"value": {
"end": 15824,
"labels": [
"ANALYSIS"
],
"start": 15653,
"text": "On 15.06.1973, the said Muddamma, W/o. Chikkegowda executed a Will in their favour and thereby bequeathed 1 acre 6 guntas and 1 acre of land in their favour, respectively."
}
},
{
"from_name": null,
"id": "fcefa0562ae24460b0146c5afed88c4f",
"to_name": null,
"type": null,
"value": {
"end": 16015,
"labels": [
"ANALYSIS"
],
"start": 15825,
"text": "They took further contention that, their grand mother Muddamma, W/o.\nChikkegowda died on 01.01.1976 and thereby denied the execution of the Sale Deed in favour of Muddamma, W/o.\nThimmegowda."
}
},
{
"from_name": null,
"id": "f702743b101a4253a6063af03ec153c3",
"to_name": null,
"type": null,
"value": {
"end": 16140,
"labels": [
"ANALYSIS"
],
"start": 16015,
"text": "\n 13. In their examinationsinchief, both Dws.1 and 2 have reiterated the contention taken by them in their Written Statement."
}
},
{
"from_name": null,
"id": "3ea24c588f6b4debbfa6993ccb710d0b",
"to_name": null,
"type": null,
"value": {
"end": 16243,
"labels": [
"ANALYSIS"
],
"start": 16141,
"text": "DW.3 Harish deposed that, one Naganna was his senior uncle and he was a Document Writer by profession."
}
},
{
"from_name": null,
"id": "f64d1e51a06648eaaf34444a922c7eb9",
"to_name": null,
"type": null,
"value": {
"end": 16431,
"labels": [
"ANALYSIS"
],
"start": 16244,
"text": "Further deposed that, he is acquainted with the handwriting of his senior uncle and deposed that, the Will produced by the defendants at Ex.D.7 was in the handwriting of his senior uncle."
}
},
{
"from_name": null,
"id": "5381df8b932641c190eaac18b8693840",
"to_name": null,
"type": null,
"value": {
"end": 16608,
"labels": [
"ANALYSIS"
],
"start": 16432,
"text": "He has identified his senior uncle signature and same was marked as Ex.D.7[a] and he also produced the Death Certificate of his senior uncle and same was marked as Ex.C.2.\n 14."
}
},
{
"from_name": null,
"id": "11ca2f10df2b4abfbfb2ac18a5771714",
"to_name": null,
"type": null,
"value": {
"end": 16709,
"labels": [
"ANALYSIS"
],
"start": 16609,
"text": "The documents produced on behalf of the defendants at Ex.D.1 and 2 are the color photographs and CD."
}
},
{
"from_name": null,
"id": "a90421ed4790431eb84da8fa8371d0e8",
"to_name": null,
"type": null,
"value": {
"end": 16764,
"labels": [
"ANALYSIS"
],
"start": 16710,
"text": "Ex.D.3 is the copy of notice issued by the Tahasildar."
}
},
{
"from_name": null,
"id": "65fb3c48e6cb454395eabc7dd5f5b04d",
"to_name": null,
"type": null,
"value": {
"end": 16814,
"labels": [
"ANALYSIS"
],
"start": 16764,
"text": "\nEx.D.4 was the Andholana kannada daily Newspaper."
}
},
{
"from_name": null,
"id": "5094761173d74f1098716dea2d0e2be5",
"to_name": null,
"type": null,
"value": {
"end": 16899,
"labels": [
"ANALYSIS"
],
"start": 16815,
"text": "Ex.D.6 is the original Sale Deed executed in the name of Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "c07adec8131249418978d966ae5200ec",
"to_name": null,
"type": null,
"value": {
"end": 16951,
"labels": [
"ANALYSIS"
],
"start": 16900,
"text": "Ex.D.7 is the Will relied by defendants No.1 and 2."
}
},
{
"from_name": null,
"id": "fcc46851ac224764a45dc05aa35cf109",
"to_name": null,
"type": null,
"value": {
"end": 17022,
"labels": [
"ANALYSIS"
],
"start": 16952,
"text": "Ex.D.8 is the alleged Death Certificate of Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "90c78af2f5db43c2857b039ced2a5419",
"to_name": null,
"type": null,
"value": {
"end": 17188,
"labels": [
"ANALYSIS"
],
"start": 17023,
"text": "Ex.D.9 to 67 are the Index of Land, Mutation order, RTC, Patta Book, Tax paid receipts and certified copy of the other proceedings held before the Revenue Authority."
}
},
{
"from_name": null,
"id": "1792c5803a404e0584309de32a6c5ca5",
"to_name": null,
"type": null,
"value": {
"end": 17483,
"labels": [
"ARG_PETITIONER"
],
"start": 17188,
"text": "\n 15. It was argued on behalf of the plaintiffs that, by virtue of the Registered Sale Deed executed by Late Chikkegowda and his son Madegowda, Smt. Muddamma, W/o. Thimmegowda became the absolute owners of the suit schedule property and she was in exclusive possession and enjoyment of the same."
}
},
{
"from_name": null,
"id": "0a76e12915b7475da7dc1f61a3c906de",
"to_name": null,
"type": null,
"value": {
"end": 17682,
"labels": [
"ARG_PETITIONER"
],
"start": 17484,
"text": "After her death, her son Moganna was in possession and enjoyment of the same and thereafter the plaintiffs as his legal heirs are in exclusive possession and enjoyment of the suit schedule property."
}
},
{
"from_name": null,
"id": "f940ca007a734bf3a386c33a929f58b1",
"to_name": null,
"type": null,
"value": {
"end": 17750,
"labels": [
"ARG_PETITIONER"
],
"start": 17683,
"text": "Further argued that, Muddamma, W/o. Chikkegowda died prior to 1962."
}
},
{
"from_name": null,
"id": "38c089fa002244d883edfa7a5eebd7d4",
"to_name": null,
"type": null,
"value": {
"end": 17960,
"labels": [
"ARG_PETITIONER"
],
"start": 17750,
"text": "\nTherefore, her husband Chikkegowda and her son Madegowda became the owners of the suit schedule property and sold the same in favour of Muddamma, W/o.\nThimmegowda under a Registered Sale Deed dated 21.10.1963."
}
},
{
"from_name": null,
"id": "86e951e759f24512bba55bb284e3d65b",
"to_name": null,
"type": null,
"value": {
"end": 18223,
"labels": [
"ARG_PETITIONER"
],
"start": 17961,
"text": "Eventhough, said Muddamma, W/o.\n Chikkegowda died prior to the said alienation, defendants No.1 and 2 hatched a plan to grab the suit schedule property and got created the Will in their favour and falsely contended that, their grand mother died in the year 1976."
}
},
{
"from_name": null,
"id": "1b43a8b3d20a4904839a2faf68cf53df",
"to_name": null,
"type": null,
"value": {
"end": 18442,
"labels": [
"ANALYSIS"
],
"start": 18223,
"text": "\nBut, the oral evidence of PW.4 and endorsements issued by him marked at Ex.P.28 and 29 makes it very clear that, Ex.D.8 the alleged Death Certificate of Muddamma, W/o.\nChikkegowda was created for the sake of this suit."
}
},
{
"from_name": null,
"id": "855ab98b3c5e4696a120998b16603752",
"to_name": null,
"type": null,
"value": {
"end": 18588,
"labels": [
"ARG_PETITIONER"
],
"start": 18443,
"text": "Further argued that, the suit is well within time and thereby plaintiffs are entitled for the relief of declaration and Injunction as prayed for."
}
},
{
"from_name": null,
"id": "3141c6e04a4b4b0b87b07f20d3327bcb",
"to_name": null,
"type": null,
"value": {
"end": 19256,
"labels": [
"ARG_RESPONDENT"
],
"start": 18588,
"text": "\n 16. Refuting the contention taken by the plaintiffs, the learned counsel for defendants No.1 and 2 vehemently argued that, the suit schedule property was the selfacquired property of Muddamma, W/o. Chikkegowda and during her lifetime she herself was cultivating the suit schedule property and the defendants No.1 and 2 being her grand children were assisting her in cultivating the land and out of love and affection she bequeathed the suit schedule property in their favour and thereby defendants No.1 and 2 became the owners of the suit schedule property and thereby the Sale Agreement executed by them in favour of defendants No.3 and 4 is in accordance with law."
}
},
{
"from_name": null,
"id": "312d3ca7feac4e3da2fdf39b356feda8",
"to_name": null,
"type": null,
"value": {
"end": 19555,
"labels": [
"ARG_RESPONDENT"
],
"start": 19257,
"text": "Further argued that, at the time of the alleged Sale Deed in favour of Muddamma, W/o. Thimmegowda, the grand mother of defendants No.1 and 2 was alive and therefore, the father and grand father of defendants No.1 and 2 have no right to execute the Sale Deed in favour of Muddamma, W/o. Thimmegowda."
}
},
{
"from_name": null,
"id": "a88592719cc74b4ba94dc4edcb71fd3f",
"to_name": null,
"type": null,
"value": {
"end": 19739,
"labels": [
"ARG_RESPONDENT"
],
"start": 19556,
"text": "Further argued that, the principles highlighted in Latin maxim \" Nemo dat quod non habet \" i.e., Non owner of the goods can not convey better title, is applicable to the case in hand."
}
},
{
"from_name": null,
"id": "040e671cd94c40a0838487867209b956",
"to_name": null,
"type": null,
"value": {
"end": 19862,
"labels": [
"ARG_RESPONDENT"
],
"start": 19739,
"text": "\n 17. The other contentions taken by the defendants No.1 and 2 is that, the suit of the plaintiffs is barred by Limitation."
}
},
{
"from_name": null,
"id": "77014898d65a4c408a46b083f7ed599d",
"to_name": null,
"type": null,
"value": {
"end": 20086,
"labels": [
"ARG_RESPONDENT"
],
"start": 19863,
"text": "In support of the said contention the learned counsel for the defendants No.1 and 2 has placed reliance on the decision of Hon'ble Supreme Court reported in A.I.R.\n2011 SC 3599 (Khatri Hotesl Pvt. Ltd., V/s Union of India)."
}
},
{
"from_name": null,
"id": "b942c291b2ec4eb3a8ed89c9ca4d9445",
"to_name": null,
"type": null,
"value": {
"end": 20300,
"labels": [
"ARG_RESPONDENT"
],
"start": 20086,
"text": "\nAt para 27 of the said decision their Lordships have held as under ; \" if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues."
}
},
{
"from_name": null,
"id": "4f6f54ca1483428b871dd1d58f29aeaf",
"to_name": null,
"type": null,
"value": {
"end": 20536,
"labels": [
"ARG_RESPONDENT"
],
"start": 20301,
"text": "To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the date when the right to sue first accrued.\""
}
},
{
"from_name": null,
"id": "0d1cfe55aceb43b4b8908fed4804214d",
"to_name": null,
"type": null,
"value": {
"end": 20675,
"labels": [
"ARG_RESPONDENT"
],
"start": 20536,
"text": "\n 18. Further argued that, as suit was not filed within 3 years from the date of denial title, the suit is hopelessly barred by limitation."
}
},
{
"from_name": null,
"id": "1f02fdffc98b4149bf8dfccdac810b0f",
"to_name": null,
"type": null,
"value": {
"end": 20836,
"labels": [
"ARG_RESPONDENT"
],
"start": 20676,
"text": "In that context, he placed reliance on the decision of our Hon'ble High Court reported in 2015 (2) KCCR 1714 (H.B. Shivakumar V/s L.C Hanumanthappa and others)."
}
},
{
"from_name": null,
"id": "1e916970e0844e349af81c3299dcd0d1",
"to_name": null,
"type": null,
"value": {
"end": 21031,
"labels": [
"ARG_RESPONDENT"
],
"start": 20837,
"text": "In the said decision his lordship has held as under : \" Limitation for a suit for declaration suit not filed within 3 years from the date of denial of title held, suit is barred by limitation."
}
},
{
"from_name": null,
"id": "b94a3716f5d94a72a648d47fa8106182",
"to_name": null,
"type": null,
"value": {
"end": 21038,
"labels": [
"ANALYSIS"
],
"start": 21032,
"text": "\"\n 19."
}
},
{
"from_name": null,
"id": "6a00551bbe8c425c937493098e1b9178",
"to_name": null,
"type": null,
"value": {
"end": 21339,
"labels": [
"ANALYSIS"
],
"start": 21039,
"text": "As discussed earlier, it was the definite case of the defendants No.1 and 2 that, their grand mother Muddamma, W/o. Chikkegowda died in the year 1976 and in the year 1973 itself, she executed a Will in their favour as per Ex.D.7 and by virtue of the Will, they became the owners of the suit property."
}
},
{
"from_name": null,
"id": "34f693fe4f104bf69ba4841f5550b81e",
"to_name": null,
"type": null,
"value": {
"end": 21498,
"labels": [
"ANALYSIS"
],
"start": 21340,
"text": "Since none of the attesting witnesses and scribe to the Will are alive, the provisions of Section 69 of Indian Evidence Act is applicable to the case in hand."
}
},
{
"from_name": null,
"id": "953b91af634246a89e5c2459fe0846d5",
"to_name": null,
"type": null,
"value": {
"end": 21634,
"labels": [
"ANALYSIS"
],
"start": 21499,
"text": "Hence, in consonance with Section 69 of the Evidence Act, DW.3 who is acquainted with the handwriting of the scribe, has been examined."
}
},
{
"from_name": null,
"id": "c00bf260ce6f43b499ec4a7c44e54f5f",
"to_name": null,
"type": null,
"value": {
"end": 21768,
"labels": [
"ANALYSIS"
],
"start": 21635,
"text": "Further argued that, were all the parties to the Will except the beneficiary is died the provisions of Section 69 have to be applied."
}
},
{
"from_name": null,
"id": "321ea6c75b7049f1b2cdc0a85eee19a8",
"to_name": null,
"type": null,
"value": {
"end": 21923,
"labels": [
"ANALYSIS"
],
"start": 21769,
"text": "If the signature of the scribe has been identified by a fellow writer who was acquainted with the signature, the document can be said to have been proved."
}
},
{
"from_name": null,
"id": "e7a781dfbade46d6924265dc95fea158",
"to_name": null,
"type": null,
"value": {
"end": 22052,
"labels": [
"ARG_RESPONDENT"
],
"start": 21923,
"text": "\n Further argued that, as Will relied by them is of 30 years old, the presumption under Section 90 of Evidence Act is applicable."
}
},
{
"from_name": null,
"id": "7ac6530bf5ae4821b38d822b76c84fd5",
"to_name": null,
"type": null,
"value": {
"end": 22303,
"labels": [
"ARG_RESPONDENT"
],
"start": 22053,
"text": "In support of the said contention the learned counsel for defendants No.1 and 2 placed reliance on the decision of our Hon'ble High Court report in 2017(4) Kar.L.J 633 (Vasanth H. Jayawant Bhasme and others v/s Shankararao Bhimrao Bhasme and others)."
}
},
{
"from_name": null,
"id": "9cda6052007b47ad8c8898673a169982",
"to_name": null,
"type": null,
"value": {
"end": 22694,
"labels": [
"ARG_RESPONDENT"
],
"start": 22304,
"text": "In the said decision his Lordship has held as under ; \" Presumption under Section 90 When the propounder finds it difficint to prove the Will, because of nonavailability of attestors Or because of their death or some other reason in present case, the Will is of year 1963, became subject matter of dispute in 1995 in such circumstances, the Court may draw presumption under Section 90. \""
}
},
{
"from_name": null,
"id": "5d5edbae26dd4e4097cec08e39d349cf",
"to_name": null,
"type": null,
"value": {
"end": 22880,
"labels": [
"ANALYSIS"
],
"start": 22694,
"text": "\n 20. In the background of the principles laid down in the aforecited decisions, I have carefully gone through the pleadings of the parties and their evidence, both oral and documentary."
}
},
{
"from_name": null,
"id": "9544e89b96d44cd483734538ceb07024",
"to_name": null,
"type": null,
"value": {
"end": 22995,
"labels": [
"ANALYSIS"
],
"start": 22881,
"text": "Ex.D.6 is the original Sale Deed in favour of Muddamma, W/o. Chikkegowda in respect of the suit schedule property."
}
},
{
"from_name": null,
"id": "0d688cf1c2c64ebc80f06d19bd415dd8",
"to_name": null,
"type": null,
"value": {
"end": 23105,
"labels": [
"ANALYSIS"
],
"start": 22996,
"text": "As discussed earlier, the purchase of suit schedule property by Muddamma, W/o. Chikkegowda is not in dispute."
}
},
{
"from_name": null,
"id": "5b011c7cca9b4e97bd0bbfc51858dfe0",
"to_name": null,
"type": null,
"value": {
"end": 23315,
"labels": [
"ANALYSIS"
],
"start": 23106,
"text": "It is also not in dispute that, on 10.06.1956, said Muddamma her husband and their son Madhegowda together executed a Mortgage Deed in favour of Chikkegowda, S/o. Basavegowda and it was redeemed on 21.01.1962."
}
},
{
"from_name": null,
"id": "7800a7feb2034509aad6ae856a8fd1a6",
"to_name": null,
"type": null,
"value": {
"end": 23410,
"labels": [
"ANALYSIS"
],
"start": 23316,
"text": "The said fact is also admitted by DW.1 in the course of her crossexamination dated 20.07.2017."
}
},
{
"from_name": null,
"id": "8b0722ee1d1f4a9fb732c2261de0d115",
"to_name": null,
"type": null,
"value": {
"end": 23874,
"labels": [
"ANALYSIS"
],
"start": 23411,
"text": "Now the burden lies upon the plaintiffs to prove that, on 18.01.1962, Muddamma, W/o. Chikkegowda was not alive and thereby her husband Chikkegowda and son Madegowda executed a Registered Mortgage Deed in favour of Sepoy Thimmaiah, S/o. Thimmaiah and thereafter the said Chikkegowda and Madegowda to discharge the loan taken from Sepoy Thimmaiah sold the suit schedule property in favour of Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963."
}
},
{
"from_name": null,
"id": "6d37d461fb31443ba9880f3c89d071aa",
"to_name": null,
"type": null,
"value": {
"end": 24154,
"labels": [
"ANALYSIS"
],
"start": 23875,
"text": "If plaintiffs are able to establish that, Muddamma, W/o. Thimmegowda acquired right, title and interest over the suit schedule property by virtue of said Sale Deed, there is no impediment to declare the right, title and interest of the plaintiffs over the suit schedule property."
}
},
{
"from_name": null,
"id": "f7433e95729144e9b5823f9ec7170b02",
"to_name": null,
"type": null,
"value": {
"end": 24256,
"labels": [
"ANALYSIS"
],
"start": 24156,
"text": "21. Percontra, onus is casted upon the defendants No.1 and 2 that, there grand mother Muddamma, W/o."
}
},
{
"from_name": null,
"id": "31633296211248b387eec643ac3fd48c",
"to_name": null,
"type": null,
"value": {
"end": 24427,
"labels": [
"ANALYSIS"
],
"start": 24256,
"text": "\nChikkegowda died in the year 1976 and on 15.06.1973, said Muddamma executed a Will in their favour and thereby bequeathed the suit schedule property as contended by them."
}
},
{
"from_name": null,
"id": "98f226ceb38248b5a7d9b3286deb296f",
"to_name": null,
"type": null,
"value": {
"end": 24535,
"labels": [
"ANALYSIS"
],
"start": 24427,
"text": "\n 22. To substantiate their contention, the plaintiffs have much relied upon Ex.P.1 to 4 and Ex.P.28 to P30."
}
},
{
"from_name": null,
"id": "1af825796da843988b4cc2a648145d3b",
"to_name": null,
"type": null,
"value": {
"end": 24597,
"labels": [
"ANALYSIS"
],
"start": 24536,
"text": "Ex.P.1 is the certified copy of the Registered Mortgage Deed."
}
},
{
"from_name": null,
"id": "99bee569956c4a689b1094251537b72b",
"to_name": null,
"type": null,
"value": {
"end": 24883,
"labels": [
"ANALYSIS"
],
"start": 24598,
"text": "The recitals of the said document makes it very clear that, on 10.06.1959, Chikkegowda son of Bogegowda, his wife Muddamma and their son Madegowda jointly executed a Mortgage Deed (without possession) in respect of the suit schedule property in favour of Chikkegowda, S/o.\nBasavegowda."
}
},
{
"from_name": null,
"id": "3e64e2fca8ef47719192cb59a7b52f4c",
"to_name": null,
"type": null,
"value": {
"end": 25084,
"labels": [
"ANALYSIS"
],
"start": 24884,
"text": "Ex.P.2 is the certified copy of the Mortgage Deed coupled with possession in respect of the suit schedule property executed by aforesaid 3 persons in favour of aforesaid Chikkegowda, S/o. Basavegowda."
}
},
{
"from_name": null,
"id": "c46ebe89d07c4e7697e520546b39a166",
"to_name": null,
"type": null,
"value": {
"end": 25311,
"labels": [
"ANALYSIS"
],
"start": 25085,
"text": "Ex.P.3 is the certified copy of the Registered Mortgage Deed dated 18.01.1962 executed by Chikkegowda, S/o. Bogegowda and his son Madegowda in favour of Sepoy Thimmaiah, S/o.\nThimmaiah in respect of the suit schedule property."
}
},
{
"from_name": null,
"id": "6b8ffbd76b7b4360bb66bfd9525502f1",
"to_name": null,
"type": null,
"value": {
"end": 25318,
"labels": [
"ANALYSIS"
],
"start": 25312,
"text": "Ex.P.4"
}
},
{
"from_name": null,
"id": "fde0a8d50e0243c3b08f6642c9792824",
"to_name": null,
"type": null,
"value": {
"end": 25518,
"labels": [
"ANALYSIS"
],
"start": 25319,
"text": "is the certified copy of the Sale Deed dated 21.10.1963, executed by Chikkegowda, S/o Bogegowda and his son Madegowda in favour of Muddamma, W/o. Thimmegowda in respect of the suit schedule property."
}
},
{
"from_name": null,
"id": "755b6d8017d74e65af958d2a39f84db9",
"to_name": null,
"type": null,
"value": {
"end": 25526,
"labels": [
"ANALYSIS"
],
"start": 25519,
"text": "Ex.P.28"
}
},
{
"from_name": null,
"id": "91150d4240bd4d2faaad43b5a29701d8",
"to_name": null,
"type": null,
"value": {
"end": 25533,
"labels": [
"ANALYSIS"
],
"start": 25527,
"text": "and 29"
}
},
{
"from_name": null,
"id": "732685b5baa141b0b280ce9923a31895",
"to_name": null,
"type": null,
"value": {
"end": 25752,
"labels": [
"ANALYSIS"
],
"start": 25534,
"text": "are the certified copies of the Nonavailability Certificates issued by Tahasildar stating that, the death entry of Muddamma, W/o. Chikkegowda was not entered in the Birth and Death Register, maintained in their office."
}
},
{
"from_name": null,
"id": "53aabd7f8e5b4d939a1e6f81278109ee",
"to_name": null,
"type": null,
"value": {
"end": 25915,
"labels": [
"ANALYSIS"
],
"start": 25753,
"text": "PW.4the Tahasildar, Mysuru, in his evidence dated 20.09.2018 deposed that, the Birth and Death entries pertains to the year 1962 is not available in their office."
}
},
{
"from_name": null,
"id": "2394ae614cb44c9a8d574ee0c2e9ce39",
"to_name": null,
"type": null,
"value": {
"end": 25994,
"labels": [
"ANALYSIS"
],
"start": 25916,
"text": "The endorsement issued by him in that regard was marked through him as Ex.C.1."
}
},
{
"from_name": null,
"id": "69a31023f2c54834b9a958d30e719cae",
"to_name": null,
"type": null,
"value": {
"end": 26165,
"labels": [
"ANALYSIS"
],
"start": 25995,
"text": "He further deposed that, Ex.D.8, the Death Certificate of Muddamma, W/o. Chikkegowda, said to have been issued in the office of Tahasildar was not issued by their office."
}
},
{
"from_name": null,
"id": "a6b014a72eeb44b5b8255fed623aecc5",
"to_name": null,
"type": null,
"value": {
"end": 26340,
"labels": [
"ANALYSIS"
],
"start": 26166,
"text": "Eventhough, he has been crossexamined by the counsel for defendants No.1 and 2, nothing has been elicited to show that, Ex.D.8 was issued in the office of Tahasildar, Mysuru."
}
},
{
"from_name": null,
"id": "295b52b7d86a4433a6c82a0afe0d18f5",
"to_name": null,
"type": null,
"value": {
"end": 26565,
"labels": [
"ANALYSIS"
],
"start": 26340,
"text": "\n 23. The recitals of Ex.P.1 and 2 makes it very clear that, at the time of execution of those Mortgage Deeds, Muddamma, W/o. Chikkegowda was alive and she along with her husband and son jointly executed those Mortgage Deeds."
}
},
{
"from_name": null,
"id": "e5e8f33c76794897842d7bcf2cc5cf1a",
"to_name": null,
"type": null,
"value": {
"end": 26641,
"labels": [
"ANALYSIS"
],
"start": 26566,
"text": "It is not in dispute that, the mortgage made in Ex.D.1 and 2 were redeemed."
}
},
{
"from_name": null,
"id": "29202dba4f994ccdadeb7c4847be8ad5",
"to_name": null,
"type": null,
"value": {
"end": 26743,
"labels": [
"ANALYSIS"
],
"start": 26642,
"text": "The said Muddamma, W/o.\nChikkegowda was not a party to the subsequent Mortgage deed marked at Ex.P.3."
}
},
{
"from_name": null,
"id": "7843ef35c53148c296129547357e9dde",
"to_name": null,
"type": null,
"value": {
"end": 26858,
"labels": [
"ANALYSIS"
],
"start": 26744,
"text": "Ex.P.3 was executed by her husband Chikkegowda and her son Madegowda in favour of Sepoy Thimmaiah, S/o. Thimmaiah."
}
},
{
"from_name": null,
"id": "9d87ce55987746a283c14bfbaca1cfe7",
"to_name": null,
"type": null,
"value": {
"end": 27038,
"labels": [
"ANALYSIS"
],
"start": 26859,
"text": "It is needless to mention that, while registering the document, the Sub Registrar had an occasion to verify the property extract pertains to the property involved in the document."
}
},
{
"from_name": null,
"id": "3476884c263c44b1880d4cf2b79d9a1c",
"to_name": null,
"type": null,
"value": {
"end": 27199,
"labels": [
"ANALYSIS"
],
"start": 27039,
"text": "It seems that, as on the date of execution of Mortgage Deed as per Ex.P.3 in favour of Sepoy Thimmaiah, the grand mother of defendants No.1 and 2 was not alive."
}
},
{
"from_name": null,
"id": "b78ae455c68a4fda8aba4f044e270e7a",
"to_name": null,
"type": null,
"value": {
"end": 27247,
"labels": [
"ANALYSIS"
],
"start": 27200,
"text": "It was executed at an undisputed point of time."
}
},
{
"from_name": null,
"id": "ff039f54419e475b8de83ee3b2bc2b9f",
"to_name": null,
"type": null,
"value": {
"end": 27426,
"labels": [
"ANALYSIS"
],
"start": 27248,
"text": "Even if Muddamma, W/o.\nChikkegowda was alive as on that date, certainly the mortgagee would have insisted for the consent of Muddamma and took her signature on the Mortgage Deed."
}
},
{
"from_name": null,
"id": "59f766de95804e3c9a12e82eb0ab50cc",
"to_name": null,
"type": null,
"value": {
"end": 27542,
"labels": [
"ANALYSIS"
],
"start": 27426,
"text": "\nAs she was not alive as on that date, there was no occasion to the mortgagee to take her signature on the document."
}
},
{
"from_name": null,
"id": "9823aa168fd343e5807769d499abc6c7",
"to_name": null,
"type": null,
"value": {
"end": 27705,
"labels": [
"ANALYSIS"
],
"start": 27543,
"text": "As discussed earlier, for other 2 Mortgage Deeds of the year 1959 the grand mother of defendants No.1 and 2 was a party and she put her thumb impressions on them."
}
},
{
"from_name": null,
"id": "cac048b5f65d4146b8ad4b6f97538597",
"to_name": null,
"type": null,
"value": {
"end": 27802,
"labels": [
"ANALYSIS"
],
"start": 27706,
"text": "Added to that, PW.4 in unequivocal terms of deposed that, Ex.D.8 was not issued in their office."
}
},
{
"from_name": null,
"id": "aa793cfddc70411d92dec53796a19d30",
"to_name": null,
"type": null,
"value": {
"end": 27881,
"labels": [
"ANALYSIS"
],
"start": 27803,
"text": "It creates serious doubt about the genuineity and authenticity of Ex.D.8.\n 24."
}
},
{
"from_name": null,
"id": "cd0e2be54a2a4049918753de88dbcc52",
"to_name": null,
"type": null,
"value": {
"end": 28071,
"labels": [
"ANALYSIS"
],
"start": 27882,
"text": "The contention of the defendants No.1 and 2 is that, their grand mother died only in the year 1976 and 3 years prior to her death, she bequeathed the suit schedule property in their favour."
}
},
{
"from_name": null,
"id": "06110fed01634debad48b498fae7c529",
"to_name": null,
"type": null,
"value": {
"end": 28364,
"labels": [
"ANALYSIS"
],
"start": 28072,
"text": "It is pertinent to note that, the defendants No.1 and 2, in the year 1997 filed a suit for the relief of Permanent Injunction on the file of II Civil Judge and J.M.F.C., Mysuru, in respect of the suit schedule property against the husband of plaintiff No.1 and father of remaining plaintiffs."
}
},
{
"from_name": null,
"id": "8f6529bc2ab64cefaa622467167cbd2e",
"to_name": null,
"type": null,
"value": {
"end": 28442,
"labels": [
"ANALYSIS"
],
"start": 28365,
"text": "Ex.P.30 is the certified copy of the judgement and decree in O.S.No.221/1997."
}
},
{
"from_name": null,
"id": "3c424ae43aad4e4abd7b452e9268eb94",
"to_name": null,
"type": null,
"value": {
"end": 28528,
"labels": [
"ANALYSIS"
],
"start": 28443,
"text": "Ex.P.40 to 42 are the certified copies of plaint, Written Statement in the said suit."
}
},
{
"from_name": null,
"id": "33768c41788c414f95b215c2022c917a",
"to_name": null,
"type": null,
"value": {
"end": 28623,
"labels": [
"ANALYSIS"
],
"start": 28529,
"text": "Ex.P.44 is the certified copy of the evidence given by defendant No.2 herein in the said suit."
}
},
{
"from_name": null,
"id": "1afab518587a4b45bb1b578a2f4ecfa0",
"to_name": null,
"type": null,
"value": {
"end": 28711,
"labels": [
"ANALYSIS"
],
"start": 28624,
"text": "The case setup by defendants No.1 and 2 is clearly forthcoming in para2 of the Ex.P.40."
}
},
{
"from_name": null,
"id": "61f49709d6e24784b6ca22cf24629cf4",
"to_name": null,
"type": null,
"value": {
"end": 28887,
"labels": [
"ANALYSIS"
],
"start": 28712,
"text": "Wherein they have taken contention that, as per family arrangement the suit schedule property was given to them and they are in exclusive possession and enjoyment of the same."
}
},
{
"from_name": null,
"id": "1d2311cb412d4ff8880c8ca204d64e18",
"to_name": null,
"type": null,
"value": {
"end": 29129,
"labels": [
"ANALYSIS"
],
"start": 28888,
"text": "In her examinationinchief by way of Affidavit dated 20.12.2007, the defendant No.2 has reiterated the averments made in the plaint that, they are in actual possession and enjoyment of the suit schedule property as per the family arrangement."
}
},
{
"from_name": null,
"id": "5f746ebd86fb4b979ebcca7f3d741d80",
"to_name": null,
"type": null,
"value": {
"end": 29260,
"labels": [
"ANALYSIS"
],
"start": 29130,
"text": "Neither in their plaint nor in her evidence dated 20.12.2007, any whisper about the Will, now relied by them and marked at Ex.D.7."
}
},
{
"from_name": null,
"id": "51dfe7f0242f4a3782eb27e64dc058e7",
"to_name": null,
"type": null,
"value": {
"end": 29362,
"labels": [
"ANALYSIS"
],
"start": 29261,
"text": "As discussed earlier, in this suit also, the defendant No.2 has entered into the witness box as DW.1."
}
},
{
"from_name": null,
"id": "229db49f88234aca951356ff6099b7e3",
"to_name": null,
"type": null,
"value": {
"end": 29515,
"labels": [
"ANALYSIS"
],
"start": 29363,
"text": "In her crossexamination dated 20.07.2017 she deposed that, 2 years prior to the institution of O.S.No.221/1997, they found the Will, now relied by them."
}
},
{
"from_name": null,
"id": "d9ba49612c384ca5acc1cbf7d937824e",
"to_name": null,
"type": null,
"value": {
"end": 29637,
"labels": [
"ANALYSIS"
],
"start": 29516,
"text": "If it was so, certainly there was no impediment to them to plead about the alleged Will in their suit in O.S.No.221/1997."
}
},
{
"from_name": null,
"id": "bdb6aa097af942f5b3889ee22371e0df",
"to_name": null,
"type": null,
"value": {
"end": 29889,
"labels": [
"ANALYSIS"
],
"start": 29638,
"text": "It is pertinent to note that, in the aforesaid suit, the defendant No.2 herein filed one more Affidavit by way of examinationinchief on 24.04.2009 and on the said date, for the first time she stated about the Will dated 15.06.1973, now relied by them."
}
},
{
"from_name": null,
"id": "381c271f0b024ee08382a644c1e88681",
"to_name": null,
"type": null,
"value": {
"end": 30038,
"labels": [
"ANALYSIS"
],
"start": 29889,
"text": "\n 25. Except the Will relied by the defendants marked at Ex.D.7, all other documents pertains to the suit schedule property are registered documents."
}
},
{
"from_name": null,
"id": "4c4e7600414443428dd02fa3768b22e0",
"to_name": null,
"type": null,
"value": {
"end": 30125,
"labels": [
"ANALYSIS"
],
"start": 30039,
"text": "According to the defendants No.1 and 2, the Will came to be executed in the year 1973."
}
},
{
"from_name": null,
"id": "fc9bfa5635ad4c56bd91799e38853f1f",
"to_name": null,
"type": null,
"value": {
"end": 30164,
"labels": [
"ANALYSIS"
],
"start": 30126,
"text": "No doubt, Will need not be registered."
}
},
{
"from_name": null,
"id": "23ede940eb9a474b813dc5207c9da02a",
"to_name": null,
"type": null,
"value": {
"end": 30302,
"labels": [
"ANALYSIS"
],
"start": 30165,
"text": "But, 1959 onwards, all documents came to be executed with respect to the suit schedule property were registered before the Sub Registrar."
}
},
{
"from_name": null,
"id": "542984b6719245a9aa28db74d5158dc1",
"to_name": null,
"type": null,
"value": {
"end": 30395,
"labels": [
"ANALYSIS"
],
"start": 30303,
"text": "That itself shows that, parties were very well aware about the consequences of registration."
}
},
{
"from_name": null,
"id": "e5372612ef0848aca6ceba13c4ed5297",
"to_name": null,
"type": null,
"value": {
"end": 30511,
"labels": [
"ANALYSIS"
],
"start": 30397,
"text": "26. Ex.P.30 makes it very clear that, the plaintiffs have produced their original Sale Deed before the said Court."
}
},
{
"from_name": null,
"id": "d67b6e5c9e8c42518cd47f07b7548130",
"to_name": null,
"type": null,
"value": {
"end": 30743,
"labels": [
"ANALYSIS"
],
"start": 30512,
"text": "The learned Judge after going through the documents and oral evidence came to the conclusion that, the defendants No.1 and 2 were failed to prove possession of the suit schedule property and thereby their suit came to be dismissed."
}
},
{
"from_name": null,
"id": "1b675f3850af4c1992cad6718d7e56f4",
"to_name": null,
"type": null,
"value": {
"end": 30880,
"labels": [
"ANALYSIS"
],
"start": 30744,
"text": "It is an admitted fact that, defendants No.1 and 2 did not prefer any appeal against the judgement and decree passed in O.S.No.221/1997."
}
},
{
"from_name": null,
"id": "85a31baea7b34d3bb3bad2d3f767cfbd",
"to_name": null,
"type": null,
"value": {
"end": 31048,
"labels": [
"ANALYSIS"
],
"start": 30881,
"text": "Now the contention of the defendants No.1 and 2 is that, the said suit was for the relief of bare injunction and title of the parties was not decided in the said suit."
}
},
{
"from_name": null,
"id": "28c940a93ae44aac8faf52bf347c24cc",
"to_name": null,
"type": null,
"value": {
"end": 31210,
"labels": [
"ANALYSIS"
],
"start": 31049,
"text": "But, the Court has clearly held that, the defendants No. 1 and 2 are not in possession of the suit property and the findings given therein remained unchallenged."
}
},
{
"from_name": null,
"id": "619fef12d3ac439eabd5afb709d377bb",
"to_name": null,
"type": null,
"value": {
"end": 31340,
"labels": [
"ANALYSIS"
],
"start": 31210,
"text": "\n 27. It is needless to mention that, the Tahasildar is the custodian of Birth and Death Register, maintained in the Taluk Office."
}
},
{
"from_name": null,
"id": "73e6ee50e98b4b51b105d0e40777673b",
"to_name": null,
"type": null,
"value": {
"end": 31446,
"labels": [
"ANALYSIS"
],
"start": 31341,
"text": "The Tahasildar himself appeared before the court and deposed that, Ex.D.8 was not issued by their office."
}
},
{
"from_name": null,
"id": "0a6887ba00fc4e7aacaf69efa94d61ad",
"to_name": null,
"type": null,
"value": {
"end": 31642,
"labels": [
"ANALYSIS"
],
"start": 31447,
"text": "But, the learned counsel for the defendants No.1 and 2 much canvased before the Court that, nothing was produced by the plaintiffs to show that, Muddamma, W/o.\nChikkegowda was died prior to 1962."
}
},
{
"from_name": null,
"id": "77dd9dc60d2f4857ae4b10bf08fdd20f",
"to_name": null,
"type": null,
"value": {
"end": 31744,
"labels": [
"ANALYSIS"
],
"start": 31643,
"text": "It is not in dispute that, the plaintiffs are not blood relatives of said Muddamma, W/o. Chikkegowda."
}
},
{
"from_name": null,
"id": "61e060890652486fa46ccc9f3f3a0c50",
"to_name": null,
"type": null,
"value": {
"end": 31821,
"labels": [
"ANALYSIS"
],
"start": 31745,
"text": "However, the defendants No.1 and 2 are the grand daughters of said Muddamma."
}
},
{
"from_name": null,
"id": "3fc83840fb404fc48bc33bc5e0c8e98a",
"to_name": null,
"type": null,
"value": {
"end": 31982,
"labels": [
"ANALYSIS"
],
"start": 31821,
"text": "\nHence, it was obligatory on the part of the defendants No.1 to 2 to report the death of their grand mother to the concerned Registrar to make necessary entries."
}
},
{
"from_name": null,
"id": "fd769aecfbf448fa9014b5d0835540de",
"to_name": null,
"type": null,
"value": {
"end": 32030,
"labels": [
"ANALYSIS"
],
"start": 31983,
"text": "It seems that, there was latches on their part."
}
},
{
"from_name": null,
"id": "34c7e073cce247c6932f027a6269c0af",
"to_name": null,
"type": null,
"value": {
"end": 32168,
"labels": [
"ANALYSIS"
],
"start": 32031,
"text": "It gives strong inference that, the defendants No.1 and 2 to suit their convenience, got created Ex.D.8 and produced it before the Court."
}
},
{
"from_name": null,
"id": "14b7a71de6a0430982de73f733caaac3",
"to_name": null,
"type": null,
"value": {
"end": 32354,
"labels": [
"ANALYSIS"
],
"start": 32169,
"text": "But, the plaintiffs by summoning the Tahasildar conveniently proved that, Ex.D.8 was not issued in the office of Tahasildar and it was created by the defendants for the sake of defence."
}
},
{
"from_name": null,
"id": "38ec1b82726a4049b4c4dee306abf945",
"to_name": null,
"type": null,
"value": {
"end": 32615,
"labels": [
"ANALYSIS"
],
"start": 32354,
"text": "\n 28. On more thing canvased on behalf of the defendants is that, the original Sale Deed of Muddamma, W/o.\nChikkegowda is in the custody of defendants No.1 and 2 and that itself shows that, the property was not alienated in favour of Muddamma, W/o. Thimmegowda."
}
},
{
"from_name": null,
"id": "1e3416a35fac46d0b4540e792b84a830",
"to_name": null,
"type": null,
"value": {
"end": 32816,
"labels": [
"ANALYSIS"
],
"start": 32616,
"text": "But, it is relevant to mention that, at the time of execution of Sale Deed in favour of Muddamma, W/o. Thimmegowda, the property was mortgaged in favour of Sepoy Thimmaiah and it is evident in Ex.P.3."
}
},
{
"from_name": null,
"id": "9752c1984da34f0e9f5f86d7ffefd23b",
"to_name": null,
"type": null,
"value": {
"end": 32981,
"labels": [
"ANALYSIS"
],
"start": 32817,
"text": "As the property was mortgaged, the purchaser Muddamma, W/o. Thimmegowda much concentrated on redemption of mortgage and did not bother about the original Sale Deed."
}
},
{
"from_name": null,
"id": "f4f4265c1216404588cdc40e05bd5d5e",
"to_name": null,
"type": null,
"value": {
"end": 33189,
"labels": [
"ANALYSIS"
],
"start": 32982,
"text": "It is definite case of the plaintiffs that, Muddamma, W/o. Thimmegowda herself paid the mortgage money in favour of Sepoy Thimmaiah and thereby mortgage was redeemed and then got the Sale Deed in her favour."
}
},
{
"from_name": null,
"id": "f21e653ca1a94c6da59c934605c934d4",
"to_name": null,
"type": null,
"value": {
"end": 33302,
"labels": [
"ANALYSIS"
],
"start": 33189,
"text": "\n 29. It is not the case of defendants No.1 and 2 that, their father and grand father were addicted to bad vices."
}
},
{
"from_name": null,
"id": "d595c075e0f644139ee11e9c358689e6",
"to_name": null,
"type": null,
"value": {
"end": 33499,
"labels": [
"ANALYSIS"
],
"start": 33302,
"text": "\nExcept the bald contention that, Muddamma, W/o.\nThimmegowda got created the Sale Deed in her favour no any serious allegations were made against Chikkegowda, S/o. Bogegowda and his son Madhegowda."
}
},
{
"from_name": null,
"id": "62ad130770c54abd96f80c86966b18e3",
"to_name": null,
"type": null,
"value": {
"end": 33629,
"labels": [
"ANALYSIS"
],
"start": 33500,
"text": "It is not in dispute that, Chikkegowda, S/o. Bogegowda and Madegowda were the husband and son of Late Muddamma, W/o.\nChikkegowda."
}
},
{
"from_name": null,
"id": "0e4e0d8c997543c9bf7ed2c94ac1bc79",
"to_name": null,
"type": null,
"value": {
"end": 33757,
"labels": [
"ANALYSIS"
],
"start": 33630,
"text": "Such being the case, after her death they became the owners of the suit schedule property, as they were her classI legal heirs."
}
},
{
"from_name": null,
"id": "34111229c51a4649bc0e1dc54b727e2c",
"to_name": null,
"type": null,
"value": {
"end": 33854,
"labels": [
"ANALYSIS"
],
"start": 33758,
"text": "Hence, the theory of \" Nemo dat quod non habet\" adopted by defendants No.1 and 2 holds no water."
}
},
{
"from_name": null,
"id": "82ef2521c207419aa25f73dc52d86ddd",
"to_name": null,
"type": null,
"value": {
"end": 34041,
"labels": [
"ANALYSIS"
],
"start": 33855,
"text": "Now it is clear that, immediately after the death of Muddamma, W/o. Chikkegowda, her husband and son became the owners and alienated the property in favour of Muddamma, W/o. Thimmegowda."
}
},
{
"from_name": null,
"id": "b088629416af4ddea760a0841f754e67",
"to_name": null,
"type": null,
"value": {
"end": 34230,
"labels": [
"ANALYSIS"
],
"start": 34041,
"text": "\n 30. As per proviso contained under Section 128 of Karnataka Land Revenue Act, it was the bounden duty of Revenue officials, to make change of khata on the strength of registered document."
}
},
{
"from_name": null,
"id": "334a892d3b30407e9247b44441a458ec",
"to_name": null,
"type": null,
"value": {
"end": 34276,
"labels": [
"ANALYSIS"
],
"start": 34231,
"text": "But there were certain latches on their part."
}
},
{
"from_name": null,
"id": "f8aef2b368234b0fb83ec72df7d0cf66",
"to_name": null,
"type": null,
"value": {
"end": 34420,
"labels": [
"ANALYSIS"
],
"start": 34277,
"text": "It is needless to mention that, revenue authority has no right to decide the title of the parties and it is the prerogative of the Civil Court."
}
},
{
"from_name": null,
"id": "f89eaf04f96543b6bef9684ef70d8df7",
"to_name": null,
"type": null,
"value": {
"end": 34561,
"labels": [
"ANALYSIS"
],
"start": 34421,
"text": "As such, any of the findings given in the revenue proceedings would not come in the way of this suit for declaring the title of the parties."
}
},
{
"from_name": null,
"id": "28a55b5765fd477087b7fff3d212f1ad",
"to_name": null,
"type": null,
"value": {
"end": 34809,
"labels": [
"ANALYSIS"
],
"start": 34561,
"text": "\n 31. As revenue proceedings was held before various revenue authorities for considerable length of time and the plaintiffs made their efforts to get the relief before the revenue authority, no reason to hold that, the suit is barred by Limitation."
}
},
{
"from_name": null,
"id": "ffbb8a5374f84c73a997a9d357d3193b",
"to_name": null,
"type": null,
"value": {
"end": 34985,
"labels": [
"ANALYSIS"
],
"start": 34810,
"text": "It is not in dispute that, at the time of institution of this suit, the Revision Petition filed by the plaintiffs before the Deputy Commissioner was pending for consideration."
}
},
{
"from_name": null,
"id": "fd7a268736304e438219c92b6db3f543",
"to_name": null,
"type": null,
"value": {
"end": 35112,
"labels": [
"ANALYSIS"
],
"start": 34986,
"text": "Such being the case, the law laid down in any of the decisions relied by defendants No.1 and 2 would not come to their rescue."
}
},
{
"from_name": null,
"id": "36e6608b3c6e4cc08be05b3857392017",
"to_name": null,
"type": null,
"value": {
"end": 35286,
"labels": [
"PRE_RELIED"
],
"start": 35113,
"text": "As such, the law laid down by our Hon'ble High Court in the case of Dasapa Setty v/s Thammannagowda (report in A.I.R. 1994 Kar. 153) is aptly applicable to the case in hand."
}
},
{
"from_name": null,
"id": "bf91da67a06a48d7a5e2c38a977554a3",
"to_name": null,
"type": null,
"value": {
"end": 35460,
"labels": [
"ANALYSIS"
],
"start": 35287,
"text": "In the said decision his Lordship made it clear that, the plaintiff can file a suit for declaration of title when he feels that, title is jeopardised and his title subsists."
}
},
{
"from_name": null,
"id": "de203dec1a69436e89bf51b0fc3834df",
"to_name": null,
"type": null,
"value": {
"end": 35593,
"labels": [
"ANALYSIS"
],
"start": 35461,
"text": "With these observations, Issues No.1 and 2 are answered in the Affirmative and Issue No.3, 5 and 6 in the Negative.\n 32. Issue No.4:"
}
},
{
"from_name": null,
"id": "b9eb9cd695a74e9fa84f2e8fd3a1d2a9",
"to_name": null,
"type": null,
"value": {
"end": 35756,
"labels": [
"ANALYSIS"
],
"start": 35594,
"text": "The plaintiffs have calculated the Court Fee as per Section 24(b) and 26(c) of the Karnataka Court Fee and Suit Valuation Act and paid the Court Fee Rs.1,54,700/."
}
},
{
"from_name": null,
"id": "64b20efc14584ccb983d77ebb2fbee05",
"to_name": null,
"type": null,
"value": {
"end": 35941,
"labels": [
"ANALYSIS"
],
"start": 35757,
"text": "After going through the relief claimed in the suit and the valuation made by the plaintiffs, this court has come to the conclusion that, the Court Fee paid on the plaint is sufficient."
}
},
{
"from_name": null,
"id": "c02f629a43a748e8b74f80e7aced9c32",
"to_name": null,
"type": null,
"value": {
"end": 35997,
"labels": [
"ANALYSIS"
],
"start": 35942,
"text": "Accordingly, this Issue is answered in the Affirmative."
}
},
{
"from_name": null,
"id": "a8aa7cfd08cb4f49abbb1e5efc69a0d4",
"to_name": null,
"type": null,
"value": {
"end": 36015,
"labels": [
"ANALYSIS"
],
"start": 35997,
"text": "\n 33. Issue No.7 :"
}
},
{
"from_name": null,
"id": "696cc06f357a49be88e6629d22880772",
"to_name": null,
"type": null,
"value": {
"end": 36341,
"labels": [
"ANALYSIS"
],
"start": 36016,
"text": "While answering aforementioned Issues this court has come to the conclusion that, the plaintiffs have established their right, title, interest and possession over the suit schedule property and defendants have miserably failed to prove their right, title and interest including the possession over the suit schedule property."
}
},
{
"from_name": null,
"id": "b33797e52fd6403186076d92a6b35c0e",
"to_name": null,
"type": null,
"value": {
"end": 36603,
"labels": [
"ANALYSIS"
],
"start": 36342,
"text": "As the property was alienated in favour of Muddamma, W/o.\nThimmegowda way back in the year 1962, the defendants No.1 and 2 not at all derived any right, title or interest over the suit schedule property either by way of testamatary or nontestamatary succession."
}
},
{
"from_name": null,
"id": "c90c1bbb754744c08b8dc89b0d58c6ff",
"to_name": null,
"type": null,
"value": {
"end": 36699,
"labels": [
"ANALYSIS"
],
"start": 36604,
"text": "Hence, they have no right to execute the Sale Agreement in favour of the defendants No.3 and 4."
}
},
{
"from_name": null,
"id": "4ff51a9886d14b06b75134ea9b471a60",
"to_name": null,
"type": null,
"value": {
"end": 36802,
"labels": [
"ANALYSIS"
],
"start": 36700,
"text": "As such, the alleged Sale Agreement in favour of defendants No.3 and 4 has no force in the eye of law."
}
},
{
"from_name": null,
"id": "2d59fd8d1a5f4b4fb1f794a776e9edb5",
"to_name": null,
"type": null,
"value": {
"end": 36911,
"labels": [
"ANALYSIS"
],
"start": 36803,
"text": "Such being the case, the plaintiffs are entitled for the relief of declaration and Injunction as prayed for."
}
},
{
"from_name": null,
"id": "bdee89e2e28a47aca9144eee37412e8b",
"to_name": null,
"type": null,
"value": {
"end": 36967,
"labels": [
"ANALYSIS"
],
"start": 36912,
"text": "Accordingly, Issue No.7 is answered in the Affirmative."
}
},
{
"from_name": null,
"id": "d95c567de48e4174981df4b80ca20367",
"to_name": null,
"type": null,
"value": {
"end": 36983,
"labels": [
"NONE"
],
"start": 36967,
"text": "\n 34. Issue No.8"
}
},
{
"from_name": null,
"id": "d28e0c5471824be8a53dc3ba72933193",
"to_name": null,
"type": null,
"value": {
"end": 37058,
"labels": [
"NONE"
],
"start": 36984,
"text": ": For the reasons discussed above, I proceed to pass the following : ORDER"
}
},
{
"from_name": null,
"id": "c827cf74c6144e60a7228e02da9e8d75",
"to_name": null,
"type": null,
"value": {
"end": 37235,
"labels": [
"RPC"
],
"start": 37059,
"text": "The suit of the plaintiffs is decreed with cost as under ; It is hereby ordered and decreed that, the plaintiffs are the owners and in possession of the suit schedule property."
}
},
{
"from_name": null,
"id": "f74586cd072a4a30adbffa41ee9ac92b",
"to_name": null,
"type": null,
"value": {
"end": 37425,
"labels": [
"RPC"
],
"start": 37235,
"text": "\n It is further ordered and decreed that, the defendants No.1 to 4 are hereby restrained from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property."
}
},
{
"from_name": null,
"id": "cabd36e503114d9c83e8bd4334603065",
"to_name": null,
"type": null,
"value": {
"end": 37451,
"labels": [
"RPC"
],
"start": 37425,
"text": "\n Draw decree accordingly."
}
},
{
"from_name": null,
"id": "1d070a710e004650a31d3dbf52e3ef30",
"to_name": null,
"type": null,
"value": {
"end": 37577,
"labels": [
"NONE"
],
"start": 37451,
"text": "\n (Dictated to the Stenographer transcribed by her corrected and then pronounced by me in open Court, on this the 31.10.2019)."
}
},
{
"from_name": null,
"id": "ad848fc23a694703b47a6e60280f46d1",
"to_name": null,
"type": null,
"value": {
"end": 37648,
"labels": [
"NONE"
],
"start": 37577,
"text": "\n (SANTHOSH KUMAR SHETTY N.) II ADDL.SENIOR CIVIL JUDGE & CJM., MYSURU."
}
},
{
"from_name": null,
"id": "cb2ea44b5d0748c98fddb218aafee243",
"to_name": null,
"type": null,
"value": {
"end": 37665,
"labels": [
"NONE"
],
"start": 37648,
"text": "\n A N N E X U R E"
}
},
{
"from_name": null,
"id": "0734ab72ab4f4485a09c3fee76fea02d",
"to_name": null,
"type": null,
"value": {
"end": 37839,
"labels": [
"NONE"
],
"start": 37666,
"text": "LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF/S : PW.1 M. Mahesh PW.2 Ramesh PW.3 Srinivas PW.4 T.Ramesh Babu LIST OF DOCUMENTS EXHIBITED FOR THE PLAINTIFF/S : Ex.P.1 & 2"
}
},
{
"from_name": null,
"id": "4bb7846fbf7a46bc934c53c5bbc173e8",
"to_name": null,
"type": null,
"value": {
"end": 37967,
"labels": [
"NONE"
],
"start": 37844,
"text": "Certified copies of Mortgage Ex.P.3 &4 Deed Ex.P.5 to 18 Certified copies of Sale Deed Ex.P.19 to 22 Ex.P.23 to 25 "
}
},
{
"from_name": null,
"id": "ecbf20244f1a4404b179dd65c22b4bfb",
"to_name": null,
"type": null,
"value": {
"end": 38279,
"labels": [
"NONE"
],
"start": 37967,
"text": "Certified copies of RTCs Ex.P.26 & 27 Mutation orders Ex.P.28 & 29 Certified copies of Tax paid Ex.P.30 receipts Ex.P.31 Certified copies of Patta Books Ex.P.32 Certified copies of Non Ex.P.33 availability certificates Certified copy of Judgement in Ex.P.34 O.S.No.221/1997 Ex.P.35 "
}
},
{
"from_name": null,
"id": "0a533bfbf9ef4d7199261ff809956d48",
"to_name": null,
"type": null,
"value": {
"end": 38352,
"labels": [
"NONE"
],
"start": 38279,
"text": "Certified copy of Order of Ex.P.36 Assessment Commissioner Ex.P.37"
}
},
{
"from_name": null,
"id": "2037ef3178844cbfbf015f2032b4d150",
"to_name": null,
"type": null,
"value": {
"end": 38487,
"labels": [
"NONE"
],
"start": 38360,
"text": "Certified copy of Order of Ex.P.38 Ex.P.39 Tahasildar Certified copy of Order of Ex.P.40 Assessment Commissioner Ex.P.41"
}
},
{
"from_name": null,
"id": "6ac22f9d73e8447884dc8c84aa2881fc",
"to_name": null,
"type": null,
"value": {
"end": 39000,
"labels": [
"NONE"
],
"start": 38495,
"text": "Certified copy of application Ex.P.42 made to Tahasildar Certified copy of Registered Ex.P.43 Sale Agreement Ex.P.44 Paper Publication Reply Notice Postal receipt Certified copy of Order of Deputy Commissioner Certified copy of Plaint in O.S.No.221/1997 Certified copy of Written Statement in O.S.No.221/1997 Certified copy of objection in O.S.No.221/1997 Certified copy of Issues in O.S.No.221/1997 Certified copy of examinin chief of PW.1 in"
}
},
{
"from_name": null,
"id": "0dfb32073b9c4c71931db41097ffc4d7",
"to_name": null,
"type": null,
"value": {
"end": 39433,
"labels": [
"NONE"
],
"start": 39001,
"text": "Certified copy of Order sheet Ex.P.45 Ex.P.46 in O.S.No.101/2011 Ex.P.47 Certified copy of plaint in Ex.P.48 O.S.No.27/2012 Certified copy of Additional Ex.P.49 to 51 Written Statement in O.S.No.27/2012 Certified copy of Additional Written Statement in O.S.No.27/2012 Certified copies of Sale Deeds LIST OF WITNESSES EXAMINED FOR THE DEFENDANT/S : DW.1 Chikkamma DW.2"
}
},
{
"from_name": null,
"id": "9438f1e83fa149c79132a966a71431c8",
"to_name": null,
"type": null,
"value": {
"end": 39456,
"labels": [
"NONE"
],
"start": 39434,
"text": " Naganna DW.3"
}
},
{
"from_name": null,
"id": "c5899941b0d54a51b7cce32d7fdd4a96",
"to_name": null,
"type": null,
"value": {
"end": 39522,
"labels": [
"NONE"
],
"start": 39467,
"text": "Harish LIST OF DOCUMENTS EXHIBITED FOR THE DEFENDANT/S:"
}
},
{
"from_name": null,
"id": "e19c520e45614283b3b21a0b4ab88ebe",
"to_name": null,
"type": null,
"value": {
"end": 39529,
"labels": [
"NONE"
],
"start": 39523,
"text": "Ex.D.1"
}
},
{
"from_name": null,
"id": "96b2455d5ab54f9d886b081c0e53320d",
"to_name": null,
"type": null,
"value": {
"end": 39577,
"labels": [
"NONE"
],
"start": 39538,
"text": "Photo Ex.D.2 CD Ex.D.3 "
}
},
{
"from_name": null,
"id": "10138315af354e719bd156cb0cac73f5",
"to_name": null,
"type": null,
"value": {
"end": 39653,
"labels": [
"NONE"
],
"start": 39577,
"text": "Notice issued by Tahasildar Ex.D.4 Paper Publication Ex.D.5 "
}
},
{
"from_name": null,
"id": "cbd36dc1daed486a947205bbb45175bc",
"to_name": null,
"type": null,
"value": {
"end": 39674,
"labels": [
"NONE"
],
"start": 39653,
"text": "Photo Ex.D.6 "
}
},
{
"from_name": null,
"id": "d676a0c073b446a38d466a586706eacf",
"to_name": null,
"type": null,
"value": {
"end": 39710,
"labels": [
"NONE"
],
"start": 39674,
"text": "Sale Deed Ex.D.7 Will Ex.D.8"
}
},
{
"from_name": null,
"id": "8b5b687c86054a0aadb018f365caed10",
"to_name": null,
"type": null,
"value": {
"end": 39893,
"labels": [
"NONE"
],
"start": 39719,
"text": "Death Certificate of Muddamma Ex.D.9 Index of Land Ex.D.10 Sketch Ex.D.11 & 12 Mutation Orders Ex.D.13 to 20 RTCs Ex.D.21 & 22 Patta Books Ex.D.23 to 32 "
}
},
{
"from_name": null,
"id": "c49af23480ad4c0fb53576cf03938c7a",
"to_name": null,
"type": null,
"value": {
"end": 39926,
"labels": [
"NONE"
],
"start": 39893,
"text": "Tax paid receipts Ex.D.33 "
}
},
{
"from_name": null,
"id": "baf5ad2f448e4fbaa35acb3b7d3ace9d",
"to_name": null,
"type": null,
"value": {
"end": 40041,
"labels": [
"NONE"
],
"start": 39926,
"text": "Certified copy of order of Assistant Commissioner Ex.D.34 Certified copy of order of Tahasildar Ex.D.35 & 36"
}
},
{
"from_name": null,
"id": "2426a120adef49efac9cf7c082b23702",
"to_name": null,
"type": null,
"value": {
"end": 40400,
"labels": [
"NONE"
],
"start": 40044,
"text": "Certified copies of order of Assistant Commissioner Ex.D.37 to 40 Photos Ex.D.41 Ex.D.42 CD Ex.D.43 to 49 Certified copy of Notice issued Ex.D.50 by Tahasildar RTCs Ex.D.51 to 54 Ex.D.55 to 57 Office copy of legal notice dated Ex.D.58 04.03.2017 Ex.D.58[a] Postal receipts Ex.D.59 to 64 Ex.D.65 Postal Acknowledgements Ex"
}
},
{
"from_name": null,
"id": "228dd25cf12b486296e8a687f6a1c103",
"to_name": null,
"type": null,
"value": {
"end": 40413,
"labels": [
"NONE"
],
"start": 40400,
"text": ".D.66 Ex.D.67"
}
},
{
"from_name": null,
"id": "18c84ec6b1904a4a811dcbb7be3a9fd2",
"to_name": null,
"type": null,
"value": {
"end": 40536,
"labels": [
"NONE"
],
"start": 40421,
"text": "Unserved postal cover Legal notice RTCs Certified copy of Price list Certified copy of RFR Certified copy of Sketch"
}
},
{
"from_name": null,
"id": "7c91f1702bfa4c59985daaab7c1807aa",
"to_name": null,
"type": null,
"value": {
"end": 40751,
"labels": [
"NONE"
],
"start": 40537,
"text": "LIST OF DOCUMENTS EXHIBITED MARKED UNDER CSERIES Ex.C.1 Report of Tahasildar Ex.C.1[a] Signature Ex.C.2 Death Certificate (SANTHOSH KUMAR SHETTY N.) II ADDL.SENIOR CIVIL JUDGE & CJM., MYSURU.\n "
}
}
]
}
] | 4,138 | {
"text": "IN THE COURT OF THE II ADDL.SENIOR CIVIL\n JUDGE AND C.J.M., MYSURU\n\n PRESENT\n\nSRI SANTHOSH KUMAR SHETTY N., B.Com., LL.M.,\n II Addl. Senior Civil Judge & CJM,\n Mysuru.\n\nDATED THIS THE 31st DAY OF OCTOBER 2019\n\n O.S. No.785/2014\n\nPLAINTIFF/S ::\n\n 1. Smt. Ningamma,\n W/o. Late Moganna,\n Aged about 60 years,\n\n 2. M. Mahesha,\n S/o. Late Moganna,\n Aged about 43 years,\n\n 2(a) Smt. Latha,\n W/o. Late Mahesha,\n Aged about 36 years,\n\n 2(b) Kum. Pooja,\n D/o. Late Mahesha,\n Aged about 21 years,\n\n 2(c) Kum. Thejashwini,\n D/o. Late Mahesha,\n Aged about 19 years,\n\n 3. Venkatesha,\n S/o. Late Moganna,\n Aged about 40 years,\n\n 4. M. Manjunatha,\n S/o. Late Moganna,\n Aged about 34 years,\n\n 5. Sri Bharathi,\n D/o. Late Moganna,\n W/o. Late Nanjegowda,\n Aged about 36 years,\n\n All are R/at. # 24,\n Honnappana Mane Raod,\n Yaraganahalli Village,\n Kasaba Hobli, Mysuru Taluk.\n\n [BY : SRI H.D.N.K., ADVOCATE]\n\nDEFENDANTS/S V/S\n ::\n\n 1. Smt. Mahadevamma,\n W/o. Muddappa,\n Aged about 48 years,\n R/at #. 49, Alanahalli Village,\n Near Basavanagudi,\n Mysuru.\n\n 2. Smt. Chikkamma,\n W/o. Siddaraju,\n Aged about 44 years,\n R/at #. 27, Yaraganahalli Village,\n Kasaba Hobli, Mysuru Taluk.\n\n 3. M.C. Nagaraju,\n S/o. Chikkanna,\n Aged about 40 years,\n R/o Alagodu Village,\n Arakere Hobli,\n Srirangapatna Taluk,\n Mandya District.\n\n 4. A.J. Appugowda,\n S/o. Javaregowda,\n Aged about 57 years,\n R/o Kallahalli Village,\n 6th cross, V.V.Nagar,\n Mandya City.\n\n[DEFENDANTS NO.1 & 2 BY : SRI H.S.M.S., ADVOCATE\n DEFENDANTS NO.3 & 4 BY : SRI O.S.B., ADVOCATE]\n\nDate of institution of the suit 25.08.2014\n\nNature of the suit Declaration and Injunction\n\nDate of the commencement 07.07.2015\nof recording evidence\n\nDate on which the Judgment 31.10.2019\nwas pronounced\n\nTotal Duration Year/s Month/s Day/s\n 06\n 05 02\n\n (SANTHOSH KUMAR SHETTY N.)\n II ADDL.SENIOR CIVIL JUDGE & CJM.,\n\n MYSURU.\n\n : J U D G M E N T : This is a suit filed by the plaintiffs for the relief of declaration of their title and Permanent Injunction to restrain the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property and for the costs of the suit.\n 2. The brief facts of the case of the plaintiffs is that, the suit schedule property bearing Sy.No.9/3 measuring 2 acres 9 guntas, situated at Yaraganalli Village, Mysuru Taluk morefully described in the plaint schedule, originally belonged to Smt. Laxmamma and Venkategowda of Yaraganahalli Village. On 27.06.1946, the grand mother of defendants No.1 and 2 by name Smt. Muddamma, W/o.\nChikkegowda had purchased the suit schedule property from the said Laxmamma and Venkategowda under a Registered Sale Deed and thereby khata came to be changed in her name and she was in possession and enjoyment of the suit schedule property as its absolute owner. Thereafter, the said Muddamma along with her son and grand son mortgaged the suit schedule property in favour of one Chikkegowda, S/o. Basavegowda of Yaraganahalli Village on 10.06.1956. On 20.01.1962, the mortgage was redeemed.\nOn 18.01.1962, the said Muddamma and her son Chikkegowda and grand son Madegowda all together executed a Registered Mortgage Deed in favour of one Thimmaiah, S/o. Sepoy Thimmaiah, in respect of the suit schedule property and possession was delivered in his favour. Thereafter, the grand father of defendants No.1 and 2 by name Chikkegowda and their father Madegowda, to discharge the loan taken from Thimmaiah sold the suit schedule property in favour of the grand mother of plaintiffs by name Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963. Muddamma, W/o.\n Thimmegowda herself paid the mortgaged money in favour of Thimmaiah and took possession of the suit schedule property. Accordingly, Khata came to be changed in her name and she was enjoyed the suit schedule property as its absolute owner. After her death the khata came to be changed in the name of her son Moganna, who was none other than the husband of plaintiff No.1 and father of plaintiffs No.2 to 5 and he was in exclusive possession and enjoyment over the suit schedule property as it is absolute owners and he died on 24.07.1993. Thereafter, the plaintiffs became the absolute owners of the suit schedule property.\nAfter his death the plaintiffs made an application before Tahasildar to get change the khata in their names. But the defendants No.1 and 2 without having any manner of right, title, interest or possession over the suit schedule property filed their objection. But, their objection came to be rejected and khatha came to be changed in the name of plaintiffs.\nThereafter, the defendants No.1 and 2 filed a suit against the plaintiffs on the file of II Addl. Civil Judge, Mysuru for the relief of Permanent Injunction in O.S.No.221/1997. On 18.10.2011, the suit came to be dismissed. Against the said judgement and decree the defendants No.1 and 2 did not prefer any Appeal. But the defendants preferred an Appeal before the Assistant Commissioner by challenging the khata effected in the name of Moganna the husband of plaintiff No.1 and father of plaintiffs No.2 to 5, in RRT No.69/2004 05. After hearing, the learned Assistant Commissioner has remanded the matter for Tahasildar for fresh enquiry.\nAccordingly, RRC No.21/200607 was reheard by Tahasildar and he passed an order on 04.02.2010 to change the khata in the name of defendants. Against the said order the plaintiffs preferred RRT No.257/200910 and when the said Appeal was pending before the Assistant Commissioner the suit instituted by the defendants No.1 and 2 against the plaintiffs in O.S.No.221/1997 was pending. Considering the same the learned Assistant Commissioner remanded the matter to the Tahasildar to pass the order as per the findings of the Civil Court in O.S.No.221/1997. After dismissal of the said suit, the plaintiffs made their representation on 25.11.2011, requesting the Tahasildar to effect khata in their name. But he has issued an endorsement on 09.09.2012 stating that, there is no order by the Civil Court with a direction to change khata in the name of plaintiffs. Hence, once again the plaintiffs preferred an Appeal in RRT No.8/2012/13, before the learned Assistant Commissioner and it came to be dismissed on 19.06.2013. Against the said order, the plaintiffs have preferred Revision Petition No.33/201314, before the Deputy Commissioner, Mysuru and same is pending for consideration. The defendants No.1 and 2 by taking undue advantage of Mutation order in MR.No.8/200910 started interfering with the possession of the plaintiffs and executed a Sale agreement on 28.07.2014 in favour of defendants No.3 and 4. Hence, defendants No.3 and 4 have been made as parties to this suit. The defendants have no manner of right, title or interest over the suit schedule property.\nMuddamma, W/o. Chikkegowda never executed any Will in favour of defendants No.1 and 2. The defendants No.1 and 2 by creating fictitious Death Certificate of their grand mother created documents in their favour and trying to snatch away the suit schedule property. Hence, the suit for aforementioned reliefs.\n 3. In response to the summons, the defendants No.1 and 2 appeared through their counsel and filed their Written Statement and admitted that, their grand mother Muddamma, W/o. Chikkegowda purchased the suit schedule property from its erstwhile owner Smt. Laxmamma, W/o. Doddaputtegowda and her son Venkategowda and thereby Khata came to be changed in her name as per MR.No.6/1946. On 15.06.1973, said Muddamma, W/o.\nChikkegowda executed a Will in favour of defendants No.1 and 2 and bequeathed 1 acre 6 guntas of land in favour of defendant No.1 and 1 acre of land in favour of defendant No.2 in the suit schedule property. On 01.01.1976, their grand mother Muddamma, W/o. Chikkegowda died and by virtue of the Will the defendants No.1 and 2 became the absolute owners and in possession of the suit schedule property. Eventhough, the plaintiffs have no manner of right, title and interest over the suit schedule property, colluding with the Revenue officials got created Khata in their names in the year 198384. When the said fact came to the notice of defendants No.1 and 2, they got changed the khata as per M.R.No.8/2009 in their names by producing the Will.\nFurther contended that, the suit is barred by Limitation and suit was not properly valued and Court Fee paid is insufficient and thereby prayed for dismissal of the suit.\n 4. In response to the summons, the defendants No.3 and 4 appeared through their counsel and filed their Written Statement and reiterated the contention taken by defendants No.1 and 2. Further contended that, the defendants No.1 and 2 being the absolute owners, in possession of the suit schedule property offered to sell the same in favour of defendants No.3 and 4 and thereby executed a Registered Sale Agreement in their favour on 28.07.2014. Further contended that, the suit is bad for nonjoinder of necessary parties. Hence, amongst other grounds prayed for dismissal of the suit.\n 5. On the basis of the pleadings of the parties, my PredecessorinOffice has framed the following issues for determination: ISSUES 1. Whether the plaintiffs prove that, they are the absolute owners, in possession of the suit schedule property ?\n 2. Whether the plaintiffs further prove the alleged interference by the defendants over the suit schedule property ?\n 3. Whether the suit of the plaintiff is barred by Limitation?\n 4. Whether the Court Fee paid is sufficient ?\n 5. Whether the defendants No.1 and 2 prove that, the suit schedule property was the selfacquired property of deceased Muddama, W/o Chikkegowda ?\n 6. Whether the defendants No.1 and 2 further proves that deceased Muddamma executed a Will in their favour in respect of the suit schedule property on 15.06.1973 ?\n 7. Whether the plaintiffs are entitled for the reliefs as sought for in the present suit ?\n 8. What Order or Decree ?\n 6. In order to prove their case, the plaintiff No.2 and two independent witnesses by name Ramesh and Srinivas have been examined as PWs.1 to 3. The Tahasildar was summoned in their favour examined him as PW.4. Ex.P.1 to P51 are marked on behalf of the plaintiffs and closed their side.\n 7. On behalf of the Defendants, defendants No.2 and 3 and one witness by name Harish have been examined as DWs.1 to 3 and Ex.D1 to 67 were marked on their behalf and closed their side.\n 8. Heard the arguments of learned counsel for plaintiffs and Defendants. The learned counsel for plaintiffs and defendants No.1 and 2 filed their Written Argument.\n 9. My findings on the above Issues are as under: ISSUE NO.1 : In the Affirmative ISSUE NO.2 : In the Affirmative ISSUE NO.3 : In the Negative ISSUE NO.4 : In the Affirmative ISSUE NO.5 : In the Negative ISSUE NO.6 : In the Negative ISSUE NO.7 : In the Affirmative ISSUE NO.8 : AS PER FINAL ORDER below for the following ; : R E A S O N S : 10. Issues No.1 to 3, 5 and 6 : Since all these issues are interconnected, they are taken up together for common discussion to avoid repetition of facts. Before looking into the point in controversy, first of all it is just and necessary to ascertain some of the admitted fact. It is not in dispute that, originally the suit schedule property belonged to one Laxmamma, W/o. Doddavenkategowda. It is also not in dispute that, Muddamma, W/o. Chikkegowda had purchased the suit schedule property from said Laxmamma and her son Venkategowda under a Registered Sale Deed dated 27.06.1946 and Khata came to be changed in the name of Muddamma, W/o. Chikkegowda. It is also not in dispute that, defendants No.1 and 2 are the grand children of said Muddamma, W/o. Chikkegowda. It is further admitted that, the said Muddamma, W/o. Chikkegowda mortgaged the suit schedule property in favour of one Chikkegowda, S/o. Basavegowda and in favour of Sepoy Thimmaiah, S/o. Thimmaiah under a Registered Mortgage Deeds dated 10.06.1956 and 18.01.1962, respectively.\nFurther contention of the plaintiffs is that, after the death of Muddamma, W/o. Chikkegowda. Chikkegowda, S/o.\nBogegowda and his son Madegowda sold the suit schedule property in favour of Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963. After the death of Muddamma, W/o. Thimmegowda her only son Moganna became the absolute owner, in possession of the suit schedule property and khata came to be changed in his name under I.H.R.No.2/199596 and said Moganna died on 12.02.2003. The plaintiffs No.1 to 5 being the widow and children of said Moganna inherited the suit schedule property and became the absolute owners, in possession of the same. The further case of the plaintiffs that, after the death of Moganna, the plaintiffs approached the Tahasildar for change of khata in their names. Even though the defendants No.1 and 2 did not possession any manner of right, title or interest over the suit schedule property resisted their application by filing an objection. But their objection came to be rejected and khata was made in the name of plaintiffs. Thereafter, the defendants No.1 and 2 instituted a suit against the plaintiffs for the relief of bare Injunction, which came to be dismissed and thereafter lot of litigations continued between plaintiffs and defendants No.1 and 2 before the various revenue Authorities. Hence, they ventured to file this suit for the relief of declaration of their title.\n 11. In his evidence, PW.1 to some extent deposed in accordance with the case of the plaintiffs. Both Pws.2 and 3, the residents of Yaraganahalli Village, deposed that, the suit schedule properties are in possession and enjoyment of the plaintiffs. PW.4 Ramesh Babu, the Tahasildar, Mysuru deposed that, the Death Register for the year 1946 is not available in their office. The report submitted by him in that regard was marked through him at Ex.C.1 and his signature marked as Ex.C1(a). Further deposed that, Ex.P.28 the Nonavailability Certificate was issued in their office. He also deposed that, Ex.D.8 Death Certificate produced by the defendants was not issued in their office.\n 12. Percontra, the defendants No.1 and 2 have taken specific defence that, the suit schedule property was the self acquired property of their grand mother Muddamma, W/o.\nChikkegowda and they were under the care of their grand mother Muddamma and they assisted their grand mother in cultivating the suit schedule property. On 15.06.1973, the said Muddamma, W/o. Chikkegowda executed a Will in their favour and thereby bequeathed 1 acre 6 guntas and 1 acre of land in their favour, respectively. They took further contention that, their grand mother Muddamma, W/o.\nChikkegowda died on 01.01.1976 and thereby denied the execution of the Sale Deed in favour of Muddamma, W/o.\nThimmegowda.\n 13. In their examinationsinchief, both Dws.1 and 2 have reiterated the contention taken by them in their Written Statement. DW.3 Harish deposed that, one Naganna was his senior uncle and he was a Document Writer by profession. Further deposed that, he is acquainted with the handwriting of his senior uncle and deposed that, the Will produced by the defendants at Ex.D.7 was in the handwriting of his senior uncle. He has identified his senior uncle signature and same was marked as Ex.D.7[a] and he also produced the Death Certificate of his senior uncle and same was marked as Ex.C.2.\n 14. The documents produced on behalf of the defendants at Ex.D.1 and 2 are the color photographs and CD. Ex.D.3 is the copy of notice issued by the Tahasildar.\nEx.D.4 was the Andholana kannada daily Newspaper.\nEx.D.6 is the original Sale Deed executed in the name of Muddamma, W/o. Chikkegowda. Ex.D.7 is the Will relied by defendants No.1 and 2. Ex.D.8 is the alleged Death Certificate of Muddamma, W/o. Chikkegowda. Ex.D.9 to 67 are the Index of Land, Mutation order, RTC, Patta Book, Tax paid receipts and certified copy of the other proceedings held before the Revenue Authority.\n 15. It was argued on behalf of the plaintiffs that, by virtue of the Registered Sale Deed executed by Late Chikkegowda and his son Madegowda, Smt. Muddamma, W/o. Thimmegowda became the absolute owners of the suit schedule property and she was in exclusive possession and enjoyment of the same. After her death, her son Moganna was in possession and enjoyment of the same and thereafter the plaintiffs as his legal heirs are in exclusive possession and enjoyment of the suit schedule property. Further argued that, Muddamma, W/o. Chikkegowda died prior to 1962.\nTherefore, her husband Chikkegowda and her son Madegowda became the owners of the suit schedule property and sold the same in favour of Muddamma, W/o.\nThimmegowda under a Registered Sale Deed dated 21.10.1963. Eventhough, said Muddamma, W/o.\n Chikkegowda died prior to the said alienation, defendants No.1 and 2 hatched a plan to grab the suit schedule property and got created the Will in their favour and falsely contended that, their grand mother died in the year 1976.\nBut, the oral evidence of PW.4 and endorsements issued by him marked at Ex.P.28 and 29 makes it very clear that, Ex.D.8 the alleged Death Certificate of Muddamma, W/o.\nChikkegowda was created for the sake of this suit. Further argued that, the suit is well within time and thereby plaintiffs are entitled for the relief of declaration and Injunction as prayed for.\n 16. Refuting the contention taken by the plaintiffs, the learned counsel for defendants No.1 and 2 vehemently argued that, the suit schedule property was the selfacquired property of Muddamma, W/o. Chikkegowda and during her lifetime she herself was cultivating the suit schedule property and the defendants No.1 and 2 being her grand children were assisting her in cultivating the land and out of love and affection she bequeathed the suit schedule property in their favour and thereby defendants No.1 and 2 became the owners of the suit schedule property and thereby the Sale Agreement executed by them in favour of defendants No.3 and 4 is in accordance with law. Further argued that, at the time of the alleged Sale Deed in favour of Muddamma, W/o. Thimmegowda, the grand mother of defendants No.1 and 2 was alive and therefore, the father and grand father of defendants No.1 and 2 have no right to execute the Sale Deed in favour of Muddamma, W/o. Thimmegowda. Further argued that, the principles highlighted in Latin maxim \" Nemo dat quod non habet \" i.e., Non owner of the goods can not convey better title, is applicable to the case in hand.\n 17. The other contentions taken by the defendants No.1 and 2 is that, the suit of the plaintiffs is barred by Limitation. In support of the said contention the learned counsel for the defendants No.1 and 2 has placed reliance on the decision of Hon'ble Supreme Court reported in A.I.R.\n2011 SC 3599 (Khatri Hotesl Pvt. Ltd., V/s Union of India).\nAt para 27 of the said decision their Lordships have held as under ; \" if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the date when the right to sue first accrued.\"\n 18. Further argued that, as suit was not filed within 3 years from the date of denial title, the suit is hopelessly barred by limitation. In that context, he placed reliance on the decision of our Hon'ble High Court reported in 2015 (2) KCCR 1714 (H.B. Shivakumar V/s L.C Hanumanthappa and others). In the said decision his lordship has held as under : \" Limitation for a suit for declaration suit not filed within 3 years from the date of denial of title held, suit is barred by limitation. \"\n 19. As discussed earlier, it was the definite case of the defendants No.1 and 2 that, their grand mother Muddamma, W/o. Chikkegowda died in the year 1976 and in the year 1973 itself, she executed a Will in their favour as per Ex.D.7 and by virtue of the Will, they became the owners of the suit property. Since none of the attesting witnesses and scribe to the Will are alive, the provisions of Section 69 of Indian Evidence Act is applicable to the case in hand. Hence, in consonance with Section 69 of the Evidence Act, DW.3 who is acquainted with the handwriting of the scribe, has been examined. Further argued that, were all the parties to the Will except the beneficiary is died the provisions of Section 69 have to be applied. If the signature of the scribe has been identified by a fellow writer who was acquainted with the signature, the document can be said to have been proved.\n Further argued that, as Will relied by them is of 30 years old, the presumption under Section 90 of Evidence Act is applicable. In support of the said contention the learned counsel for defendants No.1 and 2 placed reliance on the decision of our Hon'ble High Court report in 2017(4) Kar.L.J 633 (Vasanth H. Jayawant Bhasme and others v/s Shankararao Bhimrao Bhasme and others). In the said decision his Lordship has held as under ; \" Presumption under Section 90 When the propounder finds it difficint to prove the Will, because of nonavailability of attestors Or because of their death or some other reason in present case, the Will is of year 1963, became subject matter of dispute in 1995 in such circumstances, the Court may draw presumption under Section 90. \"\n 20. In the background of the principles laid down in the aforecited decisions, I have carefully gone through the pleadings of the parties and their evidence, both oral and documentary. Ex.D.6 is the original Sale Deed in favour of Muddamma, W/o. Chikkegowda in respect of the suit schedule property. As discussed earlier, the purchase of suit schedule property by Muddamma, W/o. Chikkegowda is not in dispute. It is also not in dispute that, on 10.06.1956, said Muddamma her husband and their son Madhegowda together executed a Mortgage Deed in favour of Chikkegowda, S/o. Basavegowda and it was redeemed on 21.01.1962. The said fact is also admitted by DW.1 in the course of her crossexamination dated 20.07.2017. Now the burden lies upon the plaintiffs to prove that, on 18.01.1962, Muddamma, W/o. Chikkegowda was not alive and thereby her husband Chikkegowda and son Madegowda executed a Registered Mortgage Deed in favour of Sepoy Thimmaiah, S/o. Thimmaiah and thereafter the said Chikkegowda and Madegowda to discharge the loan taken from Sepoy Thimmaiah sold the suit schedule property in favour of Muddamma, W/o. Thimmegowda under a Registered Sale Deed dated 21.10.1963. If plaintiffs are able to establish that, Muddamma, W/o. Thimmegowda acquired right, title and interest over the suit schedule property by virtue of said Sale Deed, there is no impediment to declare the right, title and interest of the plaintiffs over the suit schedule property.\n 21. Percontra, onus is casted upon the defendants No.1 and 2 that, there grand mother Muddamma, W/o.\nChikkegowda died in the year 1976 and on 15.06.1973, said Muddamma executed a Will in their favour and thereby bequeathed the suit schedule property as contended by them.\n 22. To substantiate their contention, the plaintiffs have much relied upon Ex.P.1 to 4 and Ex.P.28 to P30. Ex.P.1 is the certified copy of the Registered Mortgage Deed. The recitals of the said document makes it very clear that, on 10.06.1959, Chikkegowda son of Bogegowda, his wife Muddamma and their son Madegowda jointly executed a Mortgage Deed (without possession) in respect of the suit schedule property in favour of Chikkegowda, S/o.\nBasavegowda. Ex.P.2 is the certified copy of the Mortgage Deed coupled with possession in respect of the suit schedule property executed by aforesaid 3 persons in favour of aforesaid Chikkegowda, S/o. Basavegowda. Ex.P.3 is the certified copy of the Registered Mortgage Deed dated 18.01.1962 executed by Chikkegowda, S/o. Bogegowda and his son Madegowda in favour of Sepoy Thimmaiah, S/o.\nThimmaiah in respect of the suit schedule property. Ex.P.4 is the certified copy of the Sale Deed dated 21.10.1963, executed by Chikkegowda, S/o Bogegowda and his son Madegowda in favour of Muddamma, W/o. Thimmegowda in respect of the suit schedule property. Ex.P.28 and 29 are the certified copies of the Nonavailability Certificates issued by Tahasildar stating that, the death entry of Muddamma, W/o. Chikkegowda was not entered in the Birth and Death Register, maintained in their office. PW.4the Tahasildar, Mysuru, in his evidence dated 20.09.2018 deposed that, the Birth and Death entries pertains to the year 1962 is not available in their office. The endorsement issued by him in that regard was marked through him as Ex.C.1. He further deposed that, Ex.D.8, the Death Certificate of Muddamma, W/o. Chikkegowda, said to have been issued in the office of Tahasildar was not issued by their office. Eventhough, he has been crossexamined by the counsel for defendants No.1 and 2, nothing has been elicited to show that, Ex.D.8 was issued in the office of Tahasildar, Mysuru.\n 23. The recitals of Ex.P.1 and 2 makes it very clear that, at the time of execution of those Mortgage Deeds, Muddamma, W/o. Chikkegowda was alive and she along with her husband and son jointly executed those Mortgage Deeds. It is not in dispute that, the mortgage made in Ex.D.1 and 2 were redeemed. The said Muddamma, W/o.\nChikkegowda was not a party to the subsequent Mortgage deed marked at Ex.P.3. Ex.P.3 was executed by her husband Chikkegowda and her son Madegowda in favour of Sepoy Thimmaiah, S/o. Thimmaiah. It is needless to mention that, while registering the document, the Sub Registrar had an occasion to verify the property extract pertains to the property involved in the document. It seems that, as on the date of execution of Mortgage Deed as per Ex.P.3 in favour of Sepoy Thimmaiah, the grand mother of defendants No.1 and 2 was not alive. It was executed at an undisputed point of time. Even if Muddamma, W/o.\nChikkegowda was alive as on that date, certainly the mortgagee would have insisted for the consent of Muddamma and took her signature on the Mortgage Deed.\nAs she was not alive as on that date, there was no occasion to the mortgagee to take her signature on the document. As discussed earlier, for other 2 Mortgage Deeds of the year 1959 the grand mother of defendants No.1 and 2 was a party and she put her thumb impressions on them. Added to that, PW.4 in unequivocal terms of deposed that, Ex.D.8 was not issued in their office. It creates serious doubt about the genuineity and authenticity of Ex.D.8.\n 24. The contention of the defendants No.1 and 2 is that, their grand mother died only in the year 1976 and 3 years prior to her death, she bequeathed the suit schedule property in their favour. It is pertinent to note that, the defendants No.1 and 2, in the year 1997 filed a suit for the relief of Permanent Injunction on the file of II Civil Judge and J.M.F.C., Mysuru, in respect of the suit schedule property against the husband of plaintiff No.1 and father of remaining plaintiffs. Ex.P.30 is the certified copy of the judgement and decree in O.S.No.221/1997. Ex.P.40 to 42 are the certified copies of plaint, Written Statement in the said suit. Ex.P.44 is the certified copy of the evidence given by defendant No.2 herein in the said suit. The case setup by defendants No.1 and 2 is clearly forthcoming in para2 of the Ex.P.40. Wherein they have taken contention that, as per family arrangement the suit schedule property was given to them and they are in exclusive possession and enjoyment of the same. In her examinationinchief by way of Affidavit dated 20.12.2007, the defendant No.2 has reiterated the averments made in the plaint that, they are in actual possession and enjoyment of the suit schedule property as per the family arrangement. Neither in their plaint nor in her evidence dated 20.12.2007, any whisper about the Will, now relied by them and marked at Ex.D.7. As discussed earlier, in this suit also, the defendant No.2 has entered into the witness box as DW.1. In her crossexamination dated 20.07.2017 she deposed that, 2 years prior to the institution of O.S.No.221/1997, they found the Will, now relied by them. If it was so, certainly there was no impediment to them to plead about the alleged Will in their suit in O.S.No.221/1997. It is pertinent to note that, in the aforesaid suit, the defendant No.2 herein filed one more Affidavit by way of examinationinchief on 24.04.2009 and on the said date, for the first time she stated about the Will dated 15.06.1973, now relied by them.\n 25. Except the Will relied by the defendants marked at Ex.D.7, all other documents pertains to the suit schedule property are registered documents. According to the defendants No.1 and 2, the Will came to be executed in the year 1973. No doubt, Will need not be registered. But, 1959 onwards, all documents came to be executed with respect to the suit schedule property were registered before the Sub Registrar. That itself shows that, parties were very well aware about the consequences of registration.\n 26. Ex.P.30 makes it very clear that, the plaintiffs have produced their original Sale Deed before the said Court. The learned Judge after going through the documents and oral evidence came to the conclusion that, the defendants No.1 and 2 were failed to prove possession of the suit schedule property and thereby their suit came to be dismissed. It is an admitted fact that, defendants No.1 and 2 did not prefer any appeal against the judgement and decree passed in O.S.No.221/1997. Now the contention of the defendants No.1 and 2 is that, the said suit was for the relief of bare injunction and title of the parties was not decided in the said suit. But, the Court has clearly held that, the defendants No. 1 and 2 are not in possession of the suit property and the findings given therein remained unchallenged.\n 27. It is needless to mention that, the Tahasildar is the custodian of Birth and Death Register, maintained in the Taluk Office. The Tahasildar himself appeared before the court and deposed that, Ex.D.8 was not issued by their office. But, the learned counsel for the defendants No.1 and 2 much canvased before the Court that, nothing was produced by the plaintiffs to show that, Muddamma, W/o.\nChikkegowda was died prior to 1962. It is not in dispute that, the plaintiffs are not blood relatives of said Muddamma, W/o. Chikkegowda. However, the defendants No.1 and 2 are the grand daughters of said Muddamma.\nHence, it was obligatory on the part of the defendants No.1 to 2 to report the death of their grand mother to the concerned Registrar to make necessary entries. It seems that, there was latches on their part. It gives strong inference that, the defendants No.1 and 2 to suit their convenience, got created Ex.D.8 and produced it before the Court. But, the plaintiffs by summoning the Tahasildar conveniently proved that, Ex.D.8 was not issued in the office of Tahasildar and it was created by the defendants for the sake of defence.\n 28. On more thing canvased on behalf of the defendants is that, the original Sale Deed of Muddamma, W/o.\nChikkegowda is in the custody of defendants No.1 and 2 and that itself shows that, the property was not alienated in favour of Muddamma, W/o. Thimmegowda. But, it is relevant to mention that, at the time of execution of Sale Deed in favour of Muddamma, W/o. Thimmegowda, the property was mortgaged in favour of Sepoy Thimmaiah and it is evident in Ex.P.3. As the property was mortgaged, the purchaser Muddamma, W/o. Thimmegowda much concentrated on redemption of mortgage and did not bother about the original Sale Deed. It is definite case of the plaintiffs that, Muddamma, W/o. Thimmegowda herself paid the mortgage money in favour of Sepoy Thimmaiah and thereby mortgage was redeemed and then got the Sale Deed in her favour.\n 29. It is not the case of defendants No.1 and 2 that, their father and grand father were addicted to bad vices.\nExcept the bald contention that, Muddamma, W/o.\nThimmegowda got created the Sale Deed in her favour no any serious allegations were made against Chikkegowda, S/o. Bogegowda and his son Madhegowda. It is not in dispute that, Chikkegowda, S/o. Bogegowda and Madegowda were the husband and son of Late Muddamma, W/o.\nChikkegowda. Such being the case, after her death they became the owners of the suit schedule property, as they were her classI legal heirs. Hence, the theory of \" Nemo dat quod non habet\" adopted by defendants No.1 and 2 holds no water. Now it is clear that, immediately after the death of Muddamma, W/o. Chikkegowda, her husband and son became the owners and alienated the property in favour of Muddamma, W/o. Thimmegowda.\n 30. As per proviso contained under Section 128 of Karnataka Land Revenue Act, it was the bounden duty of Revenue officials, to make change of khata on the strength of registered document. But there were certain latches on their part. It is needless to mention that, revenue authority has no right to decide the title of the parties and it is the prerogative of the Civil Court. As such, any of the findings given in the revenue proceedings would not come in the way of this suit for declaring the title of the parties.\n 31. As revenue proceedings was held before various revenue authorities for considerable length of time and the plaintiffs made their efforts to get the relief before the revenue authority, no reason to hold that, the suit is barred by Limitation. It is not in dispute that, at the time of institution of this suit, the Revision Petition filed by the plaintiffs before the Deputy Commissioner was pending for consideration. Such being the case, the law laid down in any of the decisions relied by defendants No.1 and 2 would not come to their rescue. As such, the law laid down by our Hon'ble High Court in the case of Dasapa Setty v/s Thammannagowda (report in A.I.R. 1994 Kar. 153) is aptly applicable to the case in hand. In the said decision his Lordship made it clear that, the plaintiff can file a suit for declaration of title when he feels that, title is jeopardised and his title subsists. With these observations, Issues No.1 and 2 are answered in the Affirmative and Issue No.3, 5 and 6 in the Negative.\n 32. Issue No.4: The plaintiffs have calculated the Court Fee as per Section 24(b) and 26(c) of the Karnataka Court Fee and Suit Valuation Act and paid the Court Fee Rs.1,54,700/. After going through the relief claimed in the suit and the valuation made by the plaintiffs, this court has come to the conclusion that, the Court Fee paid on the plaint is sufficient. Accordingly, this Issue is answered in the Affirmative.\n 33. Issue No.7 : While answering aforementioned Issues this court has come to the conclusion that, the plaintiffs have established their right, title, interest and possession over the suit schedule property and defendants have miserably failed to prove their right, title and interest including the possession over the suit schedule property. As the property was alienated in favour of Muddamma, W/o.\nThimmegowda way back in the year 1962, the defendants No.1 and 2 not at all derived any right, title or interest over the suit schedule property either by way of testamatary or nontestamatary succession. Hence, they have no right to execute the Sale Agreement in favour of the defendants No.3 and 4. As such, the alleged Sale Agreement in favour of defendants No.3 and 4 has no force in the eye of law. Such being the case, the plaintiffs are entitled for the relief of declaration and Injunction as prayed for. Accordingly, Issue No.7 is answered in the Affirmative.\n 34. Issue No.8 : For the reasons discussed above, I proceed to pass the following : ORDER The suit of the plaintiffs is decreed with cost as under ; It is hereby ordered and decreed that, the plaintiffs are the owners and in possession of the suit schedule property.\n It is further ordered and decreed that, the defendants No.1 to 4 are hereby restrained from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property.\n Draw decree accordingly.\n (Dictated to the Stenographer transcribed by her corrected and then pronounced by me in open Court, on this the 31.10.2019).\n (SANTHOSH KUMAR SHETTY N.) II ADDL.SENIOR CIVIL JUDGE & CJM., MYSURU.\n A N N E X U R E LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF/S : PW.1 M. Mahesh PW.2 Ramesh PW.3 Srinivas PW.4 T.Ramesh Babu LIST OF DOCUMENTS EXHIBITED FOR THE PLAINTIFF/S : Ex.P.1 & 2 Certified copies of Mortgage Ex.P.3 &4 Deed Ex.P.5 to 18 Certified copies of Sale Deed Ex.P.19 to 22 Ex.P.23 to 25 Certified copies of RTCs Ex.P.26 & 27 Mutation orders Ex.P.28 & 29 Certified copies of Tax paid Ex.P.30 receipts Ex.P.31 Certified copies of Patta Books Ex.P.32 Certified copies of Non Ex.P.33 availability certificates Certified copy of Judgement in Ex.P.34 O.S.No.221/1997 Ex.P.35 Certified copy of Order of Ex.P.36 Assessment Commissioner Ex.P.37 Certified copy of Order of Ex.P.38 Ex.P.39 Tahasildar Certified copy of Order of Ex.P.40 Assessment Commissioner Ex.P.41 Certified copy of application Ex.P.42 made to Tahasildar Certified copy of Registered Ex.P.43 Sale Agreement Ex.P.44 Paper Publication Reply Notice Postal receipt Certified copy of Order of Deputy Commissioner Certified copy of Plaint in O.S.No.221/1997 Certified copy of Written Statement in O.S.No.221/1997 Certified copy of objection in O.S.No.221/1997 Certified copy of Issues in O.S.No.221/1997 Certified copy of examinin chief of PW.1 in Certified copy of Order sheet Ex.P.45 Ex.P.46 in O.S.No.101/2011 Ex.P.47 Certified copy of plaint in Ex.P.48 O.S.No.27/2012 Certified copy of Additional Ex.P.49 to 51 Written Statement in O.S.No.27/2012 Certified copy of Additional Written Statement in O.S.No.27/2012 Certified copies of Sale Deeds LIST OF WITNESSES EXAMINED FOR THE DEFENDANT/S : DW.1 Chikkamma DW.2 Naganna DW.3 Harish LIST OF DOCUMENTS EXHIBITED FOR THE DEFENDANT/S: Ex.D.1 Photo Ex.D.2 CD Ex.D.3 Notice issued by Tahasildar Ex.D.4 Paper Publication Ex.D.5 Photo Ex.D.6 Sale Deed Ex.D.7 Will Ex.D.8 Death Certificate of Muddamma Ex.D.9 Index of Land Ex.D.10 Sketch Ex.D.11 & 12 Mutation Orders Ex.D.13 to 20 RTCs Ex.D.21 & 22 Patta Books Ex.D.23 to 32 Tax paid receipts Ex.D.33 Certified copy of order of Assistant Commissioner Ex.D.34 Certified copy of order of Tahasildar Ex.D.35 & 36 Certified copies of order of Assistant Commissioner Ex.D.37 to 40 Photos Ex.D.41 Ex.D.42 CD Ex.D.43 to 49 Certified copy of Notice issued Ex.D.50 by Tahasildar RTCs Ex.D.51 to 54 Ex.D.55 to 57 Office copy of legal notice dated Ex.D.58 04.03.2017 Ex.D.58[a] Postal receipts Ex.D.59 to 64 Ex.D.65 Postal Acknowledgements Ex.D.66 Ex.D.67 Unserved postal cover Legal notice RTCs Certified copy of Price list Certified copy of RFR Certified copy of Sketch LIST OF DOCUMENTS EXHIBITED MARKED UNDER CSERIES Ex.C.1 Report of Tahasildar Ex.C.1[a] Signature Ex.C.2 Death Certificate (SANTHOSH KUMAR SHETTY N.) II ADDL.SENIOR CIVIL JUDGE & CJM., MYSURU.\n "
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"id": "ce619c8fb31640e0a0be76d5387aab54",
"to_name": null,
"type": null,
"value": {
"end": 867,
"labels": [
"PREAMBLE"
],
"start": 573,
"text": "\n\n(By Sri B J Eshwarappa, HCGP)\n\n This criminal petition is filed under Section 439 of the\nCr.P.C. praying to enlarge the petitioner on bail in Cr. No.\n27/2003 of Ullal P.S., D.K., Mangalore for the offences\npunishable under Sections 14, 32 read with Section 34 of\nKarnataka Excise Act."
}
},
{
"from_name": null,
"id": "ee3d68af8b434d5782441985cd7f9e40",
"to_name": null,
"type": null,
"value": {
"end": 1001,
"labels": [
"PREAMBLE"
],
"start": 867,
"text": "\n\n This petition coming on for Orders this day, the Court\nmade the following :\n\n ORDER\n "
}
},
{
"from_name": null,
"id": "e3afff1757be4110a38e916ca893cea4",
"to_name": null,
"type": null,
"value": {
"end": 1328,
"labels": [
"FAC"
],
"start": 1001,
"text": "Petitioner has preferred this petition under Section 439 of Cr.P.C. praying to enlarge him on bail in connection with Crime No.27/2003 registered by the respondent - Police for offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and pending C.C. No.1854/2016 before JMFC III Court, Mangaluru."
}
},
{
"from_name": null,
"id": "dd2e5ea4013049f7aa00268454909fe6",
"to_name": null,
"type": null,
"value": {
"end": 1414,
"labels": [
"FAC"
],
"start": 1330,
"text": "2. Heard the learned counsel for the petitioner and learned HCGP for the respondent."
}
},
{
"from_name": null,
"id": "88229d2a65104437a9ae0da95ff6fffe",
"to_name": null,
"type": null,
"value": {
"end": 1516,
"labels": [
"FAC"
],
"start": 1415,
"text": "Perused the first information report, charge sheet and other papers produced along with the petition."
}
},
{
"from_name": null,
"id": "1460945d715e47e58bf8493f5d8582e9",
"to_name": null,
"type": null,
"value": {
"end": 1854,
"labels": [
"ARG_PETITIONER"
],
"start": 1516,
"text": "\n 3. Learned Counsel for the petitioner submits that two cases have been registered against the petitioner in crime Nos.27/2003 for the offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and in crime No.137/2003 for the offences punishable under Sections 11, 14, 32, 34 and 38A of Karnataka Excise Act."
}
},
{
"from_name": null,
"id": "b1ca946502984f26a9e6908591f96db4",
"to_name": null,
"type": null,
"value": {
"end": 1925,
"labels": [
"ARG_PETITIONER"
],
"start": 1855,
"text": "He had obtained bail in both cases from the jurisdictional Magistrate."
}
},
{
"from_name": null,
"id": "b182fd952f0e4d63b5454c9923405363",
"to_name": null,
"type": null,
"value": {
"end": 1999,
"labels": [
"ARG_PETITIONER"
],
"start": 1926,
"text": "Due to personal inconvenience, the petitioner had not attended the cases."
}
},
{
"from_name": null,
"id": "e27b9dc1ff9f43b896b7bad7cec301c7",
"to_name": null,
"type": null,
"value": {
"end": 2049,
"labels": [
"RLC"
],
"start": 2000,
"text": "Consequently, the trial Court cancelled the bail."
}
},
{
"from_name": null,
"id": "5f1ee90757c54f65ab5eda00291b2118",
"to_name": null,
"type": null,
"value": {
"end": 2315,
"labels": [
"FAC"
],
"start": 2050,
"text": "The petitioner, being aggrieved by the cancellation of bail by the trial Court, applied for a fresh bail before the Sessions Court in Criminal Misc. Case No.743/2016 in respect of crime No.137/2003 and Criminal Misc.\nCase No.779/2016 in respect of Crime No.27/2003."
}
},
{
"from_name": null,
"id": "c584171ab99a4ca1bd643900da3f419a",
"to_name": null,
"type": null,
"value": {
"end": 2955,
"labels": [
"FAC"
],
"start": 2315,
"text": "\nThe learned Counsel submits that Criminal Misc. Case No.743/2016 came up for consideration before the II Additional District and Sessions Judge, D.K., Mangaluru and the said Court was pleased to allow the petition and granted bail considering the fact that the petitioner's father was seriously ill, whereas Criminal Misc. Case No.779/2016 came up for consideration before the III Additional District and Sessions Judge, D.K., Mangaluru and the learned Judge rejected the bail application on the ground that the petitioner is in the habit of violating the conditions of the bail and no grounds are made out for grant of bail in his favour."
}
},
{
"from_name": null,
"id": "fdb6cea415f34d7996900d29eceb296b",
"to_name": null,
"type": null,
"value": {
"end": 3206,
"labels": [
"ARG_PETITIONER"
],
"start": 2956,
"text": "The learned Counsel for the petitioner submits that henceforth, the petitioner would attend both cases regularly and he would not violate the conditions of bail and as a last chance, sympathy may be shown to the petitioner and he may be granted bail."
}
},
{
"from_name": null,
"id": "14a3f96e061d427c85a7e9893713cdb8",
"to_name": null,
"type": null,
"value": {
"end": 3305,
"labels": [
"ARG_PETITIONER"
],
"start": 3207,
"text": "He submits that petitioner's father is seriously ill and there is nobody to look after his father."
}
},
{
"from_name": null,
"id": "f8d382688e9b48598f17911b26f28efb",
"to_name": null,
"type": null,
"value": {
"end": 3383,
"labels": [
"ARG_PETITIONER"
],
"start": 3306,
"text": "Hence, he prays for allowing the petition by granting bail to the petitioner."
}
},
{
"from_name": null,
"id": "2e0bef0e3e384bf8881a77674f3bde22",
"to_name": null,
"type": null,
"value": {
"end": 3596,
"labels": [
"ARG_RESPONDENT"
],
"start": 3385,
"text": "4. Learned HCGP opposes the bail petition on the ground that petitioner has violated conditions of bail on more than one occasion and therefore the Sessions Court was justified in rejecting his bail application."
}
},
{
"from_name": null,
"id": "88626304a9ff4496972f73322aa0d8bd",
"to_name": null,
"type": null,
"value": {
"end": 3737,
"labels": [
"ARG_RESPONDENT"
],
"start": 3596,
"text": "\nTherefore, he submits that if the petitioner is granted bail, he would repeat the same thing and he would not appear before the Trial Court."
}
},
{
"from_name": null,
"id": "8349951b010e4358a796e30f9ee9cd3f",
"to_name": null,
"type": null,
"value": {
"end": 3794,
"labels": [
"ARG_RESPONDENT"
],
"start": 3738,
"text": "Therefore, he sought for rejection of the bail petition."
}
},
{
"from_name": null,
"id": "201904417853493c8921d59bf3a3f9f3",
"to_name": null,
"type": null,
"value": {
"end": 3920,
"labels": [
"ANALYSIS"
],
"start": 3794,
"text": "\n 5. As already stated, there are two cases registered by the police against the petitioner in Crime Nos.27/2003 and 137/2003."
}
},
{
"from_name": null,
"id": "7aca1f2fde90410f8bba29aa989d598c",
"to_name": null,
"type": null,
"value": {
"end": 4096,
"labels": [
"ANALYSIS"
],
"start": 3921,
"text": "Crime No.27/2003 is registered as CC No.1854/2016 whereas Crime No.137/2003 is registered as CC No.1750/2016 and both are pending on the file of the Jurisdictional Magistrate."
}
},
{
"from_name": null,
"id": "0b080e69463a4c94b032c158d4cc60da",
"to_name": null,
"type": null,
"value": {
"end": 4196,
"labels": [
"ANALYSIS"
],
"start": 4097,
"text": "It is an admitted case of the petitioner that he has violated the conditions of bail in both cases."
}
},
{
"from_name": null,
"id": "165a8ce460b74db7a28401d5b8c3b2de",
"to_name": null,
"type": null,
"value": {
"end": 4281,
"labels": [
"ANALYSIS"
],
"start": 4196,
"text": "\nConsequently the Jurisdictional Magistrate has cancelled the bail in both the cases."
}
},
{
"from_name": null,
"id": "ca1ff15234b84fe9b29daa32d21f5394",
"to_name": null,
"type": null,
"value": {
"end": 4374,
"labels": [
"ANALYSIS"
],
"start": 4282,
"text": "Therefore, he had filed two bail petitions in Criminal Misc. Case Nos.743/2016 and 779/2016."
}
},
{
"from_name": null,
"id": "2bd5ae8b60d442a1981c25dded69e76d",
"to_name": null,
"type": null,
"value": {
"end": 4406,
"labels": [
"ANALYSIS"
],
"start": 4375,
"text": "Criminal Misc. Case No.743/2016"
}
},
{
"from_name": null,
"id": "cf814c9e6c7a4d0eabe339bb42ea269c",
"to_name": null,
"type": null,
"value": {
"end": 4653,
"labels": [
"ANALYSIS"
],
"start": 4407,
"text": "came up consideration before II Additional District and Sessions Judge, D.K., Mangaluru the learned Judge allowed the petition and granted bail considering the case of the petitioner sympathetically on the ground that his father is seriously ill."
}
},
{
"from_name": null,
"id": "dc319217472c49d585b9691cbf13361e",
"to_name": null,
"type": null,
"value": {
"end": 4789,
"labels": [
"ANALYSIS"
],
"start": 4654,
"text": "Whereas, Criminal Misc. Case Nos.779/2016 came up consideration before the III Additional District and Sessions Judge, D.K., Mangaluru."
}
},
{
"from_name": null,
"id": "a52b0f4b9ad143d68005e7a806ca504c",
"to_name": null,
"type": null,
"value": {
"end": 4943,
"labels": [
"ANALYSIS"
],
"start": 4790,
"text": "The learned Judged viewed violation of condition of bail by the petitioner very seriously and cancelled bail granted to the petitioner in both the cases."
}
},
{
"from_name": null,
"id": "d1a8aed9bd7240d1b6d0a7fd6582fed7",
"to_name": null,
"type": null,
"value": {
"end": 5095,
"labels": [
"RATIO"
],
"start": 4944,
"text": "Considering the fact that petitioner's father is seriously ill, he has been granted bail in one case and request for bail was rejected in another case."
}
},
{
"from_name": null,
"id": "2966395772ff41e0a6f0b44e6957a22c",
"to_name": null,
"type": null,
"value": {
"end": 5229,
"labels": [
"RATIO"
],
"start": 5096,
"text": "Unless he is granted bail in another case also bail granted to him in Criminal Misc. Case No.743/2016 would not enure to his benefit."
}
},
{
"from_name": null,
"id": "c6358935a55d49c09824f11fad7fa38d",
"to_name": null,
"type": null,
"value": {
"end": 5322,
"labels": [
"RATIO"
],
"start": 5230,
"text": "Therefore, I deem it just and proper to grant bail to the petitioner in the other case also."
}
},
{
"from_name": null,
"id": "b0003b8317464b36981e8c629ae83c80",
"to_name": null,
"type": null,
"value": {
"end": 5351,
"labels": [
"RPC"
],
"start": 5324,
"text": "6. The petition is allowed."
}
},
{
"from_name": null,
"id": "11d023d94b034f36a23af2a9c3d25978",
"to_name": null,
"type": null,
"value": {
"end": 6370,
"labels": [
"RPC"
],
"start": 5352,
"text": "The petitioner is granted bail in connection with Crime No.27/2003 registered by the respondent - Police for offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and pending in C.C.\nNo.1854/2016, subject to following conditions:- i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one solvent surety for the likesum to the satisfaction of the Court below; ii) The petitioner as well as surety shall furnish proof of their address and identity along with their photos such as ration card, voter identity card, DL etc. to ensure the presence of the petitioner at the time of trial; iii) The petitioner shall not indulge in tampering the prosecution witnesses in any manner; iv) The petitioner shall attend the concerned Court on all the future dates of hearing unless he is prevented from doing so for valid reasons; v) The petitioner shall not leave the jurisdiction of the concerned Court till the conclusion of the trial without permission;"
}
},
{
"from_name": null,
"id": "3d2d6a1339024bb299214b8e8ca60fc8",
"to_name": null,
"type": null,
"value": {
"end": 6516,
"labels": [
"RPC"
],
"start": 6371,
"text": "In the event of violation of any of the above conditions, the prosecution is at liberty to move the concerned Court for cancellation of the bail."
}
},
{
"from_name": null,
"id": "7a8d3f7c80db441bab17423ffbfdcc17",
"to_name": null,
"type": null,
"value": {
"end": 6533,
"labels": [
"NONE"
],
"start": 6516,
"text": "\n Sd/- JUDGE Cs/-"
}
}
]
}
] | 4,137 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 25TH DAY OF AUGUST 2016\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA\n\n CRIMINAL PETITION No.5661/2016\n\nBETWEEN:\n\nAnil Dominic .. PETITIONER\nAged about 40 years\nS/o Dominic\nR/at Lalveri House\nKarivellil, Keezhamadu\nAluva Taluk\nErnakulam District\nKerala-683581.\n\n(By Sri Nishit Kumar Shetty, Adv.)\n\nAND:\n\nState of Karnataka by .. RESPONDENT\nSHO, Ullal Police Station\nRep. by State Public Prosecutor\nHigh Court Building\nBangalore-560 001.\n\n(By Sri B J Eshwarappa, HCGP)\n\n This criminal petition is filed under Section 439 of the\nCr.P.C. praying to enlarge the petitioner on bail in Cr. No.\n27/2003 of Ullal P.S., D.K., Mangalore for the offences\npunishable under Sections 14, 32 read with Section 34 of\nKarnataka Excise Act.\n\n This petition coming on for Orders this day, the Court\nmade the following :\n\n ORDER\n Petitioner has preferred this petition under Section 439 of Cr.P.C. praying to enlarge him on bail in connection with Crime No.27/2003 registered by the respondent - Police for offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and pending C.C. No.1854/2016 before JMFC III Court, Mangaluru.\n 2. Heard the learned counsel for the petitioner and learned HCGP for the respondent. Perused the first information report, charge sheet and other papers produced along with the petition.\n 3. Learned Counsel for the petitioner submits that two cases have been registered against the petitioner in crime Nos.27/2003 for the offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and in crime No.137/2003 for the offences punishable under Sections 11, 14, 32, 34 and 38A of Karnataka Excise Act. He had obtained bail in both cases from the jurisdictional Magistrate. Due to personal inconvenience, the petitioner had not attended the cases. Consequently, the trial Court cancelled the bail. The petitioner, being aggrieved by the cancellation of bail by the trial Court, applied for a fresh bail before the Sessions Court in Criminal Misc. Case No.743/2016 in respect of crime No.137/2003 and Criminal Misc.\nCase No.779/2016 in respect of Crime No.27/2003.\nThe learned Counsel submits that Criminal Misc. Case No.743/2016 came up for consideration before the II Additional District and Sessions Judge, D.K., Mangaluru and the said Court was pleased to allow the petition and granted bail considering the fact that the petitioner's father was seriously ill, whereas Criminal Misc. Case No.779/2016 came up for consideration before the III Additional District and Sessions Judge, D.K., Mangaluru and the learned Judge rejected the bail application on the ground that the petitioner is in the habit of violating the conditions of the bail and no grounds are made out for grant of bail in his favour.\nThe learned Counsel for the petitioner submits that henceforth, the petitioner would attend both cases regularly and he would not violate the conditions of bail and as a last chance, sympathy may be shown to the petitioner and he may be granted bail. He submits that petitioner's father is seriously ill and there is nobody to look after his father. Hence, he prays for allowing the petition by granting bail to the petitioner.\n 4. Learned HCGP opposes the bail petition on the ground that petitioner has violated conditions of bail on more than one occasion and therefore the Sessions Court was justified in rejecting his bail application.\nTherefore, he submits that if the petitioner is granted bail, he would repeat the same thing and he would not appear before the Trial Court. Therefore, he sought for rejection of the bail petition.\n 5. As already stated, there are two cases registered by the police against the petitioner in Crime Nos.27/2003 and 137/2003. Crime No.27/2003 is registered as CC No.1854/2016 whereas Crime No.137/2003 is registered as CC No.1750/2016 and both are pending on the file of the Jurisdictional Magistrate. It is an admitted case of the petitioner that he has violated the conditions of bail in both cases.\nConsequently the Jurisdictional Magistrate has cancelled the bail in both the cases. Therefore, he had filed two bail petitions in Criminal Misc. Case Nos.743/2016 and 779/2016. Criminal Misc. Case No.743/2016 came up consideration before II Additional District and Sessions Judge, D.K., Mangaluru the learned Judge allowed the petition and granted bail considering the case of the petitioner sympathetically on the ground that his father is seriously ill. Whereas, Criminal Misc. Case Nos.779/2016 came up consideration before the III Additional District and Sessions Judge, D.K., Mangaluru. The learned Judged viewed violation of condition of bail by the petitioner very seriously and cancelled bail granted to the petitioner in both the cases. Considering the fact that petitioner's father is seriously ill, he has been granted bail in one case and request for bail was rejected in another case. Unless he is granted bail in another case also bail granted to him in Criminal Misc. Case No.743/2016 would not enure to his benefit. Therefore, I deem it just and proper to grant bail to the petitioner in the other case also.\n 6. The petition is allowed. The petitioner is granted bail in connection with Crime No.27/2003 registered by the respondent - Police for offences punishable under Sections 14, 32 read with Section 34 of Karnataka Excise Act and pending in C.C.\nNo.1854/2016, subject to following conditions:- i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one solvent surety for the likesum to the satisfaction of the Court below; ii) The petitioner as well as surety shall furnish proof of their address and identity along with their photos such as ration card, voter identity card, DL etc. to ensure the presence of the petitioner at the time of trial; iii) The petitioner shall not indulge in tampering the prosecution witnesses in any manner; iv) The petitioner shall attend the concerned Court on all the future dates of hearing unless he is prevented from doing so for valid reasons; v) The petitioner shall not leave the jurisdiction of the concerned Court till the conclusion of the trial without permission; In the event of violation of any of the above conditions, the prosecution is at liberty to move the concerned Court for cancellation of the bail.\n Sd/- JUDGE Cs/- "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "a648461a93264afca572a43fe47be7e3",
"to_name": null,
"type": null,
"value": {
"end": 57,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nHETHUBHA ALIAS JITHUBA MADHUBA & ORS.\n\n Vs."
}
},
{
"from_name": null,
"id": "6f203d113200428c86be7e9962ed117c",
"to_name": null,
"type": null,
"value": {
"end": 139,
"labels": [
"PREAMBLE"
],
"start": 57,
"text": "\n\nRESPONDENT:\nTHE STATE OF GUJARAT\n\nDATE OF JUDGMENT:\n13/03/1970\n\nBENCH:\nRAY, A.N."
}
},
{
"from_name": null,
"id": "2fe50d4e11ee498ca87bf1556138c281",
"to_name": null,
"type": null,
"value": {
"end": 638,
"labels": [
"PREAMBLE"
],
"start": 139,
"text": "\nBENCH:\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n\n1970 AIR 1266 1971 SCR (1) 31\n\n1970 SCC (1) 720\n\nCITATOR INFO :\n\nF 1971 SC1836 (6)\n\nE 1981 SC 365 (2,3)\n\nACT:\nCode of Criminal Procedure, 1898, s. 429--Difference of\nopinion among two Judges--If third Judge can deal with whole\ncase.\nIndian Penal Code, 1860--S. 34--Scope of--Accused acting\npursuant to pre-arranged plan to attack two persons--Killing\none person by mistake instead of the other--If 'common\nintention' can be inferred."
}
},
{
"from_name": null,
"id": "96b84a048fb24e4ab39d325cadf35b78",
"to_name": null,
"type": null,
"value": {
"end": 937,
"labels": [
"PREAMBLE"
],
"start": 640,
"text": "HEADNOTE:\nThe three appellants were charged with offences under ss.\n302 and 323 read with s. 34, of the Penal Code and\nappellants 1 and 2 were charged with the individual offences\nunder ss. 302 and 323 for intentionally causing the death of\nA, mistaking him for V and for causing simple hurt to V."
}
},
{
"from_name": null,
"id": "0c7ad878e34f466da27824d15b69b2f0",
"to_name": null,
"type": null,
"value": {
"end": 1140,
"labels": [
"PREAMBLE"
],
"start": 938,
"text": "The\nSessions Judge acquitted all the three accused under s. 302\nread with s. 34 but convicted them under s. 304 Part 11 read\nwith s. 34 and sentenced them to suffer rigorous\nimprisonment for five years."
}
},
{
"from_name": null,
"id": "e531761265544f2689db5af25467c6b6",
"to_name": null,
"type": null,
"value": {
"end": 1212,
"labels": [
"PREAMBLE"
],
"start": 1141,
"text": "Appellants 1 and 2 were also\nconvicted for the offence under s. 323 and"
}
},
{
"from_name": null,
"id": "dccbe56beec14bb6b296836d2aa60e95",
"to_name": null,
"type": null,
"value": {
"end": 1284,
"labels": [
"PREAMBLE"
],
"start": 1213,
"text": "appellant 3 was\nconvicted for the offence under s. 323 read with s. 34."
}
},
{
"from_name": null,
"id": "732c47734ed1427b87873c3307196bcb",
"to_name": null,
"type": null,
"value": {
"end": 1367,
"labels": [
"PREAMBLE"
],
"start": 1285,
"text": "All\nthree were sentenced for these convictions to rigorous\nimprisonment for terms."
}
},
{
"from_name": null,
"id": "6fc1cd08d73f470f8cfb58a8b2ec529c",
"to_name": null,
"type": null,
"value": {
"end": 1388,
"labels": [
"PREAMBLE"
],
"start": 1368,
"text": "to run concurrently."
}
},
{
"from_name": null,
"id": "c2b3fed7ee3f42c8a33054000eb91cdf",
"to_name": null,
"type": null,
"value": {
"end": 1656,
"labels": [
"PREAMBLE"
],
"start": 1388,
"text": "\nOn appeal to a Division Bench of the High Court one learned\nJudge held, that the first appellant alone was responsible\nfor the fatal injury on A and found him guilty under\ns. .302, while the second and third appellants were found\nguilty under s. 324 read with s.. 34."
}
},
{
"from_name": null,
"id": "1c97c9ab80c84b6e8d855d03af16ad77",
"to_name": null,
"type": null,
"value": {
"end": 1823,
"labels": [
"PREAMBLE"
],
"start": 1657,
"text": "The second learned\nJudge was of the view that all the accused must be acquitted\nas he was not satisfied with, the evidence and proof of.-the\nidentity. of the accused."
}
},
{
"from_name": null,
"id": "327e2171550749c890159e9227855292",
"to_name": null,
"type": null,
"value": {
"end": 1856,
"labels": [
"PREAMBLE"
],
"start": 1824,
"text": "The case was then placed- before"
}
},
{
"from_name": null,
"id": "ec0a19c0a7444ddc89c5a5ef45e5f1cf",
"to_name": null,
"type": null,
"value": {
"end": 2129,
"labels": [
"PREAMBLE"
],
"start": 1856,
"text": "\n, a, third learned Judge under s. 429 Cr. P.C. who held\nthat the first appellant must 'be convicted under s. 302\nwhile the second and third appellants must be convicted,\nunder s. 302 read with s. 34 and all of them must be\nsentenced to suffer rigorous prisonment for life."
}
},
{
"from_name": null,
"id": "f33ce793c4bf4d38add89325340c9986",
"to_name": null,
"type": null,
"value": {
"end": 2248,
"labels": [
"PREAMBLE"
],
"start": 2130,
"text": "The\nconviction of the first and second appellants under s. 323\nand of the third appellant under s. 323 read with s. 34"
}
},
{
"from_name": null,
"id": "fe83924a47734268b0872717a0af7942",
"to_name": null,
"type": null,
"value": {
"end": 2261,
"labels": [
"PREAMBLE"
],
"start": 2249,
"text": "was\n\nupheld."
}
},
{
"from_name": null,
"id": "165cdcf2775f4789a824e63b8f5b51ca",
"to_name": null,
"type": null,
"value": {
"end": 2645,
"labels": [
"PREAMBLE"
],
"start": 2261,
"text": "\nIn appeal to this Court it was contended (i) that the third\nlearned Judge under s. 429 Cr. P.C. could only,.deal with\nthe differences between the two learned Judges and not with\nthe whole case; and (ii) that there was no comnmittee intend\non within the meaning of supp I.P.C. on the part of the\nthree appellants to kill A as he was attacked by, mistake.\nHELD : Dismissing the appeal."
}
},
{
"from_name": null,
"id": "401026ea2bef4918adc30cf6de1fa5b5",
"to_name": null,
"type": null,
"value": {
"end": 3111,
"labels": [
"PREAMBLE"
],
"start": 2645,
"text": "\n(i) Section on of the Criminal Procedure Code.states \"that\nwhen the judges comprising the Court of Appeal are equally\ndivided in opinion the case with their opinion thereon shall\nbe laid before another Judge of the same Court and such\nJudge, after hearing,if any, as he thinks fit, shall\ndeliver his opinion, and the judgment or order shall follow\nsuch before another Judge, and, secondly, the Judgment and\norder will follow the, opinion of the third learned Judge."
}
},
{
"from_name": null,
"id": "a39c85a83a394312ac191f830db8c23e",
"to_name": null,
"type": null,
"value": {
"end": 3205,
"labels": [
"PREAMBLE"
],
"start": 3111,
"text": "\nIt is, therefore, manifest that the third learned Judge can\nor will deal with the whole case."
}
},
{
"from_name": null,
"id": "4f8d777cad704126beb130abb93a7f94",
"to_name": null,
"type": null,
"value": {
"end": 3288,
"labels": [
"PREAMBLE"
],
"start": 3206,
"text": "[35 D-F]Babu and Ors. v. State of Uttar Pradesh, [1965] 2 S.C.R.\n771; referred to."
}
},
{
"from_name": null,
"id": "9d896b7dfdb04f048237b4a70c749ab6",
"to_name": null,
"type": null,
"value": {
"end": 3477,
"labels": [
"PREAMBLE"
],
"start": 3289,
"text": "(ii) The plea that A was mistaken for V would not take away\nthe common intention established by a pre-arranged plan and\nparticipation of all the accused in furtherance of common\nintention."
}
},
{
"from_name": null,
"id": "f9f54c5aea54487893a93a9ccdf6a030",
"to_name": null,
"type": null,
"value": {
"end": 3853,
"labels": [
"PREAMBLE"
],
"start": 3478,
"text": "The act might be done by one of the several\npersons in furtherance of the common intention of them all\nwithout each one of them having intended to do the\nparticular act in exactly the same way as an act might be\ndone by one member of an unlawful assembly in prosecution of\nthe common intention which the other members of the unlawful\nassembly did not each intend to be don.-."
}
},
{
"from_name": null,
"id": "b7afb9fdead742b19bcd7199eb7ccac3",
"to_name": null,
"type": null,
"value": {
"end": 3952,
"labels": [
"PREAMBLE"
],
"start": 3854,
"text": "[36 H]\nOn the facts, it was clear that the attack took place in\npursuance of a pre-arranged plan.,"
}
},
{
"from_name": null,
"id": "b435cab3afa648cc8d7ec7d601422dd1",
"to_name": null,
"type": null,
"value": {
"end": 4331,
"labels": [
"PREAMBLE"
],
"start": 3953,
"text": "The attack by appellants\n1 and 2 on A and the evidence showing that appellant 3 held\nback P during the attack all proved common intention,\nparticipation and united criminal behaviour of all;\nappellant 3 was therefore equally responsible and guilty\nwith appellants 1 and 2 who had attacked A.\nShankarlal Kachrabbhai and Ors. v. State of Gujarat, [1965]\n1 S.C.R. 287; referred to."
}
},
{
"from_name": null,
"id": "198e0dc6d6444048acfac2bc5bea316c",
"to_name": null,
"type": null,
"value": {
"end": 4405,
"labels": [
"PREAMBLE"
],
"start": 4331,
"text": "\nThe dominant feature of s. 34 is the element of\nparticipation in actions."
}
},
{
"from_name": null,
"id": "9874dbac1e7b4462bcfb468556791749",
"to_name": null,
"type": null,
"value": {
"end": 4471,
"labels": [
"PREAMBLE"
],
"start": 4406,
"text": "This participation need not in\nall cases be by physical presence."
}
},
{
"from_name": null,
"id": "2359c8ed7e8449d68c72d4431f5e08b6",
"to_name": null,
"type": null,
"value": {
"end": 4515,
"labels": [
"PREAMBLE"
],
"start": 4472,
"text": "Common intention implies\nacting in concert."
}
},
{
"from_name": null,
"id": "f3f8e83ebf234302ad7514b7f1f86e66",
"to_name": null,
"type": null,
"value": {
"end": 4631,
"labels": [
"PREAMBLE"
],
"start": 4516,
"text": "There is a pre-arranged plan which is\nproved either from conduct or from circumstances or from\nincriminating facts."
}
},
{
"from_name": null,
"id": "769fe9f506d84a9e9b7ef42f666bca91",
"to_name": null,
"type": null,
"value": {
"end": 4742,
"labels": [
"PREAMBLE"
],
"start": 4632,
"text": "The principle of joint liability in\nthe doing of a criminal act is embodied in s. 34 of the\nIndian Penal Code."
}
},
{
"from_name": null,
"id": "e87fc8e02f944aaf8df037ee70005cb4",
"to_name": null,
"type": null,
"value": {
"end": 4809,
"labels": [
"PREAMBLE"
],
"start": 4743,
"text": "The existence of common intention is to\nbe the basis of liability."
}
},
{
"from_name": null,
"id": "a71886b655314e6ebed62972cdb0f066",
"to_name": null,
"type": null,
"value": {
"end": 4937,
"labels": [
"PREAMBLE"
],
"start": 4810,
"text": "That is why the prior concert\nand the pre-arranged plan is the foundation of common\nintention to establish liability and guilt."
}
},
{
"from_name": null,
"id": "b2ec17fee5404319b19bfcebacc77166",
"to_name": null,
"type": null,
"value": {
"end": 4944,
"labels": [
"PREAMBLE"
],
"start": 4938,
"text": "[36 E]"
}
},
{
"from_name": null,
"id": "aba3a38112184af7aa01238b68177b7c",
"to_name": null,
"type": null,
"value": {
"end": 4955,
"labels": [
"PREAMBLE"
],
"start": 4944,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "a85ec5c6e0d5449ca5e6c33eb4ea81eb",
"to_name": null,
"type": null,
"value": {
"end": 5020,
"labels": [
"NONE"
],
"start": 4955,
"text": "\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.100 of 1967."
}
},
{
"from_name": null,
"id": "bb29d12b3569446e9f686b3a531b067f",
"to_name": null,
"type": null,
"value": {
"end": 5137,
"labels": [
"NONE"
],
"start": 5021,
"text": "Appeal from the judgment and order dated March 13,1967 of the Gujarat High Court in Criminal Appeal No. 566 of 1965."
}
},
{
"from_name": null,
"id": "1ab647d4ded04fe397479d7ce6d6969f",
"to_name": null,
"type": null,
"value": {
"end": 5197,
"labels": [
"NONE"
],
"start": 5137,
"text": "\nJ. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant."
}
},
{
"from_name": null,
"id": "3cfb886faad7476b989d3ca833d58bd1",
"to_name": null,
"type": null,
"value": {
"end": 5267,
"labels": [
"NONE"
],
"start": 5197,
"text": "\nS. K. Dholakia, Badri Das Sharma and S. P. Nayar, for the respondent."
}
},
{
"from_name": null,
"id": "134732e6cded462b9077d2a8c6e193f6",
"to_name": null,
"type": null,
"value": {
"end": 5319,
"labels": [
"NONE"
],
"start": 5267,
"text": "\nThe Judgment of the Court was delivered by Ray, J.-"
}
},
{
"from_name": null,
"id": "567a65e78b9546b3b8c9497161923e1b",
"to_name": null,
"type": null,
"value": {
"end": 5384,
"labels": [
"FAC"
],
"start": 5319,
"text": "This is an appeal from the judgment of the High Court of Gujarat."
}
},
{
"from_name": null,
"id": "aa3e881384be49ef9d3b06b8f8d5abf8",
"to_name": null,
"type": null,
"value": {
"end": 5501,
"labels": [
"FAC"
],
"start": 5384,
"text": "\n The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "c07c450cb3de40a9a0c7fe2504807d90",
"to_name": null,
"type": null,
"value": {
"end": 5706,
"labels": [
"FAC"
],
"start": 5501,
"text": "\nAccused Nos. 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji."
}
},
{
"from_name": null,
"id": "e9cca9230e21434fa2f735b69d43a9ad",
"to_name": null,
"type": null,
"value": {
"end": 5791,
"labels": [
"FAC"
],
"start": 5707,
"text": "The deceased Amarji was the brother-in-. law (sister's husband) of Vaghji Mansangji."
}
},
{
"from_name": null,
"id": "f9aa4324e40d466d93d288a33a1f94a4",
"to_name": null,
"type": null,
"value": {
"end": 5860,
"labels": [
"FAC"
],
"start": 5791,
"text": "\nTwo important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji."
}
},
{
"from_name": null,
"id": "6fe18c4fe1b04716baa562d8e2a6d171",
"to_name": null,
"type": null,
"value": {
"end": 5901,
"labels": [
"FAC"
],
"start": 5861,
"text": "Amarjiwas Pabaji's mother's sister's son"
}
},
{
"from_name": null,
"id": "bb036d6994b849d5a1fefb25d9c41d61",
"to_name": null,
"type": null,
"value": {
"end": 5952,
"labels": [
"FAC"
],
"start": 5901,
"text": ". Pachanji is the first cousin of Vaghji Mansangji."
}
},
{
"from_name": null,
"id": "42ae18285b3c497098093d7d0bab9d65",
"to_name": null,
"type": null,
"value": {
"end": 6146,
"labels": [
"FAC"
],
"start": 5952,
"text": "\nAccused No. 3 Mulubha is the maternal uncle (mother's bro- ther) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2."
}
},
{
"from_name": null,
"id": "5a7d6f1f0f1e46de8443f9a9499d32a2",
"to_name": null,
"type": null,
"value": {
"end": 6184,
"labels": [
"FAC"
],
"start": 6146,
"text": "\nAccused No. 2 was residing at Bhalot."
}
},
{
"from_name": null,
"id": "a946fe9f17354e278c7bb47136bb2cbe",
"to_name": null,
"type": null,
"value": {
"end": 6211,
"labels": [
"FAC"
],
"start": 6185,
"text": "Vaghji also resided there."
}
},
{
"from_name": null,
"id": "309ed87377094cb78f05f364c75718cb",
"to_name": null,
"type": null,
"value": {
"end": 6414,
"labels": [
"FAC"
],
"start": 6212,
"text": "About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji."
}
},
{
"from_name": null,
"id": "6c60d47594814939830d431189d19302",
"to_name": null,
"type": null,
"value": {
"end": 6483,
"labels": [
"FAC"
],
"start": 6415,
"text": "There was exchange of words between the members of the two families."
}
},
{
"from_name": null,
"id": "0abadbf9f2364becb090dd4ddcd5e7c6",
"to_name": null,
"type": null,
"value": {
"end": 6496,
"labels": [
"FAC"
],
"start": 6484,
"text": "Accused No.\n"
}
},
{
"from_name": null,
"id": "c6e709d373cf48f2b3dc9628b6d648ac",
"to_name": null,
"type": null,
"value": {
"end": 6558,
"labels": [
"FAC"
],
"start": 6496,
"text": "2 Ranubha and his father Naranji assaulted the wife of Vaghji."
}
},
{
"from_name": null,
"id": "0ad0787f364c44af9a3eec292dc1e06c",
"to_name": null,
"type": null,
"value": {
"end": 6589,
"labels": [
"FAC"
],
"start": 6559,
"text": "Vaghji then filed a complaint."
}
},
{
"from_name": null,
"id": "fbdff73907684dcd95ad7c0232f9647e",
"to_name": null,
"type": null,
"value": {
"end": 6676,
"labels": [
"FAC"
],
"start": 6590,
"text": "Ultimately, the complaint was compounded on the intervention of accused No.\n3 Mulubha."
}
},
{
"from_name": null,
"id": "49765739a36b44d0b3402b48e5a90deb",
"to_name": null,
"type": null,
"value": {
"end": 6890,
"labels": [
"FAC"
],
"start": 6677,
"text": "The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad."
}
},
{
"from_name": null,
"id": "03db0cabcc204a9ea959aa7bc0ef0024",
"to_name": null,
"type": null,
"value": {
"end": 7192,
"labels": [
"FAC"
],
"start": 6891,
"text": "The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to, reside in the village."
}
},
{
"from_name": null,
"id": "8f8f4cb370ac4d29a658d3567c11d7e4",
"to_name": null,
"type": null,
"value": {
"end": 7350,
"labels": [
"FAC"
],
"start": 7193,
"text": "On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot."
}
},
{
"from_name": null,
"id": "4bedfd239b784c3f87833c0c1a76ba45",
"to_name": null,
"type": null,
"value": {
"end": 7419,
"labels": [
"FAC"
],
"start": 7351,
"text": "They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m."
}
},
{
"from_name": null,
"id": "2cbfb7d7ec7f483db56ec71d6d1f00f7",
"to_name": null,
"type": null,
"value": {
"end": 7483,
"labels": [
"FAC"
],
"start": 7420,
"text": "The cart loads of fuel wood were sold in Khadoi by about 5 p.m."
}
},
{
"from_name": null,
"id": "d1a6e4567268414687aa059f645427ac",
"to_name": null,
"type": null,
"value": {
"end": 7546,
"labels": [
"FAC"
],
"start": 7484,
"text": "They made some purchases and then left Khedoi at about 7 p.m.\n"
}
},
{
"from_name": null,
"id": "ba9dcd5ba3e649ed9273b5dc32077dc7",
"to_name": null,
"type": null,
"value": {
"end": 7645,
"labels": [
"FAC"
],
"start": 7546,
"text": "While returning home Amarjis cart was in the front and Pabaji, Pachanji and Vaghji followed him in."
}
},
{
"from_name": null,
"id": "9e7edbc935e643caaba042e78d967ae7",
"to_name": null,
"type": null,
"value": {
"end": 7657,
"labels": [
"FAC"
],
"start": 7646,
"text": "that order."
}
},
{
"from_name": null,
"id": "099b1e2cc8e24feab5c555823a35a05c",
"to_name": null,
"type": null,
"value": {
"end": 7704,
"labels": [
"FAC"
],
"start": 7657,
"text": "\nThere was not much distance between each cart."
}
},
{
"from_name": null,
"id": "8f5b6539d710460cb2e34a54804bb702",
"to_name": null,
"type": null,
"value": {
"end": 7860,
"labels": [
"FAC"
],
"start": 7705,
"text": "When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the three accused persons were noticed waiting on the roads."
}
},
{
"from_name": null,
"id": "405533173bc449b08e485fb584597fe7",
"to_name": null,
"type": null,
"value": {
"end": 7938,
"labels": [
"FAC"
],
"start": 7861,
"text": "All of them caught hold of Amarji and attacked him who was in the first cart."
}
},
{
"from_name": null,
"id": "93fe67e5549f4823a7c8ee53062a4424",
"to_name": null,
"type": null,
"value": {
"end": 8055,
"labels": [
"FAC"
],
"start": 7939,
"text": "In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji."
}
},
{
"from_name": null,
"id": "7491927842944ef2978c40e168070c0b",
"to_name": null,
"type": null,
"value": {
"end": 8086,
"labels": [
"FAC"
],
"start": 8056,
"text": "Mulubha was armed with an axe."
}
},
{
"from_name": null,
"id": "07acf450efd74bc59c275b699f263ab1",
"to_name": null,
"type": null,
"value": {
"end": 8136,
"labels": [
"FAC"
],
"start": 8087,
"text": "Accused Nos. 1 and 2 dealt knife blows to Amarji."
}
},
{
"from_name": null,
"id": "d2bcdbab2d6d4e8aa0f099135e0f8312",
"to_name": null,
"type": null,
"value": {
"end": 8377,
"labels": [
"FAC"
],
"start": 8137,
"text": "The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji."
}
},
{
"from_name": null,
"id": "37d0985cfb1846a7b4513db93f25465d",
"to_name": null,
"type": null,
"value": {
"end": 8525,
"labels": [
"FAC"
],
"start": 8378,
"text": "On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji anylonger as they had already killed Amarji."
}
},
{
"from_name": null,
"id": "55b454c50f7942bb8a1b0c4bc07788b4",
"to_name": null,
"type": null,
"value": {
"end": 8573,
"labels": [
"FAC"
],
"start": 8526,
"text": "Thereupon the accused stopped attacking Vaghji."
}
},
{
"from_name": null,
"id": "1a9518b0bcfc4330a5a01885ef906ef6",
"to_name": null,
"type": null,
"value": {
"end": 8652,
"labels": [
"FAC"
],
"start": 8574,
"text": "By this time Amarji had come staggering to the spot where Pabaji was standing."
}
},
{
"from_name": null,
"id": "f5742904810a489b95515ae0f4d05316",
"to_name": null,
"type": null,
"value": {
"end": 8736,
"labels": [
"FAC"
],
"start": 8653,
"text": "Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart."
}
},
{
"from_name": null,
"id": "bd4d52b904534050a21e16c833ff4706",
"to_name": null,
"type": null,
"value": {
"end": 8956,
"labels": [
"FAC"
],
"start": 8737,
"text": "Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last."
}
},
{
"from_name": null,
"id": "0b8ad32f3739447bb644fff59d846b45",
"to_name": null,
"type": null,
"value": {
"end": 8996,
"labels": [
"FAC"
],
"start": 8956,
"text": "\nThe carts were taken to village Khedoi."
}
},
{
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"id": "f45aa62f9e55458cbb34c1ee16164524",
"to_name": null,
"type": null,
"value": {
"end": 9185,
"labels": [
"FAC"
],
"start": 8997,
"text": "It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos'.\n1 and 2 left while accused No. 3 disappeared near Khari Vadi."
}
},
{
"from_name": null,
"id": "33ed8280fd0648b5a0a84a55b3b37c53",
"to_name": null,
"type": null,
"value": {
"end": 9305,
"labels": [
"FAC"
],
"start": 9186,
"text": "Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work."
}
},
{
"from_name": null,
"id": "70722fa953844ea8982b700c0850c535",
"to_name": null,
"type": null,
"value": {
"end": 9360,
"labels": [
"FAC"
],
"start": 9306,
"text": "Banesing was attached to the police outpost at Bhuvad."
}
},
{
"from_name": null,
"id": "4705ae3c43874876ab05170ec07977ae",
"to_name": null,
"type": null,
"value": {
"end": 9431,
"labels": [
"FAC"
],
"start": 9361,
"text": "Banesing directed these persons to take Amarji to the Khedoi hospital."
}
},
{
"from_name": null,
"id": "15e9664a02be48d195c0b80495abe3fd",
"to_name": null,
"type": null,
"value": {
"end": 9461,
"labels": [
"FAC"
],
"start": 9432,
"text": "By that time Amarji had died."
}
},
{
"from_name": null,
"id": "66e3a5d2184f4f8cb9b29ea54e32335d",
"to_name": null,
"type": null,
"value": {
"end": 9555,
"labels": [
"FAC"
],
"start": 9462,
"text": "Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi."
}
},
{
"from_name": null,
"id": "fb51c9815d274ce581dcde47f130d22d",
"to_name": null,
"type": null,
"value": {
"end": 9665,
"labels": [
"FAC"
],
"start": 9556,
"text": "They reached, Anjar at about 11 p.m. and Pabaji's F.I.R. was recorded before police sub-inspector Khambholja."
}
},
{
"from_name": null,
"id": "d72208b7b8b8497f9148d0a426dd7bc9",
"to_name": null,
"type": null,
"value": {
"end": 9726,
"labels": [
"FAC"
],
"start": 9666,
"text": "The police sub- inspector then preceded to, Khedoi hospital."
}
},
{
"from_name": null,
"id": "31182dfc06eb491593a5896d9399eafc",
"to_name": null,
"type": null,
"value": {
"end": 9758,
"labels": [
"FAC"
],
"start": 9727,
"text": "Amarji was declared to be dead."
}
},
{
"from_name": null,
"id": "82201e2c38bf4b1eb95a579d6f81cd09",
"to_name": null,
"type": null,
"value": {
"end": 9885,
"labels": [
"FAC"
],
"start": 9759,
"text": "The police sub-inspector recorded the statements of Vaghji and Pachanji and :then took steps in the investigation of the case."
}
},
{
"from_name": null,
"id": "0754cea68fee48dfabc70c9ed7dec16f",
"to_name": null,
"type": null,
"value": {
"end": 10052,
"labels": [
"RLC"
],
"start": 9885,
"text": "\nAt the trial all the three' accused denied having committed the offence.,., The Sessions Judge acquitted all the three persons under section 302 read with section 34."
}
},
{
"from_name": null,
"id": "e3cfc316743d4eaf955eebde391cae43",
"to_name": null,
"type": null,
"value": {
"end": 10230,
"labels": [
"RLC"
],
"start": 10053,
"text": "He however convicted all the accused for the offence punishable under section 304 Part II read,with section 34 and sentenced them to suffer rigorous imprisonment for five years."
}
},
{
"from_name": null,
"id": "d6f27f88502147c88f7d9dc5f0b41c00",
"to_name": null,
"type": null,
"value": {
"end": 10413,
"labels": [
"RLC"
],
"start": 10231,
"text": "Accused Nos. 1 and 2 were convicted for the offence under section 323 and accused No. 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "5d5724a867a84223beebec5f8a297ed4",
"to_name": null,
"type": null,
"value": {
"end": 10581,
"labels": [
"RLC"
],
"start": 10413,
"text": "\nAccused Nos.. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months."
}
},
{
"from_name": null,
"id": "e42d9c8cc5594c92a26f9e64e0045040",
"to_name": null,
"type": null,
"value": {
"end": 10679,
"labels": [
"FAC"
],
"start": 10581,
"text": "\nAll the sentences were to run concurrent All the accused filed appeals against their convictions."
}
},
{
"from_name": null,
"id": "dc50b22b83fc4d3bbd6bd3a356c3ad4d",
"to_name": null,
"type": null,
"value": {
"end": 10982,
"labels": [
"RLC"
],
"start": 10680,
"text": "Before the Division' Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos. 2 and 3 were found, guilty for the offence under section 324 read with section 34."
}
},
{
"from_name": null,
"id": "d672e70095ce40bda41518d7a7fde3e2",
"to_name": null,
"type": null,
"value": {
"end": 11135,
"labels": [
"RLC"
],
"start": 10983,
"text": "Shelat, J. was of the view that all the accused must acquitted because he' was not satisfied with the evidence and proof of the identity of the accused."
}
},
{
"from_name": null,
"id": "bde85970ec7449a99b7b60b939f226b8",
"to_name": null,
"type": null,
"value": {
"end": 11480,
"labels": [
"RLC"
],
"start": 11135,
"text": "\nThe case was then placed under Section 429 of Criminal' Procedure Code before Mehta, J. who held that accused No. 1must be Convicted for the offence under section 302 while accused Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life."
}
},
{
"from_name": null,
"id": "b1f7684ff49948e5ab3f6288d79aaa16",
"to_name": null,
"type": null,
"value": {
"end": 11609,
"labels": [
"FAC"
],
"start": 11481,
"text": "The conviction of accused Nos. 1 and 2 under section 323 and of accused No. 3 under section 323 read with section 34 was upheld."
}
},
{
"from_name": null,
"id": "f0ddbafc575a44e59fa54647c209d965",
"to_name": null,
"type": null,
"value": {
"end": 11817,
"labels": [
"FAC"
],
"start": 11610,
"text": "The conviction of all the accused under section 304 Part 11 was altered by convicting accused No. 1 under section 302 and accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "14b087af1a224a549391f4470c889626",
"to_name": null,
"type": null,
"value": {
"end": 12035,
"labels": [
"ARG_PETITIONER"
],
"start": 11818,
"text": "Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case."
}
},
{
"from_name": null,
"id": "b9aa16a58d5d410981c76ad4d5a61449",
"to_name": null,
"type": null,
"value": {
"end": 12223,
"labels": [
"ANALYSIS"
],
"start": 12036,
"text": "The same contention had been advanced before Mehta, J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him."
}
},
{
"from_name": null,
"id": "6fca45430d784beabd8fd88cf0585f43",
"to_name": null,
"type": null,
"value": {
"end": 12452,
"labels": [
"PRE_RELIED"
],
"start": 12224,
"text": "This Court in Babu and Ors. v. State of Uttar Peadesh (1) held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit."
}
},
{
"from_name": null,
"id": "bcc879a44d6b42698615219d80a3a51a",
"to_name": null,
"type": null,
"value": {
"end": 12494,
"labels": [
"ANALYSIS"
],
"start": 12453,
"text": "Mehta, J. here dealt with the whole case."
}
},
{
"from_name": null,
"id": "e4fb51ba5ece40df8574e55227289471",
"to_name": null,
"type": null,
"value": {
"end": 12862,
"labels": [
"STA"
],
"start": 12495,
"text": "Section 429 of the, Criminal Procedure Code states \"that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion\"."
}
},
{
"from_name": null,
"id": "46f2288fd328476dae9327b07fe5b096",
"to_name": null,
"type": null,
"value": {
"end": 13037,
"labels": [
"ANALYSIS"
],
"start": 12863,
"text": "Two things are noticeable; first, that the, case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge."
}
},
{
"from_name": null,
"id": "0af6a65cc8ac43379a240d1d73b7b904",
"to_name": null,
"type": null,
"value": {
"end": 13131,
"labels": [
"ANALYSIS"
],
"start": 13038,
"text": "It is, therefore, manifest that the third learned Judge can or will deal with the whole case."
}
},
{
"from_name": null,
"id": "6cdec6a5a8574ff7830feda9f706ccb8",
"to_name": null,
"type": null,
"value": {
"end": 13253,
"labels": [
"ANALYSIS"
],
"start": 13132,
"text": "The second and the main contention of counsel for the ap- pellants was that there was no common intention to kill Amarji."
}
},
{
"from_name": null,
"id": "31184e07d6684fd396ba07bf2602921c",
"to_name": null,
"type": null,
"value": {
"end": 13356,
"labels": [
"ANALYSIS"
],
"start": 13254,
"text": "The finding of fact is, ,that the attack the three accused was a concerted one under prearranged plan."
}
},
{
"from_name": null,
"id": "63c9aba08d1f4c97801be8aab6d53afe",
"to_name": null,
"type": null,
"value": {
"end": 13494,
"labels": [
"ANALYSIS"
],
"start": 13357,
"text": "Amarji Was attacked by mistake :but whosoever inflicted, injury in the region of the collar-bone of Amarji must be held guilty of murder."
}
},
{
"from_name": null,
"id": "e0bd35b413204d4a97a0d9fef414ad10",
"to_name": null,
"type": null,
"value": {
"end": 13513,
"labels": [
"ANALYSIS"
],
"start": 13495,
"text": "under section 302."
}
},
{
"from_name": null,
"id": "88674299722a470e8ecc9cee1bc96fb2",
"to_name": null,
"type": null,
"value": {
"end": 13663,
"labels": [
"ANALYSIS"
],
"start": 13514,
"text": "Amarji was further found to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji."
}
},
{
"from_name": null,
"id": "48e9655b0a354169b46525e4b4a2a672",
"to_name": null,
"type": null,
"value": {
"end": 13788,
"labels": [
"ANALYSIS"
],
"start": 13663,
"text": "\nThe injury on Amarji was an incised wound 1-3/4\" *3/4\" over the left side of the neck neck just above the left collar- bone."
}
},
{
"from_name": null,
"id": "b7a4308f44ab4c75ba19aa504a9f2ebf",
"to_name": null,
"type": null,
"value": {
"end": 13852,
"labels": [
"ANALYSIS"
],
"start": 13789,
"text": "The direction of the wound was was towards right and downwards."
}
},
{
"from_name": null,
"id": "a98859a1daa14835b14b6314ccc0b278",
"to_name": null,
"type": null,
"value": {
"end": 14004,
"labels": [
"ANALYSIS"
],
"start": 13852,
"text": "The other injury was incised (1) [1965] 2 S.C.R. 771.wound 1\" * 1/2\" * 1/2\" over the chest (right side) near the middle line between the 6th and 7 ribs."
}
},
{
"from_name": null,
"id": "b3728f791b0049cfbea1191f4b2966c1",
"to_name": null,
"type": null,
"value": {
"end": 14627,
"labels": [
"ANALYSIS"
],
"start": 14004,
"text": "\nThe- evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started assault as soon as the carts arrived at the scene of the offence; fifthly, the way in which Amarji was attacked by accused Nos. 1 and 2 and stab wounds were infficted on him and the manner in which accused No. 3 held up Pabaji would show that the three accused were lying in wait under some pre-arranged plan to attack these persons when they were returning to Bhalot."
}
},
{
"from_name": null,
"id": "cd1a10a7c6c74f9f9aaf71fa8b47e247",
"to_name": null,
"type": null,
"value": {
"end": 14798,
"labels": [
"ANALYSIS"
],
"start": 14628,
"text": "It therefore follows that the attack took place in pursuance of the pre-arranged plan and the rapidity with which the attacks Were made also shows the pre-concerted plan."
}
},
{
"from_name": null,
"id": "70dfadd7e04f4f08a099ce77050b57be",
"to_name": null,
"type": null,
"value": {
"end": 15079,
"labels": [
"ANALYSIS"
],
"start": 14799,
"text": "The attack by accused Nos. 1 and 2 on Amarji and the holding up, of Pabaji by accused No.\n3 all prove ,common intention, participation and united criminal behaviour of all and therefore accused No. 3 would be equally responsible with ,accused Nos. 1 and 2 who had attacked Amarji."
}
},
{
"from_name": null,
"id": "88d5a835d9a64636a5d56c97ab4e50bf",
"to_name": null,
"type": null,
"value": {
"end": 15159,
"labels": [
"PRE_RELIED"
],
"start": 15079,
"text": "\nThis Court in the case of Shankarlal Kachrabhai and Ors. v.\nState of Gujarat(1)"
}
},
{
"from_name": null,
"id": "a99f30ff8fb64709a5829819c67a3476",
"to_name": null,
"type": null,
"value": {
"end": 15352,
"labels": [
"PRE_RELIED"
],
"start": 15160,
"text": "said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre-arranged plan."
}
},
{
"from_name": null,
"id": "44438b1916f14cd3bf08fa7fa795d954",
"to_name": null,
"type": null,
"value": {
"end": 15432,
"labels": [
"ANALYSIS"
],
"start": 15353,
"text": "The dominant feature of section 34 is the ,element of participation in actions."
}
},
{
"from_name": null,
"id": "eecd91e2f7024d378e000e968c3e96ee",
"to_name": null,
"type": null,
"value": {
"end": 15498,
"labels": [
"ANALYSIS"
],
"start": 15432,
"text": "\nThis participation need not in all cases be by physical presence."
}
},
{
"from_name": null,
"id": "e31ec309f9b14bffad603689c5b88b77",
"to_name": null,
"type": null,
"value": {
"end": 15542,
"labels": [
"ANALYSIS"
],
"start": 15499,
"text": "Common intention implies acting in concert."
}
},
{
"from_name": null,
"id": "ddc4136b9a2e4f80855836b2b76fc6e0",
"to_name": null,
"type": null,
"value": {
"end": 15658,
"labels": [
"ANALYSIS"
],
"start": 15542,
"text": "\nThere is a pre-arranged plan which is proved either from conduct or from circumstances of from incriminating facts."
}
},
{
"from_name": null,
"id": "a898d611ae1944e3ad973882047dd052",
"to_name": null,
"type": null,
"value": {
"end": 15774,
"labels": [
"ANALYSIS"
],
"start": 15658,
"text": "\nThe principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "36279ac41fb2409bba7828e8249f6343",
"to_name": null,
"type": null,
"value": {
"end": 15841,
"labels": [
"ANALYSIS"
],
"start": 15775,
"text": "The existence of common intention is to be the basis of liability."
}
},
{
"from_name": null,
"id": "18bda265337d4448b3959c555aa467f1",
"to_name": null,
"type": null,
"value": {
"end": 15970,
"labels": [
"ANALYSIS"
],
"start": 15842,
"text": "That is why the prior concert and the pre- arranged plan is the foundation of common intention to establish liability and guilt."
}
},
{
"from_name": null,
"id": "c78fc4beeb9346a98ed88e2f47e38b89",
"to_name": null,
"type": null,
"value": {
"end": 16112,
"labels": [
"ANALYSIS"
],
"start": 15970,
"text": "\n Applying these principles to the evidence in the present case it appears that there was pre-arranged plan of the accused to commit offences."
}
},
{
"from_name": null,
"id": "b439cebd4b594657b283482d54b7f44f",
"to_name": null,
"type": null,
"value": {
"end": 16207,
"labels": [
"ANALYSIS"
],
"start": 16113,
"text": "All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji."
}
},
{
"from_name": null,
"id": "d9bf80c356ff4e4c95dbb11220064593",
"to_name": null,
"type": null,
"value": {
"end": 16236,
"labels": [
"ANALYSIS"
],
"start": 16208,
"text": "Amarji was in the forefront."
}
},
{
"from_name": null,
"id": "43bbab565d91445b8561224f7005de20",
"to_name": null,
"type": null,
"value": {
"end": 16262,
"labels": [
"ANALYSIS"
],
"start": 16237,
"text": "The accused attacked him."
}
},
{
"from_name": null,
"id": "95b986c2c18e495892b046401bd8a94b",
"to_name": null,
"type": null,
"value": {
"end": 16337,
"labels": [
"ANALYSIS"
],
"start": 16263,
"text": "Vaghji was also attacked and prevented from going to the relief of Amarji."
}
},
{
"from_name": null,
"id": "9961ccdab1c24140a54da80395f46ba4",
"to_name": null,
"type": null,
"value": {
"end": 16529,
"labels": [
"ANALYSIS"
],
"start": 16338,
"text": "The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre-arranged plan and participation of all the accused in furtherance of common intention."
}
},
{
"from_name": null,
"id": "b6ea6ddc6fc24b939a087a2e8ce03ea9",
"to_name": null,
"type": null,
"value": {
"end": 17038,
"labels": [
"ANALYSIS"
],
"start": 16530,
"text": "The act might be ,done by one of the several persons in furtherance of the common intention of them all, without each one of them having intended (1) [1965] 1 S.C.R. 287.\n to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.\n In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused"
}
},
{
"from_name": null,
"id": "f99f6e7a67e244a2ad86bda10454a167",
"to_name": null,
"type": null,
"value": {
"end": 17075,
"labels": [
"ANALYSIS"
],
"start": 17039,
"text": "the appellants are guilty of murder."
}
},
{
"from_name": null,
"id": "cb09385d3a3642658b5fe30c1cf8f72e",
"to_name": null,
"type": null,
"value": {
"end": 17322,
"labels": [
"ANALYSIS"
],
"start": 17076,
"text": "'In Shankarlal's case(1) this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable."
}
},
{
"from_name": null,
"id": "96ea2dfa12d145a6b5905e8d838b6164",
"to_name": null,
"type": null,
"value": {
"end": 17493,
"labels": [
"ANALYSIS"
],
"start": 17323,
"text": "But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention."
}
},
{
"from_name": null,
"id": "d2d13b33bad349cbab4952a8a0c3116b",
"to_name": null,
"type": null,
"value": {
"end": 17653,
"labels": [
"RATIO"
],
"start": 17494,
"text": "All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan-"
}
},
{
"from_name": null,
"id": "76dac3fbe59447369dda09959732e37b",
"to_name": null,
"type": null,
"value": {
"end": 17810,
"labels": [
"RATIO"
],
"start": 17654,
"text": "Therefore, all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "5bf93edf6a6947e7b0155881017b7e9e",
"to_name": null,
"type": null,
"value": {
"end": 18032,
"labels": [
"RATIO"
],
"start": 17811,
"text": "Further, in view of the finding that the the- concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established."
}
},
{
"from_name": null,
"id": "2c6e745f58c44c8a99f9feaf38fde22e",
"to_name": null,
"type": null,
"value": {
"end": 18073,
"labels": [
"RPC"
],
"start": 18032,
"text": "\n The conclusion of Mehta, J. is correct."
}
},
{
"from_name": null,
"id": "5565508abcb848beb1f21f3c2c9cc759",
"to_name": null,
"type": null,
"value": {
"end": 18122,
"labels": [
"RPC"
],
"start": 18074,
"text": "The appeal, there- fore, fails and is dismissed."
}
},
{
"from_name": null,
"id": "fd5225e9dbed438f87a062dbb754183e",
"to_name": null,
"type": null,
"value": {
"end": 18190,
"labels": [
"RPC"
],
"start": 18123,
"text": "The accused must surrender to the bail and serve out the sentences."
}
},
{
"from_name": null,
"id": "04cca73c68b34cb8bdce304519096dcb",
"to_name": null,
"type": null,
"value": {
"end": 18236,
"labels": [
"RPC"
],
"start": 18190,
"text": "\n R.K.P.S. Appeal dismissed.."
}
},
{
"from_name": null,
"id": "3e66190bd88e4ed885ddeffd646c77d1",
"to_name": null,
"type": null,
"value": {
"end": 18262,
"labels": [
"NONE"
],
"start": 18236,
"text": "\n (1) [1965] 1 S.C.R. 287."
}
}
]
}
] | 4,126 | {
"text": "PETITIONER:\nHETHUBHA ALIAS JITHUBA MADHUBA & ORS.\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT\n\nDATE OF JUDGMENT:\n13/03/1970\n\nBENCH:\nRAY, A.N.\nBENCH:\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n\n1970 AIR 1266 1971 SCR (1) 31\n\n1970 SCC (1) 720\n\nCITATOR INFO :\n\nF 1971 SC1836 (6)\n\nE 1981 SC 365 (2,3)\n\nACT:\nCode of Criminal Procedure, 1898, s. 429--Difference of\nopinion among two Judges--If third Judge can deal with whole\ncase.\nIndian Penal Code, 1860--S. 34--Scope of--Accused acting\npursuant to pre-arranged plan to attack two persons--Killing\none person by mistake instead of the other--If 'common\nintention' can be inferred.\n\nHEADNOTE:\nThe three appellants were charged with offences under ss.\n302 and 323 read with s. 34, of the Penal Code and\nappellants 1 and 2 were charged with the individual offences\nunder ss. 302 and 323 for intentionally causing the death of\nA, mistaking him for V and for causing simple hurt to V. The\nSessions Judge acquitted all the three accused under s. 302\nread with s. 34 but convicted them under s. 304 Part 11 read\nwith s. 34 and sentenced them to suffer rigorous\nimprisonment for five years. Appellants 1 and 2 were also\nconvicted for the offence under s. 323 and appellant 3 was\nconvicted for the offence under s. 323 read with s. 34. All\nthree were sentenced for these convictions to rigorous\nimprisonment for terms. to run concurrently.\nOn appeal to a Division Bench of the High Court one learned\nJudge held, that the first appellant alone was responsible\nfor the fatal injury on A and found him guilty under\ns. .302, while the second and third appellants were found\nguilty under s. 324 read with s.. 34. The second learned\nJudge was of the view that all the accused must be acquitted\nas he was not satisfied with, the evidence and proof of.-the\nidentity. of the accused. The case was then placed- before\n, a, third learned Judge under s. 429 Cr. P.C. who held\nthat the first appellant must 'be convicted under s. 302\nwhile the second and third appellants must be convicted,\nunder s. 302 read with s. 34 and all of them must be\nsentenced to suffer rigorous prisonment for life. The\nconviction of the first and second appellants under s. 323\nand of the third appellant under s. 323 read with s. 34 was\n\nupheld.\nIn appeal to this Court it was contended (i) that the third\nlearned Judge under s. 429 Cr. P.C. could only,.deal with\nthe differences between the two learned Judges and not with\nthe whole case; and (ii) that there was no comnmittee intend\non within the meaning of supp I.P.C. on the part of the\nthree appellants to kill A as he was attacked by, mistake.\nHELD : Dismissing the appeal.\n(i) Section on of the Criminal Procedure Code.states \"that\nwhen the judges comprising the Court of Appeal are equally\ndivided in opinion the case with their opinion thereon shall\nbe laid before another Judge of the same Court and such\nJudge, after hearing,if any, as he thinks fit, shall\ndeliver his opinion, and the judgment or order shall follow\nsuch before another Judge, and, secondly, the Judgment and\norder will follow the, opinion of the third learned Judge.\nIt is, therefore, manifest that the third learned Judge can\nor will deal with the whole case. [35 D-F]Babu and Ors. v. State of Uttar Pradesh, [1965] 2 S.C.R.\n771; referred to.\n(ii) The plea that A was mistaken for V would not take away\nthe common intention established by a pre-arranged plan and\nparticipation of all the accused in furtherance of common\nintention. The act might be done by one of the several\npersons in furtherance of the common intention of them all\nwithout each one of them having intended to do the\nparticular act in exactly the same way as an act might be\ndone by one member of an unlawful assembly in prosecution of\nthe common intention which the other members of the unlawful\nassembly did not each intend to be don.-. [36 H]\nOn the facts, it was clear that the attack took place in\npursuance of a pre-arranged plan., The attack by appellants\n1 and 2 on A and the evidence showing that appellant 3 held\nback P during the attack all proved common intention,\nparticipation and united criminal behaviour of all;\nappellant 3 was therefore equally responsible and guilty\nwith appellants 1 and 2 who had attacked A.\nShankarlal Kachrabbhai and Ors. v. State of Gujarat, [1965]\n1 S.C.R. 287; referred to.\nThe dominant feature of s. 34 is the element of\nparticipation in actions. This participation need not in\nall cases be by physical presence. Common intention implies\nacting in concert. There is a pre-arranged plan which is\nproved either from conduct or from circumstances or from\nincriminating facts. The principle of joint liability in\nthe doing of a criminal act is embodied in s. 34 of the\nIndian Penal Code. The existence of common intention is to\nbe the basis of liability. That is why the prior concert\nand the pre-arranged plan is the foundation of common\nintention to establish liability and guilt. [36 E]\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.100 of 1967.\nAppeal from the judgment and order dated March 13,1967 of the Gujarat High Court in Criminal Appeal No. 566 of 1965.\nJ. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant.\nS. K. Dholakia, Badri Das Sharma and S. P. Nayar, for the respondent.\nThe Judgment of the Court was delivered by Ray, J.-This is an appeal from the judgment of the High Court of Gujarat.\n The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code.\nAccused Nos. 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji. The deceased Amarji was the brother-in-. law (sister's husband) of Vaghji Mansangji.\nTwo important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji. Amarjiwas Pabaji's mother's sister's son. Pachanji is the first cousin of Vaghji Mansangji.\nAccused No. 3 Mulubha is the maternal uncle (mother's bro- ther) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2.\nAccused No. 2 was residing at Bhalot. Vaghji also resided there. About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji. There was exchange of words between the members of the two families. Accused No.\n2 Ranubha and his father Naranji assaulted the wife of Vaghji. Vaghji then filed a complaint. Ultimately, the complaint was compounded on the intervention of accused No.\n3 Mulubha. The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad. The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to, reside in the village.\nOn 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot. They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m. The cart loads of fuel wood were sold in Khadoi by about 5 p.m. They made some purchases and then left Khedoi at about 7 p.m.\nWhile returning home Amarjis cart was in the front and Pabaji, Pachanji and Vaghji followed him in. that order.\nThere was not much distance between each cart. When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the three accused persons were noticed waiting on the roads. All of them caught hold of Amarji and attacked him who was in the first cart. In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji. Mulubha was armed with an axe. Accused Nos. 1 and 2 dealt knife blows to Amarji. The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji. On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji anylonger as they had already killed Amarji. Thereupon the accused stopped attacking Vaghji. By this time Amarji had come staggering to the spot where Pabaji was standing. Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart. Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last.\nThe carts were taken to village Khedoi. It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos'.\n1 and 2 left while accused No. 3 disappeared near Khari Vadi. Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work. Banesing was attached to the police outpost at Bhuvad. Banesing directed these persons to take Amarji to the Khedoi hospital. By that time Amarji had died. Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi. They reached, Anjar at about 11 p.m. and Pabaji's F.I.R. was recorded before police sub-inspector Khambholja. The police sub- inspector then preceded to, Khedoi hospital. Amarji was declared to be dead. The police sub-inspector recorded the statements of Vaghji and Pachanji and :then took steps in the investigation of the case.\nAt the trial all the three' accused denied having committed the offence.,., The Sessions Judge acquitted all the three persons under section 302 read with section 34. He however convicted all the accused for the offence punishable under section 304 Part II read,with section 34 and sentenced them to suffer rigorous imprisonment for five years. Accused Nos. 1 and 2 were convicted for the offence under section 323 and accused No. 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code.\nAccused Nos.. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months.\nAll the sentences were to run concurrent All the accused filed appeals against their convictions.\nBefore the Division' Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos. 2 and 3 were found, guilty for the offence under section 324 read with section 34. Shelat, J. was of the view that all the accused must acquitted because he' was not satisfied with the evidence and proof of the identity of the accused.\nThe case was then placed under Section 429 of Criminal' Procedure Code before Mehta, J. who held that accused No. 1must be Convicted for the offence under section 302 while accused Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life. The conviction of accused Nos. 1 and 2 under section 323 and of accused No. 3 under section 323 read with section 34 was upheld. The conviction of all the accused under section 304 Part 11 was altered by convicting accused No. 1 under section 302 and accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code.\nCounsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case. The same contention had been advanced before Mehta, J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him. This Court in Babu and Ors. v. State of Uttar Peadesh (1) held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit. Mehta, J. here dealt with the whole case.\nSection 429 of the, Criminal Procedure Code states \"that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion\". Two things are noticeable; first, that the, case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case.\nThe second and the main contention of counsel for the ap- pellants was that there was no common intention to kill Amarji. The finding of fact is, ,that the attack the three accused was a concerted one under prearranged plan. Amarji Was attacked by mistake :but whosoever inflicted, injury in the region of the collar-bone of Amarji must be held guilty of murder. under section 302. Amarji was further found to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji.\nThe injury on Amarji was an incised wound 1-3/4\" *3/4\" over the left side of the neck neck just above the left collar- bone. The direction of the wound was was towards right and downwards.The other injury was incised (1) [1965] 2 S.C.R. 771.wound 1\" * 1/2\" * 1/2\" over the chest (right side) near the middle line between the 6th and 7 ribs.\nThe- evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started assault as soon as the carts arrived at the scene of the offence; fifthly, the way in which Amarji was attacked by accused Nos. 1 and 2 and stab wounds were infficted on him and the manner in which accused No. 3 held up Pabaji would show that the three accused were lying in wait under some pre-arranged plan to attack these persons when they were returning to Bhalot. It therefore follows that the attack took place in pursuance of the pre-arranged plan and the rapidity with which the attacks Were made also shows the pre-concerted plan. The attack by accused Nos. 1 and 2 on Amarji and the holding up, of Pabaji by accused No.\n3 all prove ,common intention, participation and united criminal behaviour of all and therefore accused No. 3 would be equally responsible with ,accused Nos. 1 and 2 who had attacked Amarji.\nThis Court in the case of Shankarlal Kachrabhai and Ors. v.\nState of Gujarat(1) said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre-arranged plan. The dominant feature of section 34 is the ,element of participation in actions.\nThis participation need not in all cases be by physical presence. Common intention implies acting in concert.\nThere is a pre-arranged plan which is proved either from conduct or from circumstances of from incriminating facts.\nThe principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre- arranged plan is the foundation of common intention to establish liability and guilt.\n Applying these principles to the evidence in the present case it appears that there was pre-arranged plan of the accused to commit offences. All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji. Amarji was in the forefront. The accused attacked him. Vaghji was also attacked and prevented from going to the relief of Amarji. The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre-arranged plan and participation of all the accused in furtherance of common intention. The act might be ,done by one of the several persons in furtherance of the common intention of them all, without each one of them having intended (1) [1965] 1 S.C.R. 287.\n to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.\n In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. 'In Shankarlal's case(1) this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable. But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention. All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan- Therefore, all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code. Further, in view of the finding that the the- concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established.\n The conclusion of Mehta, J. is correct. The appeal, there- fore, fails and is dismissed. The accused must surrender to the bail and serve out the sentences.\n R.K.P.S. Appeal dismissed..\n (1) [1965] 1 S.C.R. 287.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "faa6a27b4e9448499c83181d31febb8f",
"to_name": null,
"type": null,
"value": {
"end": 95,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSARDAR SINGH ETC. ETC.\n\n Vs.\n\nRESPONDENT:\nSTATE (DELHI ADMINISTRATION, DELHI)"
}
},
{
"from_name": null,
"id": "0c2247e1ea9e45349a7adf53583bc5bf",
"to_name": null,
"type": null,
"value": {
"end": 123,
"labels": [
"PREAMBLE"
],
"start": 95,
"text": "\n\nDATE OF JUDGMENT23/02/1993"
}
},
{
"from_name": null,
"id": "7eb9d2f907de4fd38476528e15520398",
"to_name": null,
"type": null,
"value": {
"end": 172,
"labels": [
"PREAMBLE"
],
"start": 123,
"text": "\n\nBENCH:\nKULDIP SINGH (J)\nBENCH:\nKULDIP SINGH (J)"
}
},
{
"from_name": null,
"id": "1b5078d3711c4453884bfeecd9b4052c",
"to_name": null,
"type": null,
"value": {
"end": 186,
"labels": [
"PREAMBLE"
],
"start": 172,
"text": "\nMOHAN, S. (J)"
}
},
{
"from_name": null,
"id": "16a98842632f4b07973daac17be78f0f",
"to_name": null,
"type": null,
"value": {
"end": 692,
"labels": [
"PREAMBLE"
],
"start": 188,
"text": "CITATION:\n\n1993 AIR 1696 1993 SCR (2) 65\n\n1993 SCC Supl. (2) 393 JT 1993 (4) 534\n\n1993 SCALE (1)681\n\nACT:\n\nIndian Evidence Act, 1872. Section 3.\n\nIndian Penal Code, 1860. Sections 302/34 and 201/34.\n\nMurder-Causing the evidence of the Commission of the offence\n\nto disappear-Conviction based on circumstantial\n\nevidence--Validity of.\n\nHEADNOTE:\n\nThe appellant, A-1, his wife, A-2, and his brother's wife,\n\nA-3, were prosecuted under Sections 302/34 and 201/34 of the\n\nIndian Penal Code."
}
},
{
"from_name": null,
"id": "e135e82c974c4d2395a72e48406e99f1",
"to_name": null,
"type": null,
"value": {
"end": 1352,
"labels": [
"PREAMBLE"
],
"start": 693,
"text": "Ile entire case was based on the\n\ncircumstantial evidence : (a) the deceased had illicit\n\nrelations with A-2 and A-3; (b) the deceased was last seen\n\non the night when he went to sleep in his house and\n\nthereafter his dead body was found buried in the house of A-\n\n1; (3) during interrogation A-1 made a disclosure statement\n\nand consequently lead the police party to his sitting room\n\nwhere he pointed out a spot covered by a cot and thereafter\n\nhe dug the floor and, the dead body of the deceased was\n\nrecovered from a five feet deep pit; and (4) recovery of doe\n\n(woodcutter) from his possession bearing the same human\n\nblood group as that of the deceased."
}
},
{
"from_name": null,
"id": "ac4db303c8124918ba533c1200ea54ca",
"to_name": null,
"type": null,
"value": {
"end": 1567,
"labels": [
"PREAMBLE"
],
"start": 1353,
"text": "Relying upon these\n\ncircumstances the trial court convicted A-1 and A-2 on both\n\nthe counts and sentenced them to imprisonment for life on\n\nthe first count and for five years on the second count but\n\nacquitted A-3."
}
},
{
"from_name": null,
"id": "9a2ca57233834663b7d2255bd9b9cf41",
"to_name": null,
"type": null,
"value": {
"end": 1611,
"labels": [
"PREAMBLE"
],
"start": 1568,
"text": "'Me High Court dismissed the appeal of A-1."
}
},
{
"from_name": null,
"id": "36b5a4d0a26448f999c30590f5c2753d",
"to_name": null,
"type": null,
"value": {
"end": 2129,
"labels": [
"PREAMBLE"
],
"start": 1611,
"text": "\n\nHowever, it acquitted A-2 on the ground that there was no\n\nevidence to connect her with the commission of the murder\n\nbut maintained her conviction and sentence under sections\n\n201/34 on the ground that she being the inmate of the house\n\nwas in the know of the fact that the dead body was burried\n\nin the house with a view to causing the disappearance of\n\nevidence and she must have been necessarily involved in the\n\nprocess of digging a grave of five feet deep, the filling of\n\nthe grave and erasing the traces etc."
}
},
{
"from_name": null,
"id": "ab32ac7c412b48f4897b3ba733ecc940",
"to_name": null,
"type": null,
"value": {
"end": 2177,
"labels": [
"PREAMBLE"
],
"start": 2130,
"text": "Both the accused\n\nfiled appeals in this Courts."
}
},
{
"from_name": null,
"id": "8190ed4b7c52471bb3711c7a2904392f",
"to_name": null,
"type": null,
"value": {
"end": 2267,
"labels": [
"PREAMBLE"
],
"start": 2177,
"text": "\n\nDismissing the appeal of A-1 and allowing the appeal of A-2,\n\nthis Court,\n\nHELD: 1."
}
},
{
"from_name": null,
"id": "8aa807b87b3e42abab4f6bfb331479e1",
"to_name": null,
"type": null,
"value": {
"end": 2418,
"labels": [
"PREAMBLE"
],
"start": 2268,
"text": "The chain of circumstances relied upon by the\n\nprosecution and accepted by the Courts below leaves no\n\n\nmanner of doubt that A-1 committed the murder."
}
},
{
"from_name": null,
"id": "0fecaacbbfd04caca3b06f8321093a86",
"to_name": null,
"type": null,
"value": {
"end": 2469,
"labels": [
"PREAMBLE"
],
"start": 2419,
"text": "Accordingly\nhis conviction and sentence is upheld."
}
},
{
"from_name": null,
"id": "a3ce671724e5442587f8b6e0ee7baaf1",
"to_name": null,
"type": null,
"value": {
"end": 2476,
"labels": [
"PREAMBLE"
],
"start": 2470,
"text": "[68B]\n"
}
},
{
"from_name": null,
"id": "304e155b105c492aa0d92274b0ff38de",
"to_name": null,
"type": null,
"value": {
"end": 2670,
"labels": [
"PREAMBLE"
],
"start": 2476,
"text": "2. There is not an iota of evidence on the record not even\na whisper to the effect that it was A-2 who helped in\nconcealing or causing the evidence of the commission of the\noffence to disappear."
}
},
{
"from_name": null,
"id": "2a7dd18f760540f493c4056c7661a207",
"to_name": null,
"type": null,
"value": {
"end": 2842,
"labels": [
"PREAMBLE"
],
"start": 2671,
"text": "Simply because she is the wife of A-1\nand as such is supposed to be living in the same house, It\ncannot be assumed that she was guilty of the offence under\nsection\n201/34."
}
},
{
"from_name": null,
"id": "4835caf7b215487992ae08918a9180b8",
"to_name": null,
"type": null,
"value": {
"end": 2918,
"labels": [
"PREAMBLE"
],
"start": 2843,
"text": "A-1 may or may not have taken help of his wife in\nconcealing the dead body."
}
},
{
"from_name": null,
"id": "7fa92368a5ff42c49bd1cd05e46045b5",
"to_name": null,
"type": null,
"value": {
"end": 3010,
"labels": [
"PREAMBLE"
],
"start": 2919,
"text": "Her being wife of A-1 by itself\nis not sufficient to prove the charge under section 201/34."
}
},
{
"from_name": null,
"id": "bddc884f82fd4ebab9f67a73d90846bc",
"to_name": null,
"type": null,
"value": {
"end": 3055,
"labels": [
"PREAMBLE"
],
"start": 3010,
"text": "\nShe is accordingly acquitted of that charge."
}
},
{
"from_name": null,
"id": "2bf018c2d56b4ab7859dca36f6080baa",
"to_name": null,
"type": null,
"value": {
"end": 3079,
"labels": [
"PREAMBLE"
],
"start": 3055,
"text": "\n[68H, 69A-B]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "4a441b6f90d44919b83f297402b33322",
"to_name": null,
"type": null,
"value": {
"end": 3145,
"labels": [
"NONE"
],
"start": 3079,
"text": "\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 645 of 1989."
}
},
{
"from_name": null,
"id": "468005c9b0454a059eaec81f957a8e2c",
"to_name": null,
"type": null,
"value": {
"end": 3332,
"labels": [
"NONE"
],
"start": 3146,
"text": "From the Judgment and Order dated 17.3.89 of the Delhi High Court in Criminal Appeal No. 270/85.\n AND Criminal Appeal No. 534 of 1989.\nA.P. Mohanty and S.K. Sabharwal for the Appellants."
}
},
{
"from_name": null,
"id": "eba4c821dc684697ba661e37e1b15296",
"to_name": null,
"type": null,
"value": {
"end": 3411,
"labels": [
"NONE"
],
"start": 3333,
"text": "K. Lahri, V.C. Mahajan, Mrs. Indra Sawhney and B.K. Prasad for the Respondent."
}
},
{
"from_name": null,
"id": "eeaff57ec48a4db396de2a9341a89b33",
"to_name": null,
"type": null,
"value": {
"end": 3471,
"labels": [
"NONE"
],
"start": 3411,
"text": "\nThe Judgment of the Court was delivered by KULDIP SINGH, J."
}
},
{
"from_name": null,
"id": "8eadf8e5bd0d4910933f085e97d890a9",
"to_name": null,
"type": null,
"value": {
"end": 3639,
"labels": [
"FAC"
],
"start": 3471,
"text": " Sardar Singh, his wife Saraswati and his brother's wife Savitri were charged under Sections 302/34 and 201/34, Indian Penal Code (IPC) for the murder of one Charanjit."
}
},
{
"from_name": null,
"id": "19e8cb4d2bb64bfdbb535078648c2465",
"to_name": null,
"type": null,
"value": {
"end": 3823,
"labels": [
"RLC"
],
"start": 3640,
"text": "The trial Court convicted Sardar Singh and his wife Saraswati on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count."
}
},
{
"from_name": null,
"id": "1fdbacdec3fb4500b067c68c288b4b26",
"to_name": null,
"type": null,
"value": {
"end": 3883,
"labels": [
"RLC"
],
"start": 3824,
"text": "Accused Savitri was, however, acquitted by the trial Court."
}
},
{
"from_name": null,
"id": "0e0b0a80014043ae85a80d5f32298955",
"to_name": null,
"type": null,
"value": {
"end": 3942,
"labels": [
"RLC"
],
"start": 3884,
"text": "The High Court dismissed the appeal filed by Sardar Singh."
}
},
{
"from_name": null,
"id": "5f67e1871a934d7aa5b2659ddc9dcc12",
"to_name": null,
"type": null,
"value": {
"end": 4098,
"labels": [
"RLC"
],
"start": 3943,
"text": "Saraswati was acquitted of the charge under Sections 302/34, IPC but her conviction and sentence Under Section 201/34 IPC was maintained by the High Court."
}
},
{
"from_name": null,
"id": "1793def538f144f0aa29f5d4ababa6c3",
"to_name": null,
"type": null,
"value": {
"end": 4190,
"labels": [
"FAC"
],
"start": 4099,
"text": "These two appeals are by Sardar Singh and Saraswati against the judgment of the High Court."
}
},
{
"from_name": null,
"id": "fd9543bed4b54eb18598ac38e2ea5c8c",
"to_name": null,
"type": null,
"value": {
"end": 4252,
"labels": [
"FAC"
],
"start": 4190,
"text": "\nSardar Singh, appellant and one Tara Chand are real brothers."
}
},
{
"from_name": null,
"id": "b9d2c6fdd2f8420f8adbf5d3e4fff84d",
"to_name": null,
"type": null,
"value": {
"end": 4302,
"labels": [
"FAC"
],
"start": 4253,
"text": "Both the them were residing in village Jhatikara."
}
},
{
"from_name": null,
"id": "8356051b43d449b7bbf3578484089418",
"to_name": null,
"type": null,
"value": {
"end": 4340,
"labels": [
"FAC"
],
"start": 4302,
"text": "\nThey were living in adjoining houses."
}
},
{
"from_name": null,
"id": "1058e4140e3c4593aa6f8db6434cb034",
"to_name": null,
"type": null,
"value": {
"end": 4407,
"labels": [
"FAC"
],
"start": 4341,
"text": "Deceased Charanjit was living in a house adjacent to their houses."
}
},
{
"from_name": null,
"id": "62645fdf577a442dbde523f4be81b684",
"to_name": null,
"type": null,
"value": {
"end": 4496,
"labels": [
"FAC"
],
"start": 4408,
"text": "Charanjit's wife had died about ten years ago and he was living in the house by himself."
}
},
{
"from_name": null,
"id": "bfef4dff118c431bac0a1df6a880da22",
"to_name": null,
"type": null,
"value": {
"end": 4613,
"labels": [
"FAC"
],
"start": 4497,
"text": "Deceased Charanjit had developed illicit relation with Savitri wife of Tara Chand and also with appellant-Saraswati."
}
},
{
"from_name": null,
"id": "c1cd8e65e720491dae57a9b806214db9",
"to_name": null,
"type": null,
"value": {
"end": 4801,
"labels": [
"FAC"
],
"start": 4614,
"text": "The prosecution case in a nut-shell is that deceased Charanjit was having illicit relations with both Saraswati and Savitri and used to visit them during night for the last so many years."
}
},
{
"from_name": null,
"id": "44d34c7d0d96492883b2af269b1cf272",
"to_name": null,
"type": null,
"value": {
"end": 4909,
"labels": [
"FAC"
],
"start": 4802,
"text": "On March 31, 1983 the deceased had gone to sleep in his house in the evening and did not appear thereafter."
}
},
{
"from_name": null,
"id": "62734867994c4199b4d1b5bb3f942704",
"to_name": null,
"type": null,
"value": {
"end": 5052,
"labels": [
"FAC"
],
"start": 4910,
"text": "On April 4, 1983 Lakhmi Chand, brother of the deceased, lodged report with the police expressing suspicion against the appellants and Savitri."
}
},
{
"from_name": null,
"id": "a58ba137841f4c7385a194ad049ae4b7",
"to_name": null,
"type": null,
"value": {
"end": 5261,
"labels": [
"FAC"
],
"start": 5053,
"text": "It is alleged that during the course of interrogation Sardar Singh-appellant made a disclosure statement and consequently led the policy party to his sitting room where he pointed out a spot covered by a cot."
}
},
{
"from_name": null,
"id": "db7bff90183d43fd913917901962a731",
"to_name": null,
"type": null,
"value": {
"end": 5378,
"labels": [
"FAC"
],
"start": 5262,
"text": "Sardar Singh, thereafter, dug the floor and the dead body of the deceased was recovered from a five feet deep grave."
}
},
{
"from_name": null,
"id": "57f06811dfd3444eb54bcea6fa2b26ea",
"to_name": null,
"type": null,
"value": {
"end": 5548,
"labels": [
"FAC"
],
"start": 5379,
"text": "Thereafter, at the pointing out of the appellant Sardar Singh, the police also seized doe (wood cutter) and knife contained in a canvas bag hanging in the adjacent room."
}
},
{
"from_name": null,
"id": "dd32e16223f24e159b2d6ead9c037873",
"to_name": null,
"type": null,
"value": {
"end": 5620,
"labels": [
"FAC"
],
"start": 5549,
"text": "The dead body was tied with a rope and was wrapped in three gunny bags."
}
},
{
"from_name": null,
"id": "84d0a3e107ef4ca78b5a9389c4f5f7c0",
"to_name": null,
"type": null,
"value": {
"end": 5705,
"labels": [
"FAC"
],
"start": 5621,
"text": "The recovered knife had no blood stained while the doe was found stained with blood."
}
},
{
"from_name": null,
"id": "f8f5775a77fc4d9b92a5782ff6d192f9",
"to_name": null,
"type": null,
"value": {
"end": 5836,
"labels": [
"FAC"
],
"start": 5705,
"text": "\nOn examination by the Serologist the blood stains on the doe were found to be human and of the same group as that of the deceased."
}
},
{
"from_name": null,
"id": "f5a94f0ca70a495993e9377f1f694ae2",
"to_name": null,
"type": null,
"value": {
"end": 5908,
"labels": [
"ANALYSIS"
],
"start": 5837,
"text": "The entire case of the prosecution is based on circumstantial evidence."
}
},
{
"from_name": null,
"id": "a11b5fcda9744e1889f6cbb15e86c6e8",
"to_name": null,
"type": null,
"value": {
"end": 6089,
"labels": [
"ANALYSIS"
],
"start": 5909,
"text": "The circumstances relied upon by the prosecution are as under: (1) The deceased had illicit relations with Saraswati and Savitri, wife and brother's wife of appellant Sardar Singh."
}
},
{
"from_name": null,
"id": "b5caef04237441eaa2daf58dc775265c",
"to_name": null,
"type": null,
"value": {
"end": 6258,
"labels": [
"ANALYSIS"
],
"start": 6089,
"text": "\n(2) The deceased was last seen on the night of March 31, 1983 when he went to sleep in his house and thereafter his dead body was found buried in the appellants' house."
}
},
{
"from_name": null,
"id": "9f5cd66a33af4a0c88157afdd09b941c",
"to_name": null,
"type": null,
"value": {
"end": 6437,
"labels": [
"ANALYSIS"
],
"start": 6258,
"text": "\n(3) Sardar Singh appellant, on interrogation made a disclosure statement leading to the recovery of the dead body from a five feet deep pit in the sitting room of the appellants."
}
},
{
"from_name": null,
"id": "d73b433e6b0e4405b9f8b364da76d0c5",
"to_name": null,
"type": null,
"value": {
"end": 6569,
"labels": [
"ANALYSIS"
],
"start": 6437,
"text": "\n(4) Recovery of doe from the possession of the appellant which wasfound to bear the same human blood group as that of the deceased."
}
},
{
"from_name": null,
"id": "4de091694aa14b52a2824d7c431dec0a",
"to_name": null,
"type": null,
"value": {
"end": 6682,
"labels": [
"ANALYSIS"
],
"start": 6569,
"text": "\nRelying upon the above mentioned circumstances the trial Court and the High Court have convicted the appellants."
}
},
{
"from_name": null,
"id": "175e8fa6614b4f95ab3074f22df891f9",
"to_name": null,
"type": null,
"value": {
"end": 6900,
"labels": [
"ANALYSIS"
],
"start": 6683,
"text": "So far as appellant-Sardar Singh is concerned, the chain of circumstances relied upon by the prosecution and accepted by the courts below leaves no manner of doubt that it was he who committed the murder of Charanjit."
}
},
{
"from_name": null,
"id": "8b8decc629d9490587f376fd938f2b8c",
"to_name": null,
"type": null,
"value": {
"end": 6988,
"labels": [
"ANALYSIS"
],
"start": 6901,
"text": "We have been taken through the judgments of the trial Court and that of the High Court."
}
},
{
"from_name": null,
"id": "2d67353bba9e41778e9426f1ee45baf4",
"to_name": null,
"type": null,
"value": {
"end": 7053,
"labels": [
"ANALYSIS"
],
"start": 6989,
"text": "We agree with the reasoning and the conclusions reached therein."
}
},
{
"from_name": null,
"id": "fb0c82b43eef43b5aac6f7c10fd0d226",
"to_name": null,
"type": null,
"value": {
"end": 7154,
"labels": [
"RPC"
],
"start": 7054,
"text": "We, therefore, uphold the conviction and sentenced of appellant-Sardar Singh and dismiss his appeal."
}
},
{
"from_name": null,
"id": "d45ba45e634842f096e0d1fd4496aae0",
"to_name": null,
"type": null,
"value": {
"end": 7344,
"labels": [
"ANALYSIS"
],
"start": 7154,
"text": "\nSo far as appellant-Saraswati is concerned the High Court dealt with her case in the following manner: \"Before we part with this order, there is one more fact which needs our consideration."
}
},
{
"from_name": null,
"id": "5582fc1ea87c4697b893472621258918",
"to_name": null,
"type": null,
"value": {
"end": 7456,
"labels": [
"ANALYSIS"
],
"start": 7345,
"text": "In this case, the disclosure that led to the recovery of the dead body has been made by Sardar Singh appellant."
}
},
{
"from_name": null,
"id": "adef710fa63845a4b847ba04133eca60",
"to_name": null,
"type": null,
"value": {
"end": 7749,
"labels": [
"ANALYSIS"
],
"start": 7457,
"text": "There is no evidence direct or indirect to connect the appellant Saraswati with the commission of murder, though it can safely be said that she being the inmate of the house was in know of the fact that the dead body was buried in the house with a view to cause the disappearance of evidence."
}
},
{
"from_name": null,
"id": "fe95d5668603451a83612f519a2bd928",
"to_name": null,
"type": null,
"value": {
"end": 7991,
"labels": [
"ANALYSIS"
],
"start": 7750,
"text": "In our view, the process of digging a grave of 5 feet deep and of the size of the deceased in length, the filling of the grave and then erasing the traces of the same is a long process and she must have been necessarily involved in the same."
}
},
{
"from_name": null,
"id": "ecf5d2b5e7114acca4716e2bbe5d7e4f",
"to_name": null,
"type": null,
"value": {
"end": 8218,
"labels": [
"ANALYSIS"
],
"start": 7992,
"text": "since, in our view, there is no evidence to connect her with the commission of murder we acquit the appellant Saraswati of the charge under Section 302/34 IPC but maintain her conviction and sentence under Section 201/34 IPC.\""
}
},
{
"from_name": null,
"id": "ae98f68ff9c34da88d5b0fe96f8dc2b2",
"to_name": null,
"type": null,
"value": {
"end": 8419,
"labels": [
"ANALYSIS"
],
"start": 8218,
"text": "\nWe are of the view that the reasoning adopted by the High Court in acquitting Saraswati of the charge under Section 302/34 IPC is equally applicable to the charge against her under Section 201/34 IPC."
}
},
{
"from_name": null,
"id": "2752ee29b0914fd18bced22c20a79c0d",
"to_name": null,
"type": null,
"value": {
"end": 8801,
"labels": [
"ANALYSIS"
],
"start": 8420,
"text": "It may be correct that the process of digging a grave of five feet deep, the filling of the grave and then erasing the traces etc. may not have been done by Sardar Singh alone but there is not an iota of evidence on the record not even a whisper to the effect that it was Saraswati who helped him in concealing or causing the evidence of the commission of the offence to disappear."
}
},
{
"from_name": null,
"id": "b87f8829704c4de0980b448dd70391a3",
"to_name": null,
"type": null,
"value": {
"end": 9017,
"labels": [
"ANALYSIS"
],
"start": 8802,
"text": "Simply because she is the wife of appellant Sardar Singh and as such is supposed to be living in the same house, it cannot be assumed that she was guilty of the offence under Section 201/34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "5357f775dc09416787bfcccd7860bc55",
"to_name": null,
"type": null,
"value": {
"end": 9121,
"labels": [
"ANALYSIS"
],
"start": 9018,
"text": "According to the Prosecution Saraswati was having illicit relation with the deceased for several years."
}
},
{
"from_name": null,
"id": "67ce3a9ede8d4c92954a321053d3dbb6",
"to_name": null,
"type": null,
"value": {
"end": 9199,
"labels": [
"RATIO"
],
"start": 9121,
"text": "\n Sardar Singh may or may not have taken her help in concealing the dead body."
}
},
{
"from_name": null,
"id": "2a841d0fb24d43a08688dffaffffec7c",
"to_name": null,
"type": null,
"value": {
"end": 9316,
"labels": [
"RATIO"
],
"start": 9200,
"text": "Her being wife of Sardar Singh by itself is not sufficient to prove the charge under Section 201/34 IPC against her."
}
},
{
"from_name": null,
"id": "397643806e224c86a2111d4f4508038c",
"to_name": null,
"type": null,
"value": {
"end": 9454,
"labels": [
"RPC"
],
"start": 9317,
"text": "We, therefore, give benefit of doubt to Saraswati, allow her appeal and acquit her of the charge under Section 201/34, Indian Penal Code."
}
},
{
"from_name": null,
"id": "8bbdc3d7545a4871a345ecd128c6f9ba",
"to_name": null,
"type": null,
"value": {
"end": 9478,
"labels": [
"RPC"
],
"start": 9455,
"text": "She is already on bail."
}
},
{
"from_name": null,
"id": "4805add6cf6246e1a6960d0bb2e0f676",
"to_name": null,
"type": null,
"value": {
"end": 9508,
"labels": [
"RPC"
],
"start": 9479,
"text": "Her bail-bonds are cancelled."
}
},
{
"from_name": null,
"id": "499b830c20094e328f5deb5234a86331",
"to_name": null,
"type": null,
"value": {
"end": 9559,
"labels": [
"RPC"
],
"start": 9508,
"text": "\n T.N.A. Crl. A. No.645/89 dismissed."
}
},
{
"from_name": null,
"id": "35bd4454ee1b49a48250d118208f7382",
"to_name": null,
"type": null,
"value": {
"end": 9596,
"labels": [
"RPC"
],
"start": 9559,
"text": "\n Criminal Appeal No. 534/89 allowed."
}
}
]
}
] | 4,275 | {
"text": "PETITIONER:\nSARDAR SINGH ETC. ETC.\n\n Vs.\n\nRESPONDENT:\nSTATE (DELHI ADMINISTRATION, DELHI)\n\nDATE OF JUDGMENT23/02/1993\n\nBENCH:\nKULDIP SINGH (J)\nBENCH:\nKULDIP SINGH (J)\nMOHAN, S. (J)\n\nCITATION:\n\n1993 AIR 1696 1993 SCR (2) 65\n\n1993 SCC Supl. (2) 393 JT 1993 (4) 534\n\n1993 SCALE (1)681\n\nACT:\n\nIndian Evidence Act, 1872. Section 3.\n\nIndian Penal Code, 1860. Sections 302/34 and 201/34.\n\nMurder-Causing the evidence of the Commission of the offence\n\nto disappear-Conviction based on circumstantial\n\nevidence--Validity of.\n\nHEADNOTE:\n\nThe appellant, A-1, his wife, A-2, and his brother's wife,\n\nA-3, were prosecuted under Sections 302/34 and 201/34 of the\n\nIndian Penal Code. Ile entire case was based on the\n\ncircumstantial evidence : (a) the deceased had illicit\n\nrelations with A-2 and A-3; (b) the deceased was last seen\n\non the night when he went to sleep in his house and\n\nthereafter his dead body was found buried in the house of A-\n\n1; (3) during interrogation A-1 made a disclosure statement\n\nand consequently lead the police party to his sitting room\n\nwhere he pointed out a spot covered by a cot and thereafter\n\nhe dug the floor and, the dead body of the deceased was\n\nrecovered from a five feet deep pit; and (4) recovery of doe\n\n(woodcutter) from his possession bearing the same human\n\nblood group as that of the deceased. Relying upon these\n\ncircumstances the trial court convicted A-1 and A-2 on both\n\nthe counts and sentenced them to imprisonment for life on\n\nthe first count and for five years on the second count but\n\nacquitted A-3. 'Me High Court dismissed the appeal of A-1.\n\nHowever, it acquitted A-2 on the ground that there was no\n\nevidence to connect her with the commission of the murder\n\nbut maintained her conviction and sentence under sections\n\n201/34 on the ground that she being the inmate of the house\n\nwas in the know of the fact that the dead body was burried\n\nin the house with a view to causing the disappearance of\n\nevidence and she must have been necessarily involved in the\n\nprocess of digging a grave of five feet deep, the filling of\n\nthe grave and erasing the traces etc. Both the accused\n\nfiled appeals in this Courts.\n\nDismissing the appeal of A-1 and allowing the appeal of A-2,\n\nthis Court,\n\nHELD: 1. The chain of circumstances relied upon by the\n\nprosecution and accepted by the Courts below leaves no\n\n\nmanner of doubt that A-1 committed the murder. Accordingly\nhis conviction and sentence is upheld. [68B]\n2. There is not an iota of evidence on the record not even\na whisper to the effect that it was A-2 who helped in\nconcealing or causing the evidence of the commission of the\noffence to disappear. Simply because she is the wife of A-1\nand as such is supposed to be living in the same house, It\ncannot be assumed that she was guilty of the offence under\nsection\n201/34. A-1 may or may not have taken help of his wife in\nconcealing the dead body. Her being wife of A-1 by itself\nis not sufficient to prove the charge under section 201/34.\nShe is accordingly acquitted of that charge.\n[68H, 69A-B]\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 645 of 1989.\nFrom the Judgment and Order dated 17.3.89 of the Delhi High Court in Criminal Appeal No. 270/85.\n AND Criminal Appeal No. 534 of 1989.\nA.P. Mohanty and S.K. Sabharwal for the Appellants.\nK. Lahri, V.C. Mahajan, Mrs. Indra Sawhney and B.K. Prasad for the Respondent.\nThe Judgment of the Court was delivered by KULDIP SINGH, J. Sardar Singh, his wife Saraswati and his brother's wife Savitri were charged under Sections 302/34 and 201/34, Indian Penal Code (IPC) for the murder of one Charanjit. The trial Court convicted Sardar Singh and his wife Saraswati on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count. Accused Savitri was, however, acquitted by the trial Court. The High Court dismissed the appeal filed by Sardar Singh. Saraswati was acquitted of the charge under Sections 302/34, IPC but her conviction and sentence Under Section 201/34 IPC was maintained by the High Court. These two appeals are by Sardar Singh and Saraswati against the judgment of the High Court.\nSardar Singh, appellant and one Tara Chand are real brothers. Both the them were residing in village Jhatikara.\nThey were living in adjoining houses. Deceased Charanjit was living in a house adjacent to their houses. Charanjit's wife had died about ten years ago and he was living in the house by himself. Deceased Charanjit had developed illicit relation with Savitri wife of Tara Chand and also with appellant-Saraswati.\nThe prosecution case in a nut-shell is that deceased Charanjit was having illicit relations with both Saraswati and Savitri and used to visit them during night for the last so many years. On March 31, 1983 the deceased had gone to sleep in his house in the evening and did not appear thereafter. On April 4, 1983 Lakhmi Chand, brother of the deceased, lodged report with the police expressing suspicion against the appellants and Savitri. It is alleged that during the course of interrogation Sardar Singh-appellant made a disclosure statement and consequently led the policy party to his sitting room where he pointed out a spot covered by a cot. Sardar Singh, thereafter, dug the floor and the dead body of the deceased was recovered from a five feet deep grave. Thereafter, at the pointing out of the appellant Sardar Singh, the police also seized doe (wood cutter) and knife contained in a canvas bag hanging in the adjacent room. The dead body was tied with a rope and was wrapped in three gunny bags. The recovered knife had no blood stained while the doe was found stained with blood.\nOn examination by the Serologist the blood stains on the doe were found to be human and of the same group as that of the deceased.\nThe entire case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the prosecution are as under: (1) The deceased had illicit relations with Saraswati and Savitri, wife and brother's wife of appellant Sardar Singh.\n(2) The deceased was last seen on the night of March 31, 1983 when he went to sleep in his house and thereafter his dead body was found buried in the appellants' house.\n(3) Sardar Singh appellant, on interrogation made a disclosure statement leading to the recovery of the dead body from a five feet deep pit in the sitting room of the appellants.\n(4) Recovery of doe from the possession of the appellant which wasfound to bear the same human blood group as that of the deceased.\nRelying upon the above mentioned circumstances the trial Court and the High Court have convicted the appellants. So far as appellant-Sardar Singh is concerned, the chain of circumstances relied upon by the prosecution and accepted by the courts below leaves no manner of doubt that it was he who committed the murder of Charanjit. We have been taken through the judgments of the trial Court and that of the High Court. We agree with the reasoning and the conclusions reached therein. We, therefore, uphold the conviction and sentenced of appellant-Sardar Singh and dismiss his appeal.\nSo far as appellant-Saraswati is concerned the High Court dealt with her case in the following manner: \"Before we part with this order, there is one more fact which needs our consideration. In this case, the disclosure that led to the recovery of the dead body has been made by Sardar Singh appellant. There is no evidence direct or indirect to connect the appellant Saraswati with the commission of murder, though it can safely be said that she being the inmate of the house was in know of the fact that the dead body was buried in the house with a view to cause the disappearance of evidence. In our view, the process of digging a grave of 5 feet deep and of the size of the deceased in length, the filling of the grave and then erasing the traces of the same is a long process and she must have been necessarily involved in the same. since, in our view, there is no evidence to connect her with the commission of murder we acquit the appellant Saraswati of the charge under Section 302/34 IPC but maintain her conviction and sentence under Section 201/34 IPC.\"\nWe are of the view that the reasoning adopted by the High Court in acquitting Saraswati of the charge under Section 302/34 IPC is equally applicable to the charge against her under Section 201/34 IPC. It may be correct that the process of digging a grave of five feet deep, the filling of the grave and then erasing the traces etc. may not have been done by Sardar Singh alone but there is not an iota of evidence on the record not even a whisper to the effect that it was Saraswati who helped him in concealing or causing the evidence of the commission of the offence to disappear. Simply because she is the wife of appellant Sardar Singh and as such is supposed to be living in the same house, it cannot be assumed that she was guilty of the offence under Section 201/34 of the Indian Penal Code. According to the Prosecution Saraswati was having illicit relation with the deceased for several years.\n Sardar Singh may or may not have taken her help in concealing the dead body. Her being wife of Sardar Singh by itself is not sufficient to prove the charge under Section 201/34 IPC against her. We, therefore, give benefit of doubt to Saraswati, allow her appeal and acquit her of the charge under Section 201/34, Indian Penal Code. She is already on bail. Her bail-bonds are cancelled.\n T.N.A. Crl. A. No.645/89 dismissed.\n Criminal Appeal No. 534/89 allowed.\n "
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"text": "Dated this the 5th day of January, 2016\n\n PRESENT:"
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"text": "Smt. Shridevi S.Angadi, B.A., LL.M.,"
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"text": "\n I Addl. Sessions Judge,\n Mysuru.\n **"
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"text": "*\n\n CRIMINAL MISC."
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"text": "No.2475/2015"
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"text": "\n\nPetitioner:"
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"start": 413,
"text": "Mallesh S/o. Ramanna, aged\n\n about 25 years, R/at\n\n "
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"text": "Kasuvinahalli"
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"text": "Village, Kasaba"
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"text": "\n\n Hobli, Nanjangud Taluk."
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"labels": [
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"start": 580,
"text": "( By Sri.K.Tharakaraman, Advocate )\n\n -Vs-\n\nRespondent: State of Karnataka, represented\n by Nanjangud Rural Police,\n Station, Nanjangud Taluk.\n\n ( By Learned Public Prosecutor )\n ***\n\n ORDERS ON BAIL PETITION FILED BY THE PETITIONER UNDER SECTION 438 OF Cr.P.C.\n ]"
}
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{
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"to_name": null,
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"value": {
"end": 1261,
"labels": [
"FAC"
],
"start": 919,
"text": "This criminal petition is filed by the petitioner under Section 438 of Code of Criminal Procedure, praying to enlarge him on anticipatory bail in the event of his arrest in Crime No.244/2015 of Nanjangud Rural Police Station, which is registered for the offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C.\n 2 2."
}
},
{
"from_name": null,
"id": "adea92ee9d2049a1959c19e4c9fcf656",
"to_name": null,
"type": null,
"value": {
"end": 1352,
"labels": [
"FAC"
],
"start": 1262,
"text": "The learned Public Prosecutor has filed objection statement and opposed the bail petition."
}
},
{
"from_name": null,
"id": "b08de7e04cd14197a6b936287f9ec077",
"to_name": null,
"type": null,
"value": {
"end": 1431,
"labels": [
"NONE"
],
"start": 1354,
"text": "3. Heard the learned Counsel for the petitioner and learned Public Prosecutor"
}
},
{
"from_name": null,
"id": "c2181547fe664e4792458405ee035f06",
"to_name": null,
"type": null,
"value": {
"end": 1593,
"labels": [
"ISSUE"
],
"start": 1431,
"text": ".\n 4. The points that arise for my consideration are: 1) Whether the petitioner is entitled for anticipatory bail as prayed in the petition ?\n 2) What order ?\n 5."
}
},
{
"from_name": null,
"id": "8ff34cfd43c7478784b527d7042cdd36",
"to_name": null,
"type": null,
"value": {
"end": 1756,
"labels": [
"NONE"
],
"start": 1594,
"text": "My answers to the above points are as under: Point No.(1) :: In the Affirmative, Point No.(2) :: As per the final order, for the following: REASONS 6. Point No.1:"
}
},
{
"from_name": null,
"id": "ec5f8d5067ca4f8db5c83786f3d88229",
"to_name": null,
"type": null,
"value": {
"end": 2123,
"labels": [
"NONE"
],
"start": 1757,
"text": "The petitioner is apprehending his arrest at the hands of the respondent in the criminal case bearing Crime No.244/2015 on the file of Nanjangud Rural Police Station, for the alleged offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C. Hence, the anticipatory bail application is filed by the petitioner under Section 438 of Cr.P.C.\n 7."
}
},
{
"from_name": null,
"id": "23314967134345dfaff24b379012d816",
"to_name": null,
"type": null,
"value": {
"end": 2274,
"labels": [
"FAC"
],
"start": 2124,
"text": "The records placed before the Court reveal that, criminal case is registered on the basis of the first information filed by Sri.Somanna on 17.12.2015."
}
},
{
"from_name": null,
"id": "521eb9990841459088a941e6c44e9cb4",
"to_name": null,
"type": null,
"value": {
"end": 2421,
"labels": [
"FAC"
],
"start": 2275,
"text": "In the complaint, it is alleged that, he is working as Development Officer in Kasuvinahalli Grama 3 Crl.Mis.No.2 475/15 Panchayath since 1 years."
}
},
{
"from_name": null,
"id": "016b9dd5fc27418fbc39c1c5f74fdc5d",
"to_name": null,
"type": null,
"value": {
"end": 2525,
"labels": [
"FAC"
],
"start": 2422,
"text": "Their Grama Panchayath has undertook certain developmental works from Government side under NMR Scheme."
}
},
{
"from_name": null,
"id": "d4365ad87f644cb4b172fc29f6c5e3ae",
"to_name": null,
"type": null,
"value": {
"end": 2602,
"labels": [
"FAC"
],
"start": 2526,
"text": "Likewise, one house has been granted in favour of Nanjamani, W/o. Chikkanna."
}
},
{
"from_name": null,
"id": "84ad400ef9664238a40885ef84f1100f",
"to_name": null,
"type": null,
"value": {
"end": 2931,
"labels": [
"FAC"
],
"start": 2603,
"text": "Though the bill amount at first instance has been released, on 17.12.2015 at about 04.15 p.m., when he was in his Office, one Nandish-the son of Chikkanna and his friends illegally trespassed into the Office, abused in filthy language, prevented him from discharging his public duty and committed mischief by damaging one chair."
}
},
{
"from_name": null,
"id": "9ac79d97244143f9a27e78388edac8e5",
"to_name": null,
"type": null,
"value": {
"end": 2994,
"labels": [
"FAC"
],
"start": 2931,
"text": "\nFurther, they have also threatened him with dire consequences."
}
},
{
"from_name": null,
"id": "5693519804474f65b5b72fdbc41abadf",
"to_name": null,
"type": null,
"value": {
"end": 3089,
"labels": [
"FAC"
],
"start": 2994,
"text": "\nHence, the complainant has requested the Police to take action against the Nandish and others."
}
},
{
"from_name": null,
"id": "fcdb76a6af5145dabfd3d3503a079f6b",
"to_name": null,
"type": null,
"value": {
"end": 3204,
"labels": [
"ARG_RESPONDENT"
],
"start": 3089,
"text": "\n 8. The learned Public Prosecutor submits that, the offences alleged against the petitioner are serious in nature."
}
},
{
"from_name": null,
"id": "402f051cb2164eb1924806b3564009be",
"to_name": null,
"type": null,
"value": {
"end": 3259,
"labels": [
"ARG_RESPONDENT"
],
"start": 3205,
"text": "The petitioner is absconding from the date of offence."
}
},
{
"from_name": null,
"id": "f9e7029318ab41ff8e36183386896512",
"to_name": null,
"type": null,
"value": {
"end": 3353,
"labels": [
"ARG_RESPONDENT"
],
"start": 3260,
"text": "He has not produced any documents in respect of his occupation, residence and identification."
}
},
{
"from_name": null,
"id": "9a4f25be89874a3c8dc799332816ac72",
"to_name": null,
"type": null,
"value": {
"end": 3413,
"labels": [
"ARG_RESPONDENT"
],
"start": 3354,
"text": "He has not given sufficient reason for his release on bail."
}
},
{
"from_name": null,
"id": "4f0177506a18445f97e1d757a9f91468",
"to_name": null,
"type": null,
"value": {
"end": 3449,
"labels": [
"ARG_RESPONDENT"
],
"start": 3414,
"text": "Investigation is not yet completed."
}
},
{
"from_name": null,
"id": "35652c4f7ce54dcaa39f6268771f0571",
"to_name": null,
"type": null,
"value": {
"end": 3606,
"labels": [
"ARG_RESPONDENT"
],
"start": 3450,
"text": "If at this stage, the petitioner is enlarged on bail, he may abscond, tamper the prosecution witnesses, commit similar offence and hamper the investigation."
}
},
{
"from_name": null,
"id": "65ff154813d74a27abf9a94a9b2d702d",
"to_name": null,
"type": null,
"value": {
"end": 3687,
"labels": [
"ARG_RESPONDENT"
],
"start": 3607,
"text": "Hence, the learned Public Prosecutor has requested to dismiss the bail petition."
}
},
{
"from_name": null,
"id": "c3dad0ab43054b85ba96e6f97f1632b9",
"to_name": null,
"type": null,
"value": {
"end": 3877,
"labels": [
"ARG_PETITIONER"
],
"start": 3687,
"text": "\n 9. On the other hand, the learned Counsel for the petitioner submits that, the petitioner is an innocent, law abiding citizen and he has not committed any offence as alleged by the Police."
}
},
{
"from_name": null,
"id": "474a8a5269fe4684b177b38f21302600",
"to_name": null,
"type": null,
"value": {
"end": 3921,
"labels": [
"ARG_PETITIONER"
],
"start": 3877,
"text": "\nHe has been falsely implicated in the case."
}
},
{
"from_name": null,
"id": "81e2c468f5de41428a92382a1b5ea202",
"to_name": null,
"type": null,
"value": {
"end": 3991,
"labels": [
"ARG_PETITIONER"
],
"start": 3922,
"text": "In the complaint, the allegations are made only against accused No.1."
}
},
{
"from_name": null,
"id": "2639c7dd5d524194a737297e296aa29c",
"to_name": null,
"type": null,
"value": {
"end": 4048,
"labels": [
"ARG_PETITIONER"
],
"start": 3992,
"text": "The petitioner is the only earning member in his family."
}
},
{
"from_name": null,
"id": "073cb6f3755149d98ae77bac8e528f91",
"to_name": null,
"type": null,
"value": {
"end": 4149,
"labels": [
"ARG_PETITIONER"
],
"start": 4049,
"text": "If he is not released 4 on bail, he and his family members will be put to great hardship and injury."
}
},
{
"from_name": null,
"id": "42fc3e4f232c4a51b12ca155508e6465",
"to_name": null,
"type": null,
"value": {
"end": 4222,
"labels": [
"ARG_PETITIONER"
],
"start": 4150,
"text": "The offences alleged are not punishable with death or life imprisonment."
}
},
{
"from_name": null,
"id": "ea652fc1834847bd9b2dcbcd9801d55c",
"to_name": null,
"type": null,
"value": {
"end": 4308,
"labels": [
"ARG_PETITIONER"
],
"start": 4223,
"text": "The petitioner is the permanent resident of Kasuvinahalli Village of Nanjangud Taluk."
}
},
{
"from_name": null,
"id": "1f5d591f0eb94073a862b1bf5b4edddd",
"to_name": null,
"type": null,
"value": {
"end": 4379,
"labels": [
"ARG_PETITIONER"
],
"start": 4309,
"text": "He is an agriculturist and owns both movable and immovable properties."
}
},
{
"from_name": null,
"id": "9a14e980e939402888cb38d880844535",
"to_name": null,
"type": null,
"value": {
"end": 4594,
"labels": [
"ARG_PETITIONER"
],
"start": 4380,
"text": "The learned Counsel for the petitioner submits that his client is ready to abide by any conditions that may be imposed by this Court and make himself available before the Investigating Officer as and when required."
}
},
{
"from_name": null,
"id": "c08fd34cb18d4dd886e83a796be319a1",
"to_name": null,
"type": null,
"value": {
"end": 4667,
"labels": [
"ARG_PETITIONER"
],
"start": 4595,
"text": "Hence, requested to grant anticipatory bail in favour of the petitioner."
}
},
{
"from_name": null,
"id": "c351dceb99a74e26842ef634d4dec587",
"to_name": null,
"type": null,
"value": {
"end": 4891,
"labels": [
"ANALYSIS"
],
"start": 4669,
"text": "10. After going through the records, this Court is of the considered opinion that, the alleged offences are not exclusively punishable by death or life imprisonment and all the offences are triable by the Magistrate Court."
}
},
{
"from_name": null,
"id": "39e1adf72053414ab9cf0d388e6dad89",
"to_name": null,
"type": null,
"value": {
"end": 5074,
"labels": [
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],
"start": 4892,
"text": "Further, the learned Counsel appearing for the petitioner has submitted that accused No.1 is already on bail, hence on the ground of parity, the petitioner is also entitled for bail."
}
},
{
"from_name": null,
"id": "4d4baa28ab554729888be8c8637f7436",
"to_name": null,
"type": null,
"value": {
"end": 5148,
"labels": [
"ANALYSIS"
],
"start": 5075,
"text": "The petitioner is permanent resident of Kasuvinahalli of Nanjangud Taluk."
}
},
{
"from_name": null,
"id": "4f587e819fb142558776225406bf30a7",
"to_name": null,
"type": null,
"value": {
"end": 5217,
"labels": [
"ANALYSIS"
],
"start": 5149,
"text": "Hence, there is no chance of his absconding or fleeing from justice."
}
},
{
"from_name": null,
"id": "cc956511f03949b38836ee3b5aa36e6d",
"to_name": null,
"type": null,
"value": {
"end": 5431,
"labels": [
"ARG_PETITIONER"
],
"start": 5218,
"text": "The learned Counsel for the petitioner submits that his client has undertaken to abide by any conditions that may be imposed by this Court and also to make himself available for investigation as and when required."
}
},
{
"from_name": null,
"id": "41bf837e5609418187b87aa211533a23",
"to_name": null,
"type": null,
"value": {
"end": 5513,
"labels": [
"RATIO"
],
"start": 5432,
"text": "The submission made by the learned Counsel for the petitioner is taken on record."
}
},
{
"from_name": null,
"id": "937277e47a4e4181939a8fd4770e8eee",
"to_name": null,
"type": null,
"value": {
"end": 5621,
"labels": [
"RATIO"
],
"start": 5514,
"text": "Hence, the apprehension of the learned Public Prosecutor could be met with by imposing suitable conditions."
}
},
{
"from_name": null,
"id": "57de766f5bef41c084e3bb8018288ac5",
"to_name": null,
"type": null,
"value": {
"end": 5684,
"labels": [
"RPC"
],
"start": 5621,
"text": "\nWith these observations, I hold point No.1 in the affirmative."
}
},
{
"from_name": null,
"id": "60dbc4f2744a4b628cc93e3b67ae7ff8",
"to_name": null,
"type": null,
"value": {
"end": 5701,
"labels": [
"RPC"
],
"start": 5684,
"text": "\n 11. Point No.2:"
}
},
{
"from_name": null,
"id": "8e8576cdac144ef19676d7893b0cfb41",
"to_name": null,
"type": null,
"value": {
"end": 5881,
"labels": [
"RPC"
],
"start": 5702,
"text": "In view of my finding on point No.1 in the affirmative, I proceed to pass the following: 3 Crl.Mis.No.2 475/15 ORDER The petition filed under Section 438 of Cr.P.C. is allowed.\n "
}
},
{
"from_name": null,
"id": "022c9c4dc52b4721ab4d282275b38cda",
"to_name": null,
"type": null,
"value": {
"end": 6677,
"labels": [
"RPC"
],
"start": 5881,
"text": "The petitioner is ordered to be released on anticipatory bail in the event of his arrest by the Police in Crime No.244/2015 for the offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C., on executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with one surety for the likesum to the satisfaction of the Investigating Officer within 15 days from this day, subject to the following conditions: 1. The petitioner shall surrender before the concerned Investigating Officer within 15 days from this day without fail and execute the bond as indicated above; 2. The petitioner shall co-operate in conducting due investigation; 3. The petitioner shall not hold out threats to the prosecution witnesses and shall not try to lure or tamper them in any manner; 4."
}
},
{
"from_name": null,
"id": "d125ebb5c3114d5793f2a034d1e28549",
"to_name": null,
"type": null,
"value": {
"end": 6930,
"labels": [
"RPC"
],
"start": 6678,
"text": "The petitioner shall not involve himself in any kind of criminal activities; 5. The petitioner shall make himself available before the Investigating Officer whenever his presence is required for further investigation and assist in the investigation; 6."
}
},
{
"from_name": null,
"id": "19710cb4abcf4bafa9c726d5845dfad1",
"to_name": null,
"type": null,
"value": {
"end": 7106,
"labels": [
"RPC"
],
"start": 6931,
"text": "The petitioner shall mark his attendance before the concerned Police Station on 1st and 16th of every month, between 10.00 a.m. and 5.00 p.m., till filing of charge- sheet; 7."
}
},
{
"from_name": null,
"id": "0233a270108044178ab2b65c05e695c0",
"to_name": null,
"type": null,
"value": {
"end": 7284,
"labels": [
"RPC"
],
"start": 7107,
"text": "The petitioner shall move for regular bail before the concerned Court within 30 days from this day and this order will be in force till that regular bail application is decided."
}
},
{
"from_name": null,
"id": "336e8e9569864eb08d3908279035da4a",
"to_name": null,
"type": null,
"value": {
"end": 7420,
"labels": [
"RPC"
],
"start": 7284,
"text": "\nIt is made clear that regular bail 6 application will be decided by the concerned Court independently being uninfluenced by this Order."
}
},
{
"from_name": null,
"id": "15777aa59b5e4dd3930226711d899ece",
"to_name": null,
"type": null,
"value": {
"end": 7580,
"labels": [
"NONE"
],
"start": 7420,
"text": "\n ( Dictated to the judgment writer, transcribed by her and after corrections, signed and pronounced by me in open Court on this the 5th day of January, 2016. )"
}
},
{
"from_name": null,
"id": "25a90f4bc100434391873b5dcf11586f",
"to_name": null,
"type": null,
"value": {
"end": 7603,
"labels": [
"NONE"
],
"start": 7581,
"text": "( Shridevi S. Angadi )"
}
},
{
"from_name": null,
"id": "8036a4a16cc645ce96898c503f82dac9",
"to_name": null,
"type": null,
"value": {
"end": 7635,
"labels": [
"NONE"
],
"start": 7604,
"text": "I Addl. Sessions Judge, Mysuru."
}
},
{
"from_name": null,
"id": "2d987ff039054213acf3acddddc71530",
"to_name": null,
"type": null,
"value": {
"end": 7659,
"labels": [
"NONE"
],
"start": 7635,
"text": "\n 3 Crl.Mis.No.2 475/15"
}
}
]
}
] | 4,182 | {
"text": "IN THE COURT OF THE I ADDL. SESSIONS JUDGE AT\n MYSURU\n\n Dated this the 5th day of January, 2016\n\n PRESENT: Smt. Shridevi S.Angadi, B.A., LL.M.,\n I Addl. Sessions Judge,\n Mysuru.\n ***\n\n CRIMINAL MISC. No.2475/2015\n\nPetitioner: Mallesh S/o. Ramanna, aged\n\n about 25 years, R/at\n\n Kasuvinahalli Village, Kasaba\n\n Hobli, Nanjangud Taluk.\n\n ( By Sri.K.Tharakaraman, Advocate )\n\n -Vs-\n\nRespondent: State of Karnataka, represented\n by Nanjangud Rural Police,\n Station, Nanjangud Taluk.\n\n ( By Learned Public Prosecutor )\n ***\n\n ORDERS ON BAIL PETITION FILED BY THE PETITIONER UNDER SECTION 438 OF Cr.P.C.\n ] This criminal petition is filed by the petitioner under Section 438 of Code of Criminal Procedure, praying to enlarge him on anticipatory bail in the event of his arrest in Crime No.244/2015 of Nanjangud Rural Police Station, which is registered for the offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C.\n 2 2. The learned Public Prosecutor has filed objection statement and opposed the bail petition.\n 3. Heard the learned Counsel for the petitioner and learned Public Prosecutor.\n 4. The points that arise for my consideration are: 1) Whether the petitioner is entitled for anticipatory bail as prayed in the petition ?\n 2) What order ?\n 5. My answers to the above points are as under: Point No.(1) :: In the Affirmative, Point No.(2) :: As per the final order, for the following: REASONS 6. Point No.1: The petitioner is apprehending his arrest at the hands of the respondent in the criminal case bearing Crime No.244/2015 on the file of Nanjangud Rural Police Station, for the alleged offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C. Hence, the anticipatory bail application is filed by the petitioner under Section 438 of Cr.P.C.\n 7. The records placed before the Court reveal that, criminal case is registered on the basis of the first information filed by Sri.Somanna on 17.12.2015. In the complaint, it is alleged that, he is working as Development Officer in Kasuvinahalli Grama 3 Crl.Mis.No.2 475/15 Panchayath since 1 years. Their Grama Panchayath has undertook certain developmental works from Government side under NMR Scheme. Likewise, one house has been granted in favour of Nanjamani, W/o. Chikkanna. Though the bill amount at first instance has been released, on 17.12.2015 at about 04.15 p.m., when he was in his Office, one Nandish-the son of Chikkanna and his friends illegally trespassed into the Office, abused in filthy language, prevented him from discharging his public duty and committed mischief by damaging one chair.\nFurther, they have also threatened him with dire consequences.\nHence, the complainant has requested the Police to take action against the Nandish and others.\n 8. The learned Public Prosecutor submits that, the offences alleged against the petitioner are serious in nature. The petitioner is absconding from the date of offence. He has not produced any documents in respect of his occupation, residence and identification. He has not given sufficient reason for his release on bail. Investigation is not yet completed. If at this stage, the petitioner is enlarged on bail, he may abscond, tamper the prosecution witnesses, commit similar offence and hamper the investigation. Hence, the learned Public Prosecutor has requested to dismiss the bail petition.\n 9. On the other hand, the learned Counsel for the petitioner submits that, the petitioner is an innocent, law abiding citizen and he has not committed any offence as alleged by the Police.\nHe has been falsely implicated in the case. In the complaint, the allegations are made only against accused No.1. The petitioner is the only earning member in his family. If he is not released 4 on bail, he and his family members will be put to great hardship and injury. The offences alleged are not punishable with death or life imprisonment. The petitioner is the permanent resident of Kasuvinahalli Village of Nanjangud Taluk. He is an agriculturist and owns both movable and immovable properties. The learned Counsel for the petitioner submits that his client is ready to abide by any conditions that may be imposed by this Court and make himself available before the Investigating Officer as and when required. Hence, requested to grant anticipatory bail in favour of the petitioner.\n 10. After going through the records, this Court is of the considered opinion that, the alleged offences are not exclusively punishable by death or life imprisonment and all the offences are triable by the Magistrate Court. Further, the learned Counsel appearing for the petitioner has submitted that accused No.1 is already on bail, hence on the ground of parity, the petitioner is also entitled for bail. The petitioner is permanent resident of Kasuvinahalli of Nanjangud Taluk. Hence, there is no chance of his absconding or fleeing from justice. The learned Counsel for the petitioner submits that his client has undertaken to abide by any conditions that may be imposed by this Court and also to make himself available for investigation as and when required.\nThe submission made by the learned Counsel for the petitioner is taken on record. Hence, the apprehension of the learned Public Prosecutor could be met with by imposing suitable conditions.\nWith these observations, I hold point No.1 in the affirmative.\n 11. Point No.2: In view of my finding on point No.1 in the affirmative, I proceed to pass the following: 3 Crl.Mis.No.2 475/15 ORDER The petition filed under Section 438 of Cr.P.C. is allowed.\n The petitioner is ordered to be released on anticipatory bail in the event of his arrest by the Police in Crime No.244/2015 for the offences punishable under Section 448, 504, 506, 427, 353 r/w Section 34 of I.P.C., on executing personal bond for Rs.50,000/- (Rupees fifty thousand only) with one surety for the likesum to the satisfaction of the Investigating Officer within 15 days from this day, subject to the following conditions: 1. The petitioner shall surrender before the concerned Investigating Officer within 15 days from this day without fail and execute the bond as indicated above; 2. The petitioner shall co-operate in conducting due investigation; 3. The petitioner shall not hold out threats to the prosecution witnesses and shall not try to lure or tamper them in any manner; 4. The petitioner shall not involve himself in any kind of criminal activities; 5. The petitioner shall make himself available before the Investigating Officer whenever his presence is required for further investigation and assist in the investigation; 6. The petitioner shall mark his attendance before the concerned Police Station on 1st and 16th of every month, between 10.00 a.m. and 5.00 p.m., till filing of charge- sheet; 7. The petitioner shall move for regular bail before the concerned Court within 30 days from this day and this order will be in force till that regular bail application is decided.\nIt is made clear that regular bail 6 application will be decided by the concerned Court independently being uninfluenced by this Order.\n ( Dictated to the judgment writer, transcribed by her and after corrections, signed and pronounced by me in open Court on this the 5th day of January, 2016. ) ( Shridevi S. Angadi ) I Addl. Sessions Judge, Mysuru.\n 3 Crl.Mis.No.2 475/15 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "a2689093f38f4fd9b23cc91a99c6442a",
"to_name": null,
"type": null,
"value": {
"end": 109,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME TAX, DELHI ANDRAJASTHAN\n\n Vs.\n\nRESPONDENT:\nM/S NATIONAL FINANCE LTD."
}
},
{
"from_name": null,
"id": "794d859565d54243995e644c01fe5477",
"to_name": null,
"type": null,
"value": {
"end": 139,
"labels": [
"PREAMBLE"
],
"start": 109,
"text": "\n\nDATE OF JUDGMENT:\n29/01/1962"
}
},
{
"from_name": null,
"id": "5e088b1f6eff4f3f9f4fa618a3e3835f",
"to_name": null,
"type": null,
"value": {
"end": 877,
"labels": [
"PREAMBLE"
],
"start": 139,
"text": "\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, S.K.\nSHAH, J.C.\n\nCITATION:\n\n1963 AIR 835 1962 SCR Supl. (2) 865\n\nCITATOR INFO : (4)\n (20)\nE 1970 SC1815\n\nR 1971 SC 794\n\nACT:\n Income Tax-Capital loss or trading loss-\n\nDealer in spares-Acquisition of shares to get\nagency of company-Subsequent sale of shares\nincurring loss-Whether trading loss-Application to\nTribunal dismissed as barred by limitation-\nReference to High Court dismissed-Appeal by\nSpecial Leave against Tribunal's decision-\nMaintainability.\n\nHEADNOTE:\n The respondent was a company dealing in\n\nshares and securities and belonged to a group of\ncompanies all controlled by the same-persons."
}
},
{
"from_name": null,
"id": "ec59d8abcd1344c0a9606971e826fd14",
"to_name": null,
"type": null,
"value": {
"end": 1135,
"labels": [
"PREAMBLE"
],
"start": 878,
"text": "In\nthe year of account, corresponding to the\nassessment year 1951-52, the respondent sold the\nshares relating to Madhusudan Mills Ltd., which it\nhad acquired sometime earlier, suffering a loss\nfor which it claimed a set-off against the profits\nin that year."
}
},
{
"from_name": null,
"id": "7246318f1c2f4444ba4d193abe8b3968",
"to_name": null,
"type": null,
"value": {
"end": 1703,
"labels": [
"PREAMBLE"
],
"start": 1136,
"text": "The Income-tax Officer found that\nthe shares in question had been purchased by J, a\ncompany belonging to the group, at a price which\nwas almost double the current market price, that\nit was so done with a view to removing the sellers\nfrom their managing agency and to securing for the\nrespondent the purchasing and selling agency of\nthe Mills, and that after the purchase J achieved\nthe purpose in view of its controlling interest\nand the purchasing and selling agency of the Mills\nwas given to the respondent, though the latter had\ndone no more than give a loan to J."
}
},
{
"from_name": null,
"id": "508275d602d14233b62c8ad874ad4c10",
"to_name": null,
"type": null,
"value": {
"end": 1938,
"labels": [
"PREAMBLE"
],
"start": 1704,
"text": "It was also\nfound that soon after the purchase the shares in\nquestion came into the possession of the\nrespondent and that when the shares were sold it\nwas not in the market but at a loss to another\ncompany belonging to the same group."
}
},
{
"from_name": null,
"id": "99358c81b07140dfb133600d38304761",
"to_name": null,
"type": null,
"value": {
"end": 2125,
"labels": [
"PREAMBLE"
],
"start": 1939,
"text": "The Income\ntax Officer came to the conclusion that in getting\nthe shares the respondent did not deal with them\n\nas stock-in-trade but was acquiring a capital\nasset of an enduring nature."
}
},
{
"from_name": null,
"id": "16d4180037944ca5b1c91476844fe31a",
"to_name": null,
"type": null,
"value": {
"end": 2203,
"labels": [
"PREAMBLE"
],
"start": 2126,
"text": "Accordingly, he\ndisallowed the claim holding the loss to be a a\ncapital loss."
}
},
{
"from_name": null,
"id": "68b1d8f84cf54a6fa60fee95fae8bdec",
"to_name": null,
"type": null,
"value": {
"end": 2362,
"labels": [
"PREAMBLE"
],
"start": 2204,
"text": "The Appellate Tribunal, however,\nheld in favour of the respondent on the view that\na distinction must be made between the respondent\ncompany and J.\n\n "
}
},
{
"from_name": null,
"id": "c8d365fac9774eb99a10f1e84ff48111",
"to_name": null,
"type": null,
"value": {
"end": 2626,
"labels": [
"PREAMBLE"
],
"start": 2362,
"text": "The Commissioner of Income-tax moved the\nTribunal for a reference to the High Court, but it\nwas dismissed on the ground that though it was\nbarred only by one day and there was no negligence\non the part of the Commissioner, the Tribunal had\nno power to extend time."
}
},
{
"from_name": null,
"id": "1423bb9648624f85b645237957a8411e",
"to_name": null,
"type": null,
"value": {
"end": 2679,
"labels": [
"PREAMBLE"
],
"start": 2627,
"text": "An application to the\nHigh Court was also dismissed."
}
},
{
"from_name": null,
"id": "d7bede33768c4cf3b9e3ea12f562e885",
"to_name": null,
"type": null,
"value": {
"end": 2710,
"labels": [
"PREAMBLE"
],
"start": 2680,
"text": "The Commissioner of\nIncome-tax"
}
},
{
"from_name": null,
"id": "6493edb811a24ea4803c76fa3adb8def",
"to_name": null,
"type": null,
"value": {
"end": 2800,
"labels": [
"PREAMBLE"
],
"start": 2711,
"text": "then applied for and got special leave\nto appeal againstthe order passed by the Tribunal."
}
},
{
"from_name": null,
"id": "309bfc1e00404efb8d9a1c2cec1450aa",
"to_name": null,
"type": null,
"value": {
"end": 3080,
"labels": [
"PREAMBLE"
],
"start": 2801,
"text": "When the appeal\ncame on for hearing in due course the respondent\nraised an objection that the appeal was not\nmaintainable because no appeal was filed against\nthe order of the High Court, and relied on the\ndecision in Chandi Prasad Chokani v. State of\nBihar, (1962) 2 S.C.R. 276.\n"
}
},
{
"from_name": null,
"id": "2d3acffde74346bb9a12153df3c03f73",
"to_name": null,
"type": null,
"value": {
"end": 3362,
"labels": [
"PREAMBLE"
],
"start": 3080,
"text": "^\n\n Held, that the appeal was maintainable\nbecause there was no question of by-passing the\norder of the High Court which only related to the\ncorrectness of the decision of the Tribunal on the\nquestion of limitation which was not the subject\nof the present appeal.\n\n "
}
},
{
"from_name": null,
"id": "a3fbf179a9a54bf39620dc4d47a4053d",
"to_name": null,
"type": null,
"value": {
"end": 3458,
"labels": [
"PREAMBLE"
],
"start": 3362,
"text": "Held, further, that there were special\ncircumstances which justified the grant of special\nleave."
}
},
{
"from_name": null,
"id": "36b03391ebc84e2fafab2427d399e296",
"to_name": null,
"type": null,
"value": {
"end": 3643,
"labels": [
"PREAMBLE"
],
"start": 3458,
"text": "\n\n Baldev Singh v. Commissioner of Income-tax\n(1960), 40 I.T.R. 605, applied.\n\n Chandi Prasad Chokhani v. State of Bihar\n(1962), 2 S.C.R. 276, distinghuished.\n\n "
}
},
{
"from_name": null,
"id": "7d858c72e7aa47329556db1e11874314",
"to_name": null,
"type": null,
"value": {
"end": 4013,
"labels": [
"PREAMBLE"
],
"start": 3643,
"text": "Held, also, that, on the facts, the object\nwas to purchase a large block of shares at a much\nlarger price than the market value to acquire\ncertain agencies of a profitable character, that\nthe purchase of the shares by J was merely a\ndevice but the controlling interest was acquired\nby the respondent, and that the transaction must\nbe regarded as one on the capital side."
}
},
{
"from_name": null,
"id": "08a40be225374729be582a3bcb6740e5",
"to_name": null,
"type": null,
"value": {
"end": 4164,
"labels": [
"PREAMBLE"
],
"start": 4013,
"text": "\n\n Ramanarain Sons (P.) Ltd. v. Commissioner of\nIncome-tax, (1961) 2 S.C.R. 904 and Oriental\nInvestment Co. Ltd. v. Commissioner of Income-tax,"
}
},
{
"from_name": null,
"id": "e9de5d03efa04f529c0768de134998a6",
"to_name": null,
"type": null,
"value": {
"end": 4190,
"labels": [
"PREAMBLE"
],
"start": 4164,
"text": "\n(1958) S.C.R. 49, applied"
}
},
{
"from_name": null,
"id": "9b91e574dad34555842f54c88abe6cc1",
"to_name": null,
"type": null,
"value": {
"end": 4262,
"labels": [
"PREAMBLE"
],
"start": 4190,
"text": ".\n\n Salomon v. Salomon & Co. Ltd. (1897) A.C. 22,\ndistinguished."
}
},
{
"from_name": null,
"id": "c8611ee3d9984928822f39a65483f375",
"to_name": null,
"type": null,
"value": {
"end": 4273,
"labels": [
"PREAMBLE"
],
"start": 4262,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "8ac009dcc12048448c2ccb0ec7ac2933",
"to_name": null,
"type": null,
"value": {
"end": 4342,
"labels": [
"NONE"
],
"start": 4273,
"text": "\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 559 of 1960."
}
},
{
"from_name": null,
"id": "8771f46844394f2dad4bb445239cd0d1",
"to_name": null,
"type": null,
"value": {
"end": 4572,
"labels": [
"NONE"
],
"start": 4342,
"text": "\n Appeal by special leave from the judgment and order dated May 1/14, 1957, of the Income Tax Appellate Tribunal of India (Delhi Bench) in I.T.A. No. 2070 of 1956-57.\n K.N. Rajagopal Sastri and D. Gupta, for the appellant."
}
},
{
"from_name": null,
"id": "aae0218e850646e693f76d5ee24d50ba",
"to_name": null,
"type": null,
"value": {
"end": 4630,
"labels": [
"NONE"
],
"start": 4572,
"text": "\n Radhey Lal Agarwal and P.C. Agarwal for the respondents."
}
},
{
"from_name": null,
"id": "e1f06ab0673e43a4ae065895641c510c",
"to_name": null,
"type": null,
"value": {
"end": 4645,
"labels": [
"NONE"
],
"start": 4630,
"text": "\n 1962."
}
},
{
"from_name": null,
"id": "e258abdbe8bc47759bf41bddf90e38a6",
"to_name": null,
"type": null,
"value": {
"end": 4657,
"labels": [
"NONE"
],
"start": 4646,
"text": "January 29."
}
},
{
"from_name": null,
"id": "07892101f0a74dc5a36f8ae41d28e381",
"to_name": null,
"type": null,
"value": {
"end": 4722,
"labels": [
"FAC"
],
"start": 4658,
"text": "The Judgment of the Court was delivered by HIDAYATULLAH, J.-This"
}
},
{
"from_name": null,
"id": "b37bd47817c4446f8a0a07d5fffac0ae",
"to_name": null,
"type": null,
"value": {
"end": 5013,
"labels": [
"FAC"
],
"start": 4723,
"text": "is an appeal against the order of the Income-tax Appellate Tribunal, Delhi Bench, dated May 1/14, 1957, by which the tribunal, reversing the order of the Appellate Assistant Commissioner, held that a loss arising from the sale of certain shares by the respondent Company was a capital loss."
}
},
{
"from_name": null,
"id": "00b98b30f3044f60992aa77c9bf43dc4",
"to_name": null,
"type": null,
"value": {
"end": 5286,
"labels": [
"FAC"
],
"start": 5014,
"text": "Subsequent to the order of the Tribunal impugned here, the Commissioner of Income-tax, New Delhi, who is the appellant before us, had moved the Tribunal for a reference to the High Court on certain questions of law said to arise out of the order of the Appellate Tribunal."
}
},
{
"from_name": null,
"id": "f12c16769a5645d0be1476c32c0c14f9",
"to_name": null,
"type": null,
"value": {
"end": 5448,
"labels": [
"FAC"
],
"start": 5287,
"text": "That application was found to be barred by one day, and since, under the law, the Tribunal had no jurisdiction to extend the time, the application was dismissed."
}
},
{
"from_name": null,
"id": "2c873190e9714555be79253b189a09ad",
"to_name": null,
"type": null,
"value": {
"end": 5713,
"labels": [
"FAC"
],
"start": 5449,
"text": "Against the decision of the Tribunal, an application was filed in the High Court under s. 66(3) of the Income-tax Act; but the High Court dismissed the application, agreeing with the Tribunal that the application to the Tribunal for a reference was barred by time."
}
},
{
"from_name": null,
"id": "517d690c25134c4087d629e275edb142",
"to_name": null,
"type": null,
"value": {
"end": 5901,
"labels": [
"FAC"
],
"start": 5713,
"text": "\nThe Commissioner of Income-tax then applied for special leave against the order passed by the Tribunal in the appeal before it, and the present appeal, with special leave, has been filed."
}
},
{
"from_name": null,
"id": "4a1d6d0d2cb34fda8a42dd2a999d0dc5",
"to_name": null,
"type": null,
"value": {
"end": 6564,
"labels": [
"ARG_RESPONDENT"
],
"start": 5901,
"text": "\n Before we examine the merits of the case, we shall deal with a preliminary objection raised on behalf of the respondent that the appeal is incomepetent, in view of the decision of this Court in Chandi Prasad Chokhani v. State of Bihar (1) where it was held that this Court would not entertain an appeal directly from an order of the Tribunal by passing the decision of the High Court, except in very exceptional circumstances.\nThe appellant relies upon the decision of this Court in Baldev Singh v. Commissioner of Income tax (2), and contendsthat the exceptional circumstances existing in the latter case and adverted to in the former, govern the present case."
}
},
{
"from_name": null,
"id": "e129911632624ad58f029570bd48ecc3",
"to_name": null,
"type": null,
"value": {
"end": 6786,
"labels": [
"FAC"
],
"start": 6566,
"text": "The facts relating to the filing of the application for reference together with the relevant dates are these: The Tribunal's order was passed by two learned Members, who signed their respective orders on different dates."
}
},
{
"from_name": null,
"id": "2fbb36b213f246afa0e6c95ba65c2df6",
"to_name": null,
"type": null,
"value": {
"end": 6883,
"labels": [
"FAC"
],
"start": 6787,
"text": "The Accountant Member signed his order on May 1, 1957, and the Judicial Member, on May 14, 1957."
}
},
{
"from_name": null,
"id": "f1ef8672c1b142418c7c5dc751897e72",
"to_name": null,
"type": null,
"value": {
"end": 7022,
"labels": [
"FAC"
],
"start": 6884,
"text": "The notice of the order was sent to the Commissioner of Income-tax, New Delhi, and reached his office by registered post on July 15, 1957."
}
},
{
"from_name": null,
"id": "9b4dfd7733494ce9a523e9c53e316c65",
"to_name": null,
"type": null,
"value": {
"end": 7104,
"labels": [
"FAC"
],
"start": 7023,
"text": "It was received by one Motilal Pathak, a clerk in the office of the Commissioner."
}
},
{
"from_name": null,
"id": "253d9af01b9645a9bec19aad8d4e35bf",
"to_name": null,
"type": null,
"value": {
"end": 7200,
"labels": [
"FAC"
],
"start": 7105,
"text": "Motilal's affidavit shows that, he suddenly fell ill, and had to take casual leave for the day."
}
},
{
"from_name": null,
"id": "1e00181d8bfa4757bd0744c36e0751e0",
"to_name": null,
"type": null,
"value": {
"end": 7294,
"labels": [
"FAC"
],
"start": 7201,
"text": "He returned to the office the next day, and dealt with the notice received from the Tribunal."
}
},
{
"from_name": null,
"id": "d8ae8bd6eb354dc082babcd5833badfb",
"to_name": null,
"type": null,
"value": {
"end": 7517,
"labels": [
"FAC"
],
"start": 7295,
"text": "By a mischance, which is easy to appreciate, the date stamp of the receipt of the papers was affixed on the 16th, and bore that date instead of the real date, viz., the 15th, on which the papers had actually been received."
}
},
{
"from_name": null,
"id": "1c87c97367f641a89524d2852d398b44",
"to_name": null,
"type": null,
"value": {
"end": 7656,
"labels": [
"FAC"
],
"start": 7518,
"text": "Relying upon the date stamp, everybody took it for granted that limitation would expire on the 60th day, counting time from July 16, 1957."
}
},
{
"from_name": null,
"id": "da836c24be5a41f6a832c244c62b5f13",
"to_name": null,
"type": null,
"value": {
"end": 7733,
"labels": [
"FAC"
],
"start": 7656,
"text": "\nThe application was filed on the last day of limitation on that supposition."
}
},
{
"from_name": null,
"id": "9efcbf150f484d4e91224b342844743a",
"to_name": null,
"type": null,
"value": {
"end": 7780,
"labels": [
"FAC"
],
"start": 7734,
"text": "Actually, the application was barred by a day."
}
},
{
"from_name": null,
"id": "abbb98dd01cb426b90443f7319553b8b",
"to_name": null,
"type": null,
"value": {
"end": 7863,
"labels": [
"FAC"
],
"start": 7781,
"text": "The Income-tax Tribunal, therefore, dismissed the application on December 4, 1957."
}
},
{
"from_name": null,
"id": "4a7f38be5a2d40d6ad7caf7e8e2928b9",
"to_name": null,
"type": null,
"value": {
"end": 7945,
"labels": [
"FAC"
],
"start": 7864,
"text": "The decision of the Tribunal was unsuccessfully challenged before the High Court."
}
},
{
"from_name": null,
"id": "12e98da735f14ec08eed26ca036ea7c1",
"to_name": null,
"type": null,
"value": {
"end": 8201,
"labels": [
"STA"
],
"start": 7945,
"text": "\nIt is evident that the decision of the Tribunal was quite correct, and the Tribunal had no option but to dismiss the application, since the law gives no jurisdiction to the Tribunal to extend limitation, as is done under s. 5 of the Indian Limitation Act."
}
},
{
"from_name": null,
"id": "f11bc192c50e44848ebc367b4cd67143",
"to_name": null,
"type": null,
"value": {
"end": 8430,
"labels": [
"ANALYSIS"
],
"start": 8201,
"text": "\n This Court then granted special leave against the order of the Tribunal passed in the appealbefore it, and the question is whether the appeal should be heard or the leave revoked, in view of the decision in Chokhani's case (1)."
}
},
{
"from_name": null,
"id": "0e41033e0b874167b65131374c8953ee",
"to_name": null,
"type": null,
"value": {
"end": 8674,
"labels": [
"ANALYSIS"
],
"start": 8431,
"text": "In Chokhani's case (1), the attempt was to bypass the decision of the High Court on a question referred to the High Court for decision and also another decision of the High Court that no other point of law arose from the order of the Tribunal."
}
},
{
"from_name": null,
"id": "9277e60e99aa42b9afcbd9a787abd1ff",
"to_name": null,
"type": null,
"value": {
"end": 8841,
"labels": [
"ANALYSIS"
],
"start": 8675,
"text": "It was held that this Court would not allow the High Court to be by-passed, and that an appeal from the decision of the Tribunal in the circumstances was incompetent."
}
},
{
"from_name": null,
"id": "a8dd9ea6b6ab433d95d484d5a6a6b6b7",
"to_name": null,
"type": null,
"value": {
"end": 9023,
"labels": [
"PRE_RELIED"
],
"start": 8841,
"text": "\nA similar view was again expressed in two other cases, viz., Indian Aluminium Co. Ltd. v.\nCommissioner of Income-tax (2) and Kanhaiyalal Lohia v. The Commissioner of Income-tax (3)."
}
},
{
"from_name": null,
"id": "f7689c189059469599fceb87e635ccf9",
"to_name": null,
"type": null,
"value": {
"end": 9244,
"labels": [
"ANALYSIS"
],
"start": 9024,
"text": "In all the three cases, reliance was placed by the appellants therein upon the decisions of this Court in Dhakeswari Cotton Mills, Ltd. v.\nCommissioner of Income-tax (4) and Baldev Singh v.\nCommissioner of Income-tax (5)"
}
},
{
"from_name": null,
"id": "bdb5d3338ca34977ad60c8aa9e5bb522",
"to_name": null,
"type": null,
"value": {
"end": 9383,
"labels": [
"ANALYSIS"
],
"start": 9245,
"text": "It was pointed out in the judgments of this Court that the two cases relied upon were decided on the special circumstances existing there."
}
},
{
"from_name": null,
"id": "09f4573ec759422caf3c131b2fd673ea",
"to_name": null,
"type": null,
"value": {
"end": 9558,
"labels": [
"ANALYSIS"
],
"start": 9384,
"text": "In the first, there was a question of breach of the principles of natural justice, which could not be raised otherwise than by an appeal with the special leave of this Court."
}
},
{
"from_name": null,
"id": "4a63ea82b02a40ff8fd09041ded46017",
"to_name": null,
"type": null,
"value": {
"end": 9709,
"labels": [
"ANALYSIS"
],
"start": 9559,
"text": "In the second case, it was pointed out that limitation was lost by the party through no fault of his, inasmuch as a letter was unduly delayed in post."
}
},
{
"from_name": null,
"id": "389cb57248e74a7497b4b258d0ea0dc9",
"to_name": null,
"type": null,
"value": {
"end": 9851,
"labels": [
"ANALYSIS"
],
"start": 9710,
"text": "In our opinion, in the present case also, special circumstances which justified the grant of special leave in Baldev Singh's case (5), exist."
}
},
{
"from_name": null,
"id": "44ce33bd2f7d46d88cddd353a32954fa",
"to_name": null,
"type": null,
"value": {
"end": 10070,
"labels": [
"ANALYSIS"
],
"start": 9852,
"text": "There was a combination of circumstances which led to the filing of the application a day late, but in circumstances showing that the default was not due to any negligence on the part of the Commissioner of Income-tax."
}
},
{
"from_name": null,
"id": "fc63786979ae483da00282f421285b4a",
"to_name": null,
"type": null,
"value": {
"end": 10287,
"labels": [
"ANALYSIS"
],
"start": 10071,
"text": "The receipt of the notice on July 15 is admitted; but the affixing of the date stamp on the 16th was due to the failure of theclerk to deal with the notice on the 15th because he fell ill and had to leave the office."
}
},
{
"from_name": null,
"id": "1732598894484ce1a3103dd46a9024fa",
"to_name": null,
"type": null,
"value": {
"end": 10415,
"labels": [
"ANALYSIS"
],
"start": 10288,
"text": "It is common knowledge that date stamps are altered every day in the office, and this is done mostly by a very junior employee."
}
},
{
"from_name": null,
"id": "9f02cbe1fbb94f578a22ff17ccba8916",
"to_name": null,
"type": null,
"value": {
"end": 10629,
"labels": [
"ANALYSIS"
],
"start": 10416,
"text": "The affixing of the date stamp on the 16th and the notice consequently bearing that date went unnoticed, and relying upon the date stamp, the appeal was filed, though on the last day of limitation but within time."
}
},
{
"from_name": null,
"id": "0e014f13f4c049bfa51b2631e48ed05e",
"to_name": null,
"type": null,
"value": {
"end": 10898,
"labels": [
"ANALYSIS"
],
"start": 10630,
"text": "In these circumstances, it is difficult to say that the Commissioner of Income-tax was negligent and the negligence, if any, on the part of the clerk in affixing a wrong date stamp is excusable, if one considers his illness and his absence from the office on the 15th."
}
},
{
"from_name": null,
"id": "1cc8a6621830440da3250e5faf60a440",
"to_name": null,
"type": null,
"value": {
"end": 11077,
"labels": [
"ANALYSIS"
],
"start": 10899,
"text": "In our opinion, this case comes within the rule of Baldev Singh's case (1) and an appeal direct to this Court from the Tribunal's order is justified by the special circumstances."
}
},
{
"from_name": null,
"id": "de691981a6324fcab0ef03bfb743fe31",
"to_name": null,
"type": null,
"value": {
"end": 11375,
"labels": [
"ANALYSIS"
],
"start": 11078,
"text": "By this appeal, no decision of the High Court can be said to be bypassed, because the decision of the High Court related to the correctness of the decision of the Tribunal on the question of limitation, which is not a question which is sought to be raised in an indirect way by the present appeal."
}
},
{
"from_name": null,
"id": "ccb1ea73d7b9471ab2f2e00269b43b2c",
"to_name": null,
"type": null,
"value": {
"end": 11426,
"labels": [
"ANALYSIS"
],
"start": 11376,
"text": "We, therefore, overrule the preliminary objection."
}
},
{
"from_name": null,
"id": "fddd796e4ae147929583d3456562fdde",
"to_name": null,
"type": null,
"value": {
"end": 11489,
"labels": [
"FAC"
],
"start": 11426,
"text": "\n The assessee Company is the National Finance Ltd., New Delhi."
}
},
{
"from_name": null,
"id": "94e736a817894641b03c1879606d1bb8",
"to_name": null,
"type": null,
"value": {
"end": 11552,
"labels": [
"FAC"
],
"start": 11490,
"text": "It is a public limited Company which was incorporated in 1943."
}
},
{
"from_name": null,
"id": "3c84aad5f70642709b357a3784fce336",
"to_name": null,
"type": null,
"value": {
"end": 11610,
"labels": [
"FAC"
],
"start": 11553,
"text": "It deals in shares and securities and also as financiers."
}
},
{
"from_name": null,
"id": "f5a0e405903a44db9c0f68197b7127fe",
"to_name": null,
"type": null,
"value": {
"end": 11725,
"labels": [
"FAC"
],
"start": 11611,
"text": "The present case arises from a deal in 3,000 shares of the Madhusudan Mills Ltd., Bombay, by the assessee Company."
}
},
{
"from_name": null,
"id": "e0b2ef558543443ab06da57bf44848fa",
"to_name": null,
"type": null,
"value": {
"end": 11965,
"labels": [
"FAC"
],
"start": 11726,
"text": "In the year of account, May 1, 1949, to April 30, 1950, corresponding to the assessment year, 1951-52, the assessee Company sold these shares suffering a loss of Rs. 5,48,712-8-0, which it claimed as one on the sale of its stock-in- trade."
}
},
{
"from_name": null,
"id": "3fad3d49c0094615a00580f450805353",
"to_name": null,
"type": null,
"value": {
"end": 12059,
"labels": [
"FAC"
],
"start": 11966,
"text": "The Income-tax Officer and the Appellate Assistant Commissioner held it to be a capital loss."
}
},
{
"from_name": null,
"id": "3365b87bd4454e7eb0a6047511e9c52c",
"to_name": null,
"type": null,
"value": {
"end": 12162,
"labels": [
"FAC"
],
"start": 12060,
"text": "TheAppellate Tribunal, Delhi Bench, reversed the decision, and held in favour of the assessee Company."
}
},
{
"from_name": null,
"id": "d9de6e68948b4f86ae362760bf3bd0a2",
"to_name": null,
"type": null,
"value": {
"end": 12245,
"labels": [
"ANALYSIS"
],
"start": 12163,
"text": "The only question in this appeal is whether the decision of the Tribunal is right."
}
},
{
"from_name": null,
"id": "1f9379ed86344ec09753f7313faad63e",
"to_name": null,
"type": null,
"value": {
"end": 12379,
"labels": [
"ANALYSIS"
],
"start": 12245,
"text": "\n The assessee Company belongs to a group of Companies controlled by one Lala Yodh Raj Bhalla and certain persons associated with him."
}
},
{
"from_name": null,
"id": "574ff5190cf5460b99e38da190d95251",
"to_name": null,
"type": null,
"value": {
"end": 12454,
"labels": [
"ANALYSIS"
],
"start": 12380,
"text": "It is convenient to describe these persons as the 'Yodh Raj Bhalla group'."
}
},
{
"from_name": null,
"id": "890c9cc8c1474a7fbb9eb9aaedada45d",
"to_name": null,
"type": null,
"value": {
"end": 12667,
"labels": [
"ANALYSIS"
],
"start": 12455,
"text": "These Companies are (1) Jaswant Sugar Mills Ltd., (2) Jaswant Straw Boards Ltd., (3) National Finance Ltd., (4) National Construction and Development Corporation Ltd., (5) Ganesh Finance Corporation Ltd., and (6)"
}
},
{
"from_name": null,
"id": "7769db7e45f14a44aa57f56f77fe05e1",
"to_name": null,
"type": null,
"value": {
"end": 12699,
"labels": [
"ANALYSIS"
],
"start": 12668,
"text": "Raghunath Investment Trust Ltd."
}
},
{
"from_name": null,
"id": "fc91efc69f82467685210c924614a88c",
"to_name": null,
"type": null,
"value": {
"end": 12727,
"labels": [
"ANALYSIS"
],
"start": 12700,
"text": "The interrelation of these."
}
},
{
"from_name": null,
"id": "ec28e94f203046d097aa84953dc80932",
"to_name": null,
"type": null,
"value": {
"end": 12818,
"labels": [
"ANALYSIS"
],
"start": 12727,
"text": "\nCompanies is very intimate, and they are practically owned by the 'Yodh Raj Bhalla group'."
}
},
{
"from_name": null,
"id": "5c065719972a4e5080abce39b98882cb",
"to_name": null,
"type": null,
"value": {
"end": 13195,
"labels": [
"ANALYSIS"
],
"start": 12819,
"text": "To understand this, the following analysis of the shareholdings of these Companies must be sufficient: (1) Jaswant Sugar Mills Ltd.\n 2,00,000 shares (i) Jaswant Straw Board Ltd.\n 44,845 (ii) National Finance Ltd.\n 67,390 (iii)National Construction and Development Corporation Ltd.\n 47,800 _______ 1,60, (i.e. over 80 per cent)"
}
},
{
"from_name": null,
"id": "a5d89e9f873e4fd4b47a73a6009a867b",
"to_name": null,
"type": null,
"value": {
"end": 13239,
"labels": [
"ANALYSIS"
],
"start": 13196,
"text": "(2) Jaswant Straw Board Ltd.\n 6,176 shares."
}
},
{
"from_name": null,
"id": "f714c1a6c12840e4bde5b7e6c27e3149",
"to_name": null,
"type": null,
"value": {
"end": 13390,
"labels": [
"ANALYSIS"
],
"start": 13239,
"text": "\n (i) National Finance Ltd. 4,783 (ii) National Construction and Development Corporation Ltd. 500 _____ __ 5,200 odd (or nearly 84 per cent)"
}
},
{
"from_name": null,
"id": "f528baed979f4bf48cb17c3200891cb1",
"to_name": null,
"type": null,
"value": {
"end": 13450,
"labels": [
"ANALYSIS"
],
"start": 13391,
"text": "(3) National Finance Ltd. (assessee Company) 50,000 shares."
}
},
{
"from_name": null,
"id": "39dcd8ce790b473bb83af26cce5a1aee",
"to_name": null,
"type": null,
"value": {
"end": 13483,
"labels": [
"ANALYSIS"
],
"start": 13450,
"text": "\n Ganesh Finance Corporation Ltd."
}
},
{
"from_name": null,
"id": "2070fc1c987b4db98e4f55dc3bcdcb92",
"to_name": null,
"type": null,
"value": {
"end": 13513,
"labels": [
"ANALYSIS"
],
"start": 13483,
"text": "\n 48,000 (or over 96 per cent)"
}
},
{
"from_name": null,
"id": "a12d2da5e14543fdb6ec4f83d4c25f94",
"to_name": null,
"type": null,
"value": {
"end": 13591,
"labels": [
"ANALYSIS"
],
"start": 13514,
"text": "(4) National Construction and Develop- ment Corporation Ltd. 1,30,504 shares."
}
},
{
"from_name": null,
"id": "94c64b3f995740dfb9b5465bb90abd77",
"to_name": null,
"type": null,
"value": {
"end": 13624,
"labels": [
"ANALYSIS"
],
"start": 13591,
"text": "\n Ganesh Finance Corporation Ltd."
}
},
{
"from_name": null,
"id": "2513136bfde8425b9c2ae871985a44dc",
"to_name": null,
"type": null,
"value": {
"end": 13698,
"labels": [
"ANALYSIS"
],
"start": 13624,
"text": "\n 1,30,500 (almost all) (5) Ganesh Finance Corporation Ltd. 50,000 shares."
}
},
{
"from_name": null,
"id": "3ca47c4febd840d5993e054faf7e49be",
"to_name": null,
"type": null,
"value": {
"end": 13731,
"labels": [
"ANALYSIS"
],
"start": 13698,
"text": "\n Raghunath Investment Trust Ltd."
}
},
{
"from_name": null,
"id": "6dd742a40ca14efbb749823e420be81d",
"to_name": null,
"type": null,
"value": {
"end": 13806,
"labels": [
"ANALYSIS"
],
"start": 13731,
"text": "\n 49,795 (99.6 per cent of the capital) (6) Raghunath Investment Trust Ltd."
}
},
{
"from_name": null,
"id": "f3ef64729e334eefbd185a40c7c53e2f",
"to_name": null,
"type": null,
"value": {
"end": 13822,
"labels": [
"ANALYSIS"
],
"start": 13806,
"text": "\n 10,000 shares."
}
},
{
"from_name": null,
"id": "761e6dc23030422d9b8cf2db122aca4a",
"to_name": null,
"type": null,
"value": {
"end": 14056,
"labels": [
"ANALYSIS"
],
"start": 13824,
"text": "(i) Mr. Yodh Raj Bhalla 1,500 (ii) Mrs. Bhalla 1,000 (iii) Mr. N. C. Malhotra (brother in- law) 1,000 (iv) Mr. Ram Prasad (father-in-law) 1,000 (v) Mr. Dina Nath (Secretary) 1,000 (vi) "
}
},
{
"from_name": null,
"id": "0f78a39e226946eab445048049545348",
"to_name": null,
"type": null,
"value": {
"end": 14095,
"labels": [
"ANALYSIS"
],
"start": 14056,
"text": "National Finance Ltd.\n 3,499"
}
},
{
"from_name": null,
"id": "09d9b34cf57947d89a444bb734b05933",
"to_name": null,
"type": null,
"value": {
"end": 14114,
"labels": [
"ANALYSIS"
],
"start": 14096,
"text": "(vii) Mr. "
}
},
{
"from_name": null,
"id": "b5fa5b1d28564f97b4b39a535af41d9c",
"to_name": null,
"type": null,
"value": {
"end": 14126,
"labels": [
"ANALYSIS"
],
"start": 14114,
"text": "Piyare "
}
},
{
"from_name": null,
"id": "14c97d42bb954ff98b0dee7e29b869fe",
"to_name": null,
"type": null,
"value": {
"end": 14166,
"labels": [
"ANALYSIS"
],
"start": 14126,
"text": "Lal Saha ------- 9,000 (90 per cent)."
}
},
{
"from_name": null,
"id": "de14b58753b340a2a0156baad8d60395",
"to_name": null,
"type": null,
"value": {
"end": 14511,
"labels": [
"ANALYSIS"
],
"start": 14168,
"text": "The resulting position may be stated thus: Ganesh Fiance Corporation Ltd. practically owns the assessee Company and National Construction and Development Corporation Ltd., Raghunath Investment Trust Ltd. practically owns the Ganesh Finance Corporation Ltd., and 'Yodh Raj Bhalla group' practically owns Raghunath Investment Trust Ltd.\n Jaswant"
}
},
{
"from_name": null,
"id": "8deea4c9c89245f491d6f0465d34fca5",
"to_name": null,
"type": null,
"value": {
"end": 14742,
"labels": [
"ANALYSIS"
],
"start": 14512,
"text": "Sugar Mills Ltd. is practically owned by Jaswant Straw Board Ltd., National Finance Ltd., and National Construction and Development Corporation Ltd., and Jaswant Straw Board Ltd., is practically owned by National Finance Ltd., and"
}
},
{
"from_name": null,
"id": "07fb8058eb8f48a288ef499890e29569",
"to_name": null,
"type": null,
"value": {
"end": 14797,
"labels": [
"ANALYSIS"
],
"start": 14743,
"text": "National Construction and Development Corporation Ltd."
}
},
{
"from_name": null,
"id": "84fb03cd0a654f9f8f7ab8dbda93407a",
"to_name": null,
"type": null,
"value": {
"end": 14878,
"labels": [
"ANALYSIS"
],
"start": 14798,
"text": "Thus, the entire group is owned by a consortium, and there is no doubt about it."
}
},
{
"from_name": null,
"id": "c2b93702e4c94575b18aecf602cf0884",
"to_name": null,
"type": null,
"value": {
"end": 15245,
"labels": [
"ANALYSIS"
],
"start": 14878,
"text": "\n The shares of Madhusudan Mills Ltd. were acquired in the following circumstances: In July 1948, Mr. Yodh Raj Bhalla, who was in a position by reason of his holdings in these six Companies to influence decisions of the Board of Directors, arranged to purchase 26,547 shares of the Mills from Messrs. Bhadani Brothers, Ltd., who were the managing agents of the Mills."
}
},
{
"from_name": null,
"id": "191e886436a94b818e214487f63465ff",
"to_name": null,
"type": null,
"value": {
"end": 15338,
"labels": [
"ANALYSIS"
],
"start": 15246,
"text": "This block of shares represented about 80 per cent of the total issued capital of the Mills,"
}
},
{
"from_name": null,
"id": "5b1d8ae438e941caa9f74e11600e88d0",
"to_name": null,
"type": null,
"value": {
"end": 15442,
"labels": [
"ANALYSIS"
],
"start": 15339,
"text": "The purchase was made at Rs.\n 400 per share, when the price in the market, was about Rs. 250 per share."
}
},
{
"from_name": null,
"id": "3cd493a52acc40cf86cecb9ef09eb97e",
"to_name": null,
"type": null,
"value": {
"end": 15580,
"labels": [
"ANALYSIS"
],
"start": 15443,
"text": "Out of the remaining shares which were on the market 200 shares were purchased at Rs. 252-8-0 per share, which was then the quoted price."
}
},
{
"from_name": null,
"id": "85b823d01f72479eac534f812d795efa",
"to_name": null,
"type": null,
"value": {
"end": 15749,
"labels": [
"ANALYSIS"
],
"start": 15581,
"text": "Now, these shares were purchased by Jaswant Sugar Mills Ltd., but the money for the purchase of the shares was obtained by borrowing it from some of the other concerns."
}
},
{
"from_name": null,
"id": "a4fd8552c9e84032a50f30bfab560a69",
"to_name": null,
"type": null,
"value": {
"end": 15853,
"labels": [
"ANALYSIS"
],
"start": 15750,
"text": "These Companies, as has been shown above, were completely under the control of 'Yodh Raj Bhalla group'."
}
},
{
"from_name": null,
"id": "456c0587ccc84ab78f00f3032cfbdcc2",
"to_name": null,
"type": null,
"value": {
"end": 15949,
"labels": [
"ANALYSIS"
],
"start": 15854,
"text": "The arrangement for the money was as follows: Rs. 14,75,000- borrowed from the assesee Company."
}
},
{
"from_name": null,
"id": "a163800b10794acb9c692a3793c18bff",
"to_name": null,
"type": null,
"value": {
"end": 16114,
"labels": [
"ANALYSIS"
],
"start": 15949,
"text": "\n Rs. 5,00,000- from National Construction and Development Corporation Ltd.\n Rs. 55,00,000- from the assessee Company but advanced by Ganesh Finance Corporation Ltd."
}
},
{
"from_name": null,
"id": "bd9c296eae3941df93c92c963a76ff7a",
"to_name": null,
"type": null,
"value": {
"end": 16468,
"labels": [
"ANALYSIS"
],
"start": 16114,
"text": "\n The shares were registered as follows: 10,500 shares registered in the name of the assessee Company.\n 5,400 shares in the name of the National Construction and Development Corporation Ltd., and the balance in the names of the nominees of Jaswant Sugar Mills Ltd., which meant, largely, persons belonging to the 'Yodh Raj Bhalla group'."
}
},
{
"from_name": null,
"id": "ef834553c6434950a9a7997807e06b2d",
"to_name": null,
"type": null,
"value": {
"end": 16696,
"labels": [
"ANALYSIS"
],
"start": 16470,
"text": "On October 9, 1949, the assessee Company purchased 15,547 shares at Rs. 400 per share from Jaswant Sugar Mills Ltd., and the amount paid by the assessee Company was adjusted towards the purchase price and the balance was paid."
}
},
{
"from_name": null,
"id": "0bd1952a71bb490aa011d5471da9f6ae",
"to_name": null,
"type": null,
"value": {
"end": 16860,
"labels": [
"ANALYSIS"
],
"start": 16697,
"text": "On the same day, the remaining 11,000 shares were sold by Jaswant Sugar Mills Ltd. to National Construction and Development Corporation Ltd., at Rs. 400 per share."
}
},
{
"from_name": null,
"id": "aef0fa79200a446dab8a5b163db5b260",
"to_name": null,
"type": null,
"value": {
"end": 16906,
"labels": [
"ANALYSIS"
],
"start": 16861,
"text": "Thus, on that date Jaswant Sugar Mills Ltd.\n "
}
},
{
"from_name": null,
"id": "b10693eb7f934ce993f247d3792a1208",
"to_name": null,
"type": null,
"value": {
"end": 16960,
"labels": [
"ANALYSIS"
],
"start": 16906,
"text": "ceased to have any connection with the present matter."
}
},
{
"from_name": null,
"id": "199fc0d5b8ab43bb95e9544873758d68",
"to_name": null,
"type": null,
"value": {
"end": 17096,
"labels": [
"ANALYSIS"
],
"start": 16961,
"text": "It may be pointed out that on the date on which the two transactions took place, the priceruling in the market was about Rs. 217-8-0.\n "
}
},
{
"from_name": null,
"id": "139ee3aaa0e14bbbaf95a1fc4e8dfe39",
"to_name": null,
"type": null,
"value": {
"end": 17283,
"labels": [
"ANALYSIS"
],
"start": 17096,
"text": "Before Jaswant Sugar Mills Ltd. parted with the shares, they. had appointed a new Board of Directors of the Madhusudan Mills Ltd., and these new Directors also belonged to the same group."
}
},
{
"from_name": null,
"id": "4a2fe3092ed64a56be980e05d1356828",
"to_name": null,
"type": null,
"value": {
"end": 17521,
"labels": [
"ANALYSIS"
],
"start": 17284,
"text": "The managing agency of Messrs. Bhadani Brothers Ltd.\n was terminated, and on the same day on which the shares were purchased from these managing agents, the assessee Company was appointed as the purchasing and selling agent of the Mills."
}
},
{
"from_name": null,
"id": "2d41276184b449d08ab9c7825dc3189b",
"to_name": null,
"type": null,
"value": {
"end": 17671,
"labels": [
"ANALYSIS"
],
"start": 17522,
"text": "The assessee Company made enormous profit from the acquisition of these shares by way of dividend and commission as the purchasing and selling agent."
}
},
{
"from_name": null,
"id": "ec35910012d6474895e210139ae38efc",
"to_name": null,
"type": null,
"value": {
"end": 17800,
"labels": [
"ANALYSIS"
],
"start": 17672,
"text": "In October and November, 1948 they, however, sold 6,525 shares to Dalmia Cement and Marketing Company Ltd. at Rs. 400 per share."
}
},
{
"from_name": null,
"id": "6926181e1e43465fb3b4c7b272f12dc9",
"to_name": null,
"type": null,
"value": {
"end": 17920,
"labels": [
"ANALYSIS"
],
"start": 17801,
"text": "These shares subsequently came back to the same group; butthat is not a matter with which we are immediately concerned."
}
},
{
"from_name": null,
"id": "fa63ffb337304776a6dd0f977d5716e7",
"to_name": null,
"type": null,
"value": {
"end": 18240,
"labels": [
"ANALYSIS"
],
"start": 17920,
"text": "\n On April 7, 1949, 4,500 shares were sold by the assessee Company to the National Investment Trust Ltd. at Rs. 181 per share resulting in a loss of Rs. 8,80,000, and on June 1, 1949, another block of 3,000 shares was sold to the National Investment Trust Ltd., at Rs. 180 per share, resulting in a loss of Rs. 5,86,312."
}
},
{
"from_name": null,
"id": "fce99269b40c495799f36034024d781d",
"to_name": null,
"type": null,
"value": {
"end": 18433,
"labels": [
"ANALYSIS"
],
"start": 18241,
"text": "We are not concerned with the loss arising from the first sale which was considered in the assessment year, 1950-51, and in respect of which a reference is pending in the High Court of Punjab."
}
},
{
"from_name": null,
"id": "38dfe82da6b54f7181ec547a7d290b2d",
"to_name": null,
"type": null,
"value": {
"end": 18525,
"labels": [
"ANALYSIS"
],
"start": 18434,
"text": "We are concerned with the loss in the second year relating to the assessment year, 1951-52."
}
},
{
"from_name": null,
"id": "7ac78e833f7c481ba8cc520ca80ce98a",
"to_name": null,
"type": null,
"value": {
"end": 18673,
"labels": [
"ANALYSIS"
],
"start": 18526,
"text": "In that year, the loss on the sale of the shares was sought to be set off against the profits made, and the loss practically cancelled the profits."
}
},
{
"from_name": null,
"id": "c9db26a8a62d4ca88330df0f76865422",
"to_name": null,
"type": null,
"value": {
"end": 18950,
"labels": [
"ANALYSIS"
],
"start": 18674,
"text": "The shares which were sold by the assessee Company on the two occasioning were sold to one Amrit Bhushan (a relative of Mr. Yodh Raj Bhalla) who sold then the same day to Messrs. National Investment Trust Ltd., at the slender profits of 8 annas per share, which was brokerage."
}
},
{
"from_name": null,
"id": "2d5011a2da734565aeb9e788a3b8a793",
"to_name": null,
"type": null,
"value": {
"end": 19107,
"labels": [
"ANALYSIS"
],
"start": 18951,
"text": "Thus, at the beginning and at the end, though numerous transactions had taken place, the shares continued to be the property of the 'Yodh Raj Bhalla group'."
}
},
{
"from_name": null,
"id": "e32fa127b8e945df8e3de765513dfd34",
"to_name": null,
"type": null,
"value": {
"end": 19264,
"labels": [
"ANALYSIS"
],
"start": 19108,
"text": "The question is whether the loss on the sale of the shares be set off against the profits in the year in which the sales and profits were respectively made."
}
},
{
"from_name": null,
"id": "24d864f947e34c03a038cca4c2063888",
"to_name": null,
"type": null,
"value": {
"end": 19368,
"labels": [
"ANALYSIS"
],
"start": 19264,
"text": "\n The assessee Company was assessed for the assessment year, 1950-51, by the Income-tax Officer, Meerut."
}
},
{
"from_name": null,
"id": "d2acc293680a4785bef17c8b3e402144",
"to_name": null,
"type": null,
"value": {
"end": 19535,
"labels": [
"ANALYSIS"
],
"start": 19369,
"text": "In that year, the loss of Rs.\n8,78,062-8-0 arising from the sale of Rs. 4,520 shares of Madhusudan Mills Ltd. was set off against the profits of the assessee Company."
}
},
{
"from_name": null,
"id": "f3f73a1594144f07a8fa32450de64795",
"to_name": null,
"type": null,
"value": {
"end": 19749,
"labels": [
"ANALYSIS"
],
"start": 19536,
"text": "The case of the assessee Company for the assessment year, 1951-52, was considered by the Income-tax Officer, Central Circle V, New Delhi, to whom the cases of the other Companies above named were also transferred."
}
},
{
"from_name": null,
"id": "90cb55a9eadc4ad2a6f9aee0c8bc627c",
"to_name": null,
"type": null,
"value": {
"end": 20031,
"labels": [
"ANALYSIS"
],
"start": 19750,
"text": "By looking into theaffairs of these Companies, he came to learn, that the shares of the Madhusudan Mills Ltd. were purchased at a price, which was almost double the current market price, by the 'Yodh Raj Bhalla group, and were transferred at the same price to the assessee Company."
}
},
{
"from_name": null,
"id": "7299b7ca31554aabb60c63874cc1c213",
"to_name": null,
"type": null,
"value": {
"end": 20230,
"labels": [
"ANALYSIS"
],
"start": 20032,
"text": "He found that this was done with a view to removing Messrs. Bhadani Brothers, Ltd. from their managing agency and to securing for the assessee Company the purchasing and selling agency of the Mills."
}
},
{
"from_name": null,
"id": "58199e50d0874602b5e0f2ddd896c34e",
"to_name": null,
"type": null,
"value": {
"end": 20381,
"labels": [
"ANALYSIS"
],
"start": 20231,
"text": "On the date of the purchase from Messrs. Bhadani Brothers, Ltd., Jaswant Sugar Mills Ltd. achieved this purpose in view of their controlling interest."
}
},
{
"from_name": null,
"id": "fd16a2593c5a4676ae82de15c6c70d2a",
"to_name": null,
"type": null,
"value": {
"end": 20642,
"labels": [
"ANALYSIS"
],
"start": 20382,
"text": "Bhadani Brothers, Ltd. ceased to be the managing agents from that date, and the purchasing and selling agency of the Madhusudan Mills, Ltd. was given to the assessee Company, though it had, on that day, done no more than give a loan to Jaswant Sugar Mills Ltd."
}
},
{
"from_name": null,
"id": "44ae5b63d4814626b2f05a21a0543186",
"to_name": null,
"type": null,
"value": {
"end": 20792,
"labels": [
"ANALYSIS"
],
"start": 20643,
"text": "In the assessment year, 1951-52, the loss of Rs. 5,86,312-8-0 on the sale of 3,000 shares was, therefore, disallowed holding it to be a capital loss."
}
},
{
"from_name": null,
"id": "3139c2eb8def4d7ca97a309e2123d575",
"to_name": null,
"type": null,
"value": {
"end": 20922,
"labels": [
"ANALYSIS"
],
"start": 20793,
"text": "The order of the Income-tax Officer, Central Circle V, New Delhi was confirmed on appeal by the Appellate Assistant Commissioner."
}
},
{
"from_name": null,
"id": "3152af23e54e4aca9acede76e156d7bd",
"to_name": null,
"type": null,
"value": {
"end": 21234,
"labels": [
"ANALYSIS"
],
"start": 20923,
"text": "On further appeal by the assessee Company, the Income-tax Appellate Tribunal, Delhi, reversed the order of the Appellate Assistant Commissioner, and held that the loss was a trading loss.\n Whether a particular loss is a trading loss or a loss on the capital side undoubtedly depends upon the facts of each case."
}
},
{
"from_name": null,
"id": "e11884484b8f4b09ad182ad8c2195bdd",
"to_name": null,
"type": null,
"value": {
"end": 21382,
"labels": [
"ANALYSIS"
],
"start": 21235,
"text": "But it has been held, over and over again, that the question is not one of pure fact, and that a mixed question of fact and law is always involved."
}
},
{
"from_name": null,
"id": "8adabc50c4d7408aa943c2ab6eb59881",
"to_name": null,
"type": null,
"value": {
"end": 21563,
"labels": [
"ANALYSIS"
],
"start": 21383,
"text": "The cases to which we shall make a reference presently, have laid down this proposition, and those cases have also indicated how the matter is to be viewed in the context of facts."
}
},
{
"from_name": null,
"id": "823e40ca0e274dc8adca1f5d2c334630",
"to_name": null,
"type": null,
"value": {
"end": 21739,
"labels": [
"ANALYSIS"
],
"start": 21564,
"text": "In Commissioner of Income-tax v.\nRamnarain Sons Ltd. (1), the Company was a dealer in sharesand also carried on the business of acquiring managing agencies of other Companies."
}
},
{
"from_name": null,
"id": "c7b43ecf914d4dc38f335c5217fd7d94",
"to_name": null,
"type": null,
"value": {
"end": 21928,
"labels": [
"ANALYSIS"
],
"start": 21740,
"text": "The Company the acquired the managing agency of a Textile Mill from Messrs. Sassoon J. David and Co. Ltd., and also agreed as part of the same transaction to buy 2,507 shares of the Mills."
}
},
{
"from_name": null,
"id": "0dc848203c4c4fe78020641e75bc54fa",
"to_name": null,
"type": null,
"value": {
"end": 22054,
"labels": [
"ANALYSIS"
],
"start": 21929,
"text": "1,507 shares were purchased at Rs. 2,321-8-0 per share, and the remaining 4,000 shares were purchased at Rs. 1,500 per share."
}
},
{
"from_name": null,
"id": "86e9787e8baf4362813c1f590c3e84a9",
"to_name": null,
"type": null,
"value": {
"end": 22107,
"labels": [
"ANALYSIS"
],
"start": 22055,
"text": "These shares were quoted on the market at Rs. 1,610."
}
},
{
"from_name": null,
"id": "244074780ad34fc79da4b4f35764d721",
"to_name": null,
"type": null,
"value": {
"end": 22162,
"labels": [
"ANALYSIS"
],
"start": 22108,
"text": "Later,4,000 shares were sold at a loss of Rs. 1,78,000"
}
},
{
"from_name": null,
"id": "ecb9221afa894e82a58ab303b70604a7",
"to_name": null,
"type": null,
"value": {
"end": 22345,
"labels": [
"ANALYSIS"
],
"start": 22163,
"text": "This was shown in the books of the Company as a busines loss but was disallowed, as the shares were not held to be the stock-in-trade of the business of the Company as share dealers."
}
},
{
"from_name": null,
"id": "6c86fd8da22249c182aa94f4766a1625",
"to_name": null,
"type": null,
"value": {
"end": 22441,
"labels": [
"ANALYSIS"
],
"start": 22346,
"text": "On a reference to the High Court of Bombay, a Divisional Bench upheld the view of the Tribunal."
}
},
{
"from_name": null,
"id": "547202ffe66046bbb90742937c53b12b",
"to_name": null,
"type": null,
"value": {
"end": 22668,
"labels": [
"ANALYSIS"
],
"start": 22442,
"text": "Chagla,C. J., in delivering the judgment of the Court, observed that a managing agency being an asset of an enduring nature, the way to look at the matter was to enquire what was, the primary intention in acquiring the shares."
}
},
{
"from_name": null,
"id": "c510f6abe77c41a29985fcb11fcdb345",
"to_name": null,
"type": null,
"value": {
"end": 23215,
"labels": [
"ANALYSIS"
],
"start": 22669,
"text": "The learned Chief Justice then referred to a judgment of this Court reported in Kishan Prasad & Co. Ltd.\nv. Commissioner of Income-tax (1), where it was observed: \"It seems that the object of the assessee Company in buying shares was purely to obtain the managing agency of the third mill which no doubt would have been an asset of an enduring nature and would have brought them profits but there was from the inception no intention whatever on the part of the assessee Company to re-sell the shares either at a profit or otherwise deal in them.\""
}
},
{
"from_name": null,
"id": "19d0166804a04584a86b90159084fb36",
"to_name": null,
"type": null,
"value": {
"end": 23573,
"labels": [
"ANALYSIS"
],
"start": 23216,
"text": "The learned Chief Justice then considered the argument that a block of shares might have to be bought, if at all, at a higher price, and observed as follows: \"A dealer in shares may succeed in getting a large number of shares at a price less than the market price if the seller is in difficulties and wants to get rid of his shares and to get liquid assets."
}
},
{
"from_name": null,
"id": "0dfb0fc45b3745469dd9bf7caf804d56",
"to_name": null,
"type": null,
"value": {
"end": 23694,
"labels": [
"ANALYSIS"
],
"start": 23574,
"text": "But we have not heard of a dealer in shares purchasing a large number of shares at a higher value than the market value."
}
},
{
"from_name": null,
"id": "97fc48670d8c4229b6baab9346b571b5",
"to_name": null,
"type": null,
"value": {
"end": 23832,
"labels": [
"ANALYSIS"
],
"start": 23695,
"text": "The other circumstance which is equally strong in this case is that the shares were purchased for the acquisition of the managing agency."
}
},
{
"from_name": null,
"id": "2a2e9c701bf94f20b3ca25c3992709de",
"to_name": null,
"type": null,
"value": {
"end": 24065,
"labels": [
"ANALYSIS"
],
"start": 23833,
"text": "Therefore the real object of the assessee company was not to do business in these shares, not to make profit out of these shares, but to acquire a capital asset out of which it would earn managing agency commission and make profit.\""
}
},
{
"from_name": null,
"id": "e4fca3a3552b494681be274a573a7523",
"to_name": null,
"type": null,
"value": {
"end": 24181,
"labels": [
"ANALYSIS"
],
"start": 24065,
"text": "\nMessrs. Ramnarain and Sons. Ltd. then appealed to this Court, and the decision of the Bombay High Court was upheld."
}
},
{
"from_name": null,
"id": "b6ec8a87bced4ac9b301492a1f103310",
"to_name": null,
"type": null,
"value": {
"end": 24284,
"labels": [
"ANALYSIS"
],
"start": 24182,
"text": "The Judgment of this Court is reported in Ramnarain Sons (Pr.) Ltd. v.\nCommissioner of Income-tax (1)."
}
},
{
"from_name": null,
"id": "9c662b7f598748b2a54f00a3c7a7bb9c",
"to_name": null,
"type": null,
"value": {
"end": 24590,
"labels": [
"ANALYSIS"
],
"start": 24285,
"text": "It was laid down by this Court that in considering whether a transaction was or was not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee, having regard to the \"legal requirements which are associated with the concept of trade or business\".\n"
}
},
{
"from_name": null,
"id": "b35e790d48f34f858cb256f044b96ad4",
"to_name": null,
"type": null,
"value": {
"end": 24983,
"labels": [
"ANALYSIS"
],
"start": 24590,
"text": "Dealing with the price above the market price which was paid in that case, it was observed: \"Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon J. David & Co. Ltd.-the shares transferred to the names of the directors being held by them merely as nominees of the appellants-the price per share was considerably in excess of the prevailing market rate."
}
},
{
"from_name": null,
"id": "67117f93b7b94e7cb9f9eef91c8ecbb0",
"to_name": null,
"type": null,
"value": {
"end": 25159,
"labels": [
"ANALYSIS"
],
"start": 24984,
"text": "The only reason for entering into the transaction, which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency."
}
},
{
"from_name": null,
"id": "8e8e655c10824198aefc9a53ed34c5ef",
"to_name": null,
"type": null,
"value": {
"end": 25482,
"labels": [
"ANALYSIS"
],
"start": 25160,
"text": "If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that the intention in purchasing the shares was not to acquire them as part of the trade of the appellants in shares.\""
}
},
{
"from_name": null,
"id": "e9fc78e75f544c70b92e1f1cd6073e7a",
"to_name": null,
"type": null,
"value": {
"end": 25621,
"labels": [
"ANALYSIS"
],
"start": 25482,
"text": "\nThe above two decisions are merely the application of a principle of long standing, which has been stated over and over again in the past."
}
},
{
"from_name": null,
"id": "02eab0ace20344d099c6a6b5e9b4444b",
"to_name": null,
"type": null,
"value": {
"end": 25970,
"labels": [
"ANALYSIS"
],
"start": 25622,
"text": "In Oriental Investment Co. Ltd. v. Commissioner of Income-tax (1), that principle was reiterated, and it was that the object for which a company was formed did not invest the deal with the characteristics of a trade in shares, but that other circumstances along with that fact must be considered to find out the real object of a particular venture."
}
},
{
"from_name": null,
"id": "e87b8298d8324d4ea248454fcb2214d6",
"to_name": null,
"type": null,
"value": {
"end": 26062,
"labels": [
"ANALYSIS"
],
"start": 25970,
"text": "\n Before we deal with the present case, one other case of this Court may be noticed."
}
},
{
"from_name": null,
"id": "47043430739f498d91495bd01795ee60",
"to_name": null,
"type": null,
"value": {
"end": 26156,
"labels": [
"PRE_RELIED"
],
"start": 26063,
"text": "In Rajputana Textiles v. Commissioner of Income-tax (2), the converse conclusion was reached."
}
},
{
"from_name": null,
"id": "a560794e13ce424fab589ba455b2df27",
"to_name": null,
"type": null,
"value": {
"end": 26344,
"labels": [
"PRE_RELIED"
],
"start": 26157,
"text": "There, on the facts and circumstances of the case, it was held that a particular deal in shares was a commercial venture and had all the attributes of an adventure in the nature of trade."
}
},
{
"from_name": null,
"id": "571b1d4b555b4add875d931565563ba9",
"to_name": null,
"type": null,
"value": {
"end": 26554,
"labels": [
"ANALYSIS"
],
"start": 26345,
"text": "In that case, the transaction was not a single or an undivided one with a slump payment, because for the managing agency, Rs. 12,50,000 were paid separately and for the shares, a sum of Rs. 83,98,000 was paid."
}
},
{
"from_name": null,
"id": "9a8a1e3875d141ae9f3904a97eab3e4c",
"to_name": null,
"type": null,
"value": {
"end": 26686,
"labels": [
"ANALYSIS"
],
"start": 26555,
"text": "The two acquisitions being different, the profit on the sale of some of the shares was considered to be a gain on the revenue side."
}
},
{
"from_name": null,
"id": "9b810f45ef8845179f0f7b822c3570ba",
"to_name": null,
"type": null,
"value": {
"end": 26829,
"labels": [
"ANALYSIS"
],
"start": 26686,
"text": "\n There is no doubt, whatever, that the shares of the Madhusudan Mills Ltd. were acquired at a price considerably higher than the market price."
}
},
{
"from_name": null,
"id": "3c42136d1b9f4786a970376440e2cae6",
"to_name": null,
"type": null,
"value": {
"end": 26877,
"labels": [
"ANALYSIS"
],
"start": 26829,
"text": "\nIn fact, that the price paid was almost double."
}
},
{
"from_name": null,
"id": "829f9529abfb4ed5b0a257861bf27067",
"to_name": null,
"type": null,
"value": {
"end": 26993,
"labels": [
"ANALYSIS"
],
"start": 26877,
"text": "\nSuch a deal, from the business point of view, was not prudent, unless the purchaser stood to gain in someother way."
}
},
{
"from_name": null,
"id": "89d831fe88544e8dadc81492b72d3e90",
"to_name": null,
"type": null,
"value": {
"end": 27150,
"labels": [
"ANALYSIS"
],
"start": 26994,
"text": "It was contended before us that this was a speculative deal in the hope that the price of the shares would firm up when the textile industries would revive."
}
},
{
"from_name": null,
"id": "4157147405ca443ba8cbb3efbd6d9c0a",
"to_name": null,
"type": null,
"value": {
"end": 27311,
"labels": [
"ANALYSIS"
],
"start": 27151,
"text": "If this was the intention, then it might possibly be argued that the purchasers miscarried in their calculations, and suffered a loss in a business transaction."
}
},
{
"from_name": null,
"id": "94703c49bc464e14a73aa272c31e21d3",
"to_name": null,
"type": null,
"value": {
"end": 27386,
"labels": [
"ANALYSIS"
],
"start": 27311,
"text": "\nBut, was this the intention of the Directors of Jaswant Sugar Mills Ltd. ?"
}
},
{
"from_name": null,
"id": "9f184148b4a0424b866df1bde93540bf",
"to_name": null,
"type": null,
"value": {
"end": 27716,
"labels": [
"ANALYSIS"
],
"start": 27387,
"text": "Those who sold the shares were not only in possession of the shares but also of the managing agency of the Madhusudan Mills Ltd., and the intention of the Directors of Jaswant Sugar Mills Ltd. was to remove the sellers from their position as managing agents and to get the entire benefit of such or other agencies for themselves."
}
},
{
"from_name": null,
"id": "3d6c269cb1a54cd1910fd94586f0e36a",
"to_name": null,
"type": null,
"value": {
"end": 27919,
"labels": [
"ANALYSIS"
],
"start": 27717,
"text": "The assessee Company has urged that might have been the intention of they Jaswant Sugar Mills Ltd. but not of the assessee Company which had, on that day, merely given a loan to Jaswant Sugar Mills Ltd."
}
},
{
"from_name": null,
"id": "d92e50291afc45dbb3c68b59b2d7f4c4",
"to_name": null,
"type": null,
"value": {
"end": 28297,
"labels": [
"ANALYSIS"
],
"start": 27920,
"text": "Curiously enough, however, the immediate benefit of the deal was the acquisition of the selling and purchasing agency of the Mills, and that was obtained not in favour of Jaswant Sugar Mills Ltd. but of the assessee Company, even though on July 15, 1948 (the date of purchase) the assessee Company had obtained registration of 10,5000 shares by way of security in its own name."
}
},
{
"from_name": null,
"id": "5250aa8985e54be4911b221eabcf3377",
"to_name": null,
"type": null,
"value": {
"end": 28367,
"labels": [
"ANALYSIS"
],
"start": 28298,
"text": "Why the assessee Company was favoured in this way is not far to seek."
}
},
{
"from_name": null,
"id": "e072915d01904249bd735994d662ea54",
"to_name": null,
"type": null,
"value": {
"end": 28517,
"labels": [
"ANALYSIS"
],
"start": 28368,
"text": "It mattered not whether Jaswant Sugar Mills Ltd.\nacquired that agency or the assessee Company; the benefit thereof went to the same group of persons."
}
},
{
"from_name": null,
"id": "feb9429acf8a43cca7141b289ddfac24",
"to_name": null,
"type": null,
"value": {
"end": 28791,
"labels": [
"ANALYSIS"
],
"start": 28518,
"text": "The transaction of sale of the shares was also made within three months of their purchase, and the assessee Company not only bought the 10,500 shares which stood in its name but 15,547 shares, which gave the assessee Company a controlling voice in the affairs of the Mills."
}
},
{
"from_name": null,
"id": "10c65de063074fce94309d80db305dab",
"to_name": null,
"type": null,
"value": {
"end": 28894,
"labels": [
"ANALYSIS"
],
"start": 28792,
"text": "The assessee Company continued to retain the selling and purchasing agency, which was very profitable."
}
},
{
"from_name": null,
"id": "905c6c4da1914d4cb34586d61a962075",
"to_name": null,
"type": null,
"value": {
"end": 28958,
"labels": [
"ANALYSIS"
],
"start": 28894,
"text": "\nIndeed, on its investment in the first year of Rs.\n14 lakhs odd"
}
},
{
"from_name": null,
"id": "acde7dbc81bf43a3a63ad80bbbc52cf3",
"to_name": null,
"type": null,
"value": {
"end": 28997,
"labels": [
"ANALYSIS"
],
"start": 28958,
"text": ", itmade a profit of about Rs. 7 lakhs."
}
},
{
"from_name": null,
"id": "acb563f852d04925b8ae98a8a01ef5fb",
"to_name": null,
"type": null,
"value": {
"end": 29192,
"labels": [
"ANALYSIS"
],
"start": 28998,
"text": "The question, therefore, would be whether the assessee company in purchasing the shares merely wished to deal in shares as stock-in-trade, or was acquiring a capital asset of an enduring nature."
}
},
{
"from_name": null,
"id": "439032c460464291b2f517b273253fd5",
"to_name": null,
"type": null,
"value": {
"end": 29317,
"labels": [
"ANALYSIS"
],
"start": 29193,
"text": "This question is not one of fact, pure and simple, hut one of an inference in law from the proved circumstances of the case."
}
},
{
"from_name": null,
"id": "50fcc263d56949bb841153d8e68f72e3",
"to_name": null,
"type": null,
"value": {
"end": 29602,
"labels": [
"ANALYSIS"
],
"start": 29317,
"text": "\n The Income-tax Officer, in deciding this question against the assessee Company, pointed out numerous circumstances, which showed clearly that this was not a mere purchase of shares as shares by a speculator, who, buying a big block, sometimes pays slightly more than the market rate."
}
},
{
"from_name": null,
"id": "ed93d043618b4a00a5fe2164e42b4dcc",
"to_name": null,
"type": null,
"value": {
"end": 29782,
"labels": [
"ANALYSIS"
],
"start": 29603,
"text": "Bhadani Brothers Ltd., owned not only the shares but also the managing agency, and it is obvious that they would not part with the shares without charging for the managing agency."
}
},
{
"from_name": null,
"id": "0a78f8d113024f67ab9d5145a45f8914",
"to_name": null,
"type": null,
"value": {
"end": 29944,
"labels": [
"ANALYSIS"
],
"start": 29783,
"text": "The price of Rs.\n400 per share was so out of proportion to the market price that it indicated, by itself, the acquisition of something more than the mere shares."
}
},
{
"from_name": null,
"id": "59b4e06cac10421084dd2d2f440df8af",
"to_name": null,
"type": null,
"value": {
"end": 30182,
"labels": [
"ANALYSIS"
],
"start": 29945,
"text": "According to the Income-tax officer, the real intention was to acquire lucrative agencies of the Mills, and this intention, whether it was held by Jaswant Sugar Mills Ltd. Or the assessed Company or both, was of the same body of persons."
}
},
{
"from_name": null,
"id": "d272521837904574b66f9df89e91ddc0",
"to_name": null,
"type": null,
"value": {
"end": 30404,
"labels": [
"ANALYSIS"
],
"start": 30183,
"text": "The Appellate Assistant Commissioner endorsed the view of the Income-tax officer; but the Tribunal made a distinction between one Company and another, and that distinction has been pressed upon us by the assessee Company."
}
},
{
"from_name": null,
"id": "59415df95cdd4dd69201689eec74a7d2",
"to_name": null,
"type": null,
"value": {
"end": 30698,
"labels": [
"ANALYSIS"
],
"start": 30405,
"text": "Relying upon the well-known case of Salomon v. Salomon & Co.\nLtd.(1), it was argued before us that each company must be viewed as a separate entity, and that the intention of one company could not be attributed to another company, even though the proprietorship of the companies might be same."
}
},
{
"from_name": null,
"id": "882a552c1930466e959c771e485e839f",
"to_name": null,
"type": null,
"value": {
"end": 30977,
"labels": [
"ANALYSIS"
],
"start": 30699,
"text": "As a proposition affecting companies, it cannot be gainsaid; but we are not concerned with a theoretical question as to the assesee Company being a separate legal entity, but with thequestion whether a particular loss made by the assessee Company is a capital or a revenue loss."
}
},
{
"from_name": null,
"id": "334c1873e14e465bbdd85560702f42c6",
"to_name": null,
"type": null,
"value": {
"end": 31291,
"labels": [
"ANALYSIS"
],
"start": 30977,
"text": "\nThe two Companies, i. e., jaswant Sugar Mills Ltd.\nand the assessee Company, were directed by the same set of persons, and the facts show that even though Jaswant Sugar Mills Ltd. temporarily acquire the shares, they conferred all the benefits of the acquisition upon the assessee Company from the very first day."
}
},
{
"from_name": null,
"id": "3c26e59debef40c785f3c7769c5ead7d",
"to_name": null,
"type": null,
"value": {
"end": 31514,
"labels": [
"ANALYSIS"
],
"start": 31292,
"text": "The assessee Company also ultimately came into possession of all the shares along with another Company, which was also directed by the same persons, and Jaswant Sugar Mills Ltd. went out of the picture within three months."
}
},
{
"from_name": null,
"id": "a6acb47af04d46d088eaa3e739d39a85",
"to_name": null,
"type": null,
"value": {
"end": 31697,
"labels": [
"ANALYSIS"
],
"start": 31515,
"text": "In these circumstances, it is easy to see that the interposition of Jaswant Sugar Mills Ltd. was merely a device to secure the benefit of the English case, to which we have referred."
}
},
{
"from_name": null,
"id": "69d423e51ff040d8aa72e2cfc2394461",
"to_name": null,
"type": null,
"value": {
"end": 31916,
"labels": [
"ANALYSIS"
],
"start": 31698,
"text": "It was never intended that Jaswant Sugar Mills Ltd. would hold the shares or the benefits arising from the acquisition of a block of shares, giving to the holder a decisive voice in the affairs of Madhusudan Mills Ltd."
}
},
{
"from_name": null,
"id": "2a0a198a4586472492f6f44309140eff",
"to_name": null,
"type": null,
"value": {
"end": 32091,
"labels": [
"ANALYSIS"
],
"start": 31917,
"text": "That controlling interest was acquired by the `Yodh Raj Bhalla group' for the benefit of the assessee Company, and it was an acquisition of an interest of an enduring nature."
}
},
{
"from_name": null,
"id": "3bffbf1e0194419393a5cd16fea7d6b0",
"to_name": null,
"type": null,
"value": {
"end": 32265,
"labels": [
"ANALYSIS"
],
"start": 32091,
"text": "\n Reference was made, in this connection, to the transactions with the Dalmia Cement and Marketing Co. Ltd. in which the latter paid the same price namely, Rs. 400 per share."
}
},
{
"from_name": null,
"id": "68e3261da6164954b318b8e398797b42",
"to_name": null,
"type": null,
"value": {
"end": 32467,
"labels": [
"ANALYSIS"
],
"start": 32266,
"text": "Perhaps, the Dalmia Company was after the controlling interest in its own way, and it is significant to note that within a short time, those shares again found their way in the hands of the same group."
}
},
{
"from_name": null,
"id": "d346d22892a144aeb2b5f249ae243435",
"to_name": null,
"type": null,
"value": {
"end": 32754,
"labels": [
"ANALYSIS"
],
"start": 32467,
"text": "\nSimilarly, the shares changed hands even within this group through the agency of Amrit Bhushan, no doubt a broker but also a relative of Mr. Yodh Raj Bhalla, who profited only to the extent of 8 annas per share, and bought and sold the shares from one Company to mother on the same day."
}
},
{
"from_name": null,
"id": "8ffdb44fb1da45a2943463965e6b6858",
"to_name": null,
"type": null,
"value": {
"end": 33043,
"labels": [
"ANALYSIS"
],
"start": 32755,
"text": "All this show that the affairs of there Companies were centrally arranged, and theintention was to benefit the assessee Company by the acquisition of a large block of shares at a very much later prices than obtaining in the market, to acquire certain agencies of a profitable character.\n "
}
},
{
"from_name": null,
"id": "34fbe7c5d04f4a18a99b0e1989275a5b",
"to_name": null,
"type": null,
"value": {
"end": 33120,
"labels": [
"RATIO"
],
"start": 33043,
"text": "In our opinion, this transaction must be regarded as one on the capital side."
}
},
{
"from_name": null,
"id": "8541fc3691de4db7a1c6ff55a2dc2aa5",
"to_name": null,
"type": null,
"value": {
"end": 33177,
"labels": [
"RATIO"
],
"start": 33121,
"text": "Shares were never treated as part of the stock-in-trade."
}
},
{
"from_name": null,
"id": "d76acfe213214ab7b6c461782aa09daf",
"to_name": null,
"type": null,
"value": {
"end": 33417,
"labels": [
"RATIO"
],
"start": 33178,
"text": "They were not sold in the market, but were sold at a loss to another Company belonging to the same group, with the obvious intention of setting off the losses against the profits, thus cancelling the profits, and saving them from taxation."
}
},
{
"from_name": null,
"id": "ba73d848654546b5bf3f710dd8371131",
"to_name": null,
"type": null,
"value": {
"end": 33486,
"labels": [
"RPC"
],
"start": 33417,
"text": "\n In the result, the appeal is allowed, with costs on the respondent."
}
},
{
"from_name": null,
"id": "8af91f6fb7424d2596b6b8e9f9959d01",
"to_name": null,
"type": null,
"value": {
"end": 33503,
"labels": [
"RPC"
],
"start": 33486,
"text": "\n Appeal allowed."
}
}
]
}
] | 4,155 | {
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME TAX, DELHI ANDRAJASTHAN\n\n Vs.\n\nRESPONDENT:\nM/S NATIONAL FINANCE LTD.\n\nDATE OF JUDGMENT:\n29/01/1962\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, S.K.\nSHAH, J.C.\n\nCITATION:\n\n1963 AIR 835 1962 SCR Supl. (2) 865\n\nCITATOR INFO : (4)\n (20)\nE 1970 SC1815\n\nR 1971 SC 794\n\nACT:\n Income Tax-Capital loss or trading loss-\n\nDealer in spares-Acquisition of shares to get\nagency of company-Subsequent sale of shares\nincurring loss-Whether trading loss-Application to\nTribunal dismissed as barred by limitation-\nReference to High Court dismissed-Appeal by\nSpecial Leave against Tribunal's decision-\nMaintainability.\n\nHEADNOTE:\n The respondent was a company dealing in\n\nshares and securities and belonged to a group of\ncompanies all controlled by the same-persons. In\nthe year of account, corresponding to the\nassessment year 1951-52, the respondent sold the\nshares relating to Madhusudan Mills Ltd., which it\nhad acquired sometime earlier, suffering a loss\nfor which it claimed a set-off against the profits\nin that year. The Income-tax Officer found that\nthe shares in question had been purchased by J, a\ncompany belonging to the group, at a price which\nwas almost double the current market price, that\nit was so done with a view to removing the sellers\nfrom their managing agency and to securing for the\nrespondent the purchasing and selling agency of\nthe Mills, and that after the purchase J achieved\nthe purpose in view of its controlling interest\nand the purchasing and selling agency of the Mills\nwas given to the respondent, though the latter had\ndone no more than give a loan to J. It was also\nfound that soon after the purchase the shares in\nquestion came into the possession of the\nrespondent and that when the shares were sold it\nwas not in the market but at a loss to another\ncompany belonging to the same group. The Income\ntax Officer came to the conclusion that in getting\nthe shares the respondent did not deal with them\n\nas stock-in-trade but was acquiring a capital\nasset of an enduring nature. Accordingly, he\ndisallowed the claim holding the loss to be a a\ncapital loss. The Appellate Tribunal, however,\nheld in favour of the respondent on the view that\na distinction must be made between the respondent\ncompany and J.\n\n The Commissioner of Income-tax moved the\nTribunal for a reference to the High Court, but it\nwas dismissed on the ground that though it was\nbarred only by one day and there was no negligence\non the part of the Commissioner, the Tribunal had\nno power to extend time. An application to the\nHigh Court was also dismissed. The Commissioner of\nIncome-tax then applied for and got special leave\nto appeal againstthe order passed by the Tribunal. When the appeal\ncame on for hearing in due course the respondent\nraised an objection that the appeal was not\nmaintainable because no appeal was filed against\nthe order of the High Court, and relied on the\ndecision in Chandi Prasad Chokani v. State of\nBihar, (1962) 2 S.C.R. 276.\n^\n\n Held, that the appeal was maintainable\nbecause there was no question of by-passing the\norder of the High Court which only related to the\ncorrectness of the decision of the Tribunal on the\nquestion of limitation which was not the subject\nof the present appeal.\n\n Held, further, that there were special\ncircumstances which justified the grant of special\nleave.\n\n Baldev Singh v. Commissioner of Income-tax\n(1960), 40 I.T.R. 605, applied.\n\n Chandi Prasad Chokhani v. State of Bihar\n(1962), 2 S.C.R. 276, distinghuished.\n\n Held, also, that, on the facts, the object\nwas to purchase a large block of shares at a much\nlarger price than the market value to acquire\ncertain agencies of a profitable character, that\nthe purchase of the shares by J was merely a\ndevice but the controlling interest was acquired\nby the respondent, and that the transaction must\nbe regarded as one on the capital side.\n\n Ramanarain Sons (P.) Ltd. v. Commissioner of\nIncome-tax, (1961) 2 S.C.R. 904 and Oriental\nInvestment Co. Ltd. v. Commissioner of Income-tax,\n(1958) S.C.R. 49, applied.\n\n Salomon v. Salomon & Co. Ltd. (1897) A.C. 22,\ndistinguished.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 559 of 1960.\n Appeal by special leave from the judgment and order dated May 1/14, 1957, of the Income Tax Appellate Tribunal of India (Delhi Bench) in I.T.A. No. 2070 of 1956-57.\n K.N. Rajagopal Sastri and D. Gupta, for the appellant.\n Radhey Lal Agarwal and P.C. Agarwal for the respondents.\n 1962. January 29. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal against the order of the Income-tax Appellate Tribunal, Delhi Bench, dated May 1/14, 1957, by which the tribunal, reversing the order of the Appellate Assistant Commissioner, held that a loss arising from the sale of certain shares by the respondent Company was a capital loss. Subsequent to the order of the Tribunal impugned here, the Commissioner of Income-tax, New Delhi, who is the appellant before us, had moved the Tribunal for a reference to the High Court on certain questions of law said to arise out of the order of the Appellate Tribunal. That application was found to be barred by one day, and since, under the law, the Tribunal had no jurisdiction to extend the time, the application was dismissed. Against the decision of the Tribunal, an application was filed in the High Court under s. 66(3) of the Income-tax Act; but the High Court dismissed the application, agreeing with the Tribunal that the application to the Tribunal for a reference was barred by time.\nThe Commissioner of Income-tax then applied for special leave against the order passed by the Tribunal in the appeal before it, and the present appeal, with special leave, has been filed.\n Before we examine the merits of the case, we shall deal with a preliminary objection raised on behalf of the respondent that the appeal is incomepetent, in view of the decision of this Court in Chandi Prasad Chokhani v. State of Bihar (1) where it was held that this Court would not entertain an appeal directly from an order of the Tribunal by passing the decision of the High Court, except in very exceptional circumstances.\nThe appellant relies upon the decision of this Court in Baldev Singh v. Commissioner of Income tax (2), and contendsthat the exceptional circumstances existing in the latter case and adverted to in the former, govern the present case.\n The facts relating to the filing of the application for reference together with the relevant dates are these: The Tribunal's order was passed by two learned Members, who signed their respective orders on different dates. The Accountant Member signed his order on May 1, 1957, and the Judicial Member, on May 14, 1957. The notice of the order was sent to the Commissioner of Income-tax, New Delhi, and reached his office by registered post on July 15, 1957. It was received by one Motilal Pathak, a clerk in the office of the Commissioner. Motilal's affidavit shows that, he suddenly fell ill, and had to take casual leave for the day. He returned to the office the next day, and dealt with the notice received from the Tribunal. By a mischance, which is easy to appreciate, the date stamp of the receipt of the papers was affixed on the 16th, and bore that date instead of the real date, viz., the 15th, on which the papers had actually been received. Relying upon the date stamp, everybody took it for granted that limitation would expire on the 60th day, counting time from July 16, 1957.\nThe application was filed on the last day of limitation on that supposition. Actually, the application was barred by a day. The Income-tax Tribunal, therefore, dismissed the application on December 4, 1957. The decision of the Tribunal was unsuccessfully challenged before the High Court.\nIt is evident that the decision of the Tribunal was quite correct, and the Tribunal had no option but to dismiss the application, since the law gives no jurisdiction to the Tribunal to extend limitation, as is done under s. 5 of the Indian Limitation Act.\n This Court then granted special leave against the order of the Tribunal passed in the appealbefore it, and the question is whether the appeal should be heard or the leave revoked, in view of the decision in Chokhani's case (1). In Chokhani's case (1), the attempt was to bypass the decision of the High Court on a question referred to the High Court for decision and also another decision of the High Court that no other point of law arose from the order of the Tribunal. It was held that this Court would not allow the High Court to be by-passed, and that an appeal from the decision of the Tribunal in the circumstances was incompetent.\nA similar view was again expressed in two other cases, viz., Indian Aluminium Co. Ltd. v.\nCommissioner of Income-tax (2) and Kanhaiyalal Lohia v. The Commissioner of Income-tax (3). In all the three cases, reliance was placed by the appellants therein upon the decisions of this Court in Dhakeswari Cotton Mills, Ltd. v.\nCommissioner of Income-tax (4) and Baldev Singh v.\nCommissioner of Income-tax (5) It was pointed out in the judgments of this Court that the two cases relied upon were decided on the special circumstances existing there. In the first, there was a question of breach of the principles of natural justice, which could not be raised otherwise than by an appeal with the special leave of this Court. In the second case, it was pointed out that limitation was lost by the party through no fault of his, inasmuch as a letter was unduly delayed in post. In our opinion, in the present case also, special circumstances which justified the grant of special leave in Baldev Singh's case (5), exist. There was a combination of circumstances which led to the filing of the application a day late, but in circumstances showing that the default was not due to any negligence on the part of the Commissioner of Income-tax. The receipt of the notice on July 15 is admitted; but the affixing of the date stamp on the 16th was due to the failure of theclerk to deal with the notice on the 15th because he fell ill and had to leave the office. It is common knowledge that date stamps are altered every day in the office, and this is done mostly by a very junior employee. The affixing of the date stamp on the 16th and the notice consequently bearing that date went unnoticed, and relying upon the date stamp, the appeal was filed, though on the last day of limitation but within time. In these circumstances, it is difficult to say that the Commissioner of Income-tax was negligent and the negligence, if any, on the part of the clerk in affixing a wrong date stamp is excusable, if one considers his illness and his absence from the office on the 15th. In our opinion, this case comes within the rule of Baldev Singh's case (1) and an appeal direct to this Court from the Tribunal's order is justified by the special circumstances. By this appeal, no decision of the High Court can be said to be bypassed, because the decision of the High Court related to the correctness of the decision of the Tribunal on the question of limitation, which is not a question which is sought to be raised in an indirect way by the present appeal. We, therefore, overrule the preliminary objection.\n The assessee Company is the National Finance Ltd., New Delhi. It is a public limited Company which was incorporated in 1943. It deals in shares and securities and also as financiers. The present case arises from a deal in 3,000 shares of the Madhusudan Mills Ltd., Bombay, by the assessee Company. In the year of account, May 1, 1949, to April 30, 1950, corresponding to the assessment year, 1951-52, the assessee Company sold these shares suffering a loss of Rs. 5,48,712-8-0, which it claimed as one on the sale of its stock-in- trade. The Income-tax Officer and the Appellate Assistant Commissioner held it to be a capital loss. TheAppellate Tribunal, Delhi Bench, reversed the decision, and held in favour of the assessee Company. The only question in this appeal is whether the decision of the Tribunal is right.\n The assessee Company belongs to a group of Companies controlled by one Lala Yodh Raj Bhalla and certain persons associated with him. It is convenient to describe these persons as the 'Yodh Raj Bhalla group'. These Companies are (1) Jaswant Sugar Mills Ltd., (2) Jaswant Straw Boards Ltd., (3) National Finance Ltd., (4) National Construction and Development Corporation Ltd., (5) Ganesh Finance Corporation Ltd., and (6) Raghunath Investment Trust Ltd. The interrelation of these.\nCompanies is very intimate, and they are practically owned by the 'Yodh Raj Bhalla group'.\nTo understand this, the following analysis of the shareholdings of these Companies must be sufficient: (1) Jaswant Sugar Mills Ltd.\n 2,00,000 shares (i) Jaswant Straw Board Ltd.\n 44,845 (ii) National Finance Ltd.\n 67,390 (iii)National Construction and Development Corporation Ltd.\n 47,800 _______ 1,60, (i.e. over 80 per cent) (2) Jaswant Straw Board Ltd.\n 6,176 shares.\n (i) National Finance Ltd. 4,783 (ii) National Construction and Development Corporation Ltd. 500 _____ __ 5,200 odd (or nearly 84 per cent) (3) National Finance Ltd. (assessee Company) 50,000 shares.\n Ganesh Finance Corporation Ltd.\n 48,000 (or over 96 per cent) (4) National Construction and Develop- ment Corporation Ltd. 1,30,504 shares.\n Ganesh Finance Corporation Ltd.\n 1,30,500 (almost all) (5) Ganesh Finance Corporation Ltd. 50,000 shares.\n Raghunath Investment Trust Ltd.\n 49,795 (99.6 per cent of the capital) (6) Raghunath Investment Trust Ltd.\n 10,000 shares.\n (i) Mr. Yodh Raj Bhalla 1,500 (ii) Mrs. Bhalla 1,000 (iii) Mr. N. C. Malhotra (brother in- law) 1,000 (iv) Mr. Ram Prasad (father-in-law) 1,000 (v) Mr. Dina Nath (Secretary) 1,000 (vi) National Finance Ltd.\n 3,499 (vii) Mr. Piyare Lal Saha ------- 9,000 (90 per cent).\n The resulting position may be stated thus: Ganesh Fiance Corporation Ltd. practically owns the assessee Company and National Construction and Development Corporation Ltd., Raghunath Investment Trust Ltd. practically owns the Ganesh Finance Corporation Ltd., and 'Yodh Raj Bhalla group' practically owns Raghunath Investment Trust Ltd.\n Jaswant Sugar Mills Ltd. is practically owned by Jaswant Straw Board Ltd., National Finance Ltd., and National Construction and Development Corporation Ltd., and Jaswant Straw Board Ltd., is practically owned by National Finance Ltd., and National Construction and Development Corporation Ltd. Thus, the entire group is owned by a consortium, and there is no doubt about it.\n The shares of Madhusudan Mills Ltd. were acquired in the following circumstances: In July 1948, Mr. Yodh Raj Bhalla, who was in a position by reason of his holdings in these six Companies to influence decisions of the Board of Directors, arranged to purchase 26,547 shares of the Mills from Messrs. Bhadani Brothers, Ltd., who were the managing agents of the Mills. This block of shares represented about 80 per cent of the total issued capital of the Mills, The purchase was made at Rs.\n 400 per share, when the price in the market, was about Rs. 250 per share. Out of the remaining shares which were on the market 200 shares were purchased at Rs. 252-8-0 per share, which was then the quoted price. Now, these shares were purchased by Jaswant Sugar Mills Ltd., but the money for the purchase of the shares was obtained by borrowing it from some of the other concerns. These Companies, as has been shown above, were completely under the control of 'Yodh Raj Bhalla group'. The arrangement for the money was as follows: Rs. 14,75,000- borrowed from the assesee Company.\n Rs. 5,00,000- from National Construction and Development Corporation Ltd.\n Rs. 55,00,000- from the assessee Company but advanced by Ganesh Finance Corporation Ltd.\n The shares were registered as follows: 10,500 shares registered in the name of the assessee Company.\n 5,400 shares in the name of the National Construction and Development Corporation Ltd., and the balance in the names of the nominees of Jaswant Sugar Mills Ltd., which meant, largely, persons belonging to the 'Yodh Raj Bhalla group'.\n On October 9, 1949, the assessee Company purchased 15,547 shares at Rs. 400 per share from Jaswant Sugar Mills Ltd., and the amount paid by the assessee Company was adjusted towards the purchase price and the balance was paid. On the same day, the remaining 11,000 shares were sold by Jaswant Sugar Mills Ltd. to National Construction and Development Corporation Ltd., at Rs. 400 per share. Thus, on that date Jaswant Sugar Mills Ltd.\n ceased to have any connection with the present matter. It may be pointed out that on the date on which the two transactions took place, the priceruling in the market was about Rs. 217-8-0.\n Before Jaswant Sugar Mills Ltd. parted with the shares, they. had appointed a new Board of Directors of the Madhusudan Mills Ltd., and these new Directors also belonged to the same group. The managing agency of Messrs. Bhadani Brothers Ltd.\n was terminated, and on the same day on which the shares were purchased from these managing agents, the assessee Company was appointed as the purchasing and selling agent of the Mills. The assessee Company made enormous profit from the acquisition of these shares by way of dividend and commission as the purchasing and selling agent. In October and November, 1948 they, however, sold 6,525 shares to Dalmia Cement and Marketing Company Ltd. at Rs. 400 per share. These shares subsequently came back to the same group; butthat is not a matter with which we are immediately concerned.\n On April 7, 1949, 4,500 shares were sold by the assessee Company to the National Investment Trust Ltd. at Rs. 181 per share resulting in a loss of Rs. 8,80,000, and on June 1, 1949, another block of 3,000 shares was sold to the National Investment Trust Ltd., at Rs. 180 per share, resulting in a loss of Rs. 5,86,312. We are not concerned with the loss arising from the first sale which was considered in the assessment year, 1950-51, and in respect of which a reference is pending in the High Court of Punjab. We are concerned with the loss in the second year relating to the assessment year, 1951-52. In that year, the loss on the sale of the shares was sought to be set off against the profits made, and the loss practically cancelled the profits. The shares which were sold by the assessee Company on the two occasioning were sold to one Amrit Bhushan (a relative of Mr. Yodh Raj Bhalla) who sold then the same day to Messrs. National Investment Trust Ltd., at the slender profits of 8 annas per share, which was brokerage. Thus, at the beginning and at the end, though numerous transactions had taken place, the shares continued to be the property of the 'Yodh Raj Bhalla group'. The question is whether the loss on the sale of the shares be set off against the profits in the year in which the sales and profits were respectively made.\n The assessee Company was assessed for the assessment year, 1950-51, by the Income-tax Officer, Meerut. In that year, the loss of Rs.\n8,78,062-8-0 arising from the sale of Rs. 4,520 shares of Madhusudan Mills Ltd. was set off against the profits of the assessee Company. The case of the assessee Company for the assessment year, 1951-52, was considered by the Income-tax Officer, Central Circle V, New Delhi, to whom the cases of the other Companies above named were also transferred. By looking into theaffairs of these Companies, he came to learn, that the shares of the Madhusudan Mills Ltd. were purchased at a price, which was almost double the current market price, by the 'Yodh Raj Bhalla group, and were transferred at the same price to the assessee Company. He found that this was done with a view to removing Messrs. Bhadani Brothers, Ltd. from their managing agency and to securing for the assessee Company the purchasing and selling agency of the Mills. On the date of the purchase from Messrs. Bhadani Brothers, Ltd., Jaswant Sugar Mills Ltd. achieved this purpose in view of their controlling interest. Bhadani Brothers, Ltd. ceased to be the managing agents from that date, and the purchasing and selling agency of the Madhusudan Mills, Ltd. was given to the assessee Company, though it had, on that day, done no more than give a loan to Jaswant Sugar Mills Ltd. In the assessment year, 1951-52, the loss of Rs. 5,86,312-8-0 on the sale of 3,000 shares was, therefore, disallowed holding it to be a capital loss. The order of the Income-tax Officer, Central Circle V, New Delhi was confirmed on appeal by the Appellate Assistant Commissioner.\nOn further appeal by the assessee Company, the Income-tax Appellate Tribunal, Delhi, reversed the order of the Appellate Assistant Commissioner, and held that the loss was a trading loss.\n Whether a particular loss is a trading loss or a loss on the capital side undoubtedly depends upon the facts of each case. But it has been held, over and over again, that the question is not one of pure fact, and that a mixed question of fact and law is always involved. The cases to which we shall make a reference presently, have laid down this proposition, and those cases have also indicated how the matter is to be viewed in the context of facts. In Commissioner of Income-tax v.\nRamnarain Sons Ltd. (1), the Company was a dealer in sharesand also carried on the business of acquiring managing agencies of other Companies. The Company the acquired the managing agency of a Textile Mill from Messrs. Sassoon J. David and Co. Ltd., and also agreed as part of the same transaction to buy 2,507 shares of the Mills. 1,507 shares were purchased at Rs. 2,321-8-0 per share, and the remaining 4,000 shares were purchased at Rs. 1,500 per share. These shares were quoted on the market at Rs. 1,610. Later,4,000 shares were sold at a loss of Rs. 1,78,000 This was shown in the books of the Company as a busines loss but was disallowed, as the shares were not held to be the stock-in-trade of the business of the Company as share dealers. On a reference to the High Court of Bombay, a Divisional Bench upheld the view of the Tribunal. Chagla,C. J., in delivering the judgment of the Court, observed that a managing agency being an asset of an enduring nature, the way to look at the matter was to enquire what was, the primary intention in acquiring the shares. The learned Chief Justice then referred to a judgment of this Court reported in Kishan Prasad & Co. Ltd.\nv. Commissioner of Income-tax (1), where it was observed: \"It seems that the object of the assessee Company in buying shares was purely to obtain the managing agency of the third mill which no doubt would have been an asset of an enduring nature and would have brought them profits but there was from the inception no intention whatever on the part of the assessee Company to re-sell the shares either at a profit or otherwise deal in them.\"\nThe learned Chief Justice then considered the argument that a block of shares might have to be bought, if at all, at a higher price, and observed as follows: \"A dealer in shares may succeed in getting a large number of shares at a price less than the market price if the seller is in difficulties and wants to get rid of his shares and to get liquid assets. But we have not heard of a dealer in shares purchasing a large number of shares at a higher value than the market value. The other circumstance which is equally strong in this case is that the shares were purchased for the acquisition of the managing agency. Therefore the real object of the assessee company was not to do business in these shares, not to make profit out of these shares, but to acquire a capital asset out of which it would earn managing agency commission and make profit.\"\nMessrs. Ramnarain and Sons. Ltd. then appealed to this Court, and the decision of the Bombay High Court was upheld. The Judgment of this Court is reported in Ramnarain Sons (Pr.) Ltd. v.\nCommissioner of Income-tax (1). It was laid down by this Court that in considering whether a transaction was or was not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee, having regard to the \"legal requirements which are associated with the concept of trade or business\".\nDealing with the price above the market price which was paid in that case, it was observed: \"Even assuming that the appellants acquired the entire block of 2,507 shares from M/s. Sassoon J. David & Co. Ltd.-the shares transferred to the names of the directors being held by them merely as nominees of the appellants-the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction, which could not otherwise be regarded as a prudent business transaction, was the acquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that the intention in purchasing the shares was not to acquire them as part of the trade of the appellants in shares.\"\nThe above two decisions are merely the application of a principle of long standing, which has been stated over and over again in the past. In Oriental Investment Co. Ltd. v. Commissioner of Income-tax (1), that principle was reiterated, and it was that the object for which a company was formed did not invest the deal with the characteristics of a trade in shares, but that other circumstances along with that fact must be considered to find out the real object of a particular venture.\n Before we deal with the present case, one other case of this Court may be noticed. In Rajputana Textiles v. Commissioner of Income-tax (2), the converse conclusion was reached. There, on the facts and circumstances of the case, it was held that a particular deal in shares was a commercial venture and had all the attributes of an adventure in the nature of trade. In that case, the transaction was not a single or an undivided one with a slump payment, because for the managing agency, Rs. 12,50,000 were paid separately and for the shares, a sum of Rs. 83,98,000 was paid. The two acquisitions being different, the profit on the sale of some of the shares was considered to be a gain on the revenue side.\n There is no doubt, whatever, that the shares of the Madhusudan Mills Ltd. were acquired at a price considerably higher than the market price.\nIn fact, that the price paid was almost double.\nSuch a deal, from the business point of view, was not prudent, unless the purchaser stood to gain in someother way. It was contended before us that this was a speculative deal in the hope that the price of the shares would firm up when the textile industries would revive. If this was the intention, then it might possibly be argued that the purchasers miscarried in their calculations, and suffered a loss in a business transaction.\nBut, was this the intention of the Directors of Jaswant Sugar Mills Ltd. ? Those who sold the shares were not only in possession of the shares but also of the managing agency of the Madhusudan Mills Ltd., and the intention of the Directors of Jaswant Sugar Mills Ltd. was to remove the sellers from their position as managing agents and to get the entire benefit of such or other agencies for themselves. The assessee Company has urged that might have been the intention of they Jaswant Sugar Mills Ltd. but not of the assessee Company which had, on that day, merely given a loan to Jaswant Sugar Mills Ltd. Curiously enough, however, the immediate benefit of the deal was the acquisition of the selling and purchasing agency of the Mills, and that was obtained not in favour of Jaswant Sugar Mills Ltd. but of the assessee Company, even though on July 15, 1948 (the date of purchase) the assessee Company had obtained registration of 10,5000 shares by way of security in its own name. Why the assessee Company was favoured in this way is not far to seek. It mattered not whether Jaswant Sugar Mills Ltd.\nacquired that agency or the assessee Company; the benefit thereof went to the same group of persons.\nThe transaction of sale of the shares was also made within three months of their purchase, and the assessee Company not only bought the 10,500 shares which stood in its name but 15,547 shares, which gave the assessee Company a controlling voice in the affairs of the Mills. The assessee Company continued to retain the selling and purchasing agency, which was very profitable.\nIndeed, on its investment in the first year of Rs.\n14 lakhs odd, itmade a profit of about Rs. 7 lakhs. The question, therefore, would be whether the assessee company in purchasing the shares merely wished to deal in shares as stock-in-trade, or was acquiring a capital asset of an enduring nature. This question is not one of fact, pure and simple, hut one of an inference in law from the proved circumstances of the case.\n The Income-tax Officer, in deciding this question against the assessee Company, pointed out numerous circumstances, which showed clearly that this was not a mere purchase of shares as shares by a speculator, who, buying a big block, sometimes pays slightly more than the market rate.\nBhadani Brothers Ltd., owned not only the shares but also the managing agency, and it is obvious that they would not part with the shares without charging for the managing agency. The price of Rs.\n400 per share was so out of proportion to the market price that it indicated, by itself, the acquisition of something more than the mere shares. According to the Income-tax officer, the real intention was to acquire lucrative agencies of the Mills, and this intention, whether it was held by Jaswant Sugar Mills Ltd. Or the assessed Company or both, was of the same body of persons.\nThe Appellate Assistant Commissioner endorsed the view of the Income-tax officer; but the Tribunal made a distinction between one Company and another, and that distinction has been pressed upon us by the assessee Company. Relying upon the well-known case of Salomon v. Salomon & Co.\nLtd.(1), it was argued before us that each company must be viewed as a separate entity, and that the intention of one company could not be attributed to another company, even though the proprietorship of the companies might be same. As a proposition affecting companies, it cannot be gainsaid; but we are not concerned with a theoretical question as to the assesee Company being a separate legal entity, but with thequestion whether a particular loss made by the assessee Company is a capital or a revenue loss.\nThe two Companies, i. e., jaswant Sugar Mills Ltd.\nand the assessee Company, were directed by the same set of persons, and the facts show that even though Jaswant Sugar Mills Ltd. temporarily acquire the shares, they conferred all the benefits of the acquisition upon the assessee Company from the very first day. The assessee Company also ultimately came into possession of all the shares along with another Company, which was also directed by the same persons, and Jaswant Sugar Mills Ltd. went out of the picture within three months. In these circumstances, it is easy to see that the interposition of Jaswant Sugar Mills Ltd. was merely a device to secure the benefit of the English case, to which we have referred. It was never intended that Jaswant Sugar Mills Ltd. would hold the shares or the benefits arising from the acquisition of a block of shares, giving to the holder a decisive voice in the affairs of Madhusudan Mills Ltd. That controlling interest was acquired by the `Yodh Raj Bhalla group' for the benefit of the assessee Company, and it was an acquisition of an interest of an enduring nature.\n Reference was made, in this connection, to the transactions with the Dalmia Cement and Marketing Co. Ltd. in which the latter paid the same price namely, Rs. 400 per share. Perhaps, the Dalmia Company was after the controlling interest in its own way, and it is significant to note that within a short time, those shares again found their way in the hands of the same group.\nSimilarly, the shares changed hands even within this group through the agency of Amrit Bhushan, no doubt a broker but also a relative of Mr. Yodh Raj Bhalla, who profited only to the extent of 8 annas per share, and bought and sold the shares from one Company to mother on the same day. All this show that the affairs of there Companies were centrally arranged, and theintention was to benefit the assessee Company by the acquisition of a large block of shares at a very much later prices than obtaining in the market, to acquire certain agencies of a profitable character.\n In our opinion, this transaction must be regarded as one on the capital side. Shares were never treated as part of the stock-in-trade. They were not sold in the market, but were sold at a loss to another Company belonging to the same group, with the obvious intention of setting off the losses against the profits, thus cancelling the profits, and saving them from taxation.\n In the result, the appeal is allowed, with costs on the respondent.\n Appeal allowed.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "36c01a06cc07452da41677a71a6c323c",
"to_name": null,
"type": null,
"value": {
"end": 86,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\nDATED THIS THE 3RD DAY OF SEPTEMBER, 2014"
}
},
{
"from_name": null,
"id": "1de0981fd28d431e8335dd3f66360219",
"to_name": null,
"type": null,
"value": {
"end": 188,
"labels": [
"PREAMBLE"
],
"start": 86,
"text": "\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE K.N.PHANEENDRA\n\n CRIMINAL PETITION No. 1953 OF 2014"
}
},
{
"from_name": null,
"id": "d2c35ef37a3c4711b044e5f54e6817d2",
"to_name": null,
"type": null,
"value": {
"end": 785,
"labels": [
"PREAMBLE"
],
"start": 188,
"text": "\n\nBETWEEN\n\n SRI AJITH NAYAK,\n S/O PANDURANGA NAYAK,\n AGE : 36 YEARS,\n HOUSE NO 4C GROUND FLOOR,\n GULLAPPA REDDY BUILDING\n NEAR RAMAIAH GARDEN\n SOS POST, BANGALORE-560076\n\n ... PETITIONER\n\n (By Sri : A S GUPTA, ADV.)\n\nAND\n\n SMT SHREELATHA NAYAK\n W/O AJITH NAYAK,\n AGE : 34 YEARS,\n NO.85, 1ST FLOOR,\n PRATHIMA, 8TH MAIN,\n SECTOR1, NOBO NAGAR,\n SOS POST BANNERGHATTA ROAD\n BANGALORE-560076\n\n ... RESPONDENT\n\n (BY PARTY IN PERSON)\n\n **"
}
},
{
"from_name": null,
"id": "3d0cb4dc24694f66a91850172f17f211",
"to_name": null,
"type": null,
"value": {
"end": 1412,
"labels": [
"NONE"
],
"start": 785,
"text": "*\n\n\nTHIS CRL.P FILED U/S.482 CR.P.C BY THE\n\nADVOCATE FOR THE PETITIONER PRAYING THAT THIS\n\nHON'BLE COURT MAY BE PLEASED TO SET ASIDE THE\n\nINTERIM ORDER DATED 16.1.2014 IN CRL.A.NO.45/2013 OF THE 1ST APPELALTE COURT OF F.T.C.-III, BANGALORE RURAL DISTRICT, BANGALORE ON THE FILE OF II ADDL. SESSIONS AND SPL. JUDGE C/C F.T.C-III, BANGALORE RURAL DISTRICT, BANGALORE AND EX-PARTE ORDER DATED 22.7.2013 PASSED BY THE C.J.M., BANGALORE RURAL DISTRICT, BANGALORE IN C.MISC. NO.75/2010.\n THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard the learned counsel for petitioner"
}
},
{
"from_name": null,
"id": "eb497bdc1797494e867ce6f9458a8d56",
"to_name": null,
"type": null,
"value": {
"end": 1475,
"labels": [
"NONE"
],
"start": 1412,
"text": ". The respondent in person present and submitted her arguments."
}
},
{
"from_name": null,
"id": "3dd86fcd1b404a0d94d949020eb4f06d",
"to_name": null,
"type": null,
"value": {
"end": 1774,
"labels": [
"FAC"
],
"start": 1475,
"text": "\n 2. The records disclose that respondent filed a petition before the Addl. Chief Judicial Magistrate, Bangalore Rural District, Mangalore in C.Misc.\nNo.75/2010 against the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 making several grounds for her relief."
}
},
{
"from_name": null,
"id": "af353bbac88140cd8eea88a578474db1",
"to_name": null,
"type": null,
"value": {
"end": 2108,
"labels": [
"RLC"
],
"start": 1775,
"text": "The trial court not only passed the order granting interim maintenance at Rs.2,500/- per month but also passed an order on the application filed by the petitioner directing the respondent to surrender his passport before the Court solely on the ground that the present petitioner has not filed any objections to the said application."
}
},
{
"from_name": null,
"id": "7d87ad7814ef4edaa940cb7499ccf88e",
"to_name": null,
"type": null,
"value": {
"end": 2258,
"labels": [
"RLC"
],
"start": 2109,
"text": "The said order of the learned Magistrate was challenged before the II Addl. Sessions and Special Judge, FTC-III, Bangalore in Crl. Appeal No.45/2013."
}
},
{
"from_name": null,
"id": "ed57a6d220c340f8899bd61c5272c742",
"to_name": null,
"type": null,
"value": {
"end": 2945,
"labels": [
"RLC"
],
"start": 2258,
"text": "\nAfter hearing both the parties the said order passed by the learned Magistrate has been modified to the effect that the present petitioner (husband) Ajith Nayak has to surrender his passport within 15 days from the date of order of the appellate court before the trial court and trial court is directed to take custody of the passport of Ajith Nayak and further the trial court is also directed to consider the application of Ajith Nayak permitting him to go to foreign countries as and when required only for limited period without obstructing the court proceedings.\nThe orders of both the trial court and appellate court are called in question before this court in this petition.\n 3."
}
},
{
"from_name": null,
"id": "54b3639362de4c6f93b077e59d5affb1",
"to_name": null,
"type": null,
"value": {
"end": 3253,
"labels": [
"ARG_PETITIONER"
],
"start": 2946,
"text": "The learned counsel for petitioner strenuously submitted that the petitioner is gainfully employed in IBM Company and often he has to go to foreign countries to obey the orders of the company, if pass port is seized he may loose his job and in that event he will be put to great inconvenience and injustice."
}
},
{
"from_name": null,
"id": "74b65cd934fd418bb8dc3b66752bf26a",
"to_name": null,
"type": null,
"value": {
"end": 3412,
"labels": [
"ARG_RESPONDENT"
],
"start": 3255,
"text": "4. Per contra, the respondent Smt. Shreelatha Nayak submitted before court that the petitioner has harassed her like anything and he made her life miserable."
}
},
{
"from_name": null,
"id": "9454f0b7105742f6a9ebf58cb5345c42",
"to_name": null,
"type": null,
"value": {
"end": 3449,
"labels": [
"ARG_RESPONDENT"
],
"start": 3413,
"text": "He has not attended court regularly."
}
},
{
"from_name": null,
"id": "5642be86cdf84c678ad7c31760ecb7f5",
"to_name": null,
"type": null,
"value": {
"end": 3528,
"labels": [
"ARG_RESPONDENT"
],
"start": 3449,
"text": "\nTherefore, it made her inevitable to make such application before trial court."
}
},
{
"from_name": null,
"id": "0a44b9bd28e84fb7bbf98a219a8fcf4d",
"to_name": null,
"type": null,
"value": {
"end": 3617,
"labels": [
"ARG_RESPONDENT"
],
"start": 3529,
"text": "Accordingly, she supported the orders of the trial court and as well as appellate court."
}
},
{
"from_name": null,
"id": "f4a52e1ae52b4027947e6f09afe409ab",
"to_name": null,
"type": null,
"value": {
"end": 4009,
"labels": [
"ANALYSIS"
],
"start": 3617,
"text": "\n 5. After hearing the arguments of both sides and on perusal of the orders of the trial court and as well as appellate court, it is seen from the orders and as well as submissions made before the courts below, it is stated that the petitioner has no intention to go to foreign countries and settle there itself and he has also no intention to avoid proceedings filed against him by his wife."
}
},
{
"from_name": null,
"id": "1c457fd839d24cea99369f225a5f7be7",
"to_name": null,
"type": null,
"value": {
"end": 4150,
"labels": [
"ANALYSIS"
],
"start": 4010,
"text": "Further, the petitioner under took that he will not obstruct court proceedings and he will not misuse the liberty given to him by the court."
}
},
{
"from_name": null,
"id": "a3819e45fcb04c1b899ce902bc4215bc",
"to_name": null,
"type": null,
"value": {
"end": 4559,
"labels": [
"ANALYSIS"
],
"start": 4150,
"text": "\n 6. On perusal of the above said materials on record it is clear that if the pass port of the petitioner is seized by the court it would inevitably cause inconvenience to the petitioner, because as it is mentioned that he is gainfully employed in IBM Company and he cannot expect at what circumstance and what time company would direct him to go to foreign country in connection with the work of the company."
}
},
{
"from_name": null,
"id": "678cd022e8b344d4bac641dbc6887c09",
"to_name": null,
"type": null,
"value": {
"end": 4853,
"labels": [
"ANALYSIS"
],
"start": 4560,
"text": "Therefore, if the pass port is seized and direction is issued to him that on every occasion he has to make an application seeking release of the pass port and attend work in the foreign country and come back and surrender pass port it would definitely create hardship and inconvenience to him."
}
},
{
"from_name": null,
"id": "e5e9014bc40d490488ad42e696acb881",
"to_name": null,
"type": null,
"value": {
"end": 5086,
"labels": [
"RATIO"
],
"start": 4853,
"text": "\n 7. The sole object of seizing pass port by the trial court and appellate court is to see that petitioner should attend the court as and when required by the court and also assist the court in disposing of the matter at the earlier."
}
},
{
"from_name": null,
"id": "c326dc34298045c99d04d75d22f97257",
"to_name": null,
"type": null,
"value": {
"end": 5250,
"labels": [
"RATIO"
],
"start": 5087,
"text": "On putting reasonable conditions on the petitioner by modifying the order of the trial court and appellate court, in my opinion, it would meet the ends of justice."
}
},
{
"from_name": null,
"id": "1a49bfadcbd446ffb7dec5ae040bcb47",
"to_name": null,
"type": null,
"value": {
"end": 5736,
"labels": [
"ANALYSIS"
],
"start": 5251,
"text": "Therefore, I direct the trial court to release the pass port in favour of the petitioner if already surrendered or not to insist for surrender of the passport if not yet surrendered, subject to the condition that petitioner has to intimate the court, as and when he proposed to leave the country to foreign country and he must specifically mention that when he is actually leaving the country, to which country and on what order of the company and that when he is coming back to India."
}
},
{
"from_name": null,
"id": "cec0dabbdb2040b28c8688a752f9da81",
"to_name": null,
"type": null,
"value": {
"end": 6008,
"labels": [
"ANALYSIS"
],
"start": 5737,
"text": "Thereafter, the petitioner shall also appear before court, as and when required or directed by the trial court in order to assist the court for disposal of the case and he shall not misuse the release of pass port with a view to permanently settle in the foreign country."
}
},
{
"from_name": null,
"id": "45c582ce5e264ade9943d8167530b475",
"to_name": null,
"type": null,
"value": {
"end": 6204,
"labels": [
"ANALYSIS"
],
"start": 6009,
"text": "In the event of the respondent suspect that petitioner may misuse the release of pass port at any future stage the respondent is at liberty to make appropriate application before the trial court."
}
},
{
"from_name": null,
"id": "b6ca5933b5334cc89f64e1c8c963cf49",
"to_name": null,
"type": null,
"value": {
"end": 6331,
"labels": [
"ANALYSIS"
],
"start": 6205,
"text": "With these observation, I think, the petition is disposed of both the parties would not suffer any inconvenience or injustice."
}
},
{
"from_name": null,
"id": "5b894ec3654d458f902f233021234c81",
"to_name": null,
"type": null,
"value": {
"end": 6375,
"labels": [
"RPC"
],
"start": 6331,
"text": "\n 8. Therefore, petition is allowed in part."
}
},
{
"from_name": null,
"id": "427b6ce6de794149b3250bda66c5a540",
"to_name": null,
"type": null,
"value": {
"end": 6530,
"labels": [
"RPC"
],
"start": 6376,
"text": "The orders of the trial court and appellate court directing the petitioner for surrendering of his pass port or seizing of pass port are hereby set aside."
}
},
{
"from_name": null,
"id": "7ad92330ac594bd79cffc4bbb15affb5",
"to_name": null,
"type": null,
"value": {
"end": 6821,
"labels": [
"RPC"
],
"start": 6531,
"text": "However, petitioner herein is directed to intimate the court as and when he would like to leave the country with specific particulars of the date of leaving country and also the date of coming back to India and also the purpose of visiting the foreign country with the order of the company."
}
},
{
"from_name": null,
"id": "8b1945632d274d4abc31b4ce04ecb085",
"to_name": null,
"type": null,
"value": {
"end": 6984,
"labels": [
"RPC"
],
"start": 6822,
"text": "The petitioner shall also attend the court as and when required or directed by the trial court and also assist the court for disposal of the case at the earliest."
}
},
{
"from_name": null,
"id": "962adea187dd4528bb9a4e0cbe2f8cf0",
"to_name": null,
"type": null,
"value": {
"end": 7076,
"labels": [
"RPC"
],
"start": 6985,
"text": "The respondent is also directed to cooperate with the court for early disposal of the case."
}
},
{
"from_name": null,
"id": "9b1e67d870464b869cc148eb2d582957",
"to_name": null,
"type": null,
"value": {
"end": 7212,
"labels": [
"RPC"
],
"start": 7077,
"text": "Further, the trial court is also hereby directed to expedite the matter and dispose of the same on merits as expeditiously as possible."
}
},
{
"from_name": null,
"id": "833eb13441e248fd9cb629277a52271b",
"to_name": null,
"type": null,
"value": {
"end": 7227,
"labels": [
"NONE"
],
"start": 7212,
"text": "\n SD/- JUDGE VK"
}
}
]
}
] | 4,219 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\nDATED THIS THE 3RD DAY OF SEPTEMBER, 2014\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE K.N.PHANEENDRA\n\n CRIMINAL PETITION No. 1953 OF 2014\n\nBETWEEN\n\n SRI AJITH NAYAK,\n S/O PANDURANGA NAYAK,\n AGE : 36 YEARS,\n HOUSE NO 4C GROUND FLOOR,\n GULLAPPA REDDY BUILDING\n NEAR RAMAIAH GARDEN\n SOS POST, BANGALORE-560076\n\n ... PETITIONER\n\n (By Sri : A S GUPTA, ADV.)\n\nAND\n\n SMT SHREELATHA NAYAK\n W/O AJITH NAYAK,\n AGE : 34 YEARS,\n NO.85, 1ST FLOOR,\n PRATHIMA, 8TH MAIN,\n SECTOR1, NOBO NAGAR,\n SOS POST BANNERGHATTA ROAD\n BANGALORE-560076\n\n ... RESPONDENT\n\n (BY PARTY IN PERSON)\n\n ***\n\n\nTHIS CRL.P FILED U/S.482 CR.P.C BY THE\n\nADVOCATE FOR THE PETITIONER PRAYING THAT THIS\n\nHON'BLE COURT MAY BE PLEASED TO SET ASIDE THE\n\nINTERIM ORDER DATED 16.1.2014 IN CRL.A.NO.45/2013 OF THE 1ST APPELALTE COURT OF F.T.C.-III, BANGALORE RURAL DISTRICT, BANGALORE ON THE FILE OF II ADDL. SESSIONS AND SPL. JUDGE C/C F.T.C-III, BANGALORE RURAL DISTRICT, BANGALORE AND EX-PARTE ORDER DATED 22.7.2013 PASSED BY THE C.J.M., BANGALORE RURAL DISTRICT, BANGALORE IN C.MISC. NO.75/2010.\n THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard the learned counsel for petitioner. The respondent in person present and submitted her arguments.\n 2. The records disclose that respondent filed a petition before the Addl. Chief Judicial Magistrate, Bangalore Rural District, Mangalore in C.Misc.\nNo.75/2010 against the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 making several grounds for her relief. The trial court not only passed the order granting interim maintenance at Rs.2,500/- per month but also passed an order on the application filed by the petitioner directing the respondent to surrender his passport before the Court solely on the ground that the present petitioner has not filed any objections to the said application. The said order of the learned Magistrate was challenged before the II Addl. Sessions and Special Judge, FTC-III, Bangalore in Crl. Appeal No.45/2013.\nAfter hearing both the parties the said order passed by the learned Magistrate has been modified to the effect that the present petitioner (husband) Ajith Nayak has to surrender his passport within 15 days from the date of order of the appellate court before the trial court and trial court is directed to take custody of the passport of Ajith Nayak and further the trial court is also directed to consider the application of Ajith Nayak permitting him to go to foreign countries as and when required only for limited period without obstructing the court proceedings.\nThe orders of both the trial court and appellate court are called in question before this court in this petition.\n 3. The learned counsel for petitioner strenuously submitted that the petitioner is gainfully employed in IBM Company and often he has to go to foreign countries to obey the orders of the company, if pass port is seized he may loose his job and in that event he will be put to great inconvenience and injustice.\n 4. Per contra, the respondent Smt. Shreelatha Nayak submitted before court that the petitioner has harassed her like anything and he made her life miserable. He has not attended court regularly.\nTherefore, it made her inevitable to make such application before trial court. Accordingly, she supported the orders of the trial court and as well as appellate court.\n 5. After hearing the arguments of both sides and on perusal of the orders of the trial court and as well as appellate court, it is seen from the orders and as well as submissions made before the courts below, it is stated that the petitioner has no intention to go to foreign countries and settle there itself and he has also no intention to avoid proceedings filed against him by his wife. Further, the petitioner under took that he will not obstruct court proceedings and he will not misuse the liberty given to him by the court.\n 6. On perusal of the above said materials on record it is clear that if the pass port of the petitioner is seized by the court it would inevitably cause inconvenience to the petitioner, because as it is mentioned that he is gainfully employed in IBM Company and he cannot expect at what circumstance and what time company would direct him to go to foreign country in connection with the work of the company. Therefore, if the pass port is seized and direction is issued to him that on every occasion he has to make an application seeking release of the pass port and attend work in the foreign country and come back and surrender pass port it would definitely create hardship and inconvenience to him.\n 7. The sole object of seizing pass port by the trial court and appellate court is to see that petitioner should attend the court as and when required by the court and also assist the court in disposing of the matter at the earlier. On putting reasonable conditions on the petitioner by modifying the order of the trial court and appellate court, in my opinion, it would meet the ends of justice. Therefore, I direct the trial court to release the pass port in favour of the petitioner if already surrendered or not to insist for surrender of the passport if not yet surrendered, subject to the condition that petitioner has to intimate the court, as and when he proposed to leave the country to foreign country and he must specifically mention that when he is actually leaving the country, to which country and on what order of the company and that when he is coming back to India. Thereafter, the petitioner shall also appear before court, as and when required or directed by the trial court in order to assist the court for disposal of the case and he shall not misuse the release of pass port with a view to permanently settle in the foreign country. In the event of the respondent suspect that petitioner may misuse the release of pass port at any future stage the respondent is at liberty to make appropriate application before the trial court. With these observation, I think, the petition is disposed of both the parties would not suffer any inconvenience or injustice.\n 8. Therefore, petition is allowed in part. The orders of the trial court and appellate court directing the petitioner for surrendering of his pass port or seizing of pass port are hereby set aside. However, petitioner herein is directed to intimate the court as and when he would like to leave the country with specific particulars of the date of leaving country and also the date of coming back to India and also the purpose of visiting the foreign country with the order of the company. The petitioner shall also attend the court as and when required or directed by the trial court and also assist the court for disposal of the case at the earliest. The respondent is also directed to cooperate with the court for early disposal of the case. Further, the trial court is also hereby directed to expedite the matter and dispose of the same on merits as expeditiously as possible.\n SD/- JUDGE VK "
} |
{
"group": "Tax"
} | [
{
"result": [
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"type": null,
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"end": 64,
"labels": [
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"start": 0,
"text": "sas\n IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
}
},
{
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"labels": [
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"start": 64,
"text": "\n\nORDINARY ORIGINAL CIVIL JURISDICTION"
}
},
{
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"id": "927e33887dd14b869320d242f99fe06b",
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"end": 137,
"labels": [
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],
"start": 102,
"text": "\n\nSALES TAX REFERENCE NO.47 OF 2009"
}
},
{
"from_name": null,
"id": "49e31924c9434192a9295537e7042241",
"to_name": null,
"type": null,
"value": {
"end": 878,
"labels": [
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],
"start": 137,
"text": "\n WITH\n\nSALES TAX REFERENCE NO.48 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.49 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.34 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.1 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.7 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.10 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.11 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.12 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.14 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.23 OF 2012\n\nThe Commissioner of Sales Tax, ]\nMaharashtra State, Mumbai. ].."
}
},
{
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"end": 1032,
"labels": [
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],
"start": 878,
"text": "Applicant.\n\nV/s.\n\nM/s. S.H.Kelkar & Company Ltd. ]\nLal Bahadur Shastri Marg, Mulund (West) ]\nMumbai - 400 080. ].."
}
},
{
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"labels": [
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"text": "Respondent.\n\n WITH\n"
}
},
{
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"id": "d3a8a71c8a8a434589c4d860d8d8c6a7",
"to_name": null,
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"end": 1108,
"labels": [
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],
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"text": "SALES TAX REFERENCE NO.11 OF 2006"
}
},
{
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"id": "7569b91742df45f0805568a9e419339b",
"to_name": null,
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"value": {
"end": 1247,
"labels": [
"PREAMBLE"
],
"start": 1110,
"text": "International Flavours & Fragrances India ]\n\nLtd., formerly known as M/s. Bush Boake ]\n\nAllen (I) Ltd. a company incorporated under ]"
}
},
{
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"end": 1293,
"labels": [
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],
"start": 1247,
"text": "\n\nthe provisions of the Companies Act, 1956, ]"
}
},
{
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"labels": [
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],
"start": 1293,
"text": "\n\nhaving its registered office at 1-5 Seven ]"
}
},
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"value": {
"end": 1543,
"labels": [
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"start": 1339,
"text": "\n\nWells Street, St. Thomas Mount, Chennai ]\n\n\n600 016 and Regional Sales Office at Floral ]\n\nDeck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]\n\nCentral Road, Andheri East, Mumbai-400063. ] ..Applicant."
}
},
{
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"id": "8ed59f2518f14e5ead6f57760bb8cfb6",
"to_name": null,
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"value": {
"end": 1665,
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"start": 1543,
"text": "\n\nV/s.\n\nState of Maharashtra through its Secretary ]\n\nof Ministry of Finance (Sales Tax Department) ]\n\nMantralaya, Mumbai."
}
},
{
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"text": " ] "
}
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"end": 1708,
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"text": "..Respondent."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 2250,
"labels": [
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"start": 1708,
"text": "\n\n WITH\nSALES TAX REFERENCE NO.15 OF 2006\n\nSaibaba Industries Ltd., a company ]\n\nincorporated under the provisions of the ]\n\nCompanies Act, 1956, having its registered ]\n\noffice at 129/131, Kazi Sayed Street Masjid, ] ..Applicant.\n\nMumbai 400 003.\n\nV/s.\n\nState of Maharashtra through its Secretary ]\n\nof Ministry of Finance (Sales Tax Department) ]\n\nMantralaya, Mumbai. ] ..Respondent.\n\n WITH\nSALES TAX REFERENCE NO.5 OF 2012\n\n "
}
},
{
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"id": "e504c97adb3b45dea79cbd902d864646",
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"text": "WITH\nSALES"
}
},
{
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"end": 2288,
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],
"start": 2261,
"text": "TAX REFERENCE NO.11 OF 2011"
}
},
{
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],
"start": 2315,
"text": "WITH\nSALES"
}
},
{
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"end": 2353,
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],
"start": 2326,
"text": "TAX REFERENCE NO.13 OF 2012"
}
},
{
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"id": "e2bdbaef615445c6bd63ef269b8d61d9",
"to_name": null,
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"value": {
"end": 2771,
"labels": [
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],
"start": 2380,
"text": "WITH\nSALES TAX REFERENCE NO.15 OF 2012\n\n WITH\nSALES TAX REFERENCE NO.22 OF 2012\n\nThe Commissioner of Sales Tax, ]\nMaharashtra State, 8th floor, Vikrikar\nBhavan, Mazgaon, Mumbai-400 010. ]\n\n ] ..Applicant.\n\nV/s.\n\nM/s. Spac Aromas, ]\n\n29/38, Mangaldas Road, Mumbai-400 002."
}
},
{
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"id": "c0432b17b5e34208a4080754447255a6",
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"end": 2782,
"labels": [
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"text": " ] "
}
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{
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"end": 2795,
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],
"start": 2782,
"text": "..Respondent."
}
},
{
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"end": 3303,
"labels": [
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],
"start": 2795,
"text": "\n\n WITH\n WRIT PETITION NO.2055 OF 2003\n\n\nInternational Flavours & Fragrances India ]\n\nLtd., formerly known as M/s. Bush Boake ]\n\nAllen (I) Ltd. a company incorporated under ]\n\nthe provisions of the Companies Act, 1956, ]\n\nhaving its registered office at 1-5 Seven ]\n\nWells Street, St. Thomas Mount, Chennai ]\n\n600 016 and Regional Sales Office at Floral ]\n\nDeck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]\n\nCentral Road, Andheri East, Mumbai-400063. ] ..Petitioner."
}
},
{
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"value": {
"end": 3346,
"labels": [
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],
"start": 3303,
"text": "\n\nV/s.\n\n1. State of Maharashtra through its"
}
},
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"end": 3356,
"labels": [
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"start": 3347,
"text": " ]"
}
},
{
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"value": {
"end": 3436,
"labels": [
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],
"start": 3356,
"text": "\n\nSecretary of Ministry of Finance (Sales) ]\n\nTax Department) Mantralaya, Mumbai"
}
},
{
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"end": 3486,
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"start": 3436,
"text": ". ]\n\n ]"
}
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"end": 3677,
"labels": [
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],
"start": 3486,
"text": "\n\n2. Maharashtra Sales Tax Tribunal, ]\n\nVikrikar Bhavan, Mazgaon, ]\n\nMumbai 400 010. ]\n\n ]\n\n3."
}
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{
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"to_name": null,
"type": null,
"value": {
"end": 4303,
"labels": [
"PREAMBLE"
],
"start": 3678,
"text": "The Commissioner of Sales Tax, ]\n\nMaharashtra State, Vikrikar Bhavan, ]\n\nMazgaon, Mumbai 400 010. ] ..Respondents.\n\n WITH\n WRIT PETITION NO.2056 OF 2003\n\nSaibaba Industries Ltd., a company ]\n\nincorporated under the provisions of the ]\n\nCompanies Act, 1956, having its registered ]\n\noffice at 129/131, Kazi Sayed Street Masjid, ] ..Petitioner.\n\nMumbai 400 003.\n\nV/s.\n\n1. State of Maharashtra through its ]\n\nSecretary of Ministry of Finance (Sales) ]\n\nTax Department) Mantralaya, Mumbai. ]\n\n ]"
}
},
{
"from_name": null,
"id": "4dec7429f6eb41b3a42fa32ee5916ed3",
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"end": 4339,
"labels": [
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],
"start": 4303,
"text": "\n\n2. Maharashtra Sales Tax Tribunal,"
}
},
{
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"value": {
"end": 4350,
"labels": [
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"start": 4340,
"text": " ]"
}
},
{
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"id": "d9ebf60ccb0d4f458d0e694de69961f1",
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"value": {
"end": 4377,
"labels": [
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],
"start": 4350,
"text": "\n\nVikrikar Bhavan, Mazgaon,"
}
},
{
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"id": "cbd880bb906144ba98438fa2a7f2e8e8",
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"value": {
"end": 4397,
"labels": [
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],
"start": 4378,
"text": " ]"
}
},
{
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"end": 4443,
"labels": [
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],
"start": 4397,
"text": "\n\nMumbai 400 010. ]"
}
},
{
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"id": "234f53d3f1c442d991911360abf86368",
"to_name": null,
"type": null,
"value": {
"end": 4490,
"labels": [
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],
"start": 4443,
"text": "\n\n ]"
}
},
{
"from_name": null,
"id": "22910fcb4f0e47938eb369ede6ba4804",
"to_name": null,
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"value": {
"end": 4511,
"labels": [
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],
"start": 4492,
"text": "3. The Commissioner"
}
},
{
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"type": null,
"value": {
"end": 4524,
"labels": [
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],
"start": 4512,
"text": "of Sales Tax"
}
},
{
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"id": "2d73f8e6a1754f5ba10ea46b238c2e59",
"to_name": null,
"type": null,
"value": {
"end": 4537,
"labels": [
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],
"start": 4524,
"text": ", ]"
}
},
{
"from_name": null,
"id": "ec477f588a8d408db8f957fda8600898",
"to_name": null,
"type": null,
"value": {
"end": 4601,
"labels": [
"PREAMBLE"
],
"start": 4537,
"text": "\n\nMaharashtra State, Vikrikar Bhavan, ]\n\nMazgaon, Mumbai"
}
},
{
"from_name": null,
"id": "8b94b6b9fcbf4649bf40bb211c517da0",
"to_name": null,
"type": null,
"value": {
"end": 4647,
"labels": [
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],
"start": 4602,
"text": " 400 010. ] ..Respondents."
}
},
{
"from_name": null,
"id": "29b2691038b844ef8b94397f7a12356c",
"to_name": null,
"type": null,
"value": {
"end": 4712,
"labels": [
"PREAMBLE"
],
"start": 4650,
"text": "Mr.V.A.Sonpal, Special Counsel for the revenue in all matters."
}
},
{
"from_name": null,
"id": "64e68cb4b2964e2bb4fabe7b80bd0cea",
"to_name": null,
"type": null,
"value": {
"end": 5293,
"labels": [
"PREAMBLE"
],
"start": 4714,
"text": "Mr.S.K.Nair, A.G.P. for for revenue in Writ Petition No.2055/013 &\n2056/03.\n\nMr.V.Sridharan, Senior Advocate with Mr.V.P.Patkar, Mr.Rahul Thakar\ni/b. Khaitan & Jaykar for the Applicant in S.T.R. Nos.11/06 and for\nthe Respondent in S.T.R Nos.47/09 and for the Petitioners in W.P.\nNos.2055/03 & 2056/03.\n\nMr.V.P. Patkar i/b. Khaitan & Jaykar for Applicant in S.T.R No.15/06.\n\nMr.V.P.Patkar with Mr.Dinesh Patkar and Mr.Dinesh Tambde &\nMr.M.M.Vadiya for the assessee in S.T.R. Nos.48/09, 49/09, 1/12,\n5/12, 7,12, 10/12, 11/12, 12/12, 13/12, 14/12, 15/12, 22/12, 23/12\n& 11/11.\n\n "
}
},
{
"from_name": null,
"id": "86773056c0f24991a5092715d5093bd0",
"to_name": null,
"type": null,
"value": {
"end": 5354,
"labels": [
"PREAMBLE"
],
"start": 5293,
"text": "CORAM : S.C.DHARMADHIKARI AND A.K.MENON, JJ.\n\n RESERVED ON"
}
},
{
"from_name": null,
"id": "7184235d91e94153861fc23a0823bc3c",
"to_name": null,
"type": null,
"value": {
"end": 5388,
"labels": [
"PREAMBLE"
],
"start": 5369,
"text": ": 7TH OCTOBER, 2014"
}
},
{
"from_name": null,
"id": "be1c6f3a60b84c6db2821219b43a4e31",
"to_name": null,
"type": null,
"value": {
"end": 5459,
"labels": [
"PREAMBLE"
],
"start": 5394,
"text": "PRONOUNCED ON : 27TH NOVEMBER, 2014\n\nJUDGMENT (PER A.K.MENON, J.)"
}
},
{
"from_name": null,
"id": "c602b9d94eb74460af45e4e8607bb7ca",
"to_name": null,
"type": null,
"value": {
"end": 5555,
"labels": [
"FAC"
],
"start": 5460,
"text": "1. This order disposes of all the above seventeen Sales Tax References and two Writ Petitions."
}
},
{
"from_name": null,
"id": "4696050be53b4a168e80fb9202f26ee5",
"to_name": null,
"type": null,
"value": {
"end": 5743,
"labels": [
"FAC"
],
"start": 5556,
"text": "For the purpose of the present judgment, we refer to the facts and issues raised in Sales Tax Reference No.11 of 2006, Writ Petition No.2055 of 2003 and Sales Tax Reference No.49 of 2006."
}
},
{
"from_name": null,
"id": "15fedb36c3ae4bba836b51e89a493a63",
"to_name": null,
"type": null,
"value": {
"end": 5876,
"labels": [
"FAC"
],
"start": 5744,
"text": "The issues that arise for consideration pertains to additive flavour compounds only and synthetic essential oils, fragrances, etc.\n "
}
},
{
"from_name": null,
"id": "9171f8feddfe407ca08c1c66fe9560d8",
"to_name": null,
"type": null,
"value": {
"end": 6348,
"labels": [
"ISSUE"
],
"start": 5876,
"text": "Vide order 31st March, 2006, the following questions were referred to this Court:- (i) Whether on the facts and circumstances of the case, was the Tribunal justified in negating the revenue's interpretation of the words \"and their compounds\" in schedule entry C-I-19 as covering only the compounds of natural and synthetic essential oils as not quite proper and interpreting the words \"and their compounds\", therein to mean the compounds of the aromatic chemicals as well."
}
},
{
"from_name": null,
"id": "62f5f22fa50146d5963a5d728200d8c4",
"to_name": null,
"type": null,
"value": {
"end": 6611,
"labels": [
"ISSUE"
],
"start": 6348,
"text": "\n (ii) Whether on the facts an circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. flavouring compound is compound covered by Schedule Entry C-I-19 and liable to tax @ 4 per cent from 1-1-1988 to 10-8-1988 and 1994-95 ?"
}
},
{
"from_name": null,
"id": "500d9b90a1504b5a9b7179daec8a53d4",
"to_name": null,
"type": null,
"value": {
"end": 6909,
"labels": [
"ISSUE"
],
"start": 6611,
"text": "\n (iii) Whether on the facts and circumstances of the case, was the Tribunal justified in concluding that the impugned product i.e. perfumery compound are compounds or aromatic chemicals within the meaning of Schedule Entry C-I-19 and hence liable to tax @ 4% for the period 1-1-1998 to 31-3-1995 ?"
}
},
{
"from_name": null,
"id": "5e31d3b009984e1193fd6eab461b58d6",
"to_name": null,
"type": null,
"value": {
"end": 7020,
"labels": [
"FAC"
],
"start": 6909,
"text": "\n 2. For the purpose of this judgment, we refer to the facts in the case of Sales Tax Reference No.47 of 2009."
}
},
{
"from_name": null,
"id": "40f4b76a29214d0c9d86012d0fd232a7",
"to_name": null,
"type": null,
"value": {
"end": 7165,
"labels": [
"FAC"
],
"start": 7021,
"text": "The Respondent- assessee is a manufacturer of Aromatic Chemicals, Flavouring Compounds, Natural and Synthetic Essential Oil and Fragrances, etc."
}
},
{
"from_name": null,
"id": "9df0120b1ab242a09ceb5c17363ddc87",
"to_name": null,
"type": null,
"value": {
"end": 7351,
"labels": [
"FAC"
],
"start": 7166,
"text": "The assessing authority levied a tax at 15% on the sales of flavouring compounds and perfumery compounds treating them as covered under entry C-II-78, with effect from 11th August,1988."
}
},
{
"from_name": null,
"id": "730255bb6bd642b387a3e676ed48d1a7",
"to_name": null,
"type": null,
"value": {
"end": 7447,
"labels": [
"FAC"
],
"start": 7352,
"text": "Perfumery compounds were also taxed under C-II-86 as fragrances and penalties were also levied."
}
},
{
"from_name": null,
"id": "ac413351b68d4afea1b8c4697db527e2",
"to_name": null,
"type": null,
"value": {
"end": 7577,
"labels": [
"FAC"
],
"start": 7447,
"text": "\n 3. According to the Respondent-assessee, sales of flavouring compounds and perfumery compounds were covered under entry C-I-19."
}
},
{
"from_name": null,
"id": "a76ac030fff64e4380c84e6ddfa756c9",
"to_name": null,
"type": null,
"value": {
"end": 7828,
"labels": [
"FAC"
],
"start": 7578,
"text": "The assessee filed a first appeal before the Deputy Commissioner of Sales Tax, who considered the above submissions but rejected them, holding that the assessing officer had not erred in treating the impugned sale as covered in schedule entry C-I-19."
}
},
{
"from_name": null,
"id": "2f9f41bf2f324b1eb45a4b955d753d72",
"to_name": null,
"type": null,
"value": {
"end": 7940,
"labels": [
"FAC"
],
"start": 7829,
"text": "The first Appellate Authority thus confirmed the order of the assessing authority with regard to levy of taxes."
}
},
{
"from_name": null,
"id": "75bd9f3a8fbe4fbabe80efc7323af447",
"to_name": null,
"type": null,
"value": {
"end": 8065,
"labels": [
"FAC"
],
"start": 7940,
"text": "\n 4. Being aggrieved by the order of the first appellate authority, the appellant filed a second appeal before the Tribunal."
}
},
{
"from_name": null,
"id": "3ac357f2c192479d80f8496b3759daa7",
"to_name": null,
"type": null,
"value": {
"end": 8372,
"labels": [
"FAC"
],
"start": 8066,
"text": "The Appellate Tribunal, after hearing both sides, partly allowed the second appeal vide order dated 31st March, 2003 and held that during the period 11th August, 1988 to 31st March, 1994, the sale of flavouring compound was liable to be taxed at the rate of 15% being covered under schedule entry C- II-78."
}
},
{
"from_name": null,
"id": "6ceac7f3d6dd44a3b09fb66a894104d5",
"to_name": null,
"type": null,
"value": {
"end": 8533,
"labels": [
"FAC"
],
"start": 8373,
"text": "After the period 1st January, 1988 to 11th August, 1988 and during 1994-95 flavouring compounds were liable to be taxed at 4% being covered under entry C-I- 19."
}
},
{
"from_name": null,
"id": "0b92b1ed499242ff95034fa19013523f",
"to_name": null,
"type": null,
"value": {
"end": 8666,
"labels": [
"FAC"
],
"start": 8534,
"text": "It was further held that perfumery compounds were liable to sales tax at 4% during the period 1st January, 1988 to 31st March, 1995."
}
},
{
"from_name": null,
"id": "0797c167f22e400f85cb098374a9cf69",
"to_name": null,
"type": null,
"value": {
"end": 8784,
"labels": [
"FAC"
],
"start": 8667,
"text": "The claims pertaining to goods returned, set off, sale of REP licence, etc. were remanded to the Deputy Commissioner."
}
},
{
"from_name": null,
"id": "d29ad0f8bb7744759c51b337db29cdf4",
"to_name": null,
"type": null,
"value": {
"end": 9270,
"labels": [
"ARG_PETITIONER"
],
"start": 8784,
"text": "\n 5. Mr. Sridharan, learned Senior Counsel appearing on behalf of the assessee in all these matters submitted that the arguments raised by the revenue before the Maharashtra Sales Tax Tribunal were as follows:- (a) Entry C-I-19 does not cover compounds of aromatic chemicals but the entry covers only the compounds of natural / synthetic essential oils and no other compounds.\n (b) Entry C-I-19 covers only the compounds which are sold as single entity in form which is almost pure."
}
},
{
"from_name": null,
"id": "442cfd77a52a40ef9699e05949a72b51",
"to_name": null,
"type": null,
"value": {
"end": 9386,
"labels": [
"ARG_PETITIONER"
],
"start": 9270,
"text": "\n (c) Entry C-I-19 relates only to compounds treated individually i.e. without requirement of specific formulation."
}
},
{
"from_name": null,
"id": "843cedbf04be40ff8a6b15a54812a8bc",
"to_name": null,
"type": null,
"value": {
"end": 9442,
"labels": [
"ARG_PETITIONER"
],
"start": 9387,
"text": "In other words, it does not cover any prepared mixture."
}
},
{
"from_name": null,
"id": "7fb688fbf98b4da4a9f36558f1308a96",
"to_name": null,
"type": null,
"value": {
"end": 9705,
"labels": [
"ARG_PETITIONER"
],
"start": 9443,
"text": "On the three questions framed, he submitted that as far as the first question reproduced above, the Tribunal had answered this question in its judgment dated 31st March, 2003 as follows:- \" The reading of the entry C-I-19 done by the revenue is not quite proper."
}
},
{
"from_name": null,
"id": "c2fcf3cffb7a424481c24fd880025f82",
"to_name": null,
"type": null,
"value": {
"end": 9844,
"labels": [
"ARG_PETITIONER"
],
"start": 9706,
"text": "The words 'their compounds' therein would obviously mean the compounds of the Aromatic Chemicals and Synthetic and Natural Essential Oils."
}
},
{
"from_name": null,
"id": "9e507fbd02154f41af8342d5c1c11e65",
"to_name": null,
"type": null,
"value": {
"end": 9976,
"labels": [
"ARG_PETITIONER"
],
"start": 9845,
"text": "They would certainly not mean compounds merely of synthetic and natural essential oils, as sought to be interpreted by the revenue."
}
},
{
"from_name": null,
"id": "43f398bf68c446d0be06e6b7e2c0da10",
"to_name": null,
"type": null,
"value": {
"end": 10163,
"labels": [
"ARG_PETITIONER"
],
"start": 9977,
"text": "When the synthetic and natural oils themselves were covered by C-I-19 there was obviously no need to specify that even the compounds of such oils would also be covered by the same entry."
}
},
{
"from_name": null,
"id": "836a635aa0d740c8962053a81b4f7beb",
"to_name": null,
"type": null,
"value": {
"end": 10337,
"labels": [
"ARG_PETITIONER"
],
"start": 10164,
"text": "As compounds of various chemicals are covered by the term chemicals, the compounds of the aforesaid oils are also covered by the term 'synthetic and natural essential oils'."
}
},
{
"from_name": null,
"id": "951d2bd93082402e8b4588f6905d3a64",
"to_name": null,
"type": null,
"value": {
"end": 10507,
"labels": [
"ARG_PETITIONER"
],
"start": 10338,
"text": "In that view of the matter, it is absolutely clear that the words 'their compounds' in C-I- 19 means not the compounds of oils but the compounds of aromatic and oils...."
}
},
{
"from_name": null,
"id": "3a5e26ca2607464c94c1b7b031e22cb9",
"to_name": null,
"type": null,
"value": {
"end": 10584,
"labels": [
"ARG_PETITIONER"
],
"start": 10507,
"text": "Therefore, C-I-19 does include mixtures except culinary and flavour essences."
}
},
{
"from_name": null,
"id": "2f77598335d54da88f4c3c92ebaa58c9",
"to_name": null,
"type": null,
"value": {
"end": 10752,
"labels": [
"ARG_PETITIONER"
],
"start": 10585,
"text": "\"\n 6. Mr.Sridharan submitted that ordinarily the use of semicolon in a classification creates a distinction between the terms of inputs before and after the semicolon"
}
},
{
"from_name": null,
"id": "b68425f42894498087939d2b25c31bbe",
"to_name": null,
"type": null,
"value": {
"end": 10823,
"labels": [
"ARG_PETITIONER"
],
"start": 10752,
"text": ". He relies upon the decision of the Supreme Court in Falcon Tyres V/s."
}
},
{
"from_name": null,
"id": "4a1aeaec231c432b91215d6b4a6c27e9",
"to_name": null,
"type": null,
"value": {
"end": 11105,
"labels": [
"ARG_PETITIONER"
],
"start": 10824,
"text": "State of Karnataka reported in (2006) 6 SCC 530 in support of his submission that in the impugned entry C-I-19, no such semicolon is used in the entry and there was no distinction between 'aromatic chemicals' on the one other and 'natural and synthetic essential oils' on the hand."
}
},
{
"from_name": null,
"id": "1141c7182578413a81613c1d8c8a2ae5",
"to_name": null,
"type": null,
"value": {
"end": 11286,
"labels": [
"ARG_PETITIONER"
],
"start": 11106,
"text": "Consequently, it is submitted that the words 'and their compounds' will refer to both, compounds of aromatic chemicals as well as compounds of natural and synthetic essential oils."
}
},
{
"from_name": null,
"id": "f69ac3705f5d445f947010e2a7fa8c72",
"to_name": null,
"type": null,
"value": {
"end": 11596,
"labels": [
"ARG_PETITIONER"
],
"start": 11287,
"text": "Mr.Sridharan further submits that in Union of India V/s. Pesticides Mfg & Formulators Assn. Of India reported in (2002) 7 SCC 410, the Apex Court has held that a compound is mixture of components and therefore, entry at C-I-19 includes mixtures of aromatic chemicals and 'natural and synthetic essential oils."
}
},
{
"from_name": null,
"id": "c6312866d7984543b18a1806baf250f9",
"to_name": null,
"type": null,
"value": {
"end": 11688,
"labels": [
"ARG_PETITIONER"
],
"start": 11597,
"text": "The impugned products will not fall outside the entry merely on account of being a mixture."
}
},
{
"from_name": null,
"id": "8b2ecaee433447b5a29a032dbfa4d41a",
"to_name": null,
"type": null,
"value": {
"end": 11877,
"labels": [
"ARG_PETITIONER"
],
"start": 11688,
"text": "\n 7. As far as the second question is concerned, Mr.Sridharan has submitted that the second question was relevant only for matters pertaining to M/s. International Flavours and Fragrances."
}
},
{
"from_name": null,
"id": "98f167c58b284726909c46956f12b272",
"to_name": null,
"type": null,
"value": {
"end": 11992,
"labels": [
"ARG_PETITIONER"
],
"start": 11878,
"text": "He submitted that the terms in a classification entry must be interpreted using the principle of noscitur a socis."
}
},
{
"from_name": null,
"id": "5a784384d7bd4411b86a2e15407da820",
"to_name": null,
"type": null,
"value": {
"end": 12106,
"labels": [
"ARG_PETITIONER"
],
"start": 11993,
"text": "Mr.Sridharan relied on the Apex Court in Gordhandas Tokersey, Pardeep Agarbatti and G.Radhakrishna Murti (supra)."
}
},
{
"from_name": null,
"id": "c8e516a87edb487e908e7dd382a9bfe3",
"to_name": null,
"type": null,
"value": {
"end": 12216,
"labels": [
"ARG_PETITIONER"
],
"start": 12107,
"text": "He submitted that the principle must be applied even when interpreting an entry containing two or more terms."
}
},
{
"from_name": null,
"id": "735a0dcac759476b8a3ace8dbfee7030",
"to_name": null,
"type": null,
"value": {
"end": 12310,
"labels": [
"ARG_PETITIONER"
],
"start": 12217,
"text": "In this behalf, he relied upon Bennion on Statutory interpretation, 5th Edition at page 1197."
}
},
{
"from_name": null,
"id": "f1e8a0ee918c438b9bb9d97cc631d9cd",
"to_name": null,
"type": null,
"value": {
"end": 12548,
"labels": [
"ARG_PETITIONER"
],
"start": 12311,
"text": "Mr.Sridharan further submitted that the terms 'culinary and flavouring' is used only as a composite expression i.e. two words wherein one gives meaning to the other and there is no specific reason as to why the terms are used separately."
}
},
{
"from_name": null,
"id": "b3122715d8b04727a19d9386a79842e2",
"to_name": null,
"type": null,
"value": {
"end": 12853,
"labels": [
"ARG_PETITIONER"
],
"start": 12549,
"text": "Mr.Sridharan submitted that this Court in the case of Commissioner of Sales Tax V/s.\nKhosla Kesharwala reported in (2006) 145 STC 57 (Bom.) also indicates that a classification under entry C-II-78 requires the impugned product to predominantly relate to cooking as a colouring and flavouring agent.\n 8. "
}
},
{
"from_name": null,
"id": "b13350fc84654a398a3992e4c7a90e2f",
"to_name": null,
"type": null,
"value": {
"end": 13001,
"labels": [
"ARG_PETITIONER"
],
"start": 12853,
"text": "In effect, Mr.Sridharan submitted that only those products which are in relation to culinary i.e. used in a kitchen which are covered under C-II-78."
}
},
{
"from_name": null,
"id": "e2a6155cb32a4e39b7049a7b3c7954a3",
"to_name": null,
"type": null,
"value": {
"end": 13213,
"labels": [
"ARG_PETITIONER"
],
"start": 13002,
"text": "The impugned product i.e.\n flavouring essence is not used directly in a kitchen or in cooking or any other similar manner, but used as raw materials in industries such as pharmaceuticals, confectionery products."
}
},
{
"from_name": null,
"id": "a18b4eeb2e6d43419854cdf4e53aecc6",
"to_name": null,
"type": null,
"value": {
"end": 13337,
"labels": [
"ARG_PETITIONER"
],
"start": 13214,
"text": "He submitted that this aspect has been considered by the Tribunal in its judgment on 31st March, 2006 in paragraphs 7 to 9."
}
},
{
"from_name": null,
"id": "11fd1527a331448d972f051ff4fb1748",
"to_name": null,
"type": null,
"value": {
"end": 13465,
"labels": [
"ARG_PETITIONER"
],
"start": 13338,
"text": "For all these reasons, it is submitted that the impugned product does not fall within entry C-II-78 but falls under C-I-19.\n 9."
}
},
{
"from_name": null,
"id": "bdf57f652da24ac3a2ef9c98efaa638c",
"to_name": null,
"type": null,
"value": {
"end": 13642,
"labels": [
"ARG_PETITIONER"
],
"start": 13466,
"text": " With reference to the third question, Mr.Sridharan submitted that it is relevant only in the matter of S.H. Kelkar, Respondent in Sales Tax Reference No.47 of 2006 and others."
}
},
{
"from_name": null,
"id": "cc5b92f50a36470e924c2e34b96c72cd",
"to_name": null,
"type": null,
"value": {
"end": 13912,
"labels": [
"ARG_PETITIONER"
],
"start": 13642,
"text": "\n In that case, he submitted that the limited question is whether the impugned product determined as perfumery compound is found to be falling within entry C-I-19 and hence not under entry C-II-86 dealing specifically with perfumes other than those covered under C-I-19."
}
},
{
"from_name": null,
"id": "749fd78bc96244619129334fad7cf1c7",
"to_name": null,
"type": null,
"value": {
"end": 14151,
"labels": [
"ARG_PETITIONER"
],
"start": 13913,
"text": "Mr. Sridharan submits that the test of common commercial / trade parlance has to b applied in interpreting schedule entries pertaining to classification, relying upon the judgments of the Supreme Court in Chemical and Fibres of India Ltd."
}
},
{
"from_name": null,
"id": "87dc971bc9fe49f0a8b9acdfa2b9e431",
"to_name": null,
"type": null,
"value": {
"end": 14232,
"labels": [
"ARG_PETITIONER"
],
"start": 14152,
"text": "V/s. Union of India reported in (1997) 2 SCC 664 and Ramavatar Budhaiprasad V/s."
}
},
{
"from_name": null,
"id": "66b6422c47b04b53abc7d239c0ae8ec8",
"to_name": null,
"type": null,
"value": {
"end": 14323,
"labels": [
"ARG_PETITIONER"
],
"start": 14233,
"text": "Asst. Sales Tax Officer, Akola reported in (1961) 12 STC 286 in support of his contention."
}
},
{
"from_name": null,
"id": "673ffa5375bb414f87526363d9ab6c88",
"to_name": null,
"type": null,
"value": {
"end": 14623,
"labels": [
"ARG_PETITIONER"
],
"start": 14324,
"text": "He further submitted that the specification and standards prepared by the Bureau of Indian Standards as published have been considered strong indicators of commercial and consumer parlance and glossaries published by the Indian Standards Organization have been relied by Courts in various judgments."
}
},
{
"from_name": null,
"id": "12648bd34265440eadb7b7907bb42d76",
"to_name": null,
"type": null,
"value": {
"end": 14872,
"labels": [
"ARG_PETITIONER"
],
"start": 14623,
"text": "\n 10. In support of his contention, he placed reliance upon the decision of Chemical and Fibres of India Ltd.(supra), Warden & Co. V/s. CCE, Thane reported in (1995 Suppl. 1 SCC 740 and CCE, Kanpur V./s. Krishna Carbon reported in (1989) 1 SCC 150."
}
},
{
"from_name": null,
"id": "97cad7b8591a4cc7875317720adb8f6b",
"to_name": null,
"type": null,
"value": {
"end": 15144,
"labels": [
"ARG_PETITIONER"
],
"start": 14873,
"text": "He further submitted that as per the Indian Standard Glossary of terms relating to natural and synthetic perfumery material, the term 'perfumery compound' has been specifically defined as a concentrated base which is further diluted and modified to suit various end uses."
}
},
{
"from_name": null,
"id": "10d9ebbe23d8410d933748737b1c6bf4",
"to_name": null,
"type": null,
"value": {
"end": 15295,
"labels": [
"ARG_PETITIONER"
],
"start": 15144,
"text": "\n 'Perfume' has been distinctly defined as a solution of perfumery compound in ethanol or other suitable solvent meant for use as a personal adornment."
}
},
{
"from_name": null,
"id": "c314b5d1c65d4849b60234ac49b303c4",
"to_name": null,
"type": null,
"value": {
"end": 15655,
"labels": [
"ARG_PETITIONER"
],
"start": 15295,
"text": "\n 11. Mr.Sridharan further submits that there is a distinction between perfumery compound and perfume which clearly indicates that both terms are to be treated distinctly in commercial or trade parlance, therefore, it is submitted that perfume /fragrance cannot fall within entry relating to perfumes C-II-86, the product will remain classified under C-I- 19."
}
},
{
"from_name": null,
"id": "69d5ff56d9a24188abf1e82d100f829d",
"to_name": null,
"type": null,
"value": {
"end": 15843,
"labels": [
"ARG_PETITIONER"
],
"start": 15656,
"text": "Mr.Sridharan and Mr. Patkar further submitted that the entry relating to perfumes under the Bombay Sales Tax Act prior to 1981 (E-I-19) is specifically interpreted in the case of CST V/s."
}
},
{
"from_name": null,
"id": "3aa40e2f340644c6916705b244ac11a4",
"to_name": null,
"type": null,
"value": {
"end": 16025,
"labels": [
"ARG_PETITIONER"
],
"start": 15844,
"text": "Gordhandas Tokersey reported in (1983) 52 STC 381, using the principle of noscitur a sociis to refer to preparations as are commonly known in market for use on the body as perfumes."
}
},
{
"from_name": null,
"id": "2636a5db50244b0c9db0506fbf44407f",
"to_name": null,
"type": null,
"value": {
"end": 16092,
"labels": [
"ANALYSIS"
],
"start": 16025,
"text": "\n 12. This interpretation was referred in Pandurang Agarbatti V/s."
}
},
{
"from_name": null,
"id": "e6535fed8b494dfda444897176ff2218",
"to_name": null,
"type": null,
"value": {
"end": 16183,
"labels": [
"ANALYSIS"
],
"start": 16093,
"text": "State of Punjab reported in [1997] 107 STC 56 and G.Radhakrishna Murti & Co. & Ors. V/s.\n "
}
},
{
"from_name": null,
"id": "d83e8955512845d59d36ee3821779a20",
"to_name": null,
"type": null,
"value": {
"end": 16237,
"labels": [
"ANALYSIS"
],
"start": 16183,
"text": "CFTO, Vijaywada reported in [1999] 113 STC 161 (SC).\n "
}
},
{
"from_name": null,
"id": "600e7fca18d64c2aa7e78bfbccc6bf6c",
"to_name": null,
"type": null,
"value": {
"end": 16454,
"labels": [
"ANALYSIS"
],
"start": 16237,
"text": "The entry being interpreted in the above mentioned decisions is similar to the entry C-II-86 dealing with perfumes, therefore, what is covered by entry C-II-86 are those goods commonly used directly on the human body."
}
},
{
"from_name": null,
"id": "142235cb633247d589df0e88ebeea4af",
"to_name": null,
"type": null,
"value": {
"end": 16625,
"labels": [
"ANALYSIS"
],
"start": 16455,
"text": "It is an undisputed fact that the impugned products are not used directly on the human body and are used in various industries for the purpose of respective end products."
}
},
{
"from_name": null,
"id": "f5f8240a9bc64d5c9fc6167611045a82",
"to_name": null,
"type": null,
"value": {
"end": 16757,
"labels": [
"ANALYSIS"
],
"start": 16626,
"text": "The revenue itself has accepted that the impugned products were sold to various manufacturers of soaps, cosmetics, agarbattis, etc."
}
},
{
"from_name": null,
"id": "bd31c1eb06ca43fa83601b279342f818",
"to_name": null,
"type": null,
"value": {
"end": 16823,
"labels": [
"ANALYSIS"
],
"start": 16758,
"text": "The impugned products therefore cannot fall within entry C-II-86."
}
},
{
"from_name": null,
"id": "17aaf531848e4a4e84e0aa3ed48d63c9",
"to_name": null,
"type": null,
"value": {
"end": 17155,
"labels": [
"ARG_PETITIONER"
],
"start": 16823,
"text": "\n 13. Mr.Sridharan submitted that in G.Radhakrishna (supra), the Apex Court had held that the meaning of the word 'perfume' in modern times has undergone a change, observing that the etymological meaning or the original meaning of 'perfume' may come from the word 'fumare' (smoke), but in modern parlance it has undergone a change."
}
},
{
"from_name": null,
"id": "a82ccfec986845d18d44bb72610e01aa",
"to_name": null,
"type": null,
"value": {
"end": 17244,
"labels": [
"ARG_PETITIONER"
],
"start": 17156,
"text": "The word 'perfume' orginates from the word 'fumare' which means smoke or to emit vapour,"
}
},
{
"from_name": null,
"id": "44fca60f423f4f4da29f187cf2e335f6",
"to_name": null,
"type": null,
"value": {
"end": 17298,
"labels": [
"ARG_PETITIONER"
],
"start": 17245,
"text": "These are the meaning given by the Oxford Dictionary."
}
},
{
"from_name": null,
"id": "2ec7e68e0f894b13b38296be15a96869",
"to_name": null,
"type": null,
"value": {
"end": 17368,
"labels": [
"ARG_PETITIONER"
],
"start": 17299,
"text": "The word 'Perfume' is also considered in Gordhandas Tokersey (supra)."
}
},
{
"from_name": null,
"id": "b1b17cfd94644175a9c5e7864cee2d9c",
"to_name": null,
"type": null,
"value": {
"end": 17596,
"labels": [
"ARG_PETITIONER"
],
"start": 17369,
"text": "In that case, the Court observed that when two or more words which are capable of being understood in an analogous manner are coupled together, they should be understood in the common analogous sense and not in a general sense."
}
},
{
"from_name": null,
"id": "e91755f5ce7748c1ac2ab0c9c69b2713",
"to_name": null,
"type": null,
"value": {
"end": 17766,
"labels": [
"ARG_PETITIONER"
],
"start": 17597,
"text": "By applying this principle the Court held that 'perfume' in C-I-19 referred to such preparation as they are commonly known in the market for use on the body as perfumes."
}
},
{
"from_name": null,
"id": "2222130abce54977aaaa3a9e8ff29a4f",
"to_name": null,
"type": null,
"value": {
"end": 17960,
"labels": [
"ARG_PETITIONER"
],
"start": 17767,
"text": "Mr.Patkar, learned counsel appearing for the Petitioners in the Writ Petitions relied upon the judgment of this Court in Gordhandas Tokersey (supra) and adopted the submissions of Mr.Sridharan."
}
},
{
"from_name": null,
"id": "a5c4b065df1d4b7da515d8a78c2239ab",
"to_name": null,
"type": null,
"value": {
"end": 18167,
"labels": [
"ARG_PETITIONER"
],
"start": 17960,
"text": "\n 14. Mr.Sridharan further submits that it is well accepted that in cases of classification, the burden of proof is placed on the revenue which must be discharged in order to sustain an assessment as valid."
}
},
{
"from_name": null,
"id": "7ebd52e7156a4151ad2da7e85c9b52c9",
"to_name": null,
"type": null,
"value": {
"end": 18362,
"labels": [
"ARG_PETITIONER"
],
"start": 18168,
"text": "In this behalf, he relied on the judgment of the Supreme Court in Hindustan Ferodo Vs. CCE reported in 1997 (89) ELT 16(SC) and Union of India V/s.\n Garware Nylons reported in (1996) 10 SCC 413."
}
},
{
"from_name": null,
"id": "636b1d38d1564ded90e8eb484103049f",
"to_name": null,
"type": null,
"value": {
"end": 18541,
"labels": [
"ARG_PETITIONER"
],
"start": 18363,
"text": "In his view, the revenue has failed to discharge its burden by placing evidence on the basis of which the impugned product can be classified as perfumery compounds under C-II-86."
}
},
{
"from_name": null,
"id": "0904b7744daf4203a755717b7e507661",
"to_name": null,
"type": null,
"value": {
"end": 18605,
"labels": [
"ARG_RESPONDENT"
],
"start": 18541,
"text": "\n 15. Mr.Sonpal on the other hand supported the impugned order."
}
},
{
"from_name": null,
"id": "39754b52917744ac948efdb8f2f09c41",
"to_name": null,
"type": null,
"value": {
"end": 18729,
"labels": [
"ARG_RESPONDENT"
],
"start": 18606,
"text": "Mr.Sonpal, learned counsel appearing for the revenue relied upon the decision of this Court in Bradma of India Limited V/s."
}
},
{
"from_name": null,
"id": "3622cd6d119847f48803688f31e9ffc1",
"to_name": null,
"type": null,
"value": {
"end": 18925,
"labels": [
"ARG_RESPONDENT"
],
"start": 18730,
"text": "State of Maharashtra reported in [1998] 110 339 and submitted that if there are two entries, one general and the other special, the special entry should be applied for the purpose of levying tax."
}
},
{
"from_name": null,
"id": "6c9e008a1b234979b2816dcb52886f9d",
"to_name": null,
"type": null,
"value": {
"end": 18981,
"labels": [
"ARG_RESPONDENT"
],
"start": 18926,
"text": "The general entry should give way to the special entry."
}
},
{
"from_name": null,
"id": "07ffcd798dcb460e8a43b066fd612684",
"to_name": null,
"type": null,
"value": {
"end": 19048,
"labels": [
"ARG_RESPONDENT"
],
"start": 18982,
"text": "Accordingly, he submits that the impugned order cannot be faulted."
}
},
{
"from_name": null,
"id": "d3c5496f967b4c958187e7920299ca94",
"to_name": null,
"type": null,
"value": {
"end": 19127,
"labels": [
"ARG_RESPONDENT"
],
"start": 19049,
"text": "Mr.Sonpal, then relied upon the decision of this Court in Gordhandas Tokersey."
}
},
{
"from_name": null,
"id": "c39d9fd0504042af8c4f4aba5145c56c",
"to_name": null,
"type": null,
"value": {
"end": 19192,
"labels": [
"ARG_RESPONDENT"
],
"start": 19128,
"text": "He has also relied upon the judgment of G. Radhakrishna (supra)."
}
},
{
"from_name": null,
"id": "ab530bc774aa4449b949a77f1d0b8336",
"to_name": null,
"type": null,
"value": {
"end": 19571,
"labels": [
"ANALYSIS"
],
"start": 19192,
"text": "\n 16. Having considered the rival contentions, statutory interpretations we agree with Mr. Sridharan that a composite expression must be construed as a whole and in the words of Bennion, it is incorrect to assume that the whole is necessarily the sum of its parts, because a certain meaning can be collected by taking each word in turn and then combining their several meanings."
}
},
{
"from_name": null,
"id": "408ffc0ac4e34b85a0c2f71faceb6506",
"to_name": null,
"type": null,
"value": {
"end": 19749,
"labels": [
"ANALYSIS"
],
"start": 19572,
"text": "In this connection, we find that it will be appropriate to refer to dictionary meanings of certain words which will throw light on various terms with which we are now concerned."
}
},
{
"from_name": null,
"id": "a6017fc5fc894112a29144c99f5a5827",
"to_name": null,
"type": null,
"value": {
"end": 20057,
"labels": [
"ANALYSIS"
],
"start": 19749,
"text": "\n 17. The definition of the term in the \"Indian Standards Glossary of terms relating to natural and synthetic perfumery published by the Bureau of Indian Standard and referred to the definition of aromatic chemicals at item 2.7, essential oil 2.47, essential oil and synthetic 2.48, perfumery compound 2.87."
}
},
{
"from_name": null,
"id": "ebca9ef344d0439bbdd56fdb3da16ad9",
"to_name": null,
"type": null,
"value": {
"end": 20264,
"labels": [
"ANALYSIS"
],
"start": 20058,
"text": "The aforesaid definitions are reproduced below:- \" 2.7 Aromatic Chemicals /Aroma Chemicals Organic chemicals derived by organic synthesis oras isolate from natural essential oils possessing distinct aroma."
}
},
{
"from_name": null,
"id": "dfd58275661140abb2f294d3ddb7ee30",
"to_name": null,
"type": null,
"value": {
"end": 20369,
"labels": [
"ANALYSIS"
],
"start": 20265,
"text": "Used as a raw material of terms, and it may not necessarily include all the legal meaning of the terms.\""
}
},
{
"from_name": null,
"id": "730bf313993b4cf6bdafc9ac120e8c84",
"to_name": null,
"type": null,
"value": {
"end": 20580,
"labels": [
"ANALYSIS"
],
"start": 20369,
"text": "\n \"2.47 Essential Oil It is a volatile perfumery material derived from a single source of vegetable or animal origin by a process, such as hydrodistillation, steam distillation, dry distillation or expression.\""
}
},
{
"from_name": null,
"id": "6ce6303a4711457886ec5adb8c9eb6f4",
"to_name": null,
"type": null,
"value": {
"end": 20615,
"labels": [
"ANALYSIS"
],
"start": 20580,
"text": "\n \"2.48 Essential Oil, Synthetic "
}
},
{
"from_name": null,
"id": "cdb87fb4294c400e819cc1cd0851d9d6",
"to_name": null,
"type": null,
"value": {
"end": 20859,
"labels": [
"ANALYSIS"
],
"start": 20615,
"text": "It is a composition generally consisting of natural essential oils, aromatic chemicals, resinoids, concretes, absolutes, etc., but excluding animal or vegetable non-essential oils and not having volatile residue in excess of 10 percent by mass."
}
},
{
"from_name": null,
"id": "ffd4f774812e48e9b6c7032ed0ae9373",
"to_name": null,
"type": null,
"value": {
"end": 20970,
"labels": [
"ANALYSIS"
],
"start": 20860,
"text": "It is so composed that it bears a close resemblance primarily in odour to a naturally occurring essential oil."
}
},
{
"from_name": null,
"id": "c310feb54fdf466f82fdbef758c86719",
"to_name": null,
"type": null,
"value": {
"end": 21156,
"labels": [
"ANALYSIS"
],
"start": 20970,
"text": "\n \" 2.87 Perfumery Compound A concentrated base which is further diluted with or without toning and further modification to suit various end-uses.\"\n Entry No. C-I-19 reads as under; 19."
}
},
{
"from_name": null,
"id": "dde926e99d7647c6a5be3cadbbb35ddf",
"to_name": null,
"type": null,
"value": {
"end": 21293,
"labels": [
"ANALYSIS"
],
"start": 21157,
"text": "Aromatic Chemicals and 4% 4% 1-7-1981 natural and synthetic oils 31-3-1984 and their compounds 19."
}
},
{
"from_name": null,
"id": "5ac59e244ec848a7b791da8d856fcffa",
"to_name": null,
"type": null,
"value": {
"end": 21455,
"labels": [
"ANALYSIS"
],
"start": 21294,
"text": "Aromatic chemicals and 4% 4% 1-4-1984 to their residue and natural 10-8-1988 and synthetic essential oils and their compounds 19."
}
},
{
"from_name": null,
"id": "12fd7d24f5cf407bbe5aa0a644d1e9d5",
"to_name": null,
"type": null,
"value": {
"end": 21709,
"labels": [
"ANALYSIS"
],
"start": 21456,
"text": "Aromatic chemicals and 4% 4% 1-8-1988 to their residue and natural 30-4-1992 and synthetic essential oils and their compounds (except the culinary and flavouring essences covered by entry 78 of Part II of this Schedule) 19."
}
},
{
"from_name": null,
"id": "7cef9b0c6c1c4a66a62e5f0fb17c9977",
"to_name": null,
"type": null,
"value": {
"end": 22214,
"labels": [
"ANALYSIS"
],
"start": 21710,
"text": "Aromatic chemicals and 4% 4% 1-5-1992 to their residue and natural 8-9-1992 and synthetic essential oils and their compounds except the perfumes and culinary and flavouring essences whether in a concentrated or diluted form.\n 19. Aromatic chemicals and 4% 4% 9-9-1992 to their residue and natural 31-3-1994 and synthetic essential oils and their compounds (except the culinary and flavouring essences covered by entry 78 of Part II of this Schedule) 19."
}
},
{
"from_name": null,
"id": "f337c453a5d24e78b29ff5efaf2ca66a",
"to_name": null,
"type": null,
"value": {
"end": 22449,
"labels": [
"ANALYSIS"
],
"start": 22215,
"text": "(1) Raw materials for 4% 4% 1-4-1994 to preparation of perfumes, 30-9-1995 fragrances and flavors, that is to say- (a) Natural and synthetic oils and their compounds (b) Fragrance and flavour chemicals."
}
},
{
"from_name": null,
"id": "eb61f325c18a443996ff9954d8263757",
"to_name": null,
"type": null,
"value": {
"end": 22590,
"labels": [
"ANALYSIS"
],
"start": 22449,
"text": "\n (2) Industrial flavours and 4% 4% 1-4-1994 to fragrances in 30-9-1995 concentrated form.\n 18. "
}
},
{
"from_name": null,
"id": "e8ceff71b5514f229448ec36ba57fd72",
"to_name": null,
"type": null,
"value": {
"end": 22754,
"labels": [
"ANALYSIS"
],
"start": 22590,
"text": "A bare reading of the entry reveals that Aromatic chemicals and their compounds are not intended to be treated separately from natural and synthetic essential oils."
}
},
{
"from_name": null,
"id": "564eb7e90e6b44ea9a931e13caad2667",
"to_name": null,
"type": null,
"value": {
"end": 22972,
"labels": [
"ANALYSIS"
],
"start": 22755,
"text": "In our view, the use of the conjunction \"and\" with the word \"and their compounds\" is intended to apply to the compounds of natural synthetic oil and also compounds of aromatic chemicals and natural and synthetic oils."
}
},
{
"from_name": null,
"id": "8141f72e3665405cb3eb85755c73e569",
"to_name": null,
"type": null,
"value": {
"end": 23161,
"labels": [
"ANALYSIS"
],
"start": 22973,
"text": "It will also be seen from the fact that wherever it was intended that the product or derivative chemicals were to be grouped to create a distinct category, specific language has been used."
}
},
{
"from_name": null,
"id": "32836d0a54c740b7872e5af72527e0d9",
"to_name": null,
"type": null,
"value": {
"end": 23447,
"labels": [
"ANALYSIS"
],
"start": 23161,
"text": "\n 19. For instance for the period 1-1-1984 to 10-8- 1988 apropos \"Raw Materials\", aromatic chemicals and their residues on one hand and Natural and Synthetic oils and their compounds on the other, the words \"and their compounds\" does not apply to aromatic chemicals and their residues."
}
},
{
"from_name": null,
"id": "f2e275dcd25340738d33dfe275ab12a3",
"to_name": null,
"type": null,
"value": {
"end": 23616,
"labels": [
"ANALYSIS"
],
"start": 23448,
"text": "For the period 11-8-1988 to 30-4- 1992 a further modification is shown by way of exclusion from C-I-19, of culinary and flavour essences covered by entry 78 of Part II."
}
},
{
"from_name": null,
"id": "be53fdaf203f47d793f258e8786d68ca",
"to_name": null,
"type": null,
"value": {
"end": 23765,
"labels": [
"ANALYSIS"
],
"start": 23617,
"text": "For the period 1-5-1992 to 8-9-1992, the perfumes and culinary and flavouring essences whether in a concentrated or diluted form have been excluded."
}
},
{
"from_name": null,
"id": "1b58c7833b664d5bbec256b94add43d2",
"to_name": null,
"type": null,
"value": {
"end": 23899,
"labels": [
"ANALYSIS"
],
"start": 23766,
"text": "For the period 9-9-1992 to 31-3- 1994, the product described in the entry is identical to that for the period 11-8-1988 to 30-4-1992."
}
},
{
"from_name": null,
"id": "29a037cc9bfc42d989bf843ed0ad9ccb",
"to_name": null,
"type": null,
"value": {
"end": 24026,
"labels": [
"ANALYSIS"
],
"start": 23900,
"text": "For the period 1-4-1994 to 30-9-1995 further change is made in the system which distinguishes perfumes, fragrance and flavour."
}
},
{
"from_name": null,
"id": "14b9889ded554ee7a295ab44607e616c",
"to_name": null,
"type": null,
"value": {
"end": 24121,
"labels": [
"ANALYSIS"
],
"start": 24027,
"text": "The natural and synthetic oil and their compounds and fragrance and flavouring chemicals.\n 20."
}
},
{
"from_name": null,
"id": "7392935b520443829f6552094e93eeab",
"to_name": null,
"type": null,
"value": {
"end": 24393,
"labels": [
"ANALYSIS"
],
"start": 24123,
"text": "Thus although in the case of Raw materials it is seen that the expression \"and their compounds is applicable only to the natural and synthetic essential oils but not applicable to fragrance and flavour chemicals or industrial flavours and fragrance in concentrated form."
}
},
{
"from_name": null,
"id": "8f053108ccb242ce9a206287d4c7223a",
"to_name": null,
"type": null,
"value": {
"end": 24575,
"labels": [
"ANALYSIS"
],
"start": 24394,
"text": "A perusal of the definition of Aromatic Chemicals, Essential Oil and Essential Oil, Synthetic referred in 2.7, 2.47 and 2.48 below reveals that they can be combined with each other."
}
},
{
"from_name": null,
"id": "2c9a0b06383045c69b1628e4be68b6d6",
"to_name": null,
"type": null,
"value": {
"end": 24691,
"labels": [
"ANALYSIS"
],
"start": 24576,
"text": "For example Essential Oil Synthetic is shown as a composition of natural essential oils and aromatic chemicals etc."
}
},
{
"from_name": null,
"id": "6e318ee865994f67bb8736e79dc53d26",
"to_name": null,
"type": null,
"value": {
"end": 24933,
"labels": [
"ANALYSIS"
],
"start": 24692,
"text": "The Tribunal was justified in negating the revenue's interpretation of the word \"and their compounds\" in schedule entry C-I-19 covers only the compounds of natural and synthetic oil and essential oils, to the exclusion of aromatic chemicals."
}
},
{
"from_name": null,
"id": "6480c0f3a13548e189cc9b3492d93b70",
"to_name": null,
"type": null,
"value": {
"end": 25167,
"labels": [
"RATIO"
],
"start": 24933,
"text": "\n 21. We are also of the view that the perfumery compounds are compounds of aromatic chemicals within the meaning of entry C-I-19 and in view thereof, we hold that the perfume is covered under C-II-86, which is reproduced below:- 86."
}
},
{
"from_name": null,
"id": "720c2860d9d949578f8deec86e851db6",
"to_name": null,
"type": null,
"value": {
"end": 25524,
"labels": [
"RATIO"
],
"start": 25168,
"text": "Perfumes(excluding those 15% 15% 1-7-1981 to covered by entry 19 of 31-3-1989 Part I of this Scheduled) depilatories, cosmetics, toilet articles and preparations whether medicated or otherwise (including hair creams, hair-tonic and liquid shampoo) but excluding those covered by any other entry of this or any other schedule."
}
},
{
"from_name": null,
"id": "284a98d3616f4569b185246ccc862be9",
"to_name": null,
"type": null,
"value": {
"end": 25653,
"labels": [
"RPC"
],
"start": 25524,
"text": "\n 22. In conclusion, we answer the three questions in the affirmative, namely in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "59af8e98f7e24b81b239aa2fd4cc7aa1",
"to_name": null,
"type": null,
"value": {
"end": 25697,
"labels": [
"RPC"
],
"start": 25654,
"text": "The References are disposed of accordingly."
}
},
{
"from_name": null,
"id": "cccf194535e2413fb292f880f08d4596",
"to_name": null,
"type": null,
"value": {
"end": 25751,
"labels": [
"RPC"
],
"start": 25698,
"text": "In view thereof Writ Petitions are also disposed off."
}
},
{
"from_name": null,
"id": "ff0a92b506e847a996b9106450cfc7c3",
"to_name": null,
"type": null,
"value": {
"end": 25776,
"labels": [
"RPC"
],
"start": 25752,
"text": "Rule discharged therein."
}
},
{
"from_name": null,
"id": "c046a7f7a62148afb8777359b4de1b32",
"to_name": null,
"type": null,
"value": {
"end": 25798,
"labels": [
"RPC"
],
"start": 25777,
"text": "No order as to costs."
}
},
{
"from_name": null,
"id": "4122ee532cd345079fed22847c256bb5",
"to_name": null,
"type": null,
"value": {
"end": 25853,
"labels": [
"NONE"
],
"start": 25800,
"text": "(A.K.MENON, J.) (S.C.DHARMADHIKARI, J.) 23"
}
},
{
"from_name": null,
"id": "15d2f0cec1434d9abaa8cccdf0fcb0c3",
"to_name": null,
"type": null,
"value": {
"end": 26100,
"labels": [
"RPC"
],
"start": 25853,
"text": ". After the judgment was pronounced, the parties informed us that the Petitioners in two Petitions namely Writ Petition No.2055 of 2003 and Writ Petition No.2056 of 2003 have furnished bank guarantees pursuant to the interim orders of this Court."
}
},
{
"from_name": null,
"id": "b94cd5e005084746a9a2a810ccb86bf1",
"to_name": null,
"type": null,
"value": {
"end": 26290,
"labels": [
"RPC"
],
"start": 26101,
"text": "Since the issues raised in the Writ Petitions were subsequently considered as subject matter of Sales Tax References, the Writ Petitions moved do not survive and disposed of in this manner."
}
},
{
"from_name": null,
"id": "446ef5d8aa334711ba0bbe490b64ad91",
"to_name": null,
"type": null,
"value": {
"end": 26398,
"labels": [
"RPC"
],
"start": 26291,
"text": "In such circumstances, the request made by the Petitioners for discharging the bank guarantees is accepted."
}
},
{
"from_name": null,
"id": "269552c5d44e4cf594554b651300fc2e",
"to_name": null,
"type": null,
"value": {
"end": 26439,
"labels": [
"RPC"
],
"start": 26399,
"text": "The bank guarantees to stand discharged."
}
},
{
"from_name": null,
"id": "c69a8ec7242c42ed847cc44c0c757965",
"to_name": null,
"type": null,
"value": {
"end": 26489,
"labels": [
"NONE"
],
"start": 26439,
"text": "\n (A.K.MENON, J.) (S.C.DHARMADHIKARI, J.)"
}
}
]
}
] | 4,273 | {
"text": "sas\n IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\nORDINARY ORIGINAL CIVIL JURISDICTION\n\nSALES TAX REFERENCE NO.47 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.48 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.49 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.34 OF 2009\n WITH\n\nSALES TAX REFERENCE NO.1 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.7 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.10 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.11 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.12 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.14 OF 2012\n WITH\n\nSALES TAX REFERENCE NO.23 OF 2012\n\nThe Commissioner of Sales Tax, ]\nMaharashtra State, Mumbai. ]..Applicant.\n\nV/s.\n\nM/s. S.H.Kelkar & Company Ltd. ]\nLal Bahadur Shastri Marg, Mulund (West) ]\nMumbai - 400 080. ]..Respondent.\n\n WITH\nSALES TAX REFERENCE NO.11 OF 2006\n\nInternational Flavours & Fragrances India ]\n\nLtd., formerly known as M/s. Bush Boake ]\n\nAllen (I) Ltd. a company incorporated under ]\n\nthe provisions of the Companies Act, 1956, ]\n\nhaving its registered office at 1-5 Seven ]\n\nWells Street, St. Thomas Mount, Chennai ]\n\n\n600 016 and Regional Sales Office at Floral ]\n\nDeck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]\n\nCentral Road, Andheri East, Mumbai-400063. ] ..Applicant.\n\nV/s.\n\nState of Maharashtra through its Secretary ]\n\nof Ministry of Finance (Sales Tax Department) ]\n\nMantralaya, Mumbai. ] ..Respondent.\n\n WITH\nSALES TAX REFERENCE NO.15 OF 2006\n\nSaibaba Industries Ltd., a company ]\n\nincorporated under the provisions of the ]\n\nCompanies Act, 1956, having its registered ]\n\noffice at 129/131, Kazi Sayed Street Masjid, ] ..Applicant.\n\nMumbai 400 003.\n\nV/s.\n\nState of Maharashtra through its Secretary ]\n\nof Ministry of Finance (Sales Tax Department) ]\n\nMantralaya, Mumbai. ] ..Respondent.\n\n WITH\nSALES TAX REFERENCE NO.5 OF 2012\n\n WITH\nSALES TAX REFERENCE NO.11 OF 2011\n\n WITH\nSALES TAX REFERENCE NO.13 OF 2012\n\n WITH\nSALES TAX REFERENCE NO.15 OF 2012\n\n WITH\nSALES TAX REFERENCE NO.22 OF 2012\n\nThe Commissioner of Sales Tax, ]\nMaharashtra State, 8th floor, Vikrikar\nBhavan, Mazgaon, Mumbai-400 010. ]\n\n ] ..Applicant.\n\nV/s.\n\nM/s. Spac Aromas, ]\n\n29/38, Mangaldas Road, Mumbai-400 002. ] ..Respondent.\n\n WITH\n WRIT PETITION NO.2055 OF 2003\n\n\nInternational Flavours & Fragrances India ]\n\nLtd., formerly known as M/s. Bush Boake ]\n\nAllen (I) Ltd. a company incorporated under ]\n\nthe provisions of the Companies Act, 1956, ]\n\nhaving its registered office at 1-5 Seven ]\n\nWells Street, St. Thomas Mount, Chennai ]\n\n600 016 and Regional Sales Office at Floral ]\n\nDeck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]\n\nCentral Road, Andheri East, Mumbai-400063. ] ..Petitioner.\n\nV/s.\n\n1. State of Maharashtra through its ]\n\nSecretary of Ministry of Finance (Sales) ]\n\nTax Department) Mantralaya, Mumbai. ]\n\n ]\n\n2. Maharashtra Sales Tax Tribunal, ]\n\nVikrikar Bhavan, Mazgaon, ]\n\nMumbai 400 010. ]\n\n ]\n\n3. The Commissioner of Sales Tax, ]\n\nMaharashtra State, Vikrikar Bhavan, ]\n\nMazgaon, Mumbai 400 010. ] ..Respondents.\n\n WITH\n WRIT PETITION NO.2056 OF 2003\n\nSaibaba Industries Ltd., a company ]\n\nincorporated under the provisions of the ]\n\nCompanies Act, 1956, having its registered ]\n\noffice at 129/131, Kazi Sayed Street Masjid, ] ..Petitioner.\n\nMumbai 400 003.\n\nV/s.\n\n1. State of Maharashtra through its ]\n\nSecretary of Ministry of Finance (Sales) ]\n\nTax Department) Mantralaya, Mumbai. ]\n\n ]\n\n2. Maharashtra Sales Tax Tribunal, ]\n\nVikrikar Bhavan, Mazgaon, ]\n\nMumbai 400 010. ]\n\n ]\n\n3. The Commissioner of Sales Tax, ]\n\nMaharashtra State, Vikrikar Bhavan, ]\n\nMazgaon, Mumbai 400 010. ] ..Respondents.\n\n\nMr.V.A.Sonpal, Special Counsel for the revenue in all matters.\n\nMr.S.K.Nair, A.G.P. for for revenue in Writ Petition No.2055/013 &\n2056/03.\n\nMr.V.Sridharan, Senior Advocate with Mr.V.P.Patkar, Mr.Rahul Thakar\ni/b. Khaitan & Jaykar for the Applicant in S.T.R. Nos.11/06 and for\nthe Respondent in S.T.R Nos.47/09 and for the Petitioners in W.P.\nNos.2055/03 & 2056/03.\n\nMr.V.P. Patkar i/b. Khaitan & Jaykar for Applicant in S.T.R No.15/06.\n\nMr.V.P.Patkar with Mr.Dinesh Patkar and Mr.Dinesh Tambde &\nMr.M.M.Vadiya for the assessee in S.T.R. Nos.48/09, 49/09, 1/12,\n5/12, 7,12, 10/12, 11/12, 12/12, 13/12, 14/12, 15/12, 22/12, 23/12\n& 11/11.\n\n CORAM : S.C.DHARMADHIKARI AND A.K.MENON, JJ.\n\n RESERVED ON : 7TH OCTOBER, 2014\n\n PRONOUNCED ON : 27TH NOVEMBER, 2014\n\nJUDGMENT (PER A.K.MENON, J.) 1. This order disposes of all the above seventeen Sales Tax References and two Writ Petitions. For the purpose of the present judgment, we refer to the facts and issues raised in Sales Tax Reference No.11 of 2006, Writ Petition No.2055 of 2003 and Sales Tax Reference No.49 of 2006. The issues that arise for consideration pertains to additive flavour compounds only and synthetic essential oils, fragrances, etc.\n Vide order 31st March, 2006, the following questions were referred to this Court:- (i) Whether on the facts and circumstances of the case, was the Tribunal justified in negating the revenue's interpretation of the words \"and their compounds\" in schedule entry C-I-19 as covering only the compounds of natural and synthetic essential oils as not quite proper and interpreting the words \"and their compounds\", therein to mean the compounds of the aromatic chemicals as well.\n (ii) Whether on the facts an circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. flavouring compound is compound covered by Schedule Entry C-I-19 and liable to tax @ 4 per cent from 1-1-1988 to 10-8-1988 and 1994-95 ?\n (iii) Whether on the facts and circumstances of the case, was the Tribunal justified in concluding that the impugned product i.e. perfumery compound are compounds or aromatic chemicals within the meaning of Schedule Entry C-I-19 and hence liable to tax @ 4% for the period 1-1-1998 to 31-3-1995 ?\n 2. For the purpose of this judgment, we refer to the facts in the case of Sales Tax Reference No.47 of 2009. The Respondent- assessee is a manufacturer of Aromatic Chemicals, Flavouring Compounds, Natural and Synthetic Essential Oil and Fragrances, etc. The assessing authority levied a tax at 15% on the sales of flavouring compounds and perfumery compounds treating them as covered under entry C-II-78, with effect from 11th August,1988. Perfumery compounds were also taxed under C-II-86 as fragrances and penalties were also levied.\n 3. According to the Respondent-assessee, sales of flavouring compounds and perfumery compounds were covered under entry C-I-19. The assessee filed a first appeal before the Deputy Commissioner of Sales Tax, who considered the above submissions but rejected them, holding that the assessing officer had not erred in treating the impugned sale as covered in schedule entry C-I-19. The first Appellate Authority thus confirmed the order of the assessing authority with regard to levy of taxes.\n 4. Being aggrieved by the order of the first appellate authority, the appellant filed a second appeal before the Tribunal. The Appellate Tribunal, after hearing both sides, partly allowed the second appeal vide order dated 31st March, 2003 and held that during the period 11th August, 1988 to 31st March, 1994, the sale of flavouring compound was liable to be taxed at the rate of 15% being covered under schedule entry C- II-78. After the period 1st January, 1988 to 11th August, 1988 and during 1994-95 flavouring compounds were liable to be taxed at 4% being covered under entry C-I- 19. It was further held that perfumery compounds were liable to sales tax at 4% during the period 1st January, 1988 to 31st March, 1995. The claims pertaining to goods returned, set off, sale of REP licence, etc. were remanded to the Deputy Commissioner.\n 5. Mr. Sridharan, learned Senior Counsel appearing on behalf of the assessee in all these matters submitted that the arguments raised by the revenue before the Maharashtra Sales Tax Tribunal were as follows:- (a) Entry C-I-19 does not cover compounds of aromatic chemicals but the entry covers only the compounds of natural / synthetic essential oils and no other compounds.\n (b) Entry C-I-19 covers only the compounds which are sold as single entity in form which is almost pure.\n (c) Entry C-I-19 relates only to compounds treated individually i.e. without requirement of specific formulation. In other words, it does not cover any prepared mixture. On the three questions framed, he submitted that as far as the first question reproduced above, the Tribunal had answered this question in its judgment dated 31st March, 2003 as follows:- \" The reading of the entry C-I-19 done by the revenue is not quite proper. The words 'their compounds' therein would obviously mean the compounds of the Aromatic Chemicals and Synthetic and Natural Essential Oils. They would certainly not mean compounds merely of synthetic and natural essential oils, as sought to be interpreted by the revenue. When the synthetic and natural oils themselves were covered by C-I-19 there was obviously no need to specify that even the compounds of such oils would also be covered by the same entry. As compounds of various chemicals are covered by the term chemicals, the compounds of the aforesaid oils are also covered by the term 'synthetic and natural essential oils'. In that view of the matter, it is absolutely clear that the words 'their compounds' in C-I- 19 means not the compounds of oils but the compounds of aromatic and oils....Therefore, C-I-19 does include mixtures except culinary and flavour essences. \"\n 6. Mr.Sridharan submitted that ordinarily the use of semicolon in a classification creates a distinction between the terms of inputs before and after the semicolon. He relies upon the decision of the Supreme Court in Falcon Tyres V/s. State of Karnataka reported in (2006) 6 SCC 530 in support of his submission that in the impugned entry C-I-19, no such semicolon is used in the entry and there was no distinction between 'aromatic chemicals' on the one other and 'natural and synthetic essential oils' on the hand. Consequently, it is submitted that the words 'and their compounds' will refer to both, compounds of aromatic chemicals as well as compounds of natural and synthetic essential oils. Mr.Sridharan further submits that in Union of India V/s. Pesticides Mfg & Formulators Assn. Of India reported in (2002) 7 SCC 410, the Apex Court has held that a compound is mixture of components and therefore, entry at C-I-19 includes mixtures of aromatic chemicals and 'natural and synthetic essential oils. The impugned products will not fall outside the entry merely on account of being a mixture.\n 7. As far as the second question is concerned, Mr.Sridharan has submitted that the second question was relevant only for matters pertaining to M/s. International Flavours and Fragrances. He submitted that the terms in a classification entry must be interpreted using the principle of noscitur a socis. Mr.Sridharan relied on the Apex Court in Gordhandas Tokersey, Pardeep Agarbatti and G.Radhakrishna Murti (supra). He submitted that the principle must be applied even when interpreting an entry containing two or more terms. In this behalf, he relied upon Bennion on Statutory interpretation, 5th Edition at page 1197. Mr.Sridharan further submitted that the terms 'culinary and flavouring' is used only as a composite expression i.e. two words wherein one gives meaning to the other and there is no specific reason as to why the terms are used separately. Mr.Sridharan submitted that this Court in the case of Commissioner of Sales Tax V/s.\nKhosla Kesharwala reported in (2006) 145 STC 57 (Bom.) also indicates that a classification under entry C-II-78 requires the impugned product to predominantly relate to cooking as a colouring and flavouring agent.\n 8. In effect, Mr.Sridharan submitted that only those products which are in relation to culinary i.e. used in a kitchen which are covered under C-II-78. The impugned product i.e.\n flavouring essence is not used directly in a kitchen or in cooking or any other similar manner, but used as raw materials in industries such as pharmaceuticals, confectionery products. He submitted that this aspect has been considered by the Tribunal in its judgment on 31st March, 2006 in paragraphs 7 to 9. For all these reasons, it is submitted that the impugned product does not fall within entry C-II-78 but falls under C-I-19.\n 9. With reference to the third question, Mr.Sridharan submitted that it is relevant only in the matter of S.H. Kelkar, Respondent in Sales Tax Reference No.47 of 2006 and others.\n In that case, he submitted that the limited question is whether the impugned product determined as perfumery compound is found to be falling within entry C-I-19 and hence not under entry C-II-86 dealing specifically with perfumes other than those covered under C-I-19. Mr. Sridharan submits that the test of common commercial / trade parlance has to b applied in interpreting schedule entries pertaining to classification, relying upon the judgments of the Supreme Court in Chemical and Fibres of India Ltd. V/s. Union of India reported in (1997) 2 SCC 664 and Ramavatar Budhaiprasad V/s. Asst. Sales Tax Officer, Akola reported in (1961) 12 STC 286 in support of his contention. He further submitted that the specification and standards prepared by the Bureau of Indian Standards as published have been considered strong indicators of commercial and consumer parlance and glossaries published by the Indian Standards Organization have been relied by Courts in various judgments.\n 10. In support of his contention, he placed reliance upon the decision of Chemical and Fibres of India Ltd.(supra), Warden & Co. V/s. CCE, Thane reported in (1995 Suppl. 1 SCC 740 and CCE, Kanpur V./s. Krishna Carbon reported in (1989) 1 SCC 150. He further submitted that as per the Indian Standard Glossary of terms relating to natural and synthetic perfumery material, the term 'perfumery compound' has been specifically defined as a concentrated base which is further diluted and modified to suit various end uses.\n 'Perfume' has been distinctly defined as a solution of perfumery compound in ethanol or other suitable solvent meant for use as a personal adornment.\n 11. Mr.Sridharan further submits that there is a distinction between perfumery compound and perfume which clearly indicates that both terms are to be treated distinctly in commercial or trade parlance, therefore, it is submitted that perfume /fragrance cannot fall within entry relating to perfumes C-II-86, the product will remain classified under C-I- 19. Mr.Sridharan and Mr. Patkar further submitted that the entry relating to perfumes under the Bombay Sales Tax Act prior to 1981 (E-I-19) is specifically interpreted in the case of CST V/s. Gordhandas Tokersey reported in (1983) 52 STC 381, using the principle of noscitur a sociis to refer to preparations as are commonly known in market for use on the body as perfumes.\n 12. This interpretation was referred in Pandurang Agarbatti V/s. State of Punjab reported in [1997] 107 STC 56 and G.Radhakrishna Murti & Co. & Ors. V/s.\n CFTO, Vijaywada reported in [1999] 113 STC 161 (SC).\n The entry being interpreted in the above mentioned decisions is similar to the entry C-II-86 dealing with perfumes, therefore, what is covered by entry C-II-86 are those goods commonly used directly on the human body. It is an undisputed fact that the impugned products are not used directly on the human body and are used in various industries for the purpose of respective end products. The revenue itself has accepted that the impugned products were sold to various manufacturers of soaps, cosmetics, agarbattis, etc. The impugned products therefore cannot fall within entry C-II-86.\n 13. Mr.Sridharan submitted that in G.Radhakrishna (supra), the Apex Court had held that the meaning of the word 'perfume' in modern times has undergone a change, observing that the etymological meaning or the original meaning of 'perfume' may come from the word 'fumare' (smoke), but in modern parlance it has undergone a change. The word 'perfume' orginates from the word 'fumare' which means smoke or to emit vapour, These are the meaning given by the Oxford Dictionary. The word 'Perfume' is also considered in Gordhandas Tokersey (supra). In that case, the Court observed that when two or more words which are capable of being understood in an analogous manner are coupled together, they should be understood in the common analogous sense and not in a general sense. By applying this principle the Court held that 'perfume' in C-I-19 referred to such preparation as they are commonly known in the market for use on the body as perfumes. Mr.Patkar, learned counsel appearing for the Petitioners in the Writ Petitions relied upon the judgment of this Court in Gordhandas Tokersey (supra) and adopted the submissions of Mr.Sridharan.\n 14. Mr.Sridharan further submits that it is well accepted that in cases of classification, the burden of proof is placed on the revenue which must be discharged in order to sustain an assessment as valid. In this behalf, he relied on the judgment of the Supreme Court in Hindustan Ferodo Vs. CCE reported in 1997 (89) ELT 16(SC) and Union of India V/s.\n Garware Nylons reported in (1996) 10 SCC 413. In his view, the revenue has failed to discharge its burden by placing evidence on the basis of which the impugned product can be classified as perfumery compounds under C-II-86.\n 15. Mr.Sonpal on the other hand supported the impugned order. Mr.Sonpal, learned counsel appearing for the revenue relied upon the decision of this Court in Bradma of India Limited V/s. State of Maharashtra reported in [1998] 110 339 and submitted that if there are two entries, one general and the other special, the special entry should be applied for the purpose of levying tax. The general entry should give way to the special entry. Accordingly, he submits that the impugned order cannot be faulted. Mr.Sonpal, then relied upon the decision of this Court in Gordhandas Tokersey. He has also relied upon the judgment of G. Radhakrishna (supra).\n 16. Having considered the rival contentions, statutory interpretations we agree with Mr. Sridharan that a composite expression must be construed as a whole and in the words of Bennion, it is incorrect to assume that the whole is necessarily the sum of its parts, because a certain meaning can be collected by taking each word in turn and then combining their several meanings. In this connection, we find that it will be appropriate to refer to dictionary meanings of certain words which will throw light on various terms with which we are now concerned.\n 17. The definition of the term in the \"Indian Standards Glossary of terms relating to natural and synthetic perfumery published by the Bureau of Indian Standard and referred to the definition of aromatic chemicals at item 2.7, essential oil 2.47, essential oil and synthetic 2.48, perfumery compound 2.87. The aforesaid definitions are reproduced below:- \" 2.7 Aromatic Chemicals /Aroma Chemicals Organic chemicals derived by organic synthesis oras isolate from natural essential oils possessing distinct aroma. Used as a raw material of terms, and it may not necessarily include all the legal meaning of the terms.\"\n \"2.47 Essential Oil It is a volatile perfumery material derived from a single source of vegetable or animal origin by a process, such as hydrodistillation, steam distillation, dry distillation or expression.\"\n \"2.48 Essential Oil, Synthetic It is a composition generally consisting of natural essential oils, aromatic chemicals, resinoids, concretes, absolutes, etc., but excluding animal or vegetable non-essential oils and not having volatile residue in excess of 10 percent by mass. It is so composed that it bears a close resemblance primarily in odour to a naturally occurring essential oil.\n \" 2.87 Perfumery Compound A concentrated base which is further diluted with or without toning and further modification to suit various end-uses.\"\n Entry No. C-I-19 reads as under; 19. Aromatic Chemicals and 4% 4% 1-7-1981 natural and synthetic oils 31-3-1984 and their compounds 19. Aromatic chemicals and 4% 4% 1-4-1984 to their residue and natural 10-8-1988 and synthetic essential oils and their compounds 19. Aromatic chemicals and 4% 4% 1-8-1988 to their residue and natural 30-4-1992 and synthetic essential oils and their compounds (except the culinary and flavouring essences covered by entry 78 of Part II of this Schedule) 19. Aromatic chemicals and 4% 4% 1-5-1992 to their residue and natural 8-9-1992 and synthetic essential oils and their compounds except the perfumes and culinary and flavouring essences whether in a concentrated or diluted form.\n 19. Aromatic chemicals and 4% 4% 9-9-1992 to their residue and natural 31-3-1994 and synthetic essential oils and their compounds (except the culinary and flavouring essences covered by entry 78 of Part II of this Schedule) 19. (1) Raw materials for 4% 4% 1-4-1994 to preparation of perfumes, 30-9-1995 fragrances and flavors, that is to say- (a) Natural and synthetic oils and their compounds (b) Fragrance and flavour chemicals.\n (2) Industrial flavours and 4% 4% 1-4-1994 to fragrances in 30-9-1995 concentrated form.\n 18. A bare reading of the entry reveals that Aromatic chemicals and their compounds are not intended to be treated separately from natural and synthetic essential oils. In our view, the use of the conjunction \"and\" with the word \"and their compounds\" is intended to apply to the compounds of natural synthetic oil and also compounds of aromatic chemicals and natural and synthetic oils. It will also be seen from the fact that wherever it was intended that the product or derivative chemicals were to be grouped to create a distinct category, specific language has been used.\n 19. For instance for the period 1-1-1984 to 10-8- 1988 apropos \"Raw Materials\", aromatic chemicals and their residues on one hand and Natural and Synthetic oils and their compounds on the other, the words \"and their compounds\" does not apply to aromatic chemicals and their residues. For the period 11-8-1988 to 30-4- 1992 a further modification is shown by way of exclusion from C-I-19, of culinary and flavour essences covered by entry 78 of Part II. For the period 1-5-1992 to 8-9-1992, the perfumes and culinary and flavouring essences whether in a concentrated or diluted form have been excluded. For the period 9-9-1992 to 31-3- 1994, the product described in the entry is identical to that for the period 11-8-1988 to 30-4-1992. For the period 1-4-1994 to 30-9-1995 further change is made in the system which distinguishes perfumes, fragrance and flavour. The natural and synthetic oil and their compounds and fragrance and flavouring chemicals.\n 20. Thus although in the case of Raw materials it is seen that the expression \"and their compounds is applicable only to the natural and synthetic essential oils but not applicable to fragrance and flavour chemicals or industrial flavours and fragrance in concentrated form. A perusal of the definition of Aromatic Chemicals, Essential Oil and Essential Oil, Synthetic referred in 2.7, 2.47 and 2.48 below reveals that they can be combined with each other. For example Essential Oil Synthetic is shown as a composition of natural essential oils and aromatic chemicals etc. The Tribunal was justified in negating the revenue's interpretation of the word \"and their compounds\" in schedule entry C-I-19 covers only the compounds of natural and synthetic oil and essential oils, to the exclusion of aromatic chemicals.\n 21. We are also of the view that the perfumery compounds are compounds of aromatic chemicals within the meaning of entry C-I-19 and in view thereof, we hold that the perfume is covered under C-II-86, which is reproduced below:- 86. Perfumes(excluding those 15% 15% 1-7-1981 to covered by entry 19 of 31-3-1989 Part I of this Scheduled) depilatories, cosmetics, toilet articles and preparations whether medicated or otherwise (including hair creams, hair-tonic and liquid shampoo) but excluding those covered by any other entry of this or any other schedule.\n 22. In conclusion, we answer the three questions in the affirmative, namely in favour of the assessee and against the revenue. The References are disposed of accordingly. In view thereof Writ Petitions are also disposed off. Rule discharged therein. No order as to costs.\n (A.K.MENON, J.) (S.C.DHARMADHIKARI, J.) 23. After the judgment was pronounced, the parties informed us that the Petitioners in two Petitions namely Writ Petition No.2055 of 2003 and Writ Petition No.2056 of 2003 have furnished bank guarantees pursuant to the interim orders of this Court. Since the issues raised in the Writ Petitions were subsequently considered as subject matter of Sales Tax References, the Writ Petitions moved do not survive and disposed of in this manner. In such circumstances, the request made by the Petitioners for discharging the bank guarantees is accepted. The bank guarantees to stand discharged.\n (A.K.MENON, J.) (S.C.DHARMADHIKARI, J.) "
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"text": "Dated on this the 16th day of March 2012\n\n MIS.APPEAL NO.119/2005\n\nAPPELLANT : The Union of India,\n R/by Tax Recovery Officer,\n\n Range-II, Mysore.\n\n (By Smt.K.P.Usha, Advocate)\n\n Vs\n\nRESONDENTS: 1. Bhishma Pithamaha,\n S/o."
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"text": "(By Sri.B.R.C, Adv.for R3)\n (By Sri.MD.Adv. For R1&2)\n\nDate and nature of the decree or Against the orders on IA 1 in OS\norder: 758/2005 dtd 30.9.2005 on the file\n of Prl. I Civil Judge (Jr.Div) at\n Mysore\n\nDate of the Institution of the 09.11.2005\nAppeal 16.03.2012\nDate of Judgment :\n\nDuration of the Appeal Years Months Days\n 07 04 07\n\n III ADDL. SR.CIVIL JUDGE,\n MYSORE.\n\n:: J U D G M E N T ::"
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"start": 1985,
"text": "\n Hereinafter the status of the parties will be referred to as arrayed in the original suit."
}
},
{
"from_name": null,
"id": "f337930e2e2f423e9a450677d1cfe57a",
"to_name": null,
"type": null,
"value": {
"end": 2370,
"labels": [
"FAC"
],
"start": 2077,
"text": "\n 2. I.A. 1 is filed by the Plaintiff under Order 39 Rule 1 and 2 of C.P.C. praying to grant an order of ad-interim Temporary Injunction restraining the Defendants, their agents, servants or anybody acting on their behalf from alienating the 'A' schedule property pending disposal of the suit."
}
},
{
"from_name": null,
"id": "b742e8191a4b463a985c3b7e417f1cae",
"to_name": null,
"type": null,
"value": {
"end": 2489,
"labels": [
"FAC"
],
"start": 2370,
"text": "\n 3. The brief facts of the case of the Plaintiff are that, the 3rd Defendant is an Income Tax and Wealth Tax Assessee."
}
},
{
"from_name": null,
"id": "b43721c3533d459bb233a17d9a62f42e",
"to_name": null,
"type": null,
"value": {
"end": 2624,
"labels": [
"FAC"
],
"start": 2490,
"text": "The Income Tax and Wealth Tax returns reveal the particulars of Assets and Liabilities of 3rd Defendant from the year 1969-70 onwards."
}
},
{
"from_name": null,
"id": "1c34355c0e41474c87b29f37af76ad38",
"to_name": null,
"type": null,
"value": {
"end": 2757,
"labels": [
"FAC"
],
"start": 2625,
"text": "The existing tax liability of the 3rd Defendant to the Income Tax Department is to an extent of Rs.50,00,000/- and interest thereon."
}
},
{
"from_name": null,
"id": "d20d4e4257da40b08b587b7900a4e23c",
"to_name": null,
"type": null,
"value": {
"end": 2909,
"labels": [
"FAC"
],
"start": 2758,
"text": "Mahanth P.Krishnandagiri Goswamy, the then Mahanth of the 3rd Defendant had been filed returns of Income Tax and Wealth Tax on behalf of 3rd Defendant."
}
},
{
"from_name": null,
"id": "8b579b6ada454e6997c6cd7496f519ed",
"to_name": null,
"type": null,
"value": {
"end": 2978,
"labels": [
"FAC"
],
"start": 2910,
"text": "All the returns were signed and verified by him during his lifetime."
}
},
{
"from_name": null,
"id": "38f1c751ed6140f7a159c98a023de6e8",
"to_name": null,
"type": null,
"value": {
"end": 3115,
"labels": [
"FAC"
],
"start": 2979,
"text": "The entire income belonged to 3rd Defendant Mutt and none of it belonged to Mahanth P.Krishnandagiri Goswamy in his individual capacity."
}
},
{
"from_name": null,
"id": "23f85347f84445df8c034697fe6d04a2",
"to_name": null,
"type": null,
"value": {
"end": 3159,
"labels": [
"FAC"
],
"start": 3116,
"text": "He failed to furnish the books of accounts."
}
},
{
"from_name": null,
"id": "caf9efe9f1064f938ad4a431b6454db2",
"to_name": null,
"type": null,
"value": {
"end": 3291,
"labels": [
"FAC"
],
"start": 3160,
"text": "It was concluded that entire income belonged to the said person under his individual capacity and none of it belonged to the Trust."
}
},
{
"from_name": null,
"id": "27f381993844443aac1f4fbbda3bd78a",
"to_name": null,
"type": null,
"value": {
"end": 3394,
"labels": [
"FAC"
],
"start": 3292,
"text": "Since \"status\" issue was under dispute, protective assessments were made in the name of 3rd Defendant."
}
},
{
"from_name": null,
"id": "6a7dcfec282543a187e228d56017e09e",
"to_name": null,
"type": null,
"value": {
"end": 3471,
"labels": [
"FAC"
],
"start": 3395,
"text": "He had declared the suit schedule properties as the assets of 3rd Defendant."
}
},
{
"from_name": null,
"id": "65134825a61743619bca5f75db364c53",
"to_name": null,
"type": null,
"value": {
"end": 3596,
"labels": [
"FAC"
],
"start": 3472,
"text": "The Assessments pertaining to the period 1969- 70 to 1985-86 were concluded in the hands of Mahant P.Krishnandagiri Goswamy."
}
},
{
"from_name": null,
"id": "9a3e26705a774835bf4110e293e5b0b0",
"to_name": null,
"type": null,
"value": {
"end": 3686,
"labels": [
"FAC"
],
"start": 3597,
"text": "The Mahanth contended that assets and consequential income belonged to the 3rd Defendant."
}
},
{
"from_name": null,
"id": "76236ea677714b0ebf65dc3280e5b365",
"to_name": null,
"type": null,
"value": {
"end": 4007,
"labels": [
"FAC"
],
"start": 3687,
"text": "Whether the properties belonged to the deceased Mahant in individual capacity or it is owned by the Mutt, the Wealth Tax liability and Income Tax liability was for the accrued Wealth and Income derived out of the said properties as such to whom so ever the ownership passes, that person is liable to pay the tax arrears."
}
},
{
"from_name": null,
"id": "fad4b022d1f940e68dea4bb30a2ef5e2",
"to_name": null,
"type": null,
"value": {
"end": 4178,
"labels": [
"FAC"
],
"start": 4008,
"text": "It is further contended that, the said Mahant clearly expressed that he had no taxable wealth or income in his individual capacity, as such he was not filing any returns."
}
},
{
"from_name": null,
"id": "133297f7d2d04a50a24ae2ce3d24c2d0",
"to_name": null,
"type": null,
"value": {
"end": 4231,
"labels": [
"FAC"
],
"start": 4179,
"text": "Hence the Trust was assessed in the status of A.J.P."
}
},
{
"from_name": null,
"id": "aa1a474205ef4212974e0c2bae6b4643",
"to_name": null,
"type": null,
"value": {
"end": 4351,
"labels": [
"FAC"
],
"start": 4232,
"text": "The demand notices were issued to him for the recovery of dues since he was representing the Trust during his lifetime."
}
},
{
"from_name": null,
"id": "9699608b801f42ae8456ed2d662cd3c6",
"to_name": null,
"type": null,
"value": {
"end": 4509,
"labels": [
"FAC"
],
"start": 4352,
"text": "When the Tax was not paid after receipt of notice, the Plaintiff issued the order of attachment of immovable properties including the suit schedule property."
}
},
{
"from_name": null,
"id": "e22f86442e4c488b8d96c53790f3637f",
"to_name": null,
"type": null,
"value": {
"end": 4933,
"labels": [
"FAC"
],
"start": 4511,
"text": "In I.T.\"C\" 16 dated 13.9.1988 for Rs.13,50,802/- and also other arrears in respect of Certificate No.81-X dated 24.3.1988 and thereby prohibited and restrained the 3rd Defendant's Mahant P.Krishnandagiri Goswamy from transferring or charging the attached property, in any way and that all persons were prohibited from enjoying any benefit under such transfer until further order of the Tax Recovery Officer, Mysore Circle."
}
},
{
"from_name": null,
"id": "ec12eeb76e034679afe3008ef1158769",
"to_name": null,
"type": null,
"value": {
"end": 5180,
"labels": [
"FAC"
],
"start": 4933,
"text": "\n 4. It is further contended that since the said Mahant did not pay off the arrears of tax during his life time, after his death, the Plaintiff issued order of attachment of immovable property dated 3.5.1995 to his successor-in-office in the Mutt."
}
},
{
"from_name": null,
"id": "0c9050d4b6c94bd987fe487876b9194a",
"to_name": null,
"type": null,
"value": {
"end": 5228,
"labels": [
"FAC"
],
"start": 5181,
"text": "The said order was served on the 3rd Defendant."
}
},
{
"from_name": null,
"id": "4945c0a7e6c04de8b090e2411407a40c",
"to_name": null,
"type": null,
"value": {
"end": 5308,
"labels": [
"FAC"
],
"start": 5228,
"text": "\n\"Notice of Demand\" U/s. 156 of the Income Tax Act 1961 was issued on 12.8.2001."
}
},
{
"from_name": null,
"id": "a1fd9c663a8d4c00b3ba0b852975152e",
"to_name": null,
"type": null,
"value": {
"end": 5488,
"labels": [
"FAC"
],
"start": 5309,
"text": "Thereafter the Plaintiff published the fact of attachment of the above said properties and copy of the attachment order was displayed in the notice board of the Income Tax Office."
}
},
{
"from_name": null,
"id": "0402419f8b8340ad9b992759dfa2ca60",
"to_name": null,
"type": null,
"value": {
"end": 5598,
"labels": [
"FAC"
],
"start": 5489,
"text": "The 1st Defendant is the brother of deceased Mahanth and has claimed to be the legal heir of the said Mahant."
}
},
{
"from_name": null,
"id": "0f68c34e60144962b032ce2bce143295",
"to_name": null,
"type": null,
"value": {
"end": 5722,
"labels": [
"FAC"
],
"start": 5599,
"text": "After the death of the said Mahant, the 1st Defendant is indulged in selling of the properties of the 3rd Defendant's Mutt."
}
},
{
"from_name": null,
"id": "ece3c2c49f7b4ef391b242d2f682999f",
"to_name": null,
"type": null,
"value": {
"end": 5794,
"labels": [
"FAC"
],
"start": 5723,
"text": "The 3rd Defendant has also sold one of the properties under attachment."
}
},
{
"from_name": null,
"id": "a8163787b1bd48718936a3431a614cf6",
"to_name": null,
"type": null,
"value": {
"end": 6065,
"labels": [
"FAC"
],
"start": 5795,
"text": "The Plaintiff already filed a suit in O.S.No. 933/2002 against the 1st Defendant and others before the 2nd Addl. Civil Judge (Jr.Divn) Mysore since, the 1st Defendant illegally sold one of the properties under an attachment to one Rehman Khan and Reshma Bhanu of Mysore."
}
},
{
"from_name": null,
"id": "26dcaf7ffc89428983a37a1e1e934107",
"to_name": null,
"type": null,
"value": {
"end": 6220,
"labels": [
"FAC"
],
"start": 6066,
"text": "The said suit, after transfer on the ground of jurisdiction is pending on the file of Hon'ble Principal Civil Judge (Sr.Divn), Mysore, in O.S.No.539/2003."
}
},
{
"from_name": null,
"id": "76f08bd7e60f4c4b8d653db9ed8be2d5",
"to_name": null,
"type": null,
"value": {
"end": 6362,
"labels": [
"FAC"
],
"start": 6221,
"text": "O.S.No.\n430/2005 is also pending against the 1st Defendant and others in connection with the sale of another item of the attached properties."
}
},
{
"from_name": null,
"id": "2fa9149d6fd841e4bf80ed6ee88d4704",
"to_name": null,
"type": null,
"value": {
"end": 6434,
"labels": [
"FAC"
],
"start": 6363,
"text": "Even after that the 1st Defendant kept on disposing off the properties."
}
},
{
"from_name": null,
"id": "cdbec67ab09845e9a9dd84f40ee385ba",
"to_name": null,
"type": null,
"value": {
"end": 6699,
"labels": [
"ANALYSIS"
],
"start": 6434,
"text": "\n 5. The Plaintiff is a jural authority under the provisions of Income Tax Act and the order of attachment of the Tax Recovery Officer was not challenged before any authority as such the Plaintiff has been in constructive possession of the suit schedule properties."
}
},
{
"from_name": null,
"id": "8829c4be48ed4d758bf351b2a041403e",
"to_name": null,
"type": null,
"value": {
"end": 6870,
"labels": [
"ANALYSIS"
],
"start": 6700,
"text": "Further, it was made clear in order of attachment that all persons are prohibited and restrained from transferring or changing the suit schedule properties in any manner."
}
},
{
"from_name": null,
"id": "19c3c045f04941bd93dcf6483c637517",
"to_name": null,
"type": null,
"value": {
"end": 7014,
"labels": [
"ANALYSIS"
],
"start": 6871,
"text": "That the suit schedule properties were attached for the recovery of huge arrears of Income Tax dues and Wealth Tax dues from the 3rd Defendant."
}
},
{
"from_name": null,
"id": "cdf92d45afb74a02a7f09e39b83f7275",
"to_name": null,
"type": null,
"value": {
"end": 7226,
"labels": [
"ANALYSIS"
],
"start": 7015,
"text": "The 1st Defendant, without any legal right or title established over the schedule properties, sold the B schedule properties to various purchasers through his General Power of Attorney Holder i.e. 2nd Defendant."
}
},
{
"from_name": null,
"id": "4c4b47c085704280aa2b6dc1e86b920e",
"to_name": null,
"type": null,
"value": {
"end": 7301,
"labels": [
"ANALYSIS"
],
"start": 7227,
"text": "It is learnt that 3rd Defendant also sold some of the attached properties."
}
},
{
"from_name": null,
"id": "bd7652332c3244e097aa34a358cd640c",
"to_name": null,
"type": null,
"value": {
"end": 7395,
"labels": [
"ANALYSIS"
],
"start": 7302,
"text": "The 1st Defendant by suppressing the said fact is attempting to sell 'A' schedule properties."
}
},
{
"from_name": null,
"id": "956751136df54fc3a68946bed8322f0f",
"to_name": null,
"type": null,
"value": {
"end": 7488,
"labels": [
"ANALYSIS"
],
"start": 7396,
"text": "The order of attachment dated 13.9.1988 and 03.5.1995 are binding on the 1st Defendant also."
}
},
{
"from_name": null,
"id": "a74e5fdab6894ae49ee8c7a0503dfaae",
"to_name": null,
"type": null,
"value": {
"end": 7525,
"labels": [
"ANALYSIS"
],
"start": 7489,
"text": "Hence this suit and the application."
}
},
{
"from_name": null,
"id": "dbc2a4562ff843a9a48202b4f7814788",
"to_name": null,
"type": null,
"value": {
"end": 7724,
"labels": [
"ANALYSIS"
],
"start": 7526,
"text": "Under these circumstances, if an order to Temporary Injunction as prayed for in I.A. is not granted, the Plaintiff will be put to great loss and the 1st Defendant will sell the remaining properties."
}
},
{
"from_name": null,
"id": "7e8728586b654a3f8163011e929ffd95",
"to_name": null,
"type": null,
"value": {
"end": 7792,
"labels": [
"ANALYSIS"
],
"start": 7725,
"text": "In such circumstances it will leads to multiplicity of proceedings."
}
},
{
"from_name": null,
"id": "47a3a127a6ce460fa54e40f6dace4f95",
"to_name": null,
"type": null,
"value": {
"end": 7959,
"labels": [
"ANALYSIS"
],
"start": 7794,
"text": "6. The 1st Defendant, in his written statement has contended that the suit itself is not maintainable either in law or on facts or on preponderance of probabilities."
}
},
{
"from_name": null,
"id": "ad9a4b75daf04c66997de510093cefe1",
"to_name": null,
"type": null,
"value": {
"end": 8055,
"labels": [
"ANALYSIS"
],
"start": 7960,
"text": "The Tax Recovery Officer has not obtained sanction as required under the Law to file this suit."
}
},
{
"from_name": null,
"id": "c5f879415c3846b18dcbed110c2eff93",
"to_name": null,
"type": null,
"value": {
"end": 8119,
"labels": [
"ANALYSIS"
],
"start": 8056,
"text": "The Tax Recovery Officer has no locus standi to lodge the suit."
}
},
{
"from_name": null,
"id": "eb8112092b844994a3d516e08738453e",
"to_name": null,
"type": null,
"value": {
"end": 8174,
"labels": [
"ANALYSIS"
],
"start": 8120,
"text": "The Plaintiff has not complied the provision of C.P.C."
}
},
{
"from_name": null,
"id": "7ab49bac7cc34886888642a762d1f72c",
"to_name": null,
"type": null,
"value": {
"end": 8217,
"labels": [
"ANALYSIS"
],
"start": 8175,
"text": "Hence the Plaint is liable to be rejected."
}
},
{
"from_name": null,
"id": "fa7e379b4175469fb6b7db330dc9dbb6",
"to_name": null,
"type": null,
"value": {
"end": 8441,
"labels": [
"ANALYSIS"
],
"start": 8218,
"text": "Knowing fully well that no Court has declared the 3rd Defendant as the absolute owner of the suit schedule properties, the Plaintiff has falsely contended that the 3rd Defendant is the owner of the suit schedule properties."
}
},
{
"from_name": null,
"id": "694970e48da64bb29fbf5a5ef869802d",
"to_name": null,
"type": null,
"value": {
"end": 8540,
"labels": [
"ANALYSIS"
],
"start": 8442,
"text": "The Plaintiff's authority has no jurisdiction to decide the title of the suit schedule properties."
}
},
{
"from_name": null,
"id": "992f055cd0894924b07f6dcebc2bac27",
"to_name": null,
"type": null,
"value": {
"end": 8694,
"labels": [
"ANALYSIS"
],
"start": 8541,
"text": "When it is clear from the further contentions of Paragraph 3 that deceased Mahant would not substantiate that the property belonged to the 3rd Defendant."
}
},
{
"from_name": null,
"id": "7f6cde8127234fc78de93e700fde3bd9",
"to_name": null,
"type": null,
"value": {
"end": 8846,
"labels": [
"ANALYSIS"
],
"start": 8695,
"text": "It is obvious that the property falls under the category of individual property and hence the statement made that it belongs to 3rd Defendant is false."
}
},
{
"from_name": null,
"id": "ee849b0186b048aca0527751120c7b76",
"to_name": null,
"type": null,
"value": {
"end": 9127,
"labels": [
"ANALYSIS"
],
"start": 8847,
"text": "The 1st Defendant as a owner which official record point out and also the revenue records pointed out that properties were ancestral in nature lodged his application for to be treated as Legal representative of the deceased Assessee and tax could be collected from this Defendant."
}
},
{
"from_name": null,
"id": "d29f07cc4d4241e0a231f12a0d19e529",
"to_name": null,
"type": null,
"value": {
"end": 9218,
"labels": [
"ANALYSIS"
],
"start": 9128,
"text": "But the Plaintiff was reluctant at the behest of the one Krishna Mohanananda Giri Goswamy."
}
},
{
"from_name": null,
"id": "7ad9fa3ca3004963a7f412e8bbcab5f5",
"to_name": null,
"type": null,
"value": {
"end": 9321,
"labels": [
"ANALYSIS"
],
"start": 9219,
"text": "Despite Court order the Plaintiff contrarily, unilaterally started dealing with a non-existing person."
}
},
{
"from_name": null,
"id": "526e15a98a6b45d9b4adcf752c2165a2",
"to_name": null,
"type": null,
"value": {
"end": 9432,
"labels": [
"ANALYSIS"
],
"start": 9322,
"text": "The artificial juridical person styled as 3rd Defendant is not creation of any statute or by any constitution."
}
},
{
"from_name": null,
"id": "87cbea4047ad499ca6a26c3635cc6159",
"to_name": null,
"type": null,
"value": {
"end": 9508,
"labels": [
"ANALYSIS"
],
"start": 9433,
"text": "There is no official record to show the existence of Tripura Bhyravi Matha."
}
},
{
"from_name": null,
"id": "d0d3faf5eb574c008cb7f02a87f84ce5",
"to_name": null,
"type": null,
"value": {
"end": 9555,
"labels": [
"ANALYSIS"
],
"start": 9509,
"text": "The arrears if any has to be claimed from him."
}
},
{
"from_name": null,
"id": "c126a575a9fd4918a10194ffc6960498",
"to_name": null,
"type": null,
"value": {
"end": 9657,
"labels": [
"ANALYSIS"
],
"start": 9556,
"text": "Now the revenue is estopped from demanding any such arrears from the 1st Defendant as barred by time."
}
},
{
"from_name": null,
"id": "0c547a9b00734d15b404ef25c7f6e2e2",
"to_name": null,
"type": null,
"value": {
"end": 9851,
"labels": [
"ANALYSIS"
],
"start": 9658,
"text": "It is further contended that as by verdicts of Hon'ble High Court of Karnataka and Hon'ble Supreme Court, Bhishma Pithamaha has been held as the absolute owner of certain items of the property."
}
},
{
"from_name": null,
"id": "1335a7a40895400a8f07fcaaa9e99d6a",
"to_name": null,
"type": null,
"value": {
"end": 9916,
"labels": [
"ANALYSIS"
],
"start": 9852,
"text": "Naturally the Plaintiff ought to have approached this Defendant."
}
},
{
"from_name": null,
"id": "f74c6dc6ec894e8299710a2743b68702",
"to_name": null,
"type": null,
"value": {
"end": 10000,
"labels": [
"ANALYSIS"
],
"start": 9917,
"text": "But the Plaintiff went on appeasing the self styled Mahant of a non-existing Matha."
}
},
{
"from_name": null,
"id": "e7a81ed0fb4e4c0894dca518de4804a9",
"to_name": null,
"type": null,
"value": {
"end": 10058,
"labels": [
"ANALYSIS"
],
"start": 10001,
"text": "The contentions made in Paragraph No.5 are totally false."
}
},
{
"from_name": null,
"id": "e4364382f8f54686aea613cca4b77b18",
"to_name": null,
"type": null,
"value": {
"end": 10159,
"labels": [
"ANALYSIS"
],
"start": 10059,
"text": "Further contention that the 3rd Defendant was restrained from alienating the property is also false."
}
},
{
"from_name": null,
"id": "7c0c5831a6da4c04a321208752a313a5",
"to_name": null,
"type": null,
"value": {
"end": 10264,
"labels": [
"ANALYSIS"
],
"start": 10160,
"text": "The Plaintiff has not placed any documents to show that the property stood in the name of 3rd Defendant."
}
},
{
"from_name": null,
"id": "237e5266465e4d6e8a55632ccf7eb21d",
"to_name": null,
"type": null,
"value": {
"end": 10521,
"labels": [
"ANALYSIS"
],
"start": 10265,
"text": "The contention made in para 6 of the plaint that it has even by 1995 did not accept this Defendant as at lest prospective Assessee but considered the 3rd Defendant only as the Assessee and dares to state that schedule properties belonging to 3rd Defendant."
}
},
{
"from_name": null,
"id": "a4f5c38a9bfd423686a8be813b643854",
"to_name": null,
"type": null,
"value": {
"end": 10636,
"labels": [
"ANALYSIS"
],
"start": 10522,
"text": "The Plaintiff knowing fully well that there is a rival claim how did the revenue deal only with the 3rd Defendant."
}
},
{
"from_name": null,
"id": "6fb1d252c7654155a53f2a14179a50e9",
"to_name": null,
"type": null,
"value": {
"end": 10767,
"labels": [
"ANALYSIS"
],
"start": 10637,
"text": "This Defendant is not a party to such order who is in reality has been owner of the schedule properties at relevant point of time."
}
},
{
"from_name": null,
"id": "b4b63c40fc6c4707b60afffc0aac89a2",
"to_name": null,
"type": null,
"value": {
"end": 10920,
"labels": [
"ANALYSIS"
],
"start": 10768,
"text": "The procedure of attachment cannot be considered as this Defendant was kept away by colluding with the self styled Mahant of non-existing 3rd Defendant."
}
},
{
"from_name": null,
"id": "8cfba5ccf6b64407a37a90bbfdde1860",
"to_name": null,
"type": null,
"value": {
"end": 11022,
"labels": [
"ANALYSIS"
],
"start": 10921,
"text": "The Plaintiff has no business to say that the properties of 3rd Defendant are sold by this Defendant."
}
},
{
"from_name": null,
"id": "435efbd7884b424e949a20f256067d1b",
"to_name": null,
"type": null,
"value": {
"end": 11089,
"labels": [
"ANALYSIS"
],
"start": 11023,
"text": "No document is placed to show that the 3rd Defendant ever existed."
}
},
{
"from_name": null,
"id": "a80942e2adab49f88fd574c6f92f8128",
"to_name": null,
"type": null,
"value": {
"end": 11247,
"labels": [
"ANALYSIS"
],
"start": 11090,
"text": "The Hon'ble High Court of Karnataka in Writ Petition No.13170 of 1999 has made it clear that the Plaintiff cannot decide as to the ownership of the property."
}
},
{
"from_name": null,
"id": "a773eac898284d2fad6334efe0720818",
"to_name": null,
"type": null,
"value": {
"end": 11368,
"labels": [
"ANALYSIS"
],
"start": 11248,
"text": "The deceased had even given statement that the alleged Mahantha is his personal and that he is the absolute owner of it."
}
},
{
"from_name": null,
"id": "cffd152f7f0c40b28341c6c7109fc84c",
"to_name": null,
"type": null,
"value": {
"end": 11454,
"labels": [
"ANALYSIS"
],
"start": 11368,
"text": "\n 7. It is further contended that the averments made in para 8 are reckless statement."
}
},
{
"from_name": null,
"id": "84595a09f90c4a049bce0f79985668d1",
"to_name": null,
"type": null,
"value": {
"end": 11498,
"labels": [
"ANALYSIS"
],
"start": 11455,
"text": "The plaint in O.S.No.932/2002 was returned."
}
},
{
"from_name": null,
"id": "755af5466e4543a3b9d71df49bddd408",
"to_name": null,
"type": null,
"value": {
"end": 11590,
"labels": [
"ANALYSIS"
],
"start": 11499,
"text": "Even now in its existing condition the suit is bad for non-payment of sufficient Court fee."
}
},
{
"from_name": null,
"id": "15a8daf81b7049438acea4ccd17c8942",
"to_name": null,
"type": null,
"value": {
"end": 11687,
"labels": [
"ANALYSIS"
],
"start": 11591,
"text": "The officer of the Plaintiff has made a false statement under oath that the suit is transferred."
}
},
{
"from_name": null,
"id": "a3bb071d94da4b8e86b8558a1d7523f1",
"to_name": null,
"type": null,
"value": {
"end": 11833,
"labels": [
"ANALYSIS"
],
"start": 11688,
"text": "The Plaintiff has failed to get any order and this Defendant has absolute owner was at liberty to deal with his property in the manner he decide."
}
},
{
"from_name": null,
"id": "74704e9653bf4adb93d247c307fc4972",
"to_name": null,
"type": null,
"value": {
"end": 11957,
"labels": [
"ANALYSIS"
],
"start": 11834,
"text": "The Plaintiff lacks elementary principles of law as to what constitutes judicial authority and force of judicial authority."
}
},
{
"from_name": null,
"id": "ed665e41822542bb8a9760e736e752bc",
"to_name": null,
"type": null,
"value": {
"end": 12003,
"labels": [
"ANALYSIS"
],
"start": 11958,
"text": "Thus the contentions of para 10 are baseless."
}
},
{
"from_name": null,
"id": "c6b21ad5b1534a06a41d31e80a574f93",
"to_name": null,
"type": null,
"value": {
"end": 12051,
"labels": [
"ANALYSIS"
],
"start": 12004,
"text": "The 2nd Defendant has obeyed the 1st Defendant."
}
},
{
"from_name": null,
"id": "09c16f56d6df4cb19d5dced6632a5256",
"to_name": null,
"type": null,
"value": {
"end": 12149,
"labels": [
"ANALYSIS"
],
"start": 12052,
"text": "Thus he is neither a necessary party nor a proper party and no relief is also sought against him."
}
},
{
"from_name": null,
"id": "8fb59da12dee48588043bd1d13590d6a",
"to_name": null,
"type": null,
"value": {
"end": 12290,
"labels": [
"ANALYSIS"
],
"start": 12150,
"text": "The Plaintiff is not the authority to state that this Defendant did not have any right, title or interest over the suit schedule properties."
}
},
{
"from_name": null,
"id": "5b9e5127f87e405b97df6736e73b947b",
"to_name": null,
"type": null,
"value": {
"end": 12457,
"labels": [
"ANALYSIS"
],
"start": 12291,
"text": "The Plaintiff has filed this false and frivolous suit on the instigation of the 3rd Defendant, when the 3rd Defendant has failed to get any order in any Court of Law."
}
},
{
"from_name": null,
"id": "3148072700ea4970ab8b1ea2ffc4a629",
"to_name": null,
"type": null,
"value": {
"end": 12497,
"labels": [
"ANALYSIS"
],
"start": 12458,
"text": "This suit is hopelessly barred by time."
}
},
{
"from_name": null,
"id": "209c5fc6527f444dbdc4afc5bd761952",
"to_name": null,
"type": null,
"value": {
"end": 12634,
"labels": [
"ANALYSIS"
],
"start": 12498,
"text": "The cause of action dated 17.8.2001, 10.12.2003 and 4.4.2005 relates to 'B' schedule property with respect to which no relief is sought."
}
},
{
"from_name": null,
"id": "f7a5da7a6b0741c29e85381116fa2a6a",
"to_name": null,
"type": null,
"value": {
"end": 12793,
"labels": [
"ANALYSIS"
],
"start": 12635,
"text": "The deceased Mahant behind 1st Defendant as sole surviving coparcener and since then this Defendant tried to lodge his returns but was not allowed by Revenue."
}
},
{
"from_name": null,
"id": "caf19ffa4e3944309546acab8780f355",
"to_name": null,
"type": null,
"value": {
"end": 12900,
"labels": [
"ANALYSIS"
],
"start": 12794,
"text": "Now that the Civil Courts have held that 1st Defendant is the Legal representative of the deceased Mahant."
}
},
{
"from_name": null,
"id": "2da025f92155427b9d1583a23c34eda0",
"to_name": null,
"type": null,
"value": {
"end": 13023,
"labels": [
"ANALYSIS"
],
"start": 12901,
"text": "The Income Tax and Wealth Tax has been remitted indicating clearly the properties that include the suit schedule property."
}
},
{
"from_name": null,
"id": "88faa34e4d924624b54452dd3cffd2d4",
"to_name": null,
"type": null,
"value": {
"end": 13114,
"labels": [
"ANALYSIS"
],
"start": 13024,
"text": "Now the Plaintiff is estopped from stating that the property is that of not 1st Defendant."
}
},
{
"from_name": null,
"id": "f2acd697f6744aa99ee6e1348fea3218",
"to_name": null,
"type": null,
"value": {
"end": 13223,
"labels": [
"ANALYSIS"
],
"start": 13115,
"text": "When the returns are filed and finalized there is no meaning of even mentioning about protective assessment."
}
},
{
"from_name": null,
"id": "a159eb69ad624f528f8e0eeb62442fe1",
"to_name": null,
"type": null,
"value": {
"end": 13284,
"labels": [
"ANALYSIS"
],
"start": 13224,
"text": "The department in deed did not accept the contention to AJP."
}
},
{
"from_name": null,
"id": "31245c2f572d44fe84f7f263f72efeaa",
"to_name": null,
"type": null,
"value": {
"end": 13368,
"labels": [
"ANALYSIS"
],
"start": 13285,
"text": "Now the Plaintiff to satisfy the 3rd Defendant has almost accepted this contention."
}
},
{
"from_name": null,
"id": "8d2bd8635fce476898b02eee32207c1a",
"to_name": null,
"type": null,
"value": {
"end": 13514,
"labels": [
"ANALYSIS"
],
"start": 13369,
"text": "The order of attachment has lost its value in every term when the property is attached for an AJP Assessee but actually it belongs to individual."
}
},
{
"from_name": null,
"id": "23102ee5e9304e93b496e9f7261cdb6e",
"to_name": null,
"type": null,
"value": {
"end": 13684,
"labels": [
"ANALYSIS"
],
"start": 13515,
"text": "Thus an order of attachment when carefully perused points out that this Defendant is not the party in those proceedings and the property never belonged to 3rd Defendant."
}
},
{
"from_name": null,
"id": "e00caea5f919455c92eb3168beb617d1",
"to_name": null,
"type": null,
"value": {
"end": 13756,
"labels": [
"ANALYSIS"
],
"start": 13685,
"text": "Hence the Income Tax dues is against an individual and not on property."
}
},
{
"from_name": null,
"id": "e084d4d3291e46b3a05a29a463f5573b",
"to_name": null,
"type": null,
"value": {
"end": 13843,
"labels": [
"ANALYSIS"
],
"start": 13757,
"text": "This concept appears to have last sight by the 3rd Defendant as well as the Plaintiff."
}
},
{
"from_name": null,
"id": "e9fcb79811ce4027b9b96fa07be65cbe",
"to_name": null,
"type": null,
"value": {
"end": 14022,
"labels": [
"ANALYSIS"
],
"start": 13843,
"text": "\n The Plaintiff has recovered more than 99% of outstanding from the 3rd Defendant from the money amassed by the 3rd Defendant by wrongful sale of 1st Defendant's property at Pune."
}
},
{
"from_name": null,
"id": "02d652058206409cb3f820e33b98c9c6",
"to_name": null,
"type": null,
"value": {
"end": 14075,
"labels": [
"ANALYSIS"
],
"start": 14023,
"text": "But this fact has been suppressed by the Plaintiffs."
}
},
{
"from_name": null,
"id": "adaa85e2823d413cbe53d333f48be2c4",
"to_name": null,
"type": null,
"value": {
"end": 14187,
"labels": [
"ANALYSIS"
],
"start": 14075,
"text": "\n The Plaintiffs have inherited thoughts of multiplying proceedings, as law is merciful in admitting the plaint."
}
},
{
"from_name": null,
"id": "05ba6e1736514b75a394870ce5a5ef63",
"to_name": null,
"type": null,
"value": {
"end": 14273,
"labels": [
"ANALYSIS"
],
"start": 14188,
"text": "The municipal records has classic entries that the property in question in ancestral."
}
},
{
"from_name": null,
"id": "edd3720a4bc84884beeb0b8d59589fa5",
"to_name": null,
"type": null,
"value": {
"end": 14346,
"labels": [
"ANALYSIS"
],
"start": 14274,
"text": "Once it is ancestral, naturally it devolves on the Legal representative."
}
},
{
"from_name": null,
"id": "1e4cad286ef04a379cf066da7501a27a",
"to_name": null,
"type": null,
"value": {
"end": 14460,
"labels": [
"ANALYSIS"
],
"start": 14347,
"text": "The 1st Defendant is the sole surviving coparcener who succeeds to the estate left behind by the deceased Mahant."
}
},
{
"from_name": null,
"id": "022afa01ee6d4eca9a03326921eb860e",
"to_name": null,
"type": null,
"value": {
"end": 14516,
"labels": [
"ANALYSIS"
],
"start": 14461,
"text": "The Plaintiff has no right to question this succession."
}
},
{
"from_name": null,
"id": "0d0e100de07249dc898ffd5fe7346335",
"to_name": null,
"type": null,
"value": {
"end": 14666,
"labels": [
"ANALYSIS"
],
"start": 14517,
"text": "Under these circumstances, he has sold the properties and subsequently after construction such purchasers have resold the same to various purchasers."
}
},
{
"from_name": null,
"id": "78943f15d55648d8acc125c7d4117134",
"to_name": null,
"type": null,
"value": {
"end": 14763,
"labels": [
"ANALYSIS"
],
"start": 14667,
"text": "No relief thus can be sought against him unless the Plaintiff succeeds to annual the sale deeds."
}
},
{
"from_name": null,
"id": "54ba5d4f363946aa8d888e443555f5ca",
"to_name": null,
"type": null,
"value": {
"end": 14848,
"labels": [
"ANALYSIS"
],
"start": 14764,
"text": "There is no serious question of law or fact that this Court needs to be adjudicated."
}
},
{
"from_name": null,
"id": "4e002db55df34e1283faf3a5fd83e3d0",
"to_name": null,
"type": null,
"value": {
"end": 14891,
"labels": [
"ANALYSIS"
],
"start": 14849,
"text": "Hence the plaint is liable to be rejected."
}
},
{
"from_name": null,
"id": "42828ccd150d49e7987449c3d99e9982",
"to_name": null,
"type": null,
"value": {
"end": 14997,
"labels": [
"ANALYSIS"
],
"start": 14891,
"text": "\n 8. The 3rd Defendant has not objected for grant the Temporary Injunction as prayed for by the Plaintiff."
}
},
{
"from_name": null,
"id": "737738a4b08940c58032e41398c3ec3f",
"to_name": null,
"type": null,
"value": {
"end": 15119,
"labels": [
"ANALYSIS"
],
"start": 14999,
"text": "9. Both the parties have pleaded the usual pleadings of prima-facie case, balance of convenience and irreparable injury."
}
},
{
"from_name": null,
"id": "82c5242bb4d2474398b6929ddc925f89",
"to_name": null,
"type": null,
"value": {
"end": 15388,
"labels": [
"ANALYSIS"
],
"start": 15120,
"text": "On the basis of this contention, the Trial Court has framed Point No. 1 to 4 and answered Point No. 1 in the negative, Point No. 2 in favour of the 1st Defendant, Point No.\n3 in the negative and finally dismiss the I.A. filed under Order 39 Rule 1 and 2 of C.P.C.\n 10."
}
},
{
"from_name": null,
"id": "8725029747ee4a5aab2ea062c40a454c",
"to_name": null,
"type": null,
"value": {
"end": 15604,
"labels": [
"ARG_PETITIONER"
],
"start": 15389,
"text": "Aggrieved by the said order of dismissal, the Appellant prefer this appeal on following grounds: 1. The Learned Judge highly erred in dismissing the I.A. 1 he ought to have allowed the I.A. 1 filed by the Appellant."
}
},
{
"from_name": null,
"id": "ced697488a8c47d09934703a5928d348",
"to_name": null,
"type": null,
"value": {
"end": 15828,
"labels": [
"ARG_PETITIONER"
],
"start": 15606,
"text": "2. The Learned Judge ought to have noticed the entire contention urged by the Plaintiff/Appellant in the plaint along with the documents especially the returns and the order of the Income Tax Appellate Tribunal, Bangalore."
}
},
{
"from_name": null,
"id": "8ded0547525b404f99adb55fdfad12d7",
"to_name": null,
"type": null,
"value": {
"end": 16294,
"labels": [
"ARG_PETITIONER"
],
"start": 15829,
"text": "In this behalf, the Learned Judge ought to have noted while disposing I.A. 1 for grant of injunction, the fact of the declaration of the Assessee in respect of the `properties in the returns' as that of the 3rd respondent, the documents produced by the 3rd respondent disclosing that by suppressing material facts before the City Corporation and MUDA the 1st Respondent illegally had obtained the change of khata and R.T.C. entries of the properties to his name, 3."
}
},
{
"from_name": null,
"id": "c568d6d4d2a244d6b9a4c0c254c36274",
"to_name": null,
"type": null,
"value": {
"end": 16643,
"labels": [
"ARG_PETITIONER"
],
"start": 16295,
"text": "It was highly erroneous on the part of the lower Court that it gave undue importance to the order produced by the 1st Respondent that the Competent Civil Court rejected the application of the 3rd respondent against the 1st Respondent praying to restrain the 1st Respondent from alienating the suit schedule properties while disposing of the I.A. 1."
}
},
{
"from_name": null,
"id": "3b4cfca330704b13b3a950ba003fe8b0",
"to_name": null,
"type": null,
"value": {
"end": 16721,
"labels": [
"ARG_PETITIONER"
],
"start": 16644,
"text": "Without going through the said decision the lower Court wrongly relied on it."
}
},
{
"from_name": null,
"id": "87a02eeb287c4f84942818baac06556a",
"to_name": null,
"type": null,
"value": {
"end": 17012,
"labels": [
"ARG_PETITIONER"
],
"start": 16721,
"text": "\n 4. When the Lower Court found out that there is a dispute between the 1st Respondent and the 3rd respondent in respect of the title of the suit schedule properties and Original Suit No.147/95 is pending before the Hon'ble II Addl.Civil Judge (Sr.Div), Mysore between those two Respondents."
}
},
{
"from_name": null,
"id": "82cdf6c9a18544c29355ce0e4ebb2297",
"to_name": null,
"type": null,
"value": {
"end": 17202,
"labels": [
"ARG_PETITIONER"
],
"start": 17012,
"text": "\n Such being the case, the lower Court erred and wrongly relied on the Corporation entries and R.T.C. extracts produced by the 1st Respondent while deciding the point of prima-facie case."
}
},
{
"from_name": null,
"id": "9169b9b2c9b44549aa116fe2e8802008",
"to_name": null,
"type": null,
"value": {
"end": 17554,
"labels": [
"ARG_PETITIONER"
],
"start": 17204,
"text": "5. The Learned Judge highly erred in coming to the conclusion that (i) the Plaintiff did not recognize the 1st Respondent as an Assessee as the Legal representatives of the deceased Mahant P.Krishnandagiri Goswamy to collect the Income Tax dues, (ii) the appellant has not properly applied its mind and taken any steps to recover the Income Tax dues."
}
},
{
"from_name": null,
"id": "d8743904a3714237ad3c46b1a87935d3",
"to_name": null,
"type": null,
"value": {
"end": 17999,
"labels": [
"ARG_PETITIONER"
],
"start": 17555,
"text": "It simply brushed aside the documents produced by the 3rd respondent, which disclose that some of the Hon'ble courts recognized the 3rd respondent as the Legal representative of the deceased Mahant P.Krishnandagiri Goswamy and the order of the Income Tax Appellate Tribunal that the deceased Assessee was holding the suit schedule property only in a representative capacity of and blindly relied on the documents produced by the 1st Respondent."
}
},
{
"from_name": null,
"id": "77b51d533d5b4e069f9b400514886635",
"to_name": null,
"type": null,
"value": {
"end": 18321,
"labels": [
"ARG_PETITIONER"
],
"start": 18001,
"text": "6. The Lower Court erred in not noticing that since the 1st Respondent did not challenge the findings of the I.T.A.T. Bangalore before the Apex Court or any declaration from the Civil Court that he is the owner of the properties, the Plaintiff cannot recognize him as an Assessee as such his returns were not considered."
}
},
{
"from_name": null,
"id": "04d95f3445d548649e95d5b5432a85df",
"to_name": null,
"type": null,
"value": {
"end": 18480,
"labels": [
"ARG_PETITIONER"
],
"start": 18323,
"text": "7. It was erroneous observation made by the lower Court to the effect that the Appellant did not establish a prima-facie case or irreparable loss and injury."
}
},
{
"from_name": null,
"id": "9418c02007ba49409eba2b0794e9eec8",
"to_name": null,
"type": null,
"value": {
"end": 18667,
"labels": [
"ARG_PETITIONER"
],
"start": 18481,
"text": "It conveniently forgot that by the attempt attributable to the Defendant in alienating the suit `A' schedule properties grave injury would be occasioned to the interest of the Appellant."
}
},
{
"from_name": null,
"id": "2e557a8465264cc2b9ed579cc9254098",
"to_name": null,
"type": null,
"value": {
"end": 18913,
"labels": [
"ARG_PETITIONER"
],
"start": 18669,
"text": "8. The Learned Judge highly erred in coming to the conclusion that when the Appellant attached the properties it should have taken steps to sell the properties to recover the amount within the time limit shown under of Rule 68B of the IT Rules."
}
},
{
"from_name": null,
"id": "7ed0492720f84456916efc83e9d7a7d5",
"to_name": null,
"type": null,
"value": {
"end": 19152,
"labels": [
"ARG_PETITIONER"
],
"start": 18913,
"text": "\n The learned lower Court failed to appreciate the fact of pendency of number of I.T. reference cases and appeals before the Higher Courts, which temporarily prevented the authorities from bringing the properties to the process of sale."
}
},
{
"from_name": null,
"id": "3c6b3614ab8c465b8c915529073f0ee8",
"to_name": null,
"type": null,
"value": {
"end": 19359,
"labels": [
"ARG_PETITIONER"
],
"start": 19154,
"text": "9. The Learned Lower Court Judge observed that admittedly the 1st Respondent is not a defaulter by which the question of restraining the 1st Respondent from alienating the properties does not arise at all."
}
},
{
"from_name": null,
"id": "e6a6d912514546a3a115e5376897ac65",
"to_name": null,
"type": null,
"value": {
"end": 19664,
"labels": [
"ARG_PETITIONER"
],
"start": 19360,
"text": "It has failed to appreciate the fact that suit properties are charged for Income Tax dues and without clearing the dues/or notice to the department the 1st Respondent got the khata and such other municipal records changed to his name, which gave rise to the Appellant to enforce the cause of action.\n 10."
}
},
{
"from_name": null,
"id": "d3f8545b8b4649b984b284b0055754ff",
"to_name": null,
"type": null,
"value": {
"end": 19949,
"labels": [
"ARG_PETITIONER"
],
"start": 19665,
"text": "It was highly erroneously observation made by the lower Court to the effect that there was no necessity to file a suit for permanent injunction instead of that the Appellant could have taken action to sell the attached properties and make the 1st Respondent approach the Court of Law."
}
},
{
"from_name": null,
"id": "3b15b82c518f474ead8b8d75ddeddfc7",
"to_name": null,
"type": null,
"value": {
"end": 20068,
"labels": [
"ARG_PETITIONER"
],
"start": 19949,
"text": "\n It conveniently forgot that the relief of permanent injunction was the only suitable relief that could be claimed."
}
},
{
"from_name": null,
"id": "ccd3c0f58c9d4ac5b2619c269f1f683e",
"to_name": null,
"type": null,
"value": {
"end": 20564,
"labels": [
"ARG_PETITIONER"
],
"start": 20070,
"text": "11. The Learned Lower Court Judge failed to notice that the order of attachment dated 13.9.1988 was duly served on the deceased Mahant P.Krishnandagiri Goswamy on 14.9.1988, when the lower Court finds that with regard to the legal heirship of the properties is under dispute and it is shown that the 1st Respondent already sold the B schedule properties to various purchasers, an order of injunction ought to have been granted in the case of the Appellant to safeguard the revenue of the State."
}
},
{
"from_name": null,
"id": "8b5460ec7d224cffaa55e3644a408f23",
"to_name": null,
"type": null,
"value": {
"end": 20763,
"labels": [
"ARG_PETITIONER"
],
"start": 20566,
"text": "12. It was highly erroneous observation made by the lower Court that in view of the case law furnished by the 1st Defendant (ILR 1997 Kar 3089) the relief of permanent injunction cannot be granted."
}
},
{
"from_name": null,
"id": "00bbf1509ef24963aeb2dfe26ff573bb",
"to_name": null,
"type": null,
"value": {
"end": 20888,
"labels": [
"ARG_PETITIONER"
],
"start": 20764,
"text": "It erred in not noting that the said case law is not applicable to the facts and circumstances of the case of the appellant."
}
},
{
"from_name": null,
"id": "4cc4cc98982f4734adc5a1767c4415e2",
"to_name": null,
"type": null,
"value": {
"end": 20995,
"labels": [
"ARG_PETITIONER"
],
"start": 20889,
"text": "The reasoning given by the lower Court in support of its order of dismissal is neither cogent nor correct."
}
},
{
"from_name": null,
"id": "79d1f9dfa11944d7bfb4fb6dea5d7ff9",
"to_name": null,
"type": null,
"value": {
"end": 21219,
"labels": [
"ARG_PETITIONER"
],
"start": 20995,
"text": "\n 13. It was erroneous observation made by the Lower Court to the effect that the Appellant did not establish a prima-facie, therefore the question of considering balance of convenience and irreparable injury does not arise."
}
},
{
"from_name": null,
"id": "fb3d817409974f259c134f81932bf065",
"to_name": null,
"type": null,
"value": {
"end": 21311,
"labels": [
"ARG_PETITIONER"
],
"start": 21221,
"text": "14. The impugned order is contrary to facts, opposed to the questions of law and perverse."
}
},
{
"from_name": null,
"id": "bba76b8af57944fc8c05192122a62021",
"to_name": null,
"type": null,
"value": {
"end": 21353,
"labels": [
"ARG_PETITIONER"
],
"start": 21311,
"text": "\n Hence liable to be set aside."
}
},
{
"from_name": null,
"id": "44e9be5b4c3447c6a943c39e41db21a1",
"to_name": null,
"type": null,
"value": {
"end": 21388,
"labels": [
"ARG_PETITIONER"
],
"start": 21354,
"text": "Hence prayed for allow the appeal."
}
},
{
"from_name": null,
"id": "03c9048e41344c729211e4f5a3cdcaa2",
"to_name": null,
"type": null,
"value": {
"end": 21499,
"labels": [
"NONE"
],
"start": 21390,
"text": "11. In response to the notice issued in this case, the respondents appeared through their respective counsel."
}
},
{
"from_name": null,
"id": "c619fb14de33421d95469aa2f879619c",
"to_name": null,
"type": null,
"value": {
"end": 21593,
"labels": [
"ISSUE"
],
"start": 21499,
"text": "\n 12. On the basis of the above pleadings the following points arises for my consideration: 1."
}
},
{
"from_name": null,
"id": "fe965173d9d54b698b8dafa9760b94b2",
"to_name": null,
"type": null,
"value": {
"end": 21674,
"labels": [
"ISSUE"
],
"start": 21594,
"text": "Whether plaintiff made out a prima-facie case for grant of Temporary Injunction?"
}
},
{
"from_name": null,
"id": "ac7e1eb7134946b38c0da6eda3c59f8d",
"to_name": null,
"type": null,
"value": {
"end": 21755,
"labels": [
"ISSUE"
],
"start": 21674,
"text": "\n 2. Whether Plaintiff proves that the balance of convenience lies in his favour?"
}
},
{
"from_name": null,
"id": "63f76b63758346eba11d5edf29b17b66",
"to_name": null,
"type": null,
"value": {
"end": 21898,
"labels": [
"ISSUE"
],
"start": 21755,
"text": "\n 3. Whether Plaintiff proves that he will be put to irreparable loss and injury if an order of ad-interim Temporary Injunction is not granted?"
}
},
{
"from_name": null,
"id": "3cf833c14a694a628476475eb971052b",
"to_name": null,
"type": null,
"value": {
"end": 21981,
"labels": [
"ISSUE"
],
"start": 21900,
"text": "4. Whether it is necessary to interfere with the order passed by the Trial Court?"
}
},
{
"from_name": null,
"id": "ddc69ce5e0b249c09fdcb64c5063db11",
"to_name": null,
"type": null,
"value": {
"end": 21997,
"labels": [
"ISSUE"
],
"start": 21981,
"text": "\n 5. What Order?"
}
},
{
"from_name": null,
"id": "794b9c0384aa42968ab868181f97d34b",
"to_name": null,
"type": null,
"value": {
"end": 22051,
"labels": [
"NONE"
],
"start": 21997,
"text": "\n 13. My findings on the above points are as follows:-"
}
},
{
"from_name": null,
"id": "9f628a08bb2944d694b218da2d435f25",
"to_name": null,
"type": null,
"value": {
"end": 22198,
"labels": [
"ANALYSIS"
],
"start": 22052,
"text": "Point No.1: In the negative Point No. 2: In the negative Point No. 3: In the negative Point No. 4: Partly in affirmative Point No. 5:"
}
},
{
"from_name": null,
"id": "76370a7e8a8149cfa968b4d023b46059",
"to_name": null,
"type": null,
"value": {
"end": 22264,
"labels": [
"NONE"
],
"start": 22202,
"text": "As per final order for the following:- :: R E A S O N S :: 14."
}
},
{
"from_name": null,
"id": "2ae2faf7098a4a7285c67dcf825a9fa7",
"to_name": null,
"type": null,
"value": {
"end": 22389,
"labels": [
"ANALYSIS"
],
"start": 22265,
"text": "Point No: 1 to 4: All these points are interrelated and hence answering in common in order to avoid the repetition of facts."
}
},
{
"from_name": null,
"id": "a501546d1e084b998ee79d7c5060b220",
"to_name": null,
"type": null,
"value": {
"end": 22677,
"labels": [
"ANALYSIS"
],
"start": 22389,
"text": "\n 15. From the contention taken by the Plaintiff and the Defendants in the present case it is clear that, 1st Defendant is claiming the suit schedule properties under succession and Defendant No.3 is claiming the suit schedule properties as acquired as he is represents the 3rd Defendant."
}
},
{
"from_name": null,
"id": "fdc2994f3ac742549171bb756dd57e2b",
"to_name": null,
"type": null,
"value": {
"end": 22797,
"labels": [
"ANALYSIS"
],
"start": 22678,
"text": "With respect to the suit schedule properties, there is a title dispute between the 1st Defendant and the 3rd Defendant."
}
},
{
"from_name": null,
"id": "d92d1a386cd644119c334da3d4da05f6",
"to_name": null,
"type": null,
"value": {
"end": 22984,
"labels": [
"ANALYSIS"
],
"start": 22797,
"text": "\nAdmittedly, the 1st Defendant has filed a suit against the 3rd Defendant in O.S.No.147/1995 and 3rd Defendant has filed a suit against the 1st Defendant in O.S.No. 100/1994 and 258/1998."
}
},
{
"from_name": null,
"id": "cf21016fc1ef4c7ca70fc767770aa51a",
"to_name": null,
"type": null,
"value": {
"end": 23272,
"labels": [
"ANALYSIS"
],
"start": 22984,
"text": "\n 16. The Appellant has produced the certified copy of the Judgement and Decree passed in O.S.No.147/1995, 100/1994 and 258/1998 wherein the common Judgement was passed and the suit filed by the 1st Defendant in O.S.No.\n147/1995 was dismissed and O.S.No.100/1994 and 258/1998 was decreed."
}
},
{
"from_name": null,
"id": "125194e0caa2495b9ca6ae4cf4b15193",
"to_name": null,
"type": null,
"value": {
"end": 23481,
"labels": [
"ANALYSIS"
],
"start": 23273,
"text": "The Appellant has also produced the certified copy of the Judgement passed in R.A.Nos. 126/2007, 127/2007 and 128/2007 filed against the Judgement and Decree passed in O.S.Nos.147/1995, 100/1994 and 258/1998."
}
},
{
"from_name": null,
"id": "708631e4bb924278bc39e2fe41eba947",
"to_name": null,
"type": null,
"value": {
"end": 23599,
"labels": [
"ANALYSIS"
],
"start": 23482,
"text": "The said appeals have been dismissed with penal costs of Rs.10,000/- each and confirmed the order of the Trial Court."
}
},
{
"from_name": null,
"id": "295c2ec3085f430d917c6105cdc171d5",
"to_name": null,
"type": null,
"value": {
"end": 23836,
"labels": [
"ANALYSIS"
],
"start": 23599,
"text": "\n 17. The Respondent No.1 along with his written argument has produced certified copy of the Order sheet of the Hon'ble High Court of Karnataka in R.S.A.No.984/2010 wherein the execution of the Decree is stayed till next date of hearing."
}
},
{
"from_name": null,
"id": "8c77af4e77a945548e592faabcdbb582",
"to_name": null,
"type": null,
"value": {
"end": 23995,
"labels": [
"ANALYSIS"
],
"start": 23837,
"text": "No further orders have been produced by the Appellant or the Respondents with respect to R.S.A.No.984/2010 pending before the Hon'ble High Court of Karnataka."
}
},
{
"from_name": null,
"id": "5983437e8cb44f35ae5c4cdb348c143f",
"to_name": null,
"type": null,
"value": {
"end": 24158,
"labels": [
"ANALYSIS"
],
"start": 23996,
"text": "Thus, as on the date of filing the suit, the title dispute with respect to the suit schedule properties between 1st Defendant and 3rd Defendant was not concluded."
}
},
{
"from_name": null,
"id": "9f741ed4285c440898f3cd8dd0068adc",
"to_name": null,
"type": null,
"value": {
"end": 24368,
"labels": [
"ANALYSIS"
],
"start": 24159,
"text": "The Trial Court has considered all the documentary evidence produced by both the parties and also considered the pleadings of the both the parties and since O.S.No.147/1995, 100/1994 and 258/1998 were pending."
}
},
{
"from_name": null,
"id": "5ab8eee6e9e34de9943827dba5ccb327",
"to_name": null,
"type": null,
"value": {
"end": 24851,
"labels": [
"ANALYSIS"
],
"start": 24369,
"text": "When the suit is filed only for the relief of permanent injunction restraining the 3rd Defendant Mahant P.Krishnandagiri Goswamy for transferring or changing the attached property, in any way and that all persons were prohibited from enjoying any benefit under such transfer until further order of the Tax recovery officer, Mysore Circle.\n The Plaintiff has not recognizing the 1st Defendant is an Assessee with respect to the suit schedule properties and tax dues to the Plaintiff."
}
},
{
"from_name": null,
"id": "28ec40d710484ce798b00a3f0fab4d54",
"to_name": null,
"type": null,
"value": {
"end": 25040,
"labels": [
"ANALYSIS"
],
"start": 24852,
"text": "As on the date of filing the suit as admitted by the Plaintiff himself that the suit schedule properties are standing in the name of 1st Defendant and not in the name of the 3rd Defendant."
}
},
{
"from_name": null,
"id": "bb35e76789be4531ae5644e029079a49",
"to_name": null,
"type": null,
"value": {
"end": 25153,
"labels": [
"ANALYSIS"
],
"start": 25041,
"text": "Admittedly, with respect to the tax dues to the Plaintiff, there is a proceeding before the Competent Authority."
}
},
{
"from_name": null,
"id": "d2ece990f7df4686a4cff9ad5a6e9d7f",
"to_name": null,
"type": null,
"value": {
"end": 25267,
"labels": [
"ANALYSIS"
],
"start": 25154,
"text": "The said Competent Authority cannot decide the title of the parties with respect to the suit schedule properties."
}
},
{
"from_name": null,
"id": "0dd950cfb20d4c0da51f6f7991fbbbc6",
"to_name": null,
"type": null,
"value": {
"end": 25435,
"labels": [
"ANALYSIS"
],
"start": 25268,
"text": "The title dispute between the 1st Defendant and 3rd Defendant with respect to the suit schedule properties is still pending before the Hon'ble High Court of Karnataka."
}
},
{
"from_name": null,
"id": "5876090895e84581a001b011815efe1c",
"to_name": null,
"type": null,
"value": {
"end": 25561,
"labels": [
"ANALYSIS"
],
"start": 25437,
"text": "Defendants No.1 and 3 are fighting for declaration of title between themselves with respect to the suit schedule properties."
}
},
{
"from_name": null,
"id": "15caf2ddfb8f4365bf7af70ba459620d",
"to_name": null,
"type": null,
"value": {
"end": 25752,
"labels": [
"ANALYSIS"
],
"start": 25562,
"text": "When the Competent Authority has ordered to attach the properties, then it should have taken steps to sell the properties to recover the amount as contemplated U/s.\n 68(b) of Income Tax Act."
}
},
{
"from_name": null,
"id": "f3824732144640dc9cc572905ddb26f7",
"to_name": null,
"type": null,
"value": {
"end": 25884,
"labels": [
"ANALYSIS"
],
"start": 25753,
"text": "But there is no steps are taken within the period of limitation, which has not been explained by the Plaintiff in the present case."
}
},
{
"from_name": null,
"id": "d284ea5a1c654b3d83b5453e913f8218",
"to_name": null,
"type": null,
"value": {
"end": 26139,
"labels": [
"ANALYSIS"
],
"start": 25885,
"text": "The Trial Court relying on a decision reported in ILR 1997 Kar 3089 wherein it is held that \"Suit against alienation is not maintainable and if such injunction is granted it will be against the very toner, tone and ambit of the Transfer of Property Act\"."
}
},
{
"from_name": null,
"id": "10b2e79811924742bdaabb454cc234ea",
"to_name": null,
"type": null,
"value": {
"end": 26370,
"labels": [
"ANALYSIS"
],
"start": 26140,
"text": "In the present case the Plaintiff has sought for a declaration order of attachment dated 3.5.1995 issued by Tax Recovery Officer, Range II, Mysore, in respect of the suit schedule properties is absolute and binding the Defendants."
}
},
{
"from_name": null,
"id": "af4ed34c9f9d49ffaa9d55f4791461ba",
"to_name": null,
"type": null,
"value": {
"end": 26489,
"labels": [
"ANALYSIS"
],
"start": 26371,
"text": "The Plaintiff need not seek such a relief because any order passed under the Income Tax Act is binding on the parties."
}
},
{
"from_name": null,
"id": "57b8d4c55e70416ca9e5b1dddc597b17",
"to_name": null,
"type": null,
"value": {
"end": 26578,
"labels": [
"ANALYSIS"
],
"start": 26490,
"text": "Hence if this relief is excludes then relief of permanent injunction is an only remains."
}
},
{
"from_name": null,
"id": "68d1cea25ed149a6b5d05dd4b503a5a1",
"to_name": null,
"type": null,
"value": {
"end": 26667,
"labels": [
"ANALYSIS"
],
"start": 26579,
"text": "But as per the above said decision the relief of permanent injunction cannot be granted."
}
},
{
"from_name": null,
"id": "a1c2ff531b974e4dac9aa8b1ae09ed03",
"to_name": null,
"type": null,
"value": {
"end": 26746,
"labels": [
"ANALYSIS"
],
"start": 26668,
"text": "No relief is sought in respect of 'B' schedule properties in the present case."
}
},
{
"from_name": null,
"id": "ecb29bad052d49cd9acc15628cbb2311",
"to_name": null,
"type": null,
"value": {
"end": 26833,
"labels": [
"ANALYSIS"
],
"start": 26747,
"text": "Considering all these facts the Trial Court has answered Point No. 1 in negative.\n 18."
}
},
{
"from_name": null,
"id": "244ccd95a6b1441d87f478f0ee189b09",
"to_name": null,
"type": null,
"value": {
"end": 27066,
"labels": [
"ANALYSIS"
],
"start": 26834,
"text": "As already stated above, title dispute between the 1st Defendant and the 3rd Defendant is still pending before the Competent Court of Law and the said suits were disposed off by the original Court and first appeal is also dismissed."
}
},
{
"from_name": null,
"id": "03991567f5aa4f399dc8af1aa5527f05",
"to_name": null,
"type": null,
"value": {
"end": 27136,
"labels": [
"ANALYSIS"
],
"start": 27067,
"text": "Now the matter is pending before the Hon'ble High Court of Karnataka."
}
},
{
"from_name": null,
"id": "6e57de1a28fc42838536135f731e93de",
"to_name": null,
"type": null,
"value": {
"end": 27727,
"labels": [
"ANALYSIS"
],
"start": 27137,
"text": "In view of the fact that when the Plaintiff is not considering the 1st Defendant is an Assessee for the alleged dues to the Plaintiff with respect to the Income Tax and Wealth Tax as contended by the Plaintiff and the properties were standing in the name of the 1st Defendant as on the date of filing the present suit and Defendant No.3 is also claiming that he is owner of the suit schedule properties, under these circumstances, the Defendants cannot alienate the suit schedule properties since the Plaintiff is having claim over the suit schedule properties with respect to the tax dues."
}
},
{
"from_name": null,
"id": "0f5d12bd43ac4348844f0200b6e27a95",
"to_name": null,
"type": null,
"value": {
"end": 28048,
"labels": [
"ANALYSIS"
],
"start": 27727,
"text": "\n 19. After disposal off of O.S.No. 147/1995, 100/1994 and 258/1998, Plaintiff who has filed O.S.No. 430/2005 against the Defendants on the file of this Court was withdrawn by the Plaintiff on the ground that, since the suit filed by the 1st Defendant against the 3rd Defendant in O.S.No.147/1995 was dismissed with cost."
}
},
{
"from_name": null,
"id": "a7890593999d47c98fa2e9f1a88442d2",
"to_name": null,
"type": null,
"value": {
"end": 28281,
"labels": [
"ANALYSIS"
],
"start": 28049,
"text": "The suit in O.S.No.100/1994 and 258/1998 filed by the 3rd Defendant against the Defendant No.1 are decreed with cost and 3rd Defendant Mahant K.Krishna Mohanananda Giri Goswamy is declared as the owner of the suit schedule property."
}
},
{
"from_name": null,
"id": "90f1d0c62d104925865fb342f196e107",
"to_name": null,
"type": null,
"value": {
"end": 28397,
"labels": [
"ANALYSIS"
],
"start": 28282,
"text": "In the mean while, 3rd Defendant has acquired the major portion tax and interest portion of tax also left with him."
}
},
{
"from_name": null,
"id": "2ec83e2a71c84f548f40d3380661c398",
"to_name": null,
"type": null,
"value": {
"end": 28650,
"labels": [
"ANALYSIS"
],
"start": 28398,
"text": "His waiver petition is pending before Chief Commissioner, Bangaluru and on that ground it is not usual purpose will be served when continued the said suit when the said suit was allowed to be withdrawn to proceed against the 3rd Defendant if necessary."
}
},
{
"from_name": null,
"id": "a2c9a588d50f4cc2871df40c963bcfc3",
"to_name": null,
"type": null,
"value": {
"end": 28761,
"labels": [
"ANALYSIS"
],
"start": 28651,
"text": "The claim of the Plaintiff in that suit and the claim of the Plaintiff in the present suit are almost similar."
}
},
{
"from_name": null,
"id": "6522ec33ac6b4fe59b6ba680a865a5c1",
"to_name": null,
"type": null,
"value": {
"end": 28968,
"labels": [
"ANALYSIS"
],
"start": 28762,
"text": "The Trial Court has considered all the documentary evidence and the relevant provisions of Income Tax and held that the suit itself is not maintainable in view of the decision reported in ILR 1997 Kar 3089."
}
},
{
"from_name": null,
"id": "b69b409ac9354dfd975b5fb98537aaf6",
"to_name": null,
"type": null,
"value": {
"end": 29154,
"labels": [
"RATIO"
],
"start": 28969,
"text": "At this stage, I am of the considered view that the maintainability of suit cannot be consider at this stage and same has to be considered only at the time of final hearing of the suit."
}
},
{
"from_name": null,
"id": "97f937c44a2f43ecb47103666e9d6d90",
"to_name": null,
"type": null,
"value": {
"end": 29280,
"labels": [
"RATIO"
],
"start": 29155,
"text": "The only point that has to be decided in disposing off the application whether the Plaintiff has got prima-facie case or not?"
}
},
{
"from_name": null,
"id": "f464502e99fc4c688a44b21ad2dd9938",
"to_name": null,
"type": null,
"value": {
"end": 29376,
"labels": [
"RATIO"
],
"start": 29281,
"text": "The Defendants are not denying the dues to the Plaintiff towards the Income Tax and Wealth Tax."
}
},
{
"from_name": null,
"id": "4e5862dd880c42f2b33e46e94afe2b6e",
"to_name": null,
"type": null,
"value": {
"end": 29621,
"labels": [
"RATIO"
],
"start": 29377,
"text": "Under these circumstances, I am of the view that the order of the Trial Court is requires to be modified though on the basis of the pleadings, Plaintiff is not entitled to claim the relief sought in the present suit as discussed by Trial Court."
}
},
{
"from_name": null,
"id": "3b4c625449714cd1b7f04439fdd7da10",
"to_name": null,
"type": null,
"value": {
"end": 30024,
"labels": [
"RATIO"
],
"start": 29622,
"text": "Since it is a pre-trial stage, I am of the view that Plaintiff has got prima-facie case at this stage and balance of convenience is also lies in his favour and if the properties are disposed off either by the 1st Defendant or by the 3rd Defendant then the Plaintiff cannot recover the huge sum of money dues with respect to the Income Tax and Wealth Tax as claimed by the Plaintiff in the present suit."
}
},
{
"from_name": null,
"id": "8dceb495d7104929a4403e80cdc0da8b",
"to_name": null,
"type": null,
"value": {
"end": 30267,
"labels": [
"RATIO"
],
"start": 30025,
"text": "Hence, I am of the view that the Defendants are directed to maintain STATUS QUO of the suit schedule properties till final disposal of title dispute between the 1st Defendant and the 3rd Defendant with respect to the suit schedule properties."
}
},
{
"from_name": null,
"id": "5f0afb4b8a774186a2583e85b08e0c4d",
"to_name": null,
"type": null,
"value": {
"end": 30501,
"labels": [
"RATIO"
],
"start": 30268,
"text": "The Plaintiff at this stage cannot claim that he is entitled for the relief claimed in I.A. when pending dispute between the 1st Defendant and 3rd Defendant, I am of the view that the Trial Court order has to be modified accordingly."
}
},
{
"from_name": null,
"id": "58cd8e56d32c4fe3a437ba3f15b551dc",
"to_name": null,
"type": null,
"value": {
"end": 30607,
"labels": [
"RATIO"
],
"start": 30502,
"text": "Hence, with this observation I answer Point No. 1 to 3 in negative and Point No. 4 Partly in affirmative."
}
},
{
"from_name": null,
"id": "0369e92eb0184683949d1cc30ff36113",
"to_name": null,
"type": null,
"value": {
"end": 30627,
"labels": [
"RPC"
],
"start": 30607,
"text": "\n 20. Point No. 5: -"
}
},
{
"from_name": null,
"id": "cc18c6ef3e5b4d929e6f136cb92f929d",
"to_name": null,
"type": null,
"value": {
"end": 30762,
"labels": [
"RPC"
],
"start": 30628,
"text": "In view of the discussion made above, I proceed to pass the following: ORDER Appeal filed by the Appellant is hereby PARTLY ALLOWED.\n "
}
},
{
"from_name": null,
"id": "f7c3aafa2e0446b2b01ac36734b57451",
"to_name": null,
"type": null,
"value": {
"end": 30951,
"labels": [
"RPC"
],
"start": 30762,
"text": "Defendant No.1 to 3 are hereby directed to maintain the STATUS QUO of the suit schedule properties till the title dispute between the 1st Defendant and 3rd Defendant is disposed of finally."
}
},
{
"from_name": null,
"id": "16e8ef4734ba4862a8e90c94cf81e320",
"to_name": null,
"type": null,
"value": {
"end": 31067,
"labels": [
"RPC"
],
"start": 30951,
"text": "\n Plaintiff is at liberty to proceed in accordance with law against the person in whose favour the title is decided."
}
},
{
"from_name": null,
"id": "6befb21ca3744436b0c0fd37fff7c165",
"to_name": null,
"type": null,
"value": {
"end": 31093,
"labels": [
"NONE"
],
"start": 31069,
"text": "Draw decree accordingly."
}
},
{
"from_name": null,
"id": "08172205c008428bae14d66458ffbf6d",
"to_name": null,
"type": null,
"value": {
"end": 31177,
"labels": [
"NONE"
],
"start": 31095,
"text": "Send the Lower Court records to the Trial Court along with the copy of this order."
}
},
{
"from_name": null,
"id": "02b2796c45f54e64903baf9560e3e7f3",
"to_name": null,
"type": null,
"value": {
"end": 31310,
"labels": [
"NONE"
],
"start": 31177,
"text": "\n (Dictated to the Steno, transcript by her, revised, corrected and then pronounced in open court on this the16th day of March 2012)."
}
},
{
"from_name": null,
"id": "35bdb9a025ed49ebb5a4f22aa2d5c056",
"to_name": null,
"type": null,
"value": {
"end": 31358,
"labels": [
"NONE"
],
"start": 31310,
"text": "\n (K.B.Patil) III ADDL.SR.CIVIL JUDGE, MYSORE.\n "
}
}
]
}
] | 4,260 | {
"text": "IN THE COURT THE III ADDL. SENIOR CIVIL JUDGE\n MYSORE\n\nPRESENT: Sri.K.B.Patil, B.Com, LL.B., and (Spl.)\n\n III Addl. Sr.Civil Judge & CJM.\n\n Dated on this the 16th day of March 2012\n\n MIS.APPEAL NO.119/2005\n\nAPPELLANT : The Union of India,\n R/by Tax Recovery Officer,\n\n Range-II, Mysore.\n\n (By Smt.K.P.Usha, Advocate)\n\n Vs\n\nRESONDENTS: 1. Bhishma Pithamaha,\n S/o. late Maniram,\n 80 years,\n Door No.573, Ashoka Road,\n Mysore.\n\n 2. Sri. Ramjanam,\n S/o. Sri. Banvari,\n Aged about 42 years,\n R/o. Door No.573,\n Ashoka Road, Mysore.\n\n 3. Tripura Bhairavi Mutt of\n Northern India,\n Rept. By Mahanth Krishna\n Mohanananda Giri Goswamy,\n R/o. Door No.573,\n Ashoka Road, Mysore.\n\n (By Sri.B.R.C, Adv.for R3)\n (By Sri.MD.Adv. For R1&2)\n\nDate and nature of the decree or Against the orders on IA 1 in OS\norder: 758/2005 dtd 30.9.2005 on the file\n of Prl. I Civil Judge (Jr.Div) at\n Mysore\n\nDate of the Institution of the 09.11.2005\nAppeal 16.03.2012\nDate of Judgment :\n\nDuration of the Appeal Years Months Days\n 07 04 07\n\n III ADDL. SR.CIVIL JUDGE,\n MYSORE.\n\n:: J U D G M E N T :: The present appeal is filed by the Appellant Union of India against the Respondents under Order 43 Rule 1 of C.P.C. being aggrieved by the order passed on I.A. 1 in O.S.No. 758/2005 on 30.9.2005 by the Principal First Civil Judge (Jr.Div.), Mysore.\n Hereinafter the status of the parties will be referred to as arrayed in the original suit.\n 2. I.A. 1 is filed by the Plaintiff under Order 39 Rule 1 and 2 of C.P.C. praying to grant an order of ad-interim Temporary Injunction restraining the Defendants, their agents, servants or anybody acting on their behalf from alienating the 'A' schedule property pending disposal of the suit.\n 3. The brief facts of the case of the Plaintiff are that, the 3rd Defendant is an Income Tax and Wealth Tax Assessee.\nThe Income Tax and Wealth Tax returns reveal the particulars of Assets and Liabilities of 3rd Defendant from the year 1969-70 onwards. The existing tax liability of the 3rd Defendant to the Income Tax Department is to an extent of Rs.50,00,000/- and interest thereon. Mahanth P.Krishnandagiri Goswamy, the then Mahanth of the 3rd Defendant had been filed returns of Income Tax and Wealth Tax on behalf of 3rd Defendant. All the returns were signed and verified by him during his lifetime. The entire income belonged to 3rd Defendant Mutt and none of it belonged to Mahanth P.Krishnandagiri Goswamy in his individual capacity. He failed to furnish the books of accounts. It was concluded that entire income belonged to the said person under his individual capacity and none of it belonged to the Trust. Since \"status\" issue was under dispute, protective assessments were made in the name of 3rd Defendant. He had declared the suit schedule properties as the assets of 3rd Defendant. The Assessments pertaining to the period 1969- 70 to 1985-86 were concluded in the hands of Mahant P.Krishnandagiri Goswamy. The Mahanth contended that assets and consequential income belonged to the 3rd Defendant. Whether the properties belonged to the deceased Mahant in individual capacity or it is owned by the Mutt, the Wealth Tax liability and Income Tax liability was for the accrued Wealth and Income derived out of the said properties as such to whom so ever the ownership passes, that person is liable to pay the tax arrears. It is further contended that, the said Mahant clearly expressed that he had no taxable wealth or income in his individual capacity, as such he was not filing any returns. Hence the Trust was assessed in the status of A.J.P. The demand notices were issued to him for the recovery of dues since he was representing the Trust during his lifetime. When the Tax was not paid after receipt of notice, the Plaintiff issued the order of attachment of immovable properties including the suit schedule property.\n In I.T.\"C\" 16 dated 13.9.1988 for Rs.13,50,802/- and also other arrears in respect of Certificate No.81-X dated 24.3.1988 and thereby prohibited and restrained the 3rd Defendant's Mahant P.Krishnandagiri Goswamy from transferring or charging the attached property, in any way and that all persons were prohibited from enjoying any benefit under such transfer until further order of the Tax Recovery Officer, Mysore Circle.\n 4. It is further contended that since the said Mahant did not pay off the arrears of tax during his life time, after his death, the Plaintiff issued order of attachment of immovable property dated 3.5.1995 to his successor-in-office in the Mutt. The said order was served on the 3rd Defendant.\n\"Notice of Demand\" U/s. 156 of the Income Tax Act 1961 was issued on 12.8.2001. Thereafter the Plaintiff published the fact of attachment of the above said properties and copy of the attachment order was displayed in the notice board of the Income Tax Office. The 1st Defendant is the brother of deceased Mahanth and has claimed to be the legal heir of the said Mahant. After the death of the said Mahant, the 1st Defendant is indulged in selling of the properties of the 3rd Defendant's Mutt. The 3rd Defendant has also sold one of the properties under attachment. The Plaintiff already filed a suit in O.S.No. 933/2002 against the 1st Defendant and others before the 2nd Addl. Civil Judge (Jr.Divn) Mysore since, the 1st Defendant illegally sold one of the properties under an attachment to one Rehman Khan and Reshma Bhanu of Mysore. The said suit, after transfer on the ground of jurisdiction is pending on the file of Hon'ble Principal Civil Judge (Sr.Divn), Mysore, in O.S.No.539/2003. O.S.No.\n430/2005 is also pending against the 1st Defendant and others in connection with the sale of another item of the attached properties. Even after that the 1st Defendant kept on disposing off the properties.\n 5. The Plaintiff is a jural authority under the provisions of Income Tax Act and the order of attachment of the Tax Recovery Officer was not challenged before any authority as such the Plaintiff has been in constructive possession of the suit schedule properties. Further, it was made clear in order of attachment that all persons are prohibited and restrained from transferring or changing the suit schedule properties in any manner. That the suit schedule properties were attached for the recovery of huge arrears of Income Tax dues and Wealth Tax dues from the 3rd Defendant. The 1st Defendant, without any legal right or title established over the schedule properties, sold the B schedule properties to various purchasers through his General Power of Attorney Holder i.e. 2nd Defendant. It is learnt that 3rd Defendant also sold some of the attached properties. The 1st Defendant by suppressing the said fact is attempting to sell 'A' schedule properties. The order of attachment dated 13.9.1988 and 03.5.1995 are binding on the 1st Defendant also. Hence this suit and the application. Under these circumstances, if an order to Temporary Injunction as prayed for in I.A. is not granted, the Plaintiff will be put to great loss and the 1st Defendant will sell the remaining properties. In such circumstances it will leads to multiplicity of proceedings.\n 6. The 1st Defendant, in his written statement has contended that the suit itself is not maintainable either in law or on facts or on preponderance of probabilities. The Tax Recovery Officer has not obtained sanction as required under the Law to file this suit. The Tax Recovery Officer has no locus standi to lodge the suit. The Plaintiff has not complied the provision of C.P.C. Hence the Plaint is liable to be rejected. Knowing fully well that no Court has declared the 3rd Defendant as the absolute owner of the suit schedule properties, the Plaintiff has falsely contended that the 3rd Defendant is the owner of the suit schedule properties. The Plaintiff's authority has no jurisdiction to decide the title of the suit schedule properties. When it is clear from the further contentions of Paragraph 3 that deceased Mahant would not substantiate that the property belonged to the 3rd Defendant. It is obvious that the property falls under the category of individual property and hence the statement made that it belongs to 3rd Defendant is false. The 1st Defendant as a owner which official record point out and also the revenue records pointed out that properties were ancestral in nature lodged his application for to be treated as Legal representative of the deceased Assessee and tax could be collected from this Defendant. But the Plaintiff was reluctant at the behest of the one Krishna Mohanananda Giri Goswamy. Despite Court order the Plaintiff contrarily, unilaterally started dealing with a non-existing person. The artificial juridical person styled as 3rd Defendant is not creation of any statute or by any constitution. There is no official record to show the existence of Tripura Bhyravi Matha. The arrears if any has to be claimed from him. Now the revenue is estopped from demanding any such arrears from the 1st Defendant as barred by time. It is further contended that as by verdicts of Hon'ble High Court of Karnataka and Hon'ble Supreme Court, Bhishma Pithamaha has been held as the absolute owner of certain items of the property. Naturally the Plaintiff ought to have approached this Defendant. But the Plaintiff went on appeasing the self styled Mahant of a non-existing Matha. The contentions made in Paragraph No.5 are totally false. Further contention that the 3rd Defendant was restrained from alienating the property is also false. The Plaintiff has not placed any documents to show that the property stood in the name of 3rd Defendant. The contention made in para 6 of the plaint that it has even by 1995 did not accept this Defendant as at lest prospective Assessee but considered the 3rd Defendant only as the Assessee and dares to state that schedule properties belonging to 3rd Defendant. The Plaintiff knowing fully well that there is a rival claim how did the revenue deal only with the 3rd Defendant. This Defendant is not a party to such order who is in reality has been owner of the schedule properties at relevant point of time. The procedure of attachment cannot be considered as this Defendant was kept away by colluding with the self styled Mahant of non-existing 3rd Defendant. The Plaintiff has no business to say that the properties of 3rd Defendant are sold by this Defendant. No document is placed to show that the 3rd Defendant ever existed. The Hon'ble High Court of Karnataka in Writ Petition No.13170 of 1999 has made it clear that the Plaintiff cannot decide as to the ownership of the property. The deceased had even given statement that the alleged Mahantha is his personal and that he is the absolute owner of it.\n 7. It is further contended that the averments made in para 8 are reckless statement. The plaint in O.S.No.932/2002 was returned. Even now in its existing condition the suit is bad for non-payment of sufficient Court fee. The officer of the Plaintiff has made a false statement under oath that the suit is transferred. The Plaintiff has failed to get any order and this Defendant has absolute owner was at liberty to deal with his property in the manner he decide. The Plaintiff lacks elementary principles of law as to what constitutes judicial authority and force of judicial authority. Thus the contentions of para 10 are baseless. The 2nd Defendant has obeyed the 1st Defendant. Thus he is neither a necessary party nor a proper party and no relief is also sought against him. The Plaintiff is not the authority to state that this Defendant did not have any right, title or interest over the suit schedule properties. The Plaintiff has filed this false and frivolous suit on the instigation of the 3rd Defendant, when the 3rd Defendant has failed to get any order in any Court of Law. This suit is hopelessly barred by time. The cause of action dated 17.8.2001, 10.12.2003 and 4.4.2005 relates to 'B' schedule property with respect to which no relief is sought. The deceased Mahant behind 1st Defendant as sole surviving coparcener and since then this Defendant tried to lodge his returns but was not allowed by Revenue. Now that the Civil Courts have held that 1st Defendant is the Legal representative of the deceased Mahant. The Income Tax and Wealth Tax has been remitted indicating clearly the properties that include the suit schedule property. Now the Plaintiff is estopped from stating that the property is that of not 1st Defendant. When the returns are filed and finalized there is no meaning of even mentioning about protective assessment. The department in deed did not accept the contention to AJP. Now the Plaintiff to satisfy the 3rd Defendant has almost accepted this contention. The order of attachment has lost its value in every term when the property is attached for an AJP Assessee but actually it belongs to individual. Thus an order of attachment when carefully perused points out that this Defendant is not the party in those proceedings and the property never belonged to 3rd Defendant. Hence the Income Tax dues is against an individual and not on property. This concept appears to have last sight by the 3rd Defendant as well as the Plaintiff.\n The Plaintiff has recovered more than 99% of outstanding from the 3rd Defendant from the money amassed by the 3rd Defendant by wrongful sale of 1st Defendant's property at Pune. But this fact has been suppressed by the Plaintiffs.\n The Plaintiffs have inherited thoughts of multiplying proceedings, as law is merciful in admitting the plaint. The municipal records has classic entries that the property in question in ancestral. Once it is ancestral, naturally it devolves on the Legal representative. The 1st Defendant is the sole surviving coparcener who succeeds to the estate left behind by the deceased Mahant. The Plaintiff has no right to question this succession. Under these circumstances, he has sold the properties and subsequently after construction such purchasers have resold the same to various purchasers. No relief thus can be sought against him unless the Plaintiff succeeds to annual the sale deeds. There is no serious question of law or fact that this Court needs to be adjudicated. Hence the plaint is liable to be rejected.\n 8. The 3rd Defendant has not objected for grant the Temporary Injunction as prayed for by the Plaintiff.\n 9. Both the parties have pleaded the usual pleadings of prima-facie case, balance of convenience and irreparable injury. On the basis of this contention, the Trial Court has framed Point No. 1 to 4 and answered Point No. 1 in the negative, Point No. 2 in favour of the 1st Defendant, Point No.\n3 in the negative and finally dismiss the I.A. filed under Order 39 Rule 1 and 2 of C.P.C.\n 10. Aggrieved by the said order of dismissal, the Appellant prefer this appeal on following grounds: 1. The Learned Judge highly erred in dismissing the I.A. 1 he ought to have allowed the I.A. 1 filed by the Appellant.\n 2. The Learned Judge ought to have noticed the entire contention urged by the Plaintiff/Appellant in the plaint along with the documents especially the returns and the order of the Income Tax Appellate Tribunal, Bangalore. In this behalf, the Learned Judge ought to have noted while disposing I.A. 1 for grant of injunction, the fact of the declaration of the Assessee in respect of the `properties in the returns' as that of the 3rd respondent, the documents produced by the 3rd respondent disclosing that by suppressing material facts before the City Corporation and MUDA the 1st Respondent illegally had obtained the change of khata and R.T.C. entries of the properties to his name, 3. It was highly erroneous on the part of the lower Court that it gave undue importance to the order produced by the 1st Respondent that the Competent Civil Court rejected the application of the 3rd respondent against the 1st Respondent praying to restrain the 1st Respondent from alienating the suit schedule properties while disposing of the I.A. 1. Without going through the said decision the lower Court wrongly relied on it.\n 4. When the Lower Court found out that there is a dispute between the 1st Respondent and the 3rd respondent in respect of the title of the suit schedule properties and Original Suit No.147/95 is pending before the Hon'ble II Addl.Civil Judge (Sr.Div), Mysore between those two Respondents.\n Such being the case, the lower Court erred and wrongly relied on the Corporation entries and R.T.C. extracts produced by the 1st Respondent while deciding the point of prima-facie case.\n 5. The Learned Judge highly erred in coming to the conclusion that (i) the Plaintiff did not recognize the 1st Respondent as an Assessee as the Legal representatives of the deceased Mahant P.Krishnandagiri Goswamy to collect the Income Tax dues, (ii) the appellant has not properly applied its mind and taken any steps to recover the Income Tax dues. It simply brushed aside the documents produced by the 3rd respondent, which disclose that some of the Hon'ble courts recognized the 3rd respondent as the Legal representative of the deceased Mahant P.Krishnandagiri Goswamy and the order of the Income Tax Appellate Tribunal that the deceased Assessee was holding the suit schedule property only in a representative capacity of and blindly relied on the documents produced by the 1st Respondent.\n 6. The Lower Court erred in not noticing that since the 1st Respondent did not challenge the findings of the I.T.A.T. Bangalore before the Apex Court or any declaration from the Civil Court that he is the owner of the properties, the Plaintiff cannot recognize him as an Assessee as such his returns were not considered.\n 7. It was erroneous observation made by the lower Court to the effect that the Appellant did not establish a prima-facie case or irreparable loss and injury. It conveniently forgot that by the attempt attributable to the Defendant in alienating the suit `A' schedule properties grave injury would be occasioned to the interest of the Appellant.\n 8. The Learned Judge highly erred in coming to the conclusion that when the Appellant attached the properties it should have taken steps to sell the properties to recover the amount within the time limit shown under of Rule 68B of the IT Rules.\n The learned lower Court failed to appreciate the fact of pendency of number of I.T. reference cases and appeals before the Higher Courts, which temporarily prevented the authorities from bringing the properties to the process of sale.\n 9. The Learned Lower Court Judge observed that admittedly the 1st Respondent is not a defaulter by which the question of restraining the 1st Respondent from alienating the properties does not arise at all. It has failed to appreciate the fact that suit properties are charged for Income Tax dues and without clearing the dues/or notice to the department the 1st Respondent got the khata and such other municipal records changed to his name, which gave rise to the Appellant to enforce the cause of action.\n 10. It was highly erroneously observation made by the lower Court to the effect that there was no necessity to file a suit for permanent injunction instead of that the Appellant could have taken action to sell the attached properties and make the 1st Respondent approach the Court of Law.\n It conveniently forgot that the relief of permanent injunction was the only suitable relief that could be claimed.\n 11. The Learned Lower Court Judge failed to notice that the order of attachment dated 13.9.1988 was duly served on the deceased Mahant P.Krishnandagiri Goswamy on 14.9.1988, when the lower Court finds that with regard to the legal heirship of the properties is under dispute and it is shown that the 1st Respondent already sold the B schedule properties to various purchasers, an order of injunction ought to have been granted in the case of the Appellant to safeguard the revenue of the State.\n 12. It was highly erroneous observation made by the lower Court that in view of the case law furnished by the 1st Defendant (ILR 1997 Kar 3089) the relief of permanent injunction cannot be granted. It erred in not noting that the said case law is not applicable to the facts and circumstances of the case of the appellant. The reasoning given by the lower Court in support of its order of dismissal is neither cogent nor correct.\n 13. It was erroneous observation made by the Lower Court to the effect that the Appellant did not establish a prima-facie, therefore the question of considering balance of convenience and irreparable injury does not arise.\n 14. The impugned order is contrary to facts, opposed to the questions of law and perverse.\n Hence liable to be set aside. Hence prayed for allow the appeal.\n 11. In response to the notice issued in this case, the respondents appeared through their respective counsel.\n 12. On the basis of the above pleadings the following points arises for my consideration: 1. Whether plaintiff made out a prima-facie case for grant of Temporary Injunction?\n 2. Whether Plaintiff proves that the balance of convenience lies in his favour?\n 3. Whether Plaintiff proves that he will be put to irreparable loss and injury if an order of ad-interim Temporary Injunction is not granted?\n 4. Whether it is necessary to interfere with the order passed by the Trial Court?\n 5. What Order?\n 13. My findings on the above points are as follows:- Point No.1: In the negative Point No. 2: In the negative Point No. 3: In the negative Point No. 4: Partly in affirmative Point No. 5: As per final order for the following:- :: R E A S O N S :: 14. Point No: 1 to 4: All these points are interrelated and hence answering in common in order to avoid the repetition of facts.\n 15. From the contention taken by the Plaintiff and the Defendants in the present case it is clear that, 1st Defendant is claiming the suit schedule properties under succession and Defendant No.3 is claiming the suit schedule properties as acquired as he is represents the 3rd Defendant. With respect to the suit schedule properties, there is a title dispute between the 1st Defendant and the 3rd Defendant.\nAdmittedly, the 1st Defendant has filed a suit against the 3rd Defendant in O.S.No.147/1995 and 3rd Defendant has filed a suit against the 1st Defendant in O.S.No. 100/1994 and 258/1998.\n 16. The Appellant has produced the certified copy of the Judgement and Decree passed in O.S.No.147/1995, 100/1994 and 258/1998 wherein the common Judgement was passed and the suit filed by the 1st Defendant in O.S.No.\n147/1995 was dismissed and O.S.No.100/1994 and 258/1998 was decreed. The Appellant has also produced the certified copy of the Judgement passed in R.A.Nos. 126/2007, 127/2007 and 128/2007 filed against the Judgement and Decree passed in O.S.Nos.147/1995, 100/1994 and 258/1998. The said appeals have been dismissed with penal costs of Rs.10,000/- each and confirmed the order of the Trial Court.\n 17. The Respondent No.1 along with his written argument has produced certified copy of the Order sheet of the Hon'ble High Court of Karnataka in R.S.A.No.984/2010 wherein the execution of the Decree is stayed till next date of hearing. No further orders have been produced by the Appellant or the Respondents with respect to R.S.A.No.984/2010 pending before the Hon'ble High Court of Karnataka. Thus, as on the date of filing the suit, the title dispute with respect to the suit schedule properties between 1st Defendant and 3rd Defendant was not concluded. The Trial Court has considered all the documentary evidence produced by both the parties and also considered the pleadings of the both the parties and since O.S.No.147/1995, 100/1994 and 258/1998 were pending. When the suit is filed only for the relief of permanent injunction restraining the 3rd Defendant Mahant P.Krishnandagiri Goswamy for transferring or changing the attached property, in any way and that all persons were prohibited from enjoying any benefit under such transfer until further order of the Tax recovery officer, Mysore Circle.\n The Plaintiff has not recognizing the 1st Defendant is an Assessee with respect to the suit schedule properties and tax dues to the Plaintiff. As on the date of filing the suit as admitted by the Plaintiff himself that the suit schedule properties are standing in the name of 1st Defendant and not in the name of the 3rd Defendant. Admittedly, with respect to the tax dues to the Plaintiff, there is a proceeding before the Competent Authority. The said Competent Authority cannot decide the title of the parties with respect to the suit schedule properties. The title dispute between the 1st Defendant and 3rd Defendant with respect to the suit schedule properties is still pending before the Hon'ble High Court of Karnataka.\n Defendants No.1 and 3 are fighting for declaration of title between themselves with respect to the suit schedule properties. When the Competent Authority has ordered to attach the properties, then it should have taken steps to sell the properties to recover the amount as contemplated U/s.\n 68(b) of Income Tax Act. But there is no steps are taken within the period of limitation, which has not been explained by the Plaintiff in the present case. The Trial Court relying on a decision reported in ILR 1997 Kar 3089 wherein it is held that \"Suit against alienation is not maintainable and if such injunction is granted it will be against the very toner, tone and ambit of the Transfer of Property Act\". In the present case the Plaintiff has sought for a declaration order of attachment dated 3.5.1995 issued by Tax Recovery Officer, Range II, Mysore, in respect of the suit schedule properties is absolute and binding the Defendants. The Plaintiff need not seek such a relief because any order passed under the Income Tax Act is binding on the parties. Hence if this relief is excludes then relief of permanent injunction is an only remains. But as per the above said decision the relief of permanent injunction cannot be granted. No relief is sought in respect of 'B' schedule properties in the present case. Considering all these facts the Trial Court has answered Point No. 1 in negative.\n 18. As already stated above, title dispute between the 1st Defendant and the 3rd Defendant is still pending before the Competent Court of Law and the said suits were disposed off by the original Court and first appeal is also dismissed. Now the matter is pending before the Hon'ble High Court of Karnataka. In view of the fact that when the Plaintiff is not considering the 1st Defendant is an Assessee for the alleged dues to the Plaintiff with respect to the Income Tax and Wealth Tax as contended by the Plaintiff and the properties were standing in the name of the 1st Defendant as on the date of filing the present suit and Defendant No.3 is also claiming that he is owner of the suit schedule properties, under these circumstances, the Defendants cannot alienate the suit schedule properties since the Plaintiff is having claim over the suit schedule properties with respect to the tax dues.\n 19. After disposal off of O.S.No. 147/1995, 100/1994 and 258/1998, Plaintiff who has filed O.S.No. 430/2005 against the Defendants on the file of this Court was withdrawn by the Plaintiff on the ground that, since the suit filed by the 1st Defendant against the 3rd Defendant in O.S.No.147/1995 was dismissed with cost. The suit in O.S.No.100/1994 and 258/1998 filed by the 3rd Defendant against the Defendant No.1 are decreed with cost and 3rd Defendant Mahant K.Krishna Mohanananda Giri Goswamy is declared as the owner of the suit schedule property. In the mean while, 3rd Defendant has acquired the major portion tax and interest portion of tax also left with him. His waiver petition is pending before Chief Commissioner, Bangaluru and on that ground it is not usual purpose will be served when continued the said suit when the said suit was allowed to be withdrawn to proceed against the 3rd Defendant if necessary. The claim of the Plaintiff in that suit and the claim of the Plaintiff in the present suit are almost similar. The Trial Court has considered all the documentary evidence and the relevant provisions of Income Tax and held that the suit itself is not maintainable in view of the decision reported in ILR 1997 Kar 3089. At this stage, I am of the considered view that the maintainability of suit cannot be consider at this stage and same has to be considered only at the time of final hearing of the suit. The only point that has to be decided in disposing off the application whether the Plaintiff has got prima-facie case or not? The Defendants are not denying the dues to the Plaintiff towards the Income Tax and Wealth Tax. Under these circumstances, I am of the view that the order of the Trial Court is requires to be modified though on the basis of the pleadings, Plaintiff is not entitled to claim the relief sought in the present suit as discussed by Trial Court. Since it is a pre-trial stage, I am of the view that Plaintiff has got prima-facie case at this stage and balance of convenience is also lies in his favour and if the properties are disposed off either by the 1st Defendant or by the 3rd Defendant then the Plaintiff cannot recover the huge sum of money dues with respect to the Income Tax and Wealth Tax as claimed by the Plaintiff in the present suit. Hence, I am of the view that the Defendants are directed to maintain STATUS QUO of the suit schedule properties till final disposal of title dispute between the 1st Defendant and the 3rd Defendant with respect to the suit schedule properties. The Plaintiff at this stage cannot claim that he is entitled for the relief claimed in I.A. when pending dispute between the 1st Defendant and 3rd Defendant, I am of the view that the Trial Court order has to be modified accordingly. Hence, with this observation I answer Point No. 1 to 3 in negative and Point No. 4 Partly in affirmative.\n 20. Point No. 5: - In view of the discussion made above, I proceed to pass the following: ORDER Appeal filed by the Appellant is hereby PARTLY ALLOWED.\n Defendant No.1 to 3 are hereby directed to maintain the STATUS QUO of the suit schedule properties till the title dispute between the 1st Defendant and 3rd Defendant is disposed of finally.\n Plaintiff is at liberty to proceed in accordance with law against the person in whose favour the title is decided.\n Draw decree accordingly.\n Send the Lower Court records to the Trial Court along with the copy of this order.\n (Dictated to the Steno, transcript by her, revised, corrected and then pronounced in open court on this the16th day of March 2012).\n (K.B.Patil) III ADDL.SR.CIVIL JUDGE, MYSORE.\n "
} |
{
"group": "Criminal"
} | [
{
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{
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"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA, DISTRICT: SUNDARGARH.\n\nPresent:"
}
},
{
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"start": 104,
"text": "\n Miss Neha Das, BBA, LL.B.\n Judicial Magistrate First Class,\n Rourkela."
}
},
{
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"start": 197,
"text": "\n\n Dated this the 16th day of February, 2017.\n\n G.R.1731 of 2006\n Trial No. 521 of 2016\n(Arising out of Bisra P.S. Case No.68 dated 5.9.2006)\n\nState of Odisha ...... ... Prosecution.\n\n -versus-\n\n1. Makra Oram, aged about 45 years, Son of\n Late Bicha Oram.\n\n2. Pati Oram, aged about 37 years, Son of\n of Mangra Oram.\n\n Both are resident of village: Tulsikani, PS: Bisra,\n Dist: Sundargarh."
}
},
{
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"labels": [
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],
"start": 740,
"text": "... Accused persons."
}
},
{
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"value": {
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"start": 762,
"text": "Appearances:"
}
},
{
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"text": ": "
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{
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"end": 823,
"labels": [
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"start": 797,
"text": "Miss A.Choudhury,\n "
}
},
{
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"end": 1162,
"labels": [
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],
"start": 823,
"text": "For the State\n\n A.P.P., Rourkela.\n\nFor the Accused No.1 : Sri P.N.Mahato, Advocate,\n\n Rourkela and Associates.\n\nFor the Accused No.1 : Sri R.P.Pattanaik, Advocate,\n\n Rourkela and Associates.\n\n\n Date of argument"
}
},
{
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"text": " :"
}
},
{
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"to_name": null,
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"value": {
"end": 1209,
"labels": [
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"start": 1179,
"text": " 3rd day of February, 2017."
}
},
{
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"to_name": null,
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"value": {
"end": 1299,
"labels": [
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],
"start": 1214,
"text": "Date of Judgment\n : 16th day of February, 2017."
}
},
{
"from_name": null,
"id": "b4e133e858b24528a5a36c2ff0540a53",
"to_name": null,
"type": null,
"value": {
"end": 1361,
"labels": [
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],
"start": 1299,
"text": "\n\nOFFENCE U/S. 384/506/341/323/294/34 OF THE INDIAN PENAL CODE"
}
},
{
"from_name": null,
"id": "efd4c8d9dc9249a299746147419c97ad",
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"value": {
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],
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"text": "\n 1860"
}
},
{
"from_name": null,
"id": "98c3c5db16154f189e73769d5e046faf",
"to_name": null,
"type": null,
"value": {
"end": 1463,
"labels": [
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],
"start": 1409,
"text": "\n\n J U D G M E N T\n "
}
},
{
"from_name": null,
"id": "a34c5cf26c5f4fd7b82e853c05adedf1",
"to_name": null,
"type": null,
"value": {
"end": 1628,
"labels": [
"FAC"
],
"start": 1463,
"text": "The above named accused persons stands charged for the offence punishable U/s 384/506/341/323/294/34 of the Indian Penal Code, 1860 (Here-in-after in short the IPC)."
}
},
{
"from_name": null,
"id": "9c48192e60a5460c951be5f30791d7d0",
"to_name": null,
"type": null,
"value": {
"end": 2105,
"labels": [
"FAC"
],
"start": 1630,
"text": "1. The case of the prosecution as unfolded from the FIR is that on 5.9.2006 at about 3.45 P.M., one Sourav Sahu (informant) lodged a written report before the IIC, Bisra P.S., alleging to the effect that on the same day at about 3 P.M., while he supervising work of ANM building at Tulsikani, at that time the accused persons Makra Oram and Pati Oram and two others of the village Tulsikani threatened him by saying that they are MCC persons and demanded Rs.3000/- from him."
}
},
{
"from_name": null,
"id": "71c0e6c042154e1f81021a7f0425597d",
"to_name": null,
"type": null,
"value": {
"end": 2406,
"labels": [
"FAC"
],
"start": 2106,
"text": "When he denied to give the money, they abused him in obscene languages like \"MAGHIA, MADARCHOD\" and threatened to kill him and also assaulted him by means of fist blows as a result of which he sustained pain on his head, eye, mouth, back and belly and also sustained injury and fell down on the road."
}
},
{
"from_name": null,
"id": "5fa2e4c9e2fe4413894c8b5c72656c40",
"to_name": null,
"type": null,
"value": {
"end": 2458,
"labels": [
"FAC"
],
"start": 2407,
"text": "After the occurrence, they fled away from the spot."
}
},
{
"from_name": null,
"id": "80a2c4da27de436f8d162d2cd1b0804b",
"to_name": null,
"type": null,
"value": {
"end": 2553,
"labels": [
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],
"start": 2459,
"text": "Sri Mehemood Allam and Sri Dhane Mahata were present at the spot when the occurrence occurred."
}
},
{
"from_name": null,
"id": "4822f9bcd6b045c7bb5393d12ff210dc",
"to_name": null,
"type": null,
"value": {
"end": 2819,
"labels": [
"FAC"
],
"start": 2553,
"text": "\n 2. With these allegations, the informant lodged a written report before the IIC, Bisra P.S., who registered the case vide P.S. Case No.68 dated 5.9.2006 U/s 384/506/341/323/294/34 of IPC and directed ASI Ashok Kumar Gochhayat of Bisra P.S. to investigate the case."
}
},
{
"from_name": null,
"id": "4b5f0bdc96824783a7e9d555751c3096",
"to_name": null,
"type": null,
"value": {
"end": 3010,
"labels": [
"FAC"
],
"start": 2820,
"text": "During course of investigation, the I.O. visited the spot, examined the informant and other witnesses, conducted raid, arrested the accused Pati Oram on 6.10.2006 and forwarded him to Court."
}
},
{
"from_name": null,
"id": "3d7ddcecb25842ab99ee616f58227d39",
"to_name": null,
"type": null,
"value": {
"end": 3110,
"labels": [
"FAC"
],
"start": 3011,
"text": "Another accused Makra Oram surrendered before the Court on 26.10.2006 and remanded to jail custody."
}
},
{
"from_name": null,
"id": "1a099916952a40b985852d39d02e42a4",
"to_name": null,
"type": null,
"value": {
"end": 3285,
"labels": [
"FAC"
],
"start": 3111,
"text": "After completion of investigation, the I.O. submitted charge sheet against the accused persons U/s 384/506/341/323/294/34 of IPC to stand their trial before the Court of law."
}
},
{
"from_name": null,
"id": "6ec2c03a84904f738cc4c71fa3a4d371",
"to_name": null,
"type": null,
"value": {
"end": 3303,
"labels": [
"NONE"
],
"start": 3285,
"text": "\n Hence, the case."
}
},
{
"from_name": null,
"id": "28fdd8d7146e4dbc8856b38bb2a46908",
"to_name": null,
"type": null,
"value": {
"end": 3373,
"labels": [
"ANALYSIS"
],
"start": 3303,
"text": "\n 3. The plea of the accused is complete denial and false implication."
}
},
{
"from_name": null,
"id": "b9a4a6928f854d18abaaf670ad883b35",
"to_name": null,
"type": null,
"value": {
"end": 3642,
"labels": [
"ISSUE"
],
"start": 3375,
"text": "4. The points which emerges for determination in this case are: (I) Whether on 5.9.2006 at about 3 P.M. at village Tulsikani, the accused persons in furtherance of your common intention committed extortion by putting the informant Sourav Sahoo in fear of life to wit."
}
},
{
"from_name": null,
"id": "cb9df56241a645a2b71083c854b7c0af",
"to_name": null,
"type": null,
"value": {
"end": 3649,
"labels": [
"ISSUE"
],
"start": 3643,
"text": "Kill ?"
}
},
{
"from_name": null,
"id": "f2801179b3084372bc49f1506924e009",
"to_name": null,
"type": null,
"value": {
"end": 3796,
"labels": [
"ISSUE"
],
"start": 3649,
"text": "\n (II) Whether on the above date, time and place, the accused persons in furtherance of their common intention wrongfully restraint the informant ?"
}
},
{
"from_name": null,
"id": "71f6094f361049b4a2591aa95e9f15fe",
"to_name": null,
"type": null,
"value": {
"end": 3950,
"labels": [
"ISSUE"
],
"start": 3796,
"text": "\n (III) Whether on the above date, time and place, the accused persons in furtherance of their common intention voluntarily caused hurt to the informant ?"
}
},
{
"from_name": null,
"id": "f58fee7a8e5f44e6b2d316666a1e19fb",
"to_name": null,
"type": null,
"value": {
"end": 4165,
"labels": [
"ISSUE"
],
"start": 3950,
"text": "\n (IV) Whether on the above date, time and place, the accused persons in furtherance of their common intention abused the informant in filthy languages in or near a public place causing annoyance to him and others ?"
}
},
{
"from_name": null,
"id": "81a0dfd635d74702ab227784eabade94",
"to_name": null,
"type": null,
"value": {
"end": 4373,
"labels": [
"ISSUE"
],
"start": 4165,
"text": "\n (V) Whether on the above date, time and place, the accused persons in furtherance of their common intention criminally intimidated the informant with injury to his person with intent to cause alarm to him ?"
}
},
{
"from_name": null,
"id": "6279590ef0474d188c2ef00be1511383",
"to_name": null,
"type": null,
"value": {
"end": 4518,
"labels": [
"FAC"
],
"start": 4373,
"text": "\n 5. To substantiate its case, the prosecution has examined seven witnesses out of whom P.W.4 is the informant and P.W.6 is the Medical Officer."
}
},
{
"from_name": null,
"id": "21edc26f20c64ac79c9c8850312b3be5",
"to_name": null,
"type": null,
"value": {
"end": 4593,
"labels": [
"FAC"
],
"start": 4519,
"text": "The statement of the accused persons have been recorded U/s 313 of Cr.P.C."
}
},
{
"from_name": null,
"id": "d017f44e5db14a42afe5c8779c5f6813",
"to_name": null,
"type": null,
"value": {
"end": 4690,
"labels": [
"FAC"
],
"start": 4594,
"text": "On the other hand, no evidence has been adduced on behalf of the accused persons by the defence."
}
},
{
"from_name": null,
"id": "1a6dc0dfbeb04fb098bd3754d9a65e4b",
"to_name": null,
"type": null,
"value": {
"end": 4933,
"labels": [
"FAC"
],
"start": 4692,
"text": "6. P.W.4 who is the informant of this case deposed before the Court that he knows both the accused persons and the occurrence took place on 5.9.2006 at about 2 P.M. at Tulsikani while he was supervising the work of ANM building at Tulsikani."
}
},
{
"from_name": null,
"id": "553b04e2fd2f4d48a09f7ec2e1aee631",
"to_name": null,
"type": null,
"value": {
"end": 5083,
"labels": [
"FAC"
],
"start": 4934,
"text": "Further, he deposed that accused Pati Oram and Makra Oram reached the spot along with two other persons and they identified themselves as MCC person."
}
},
{
"from_name": null,
"id": "c53dd36993a34e03a967cb5bcd822b39",
"to_name": null,
"type": null,
"value": {
"end": 5272,
"labels": [
"FAC"
],
"start": 5084,
"text": "Further, they demanded Rs.3000/- from him and when he refused to give them money, the accused persons abused him in obscene languages such as \"MAGHIA, MADARCHOD\" for which he felt ashamed."
}
},
{
"from_name": null,
"id": "34560b7bca004c8aa1dfb6ae39451b4c",
"to_name": null,
"type": null,
"value": {
"end": 5477,
"labels": [
"FAC"
],
"start": 5273,
"text": "He further stated that the accused persons also assaulted him by means of fist blows and kick blows as a result he sustained injuries on his eye, head and backside and he fell down and his shirt was torn."
}
},
{
"from_name": null,
"id": "6b60ebac6694414c8abd44644ceaa764",
"to_name": null,
"type": null,
"value": {
"end": 5534,
"labels": [
"FAC"
],
"start": 5478,
"text": "Thereafter, the accused persons fled away from the spot."
}
},
{
"from_name": null,
"id": "55a2678965564fa2aa782ae72006d0ad",
"to_name": null,
"type": null,
"value": {
"end": 5642,
"labels": [
"FAC"
],
"start": 5535,
"text": "He lodged a written report at P.S. and proved the said FIR vide Ext.1 and his signature on it vide Ext.1/1."
}
},
{
"from_name": null,
"id": "be5a2ee7974341fb874a7e38ca004096",
"to_name": null,
"type": null,
"value": {
"end": 5733,
"labels": [
"FAC"
],
"start": 5643,
"text": "He further stated that police recorded his statement and sent him for medical examination."
}
},
{
"from_name": null,
"id": "31b19e78d96047f39dfef3b877679be5",
"to_name": null,
"type": null,
"value": {
"end": 5839,
"labels": [
"FAC"
],
"start": 5734,
"text": "During his cross examination, he admitted that he did not know the accused persons prior to the incident."
}
},
{
"from_name": null,
"id": "f121242790024efc9c3dd1f88f4796b5",
"to_name": null,
"type": null,
"value": {
"end": 5906,
"labels": [
"FAC"
],
"start": 5840,
"text": "He has also admitted that the police did not seize his torn shirt."
}
},
{
"from_name": null,
"id": "13c6f932d1e14c518a7640d9db52cb6b",
"to_name": null,
"type": null,
"value": {
"end": 6045,
"labels": [
"FAC"
],
"start": 5907,
"text": "He also admitted that he cannot say who had scribed the FIR, but further stated that one staff of Bisra P.S. scribed the said FIR for him."
}
},
{
"from_name": null,
"id": "56dfc0f9d8ec4e2a9550525f12c2a2cd",
"to_name": null,
"type": null,
"value": {
"end": 6166,
"labels": [
"FAC"
],
"start": 6047,
"text": "P.Ws 1, 2 and 7 deposed that they do not know the informant but they know the accused persons as they are co-villagers."
}
},
{
"from_name": null,
"id": "7079e2917bdf40b9bf99eb04ff449b72",
"to_name": null,
"type": null,
"value": {
"end": 6241,
"labels": [
"FAC"
],
"start": 6167,
"text": "Further, they deposed that they do not have any knowledge about this case."
}
},
{
"from_name": null,
"id": "c9dcdb9da0094f6db113ab26d957e72f",
"to_name": null,
"type": null,
"value": {
"end": 6466,
"labels": [
"FAC"
],
"start": 6242,
"text": "The learned A.P.P. declared the said witnesses as hostile and they did not admit to any of the questions put-forth by the learned A.P.P.\n P.W.3 deposed that he does not know the informant but he knows the accused Makra Oram."
}
},
{
"from_name": null,
"id": "671dca9b6a924eebadb7cd089d504d82",
"to_name": null,
"type": null,
"value": {
"end": 6555,
"labels": [
"FAC"
],
"start": 6467,
"text": "Further, he stated that he does not know anything regarding the occurrence of this case."
}
},
{
"from_name": null,
"id": "eb1717c4a4214560ae36a5ebb6ad39a7",
"to_name": null,
"type": null,
"value": {
"end": 6643,
"labels": [
"FAC"
],
"start": 6557,
"text": "P.W.5 deposed that the occurrence took place on 5.9.2006 at about 3 P.M. at Tulsikani."
}
},
{
"from_name": null,
"id": "43cc579acac54922bc4eca2822bb31cf",
"to_name": null,
"type": null,
"value": {
"end": 6750,
"labels": [
"FAC"
],
"start": 6644,
"text": "Further, he stated that at the time of incident he was present at the spot i.e. ANM building at Tulsikani."
}
},
{
"from_name": null,
"id": "38dc89f7b0824355a2584ae9cbaa4e98",
"to_name": null,
"type": null,
"value": {
"end": 6865,
"labels": [
"FAC"
],
"start": 6751,
"text": "Further, he stated that the accused persons Pati Oram and Makra Oram came to the spot and demanded money from him."
}
},
{
"from_name": null,
"id": "0a3e03b549a847c79f57ce6c3bc6e286",
"to_name": null,
"type": null,
"value": {
"end": 6951,
"labels": [
"FAC"
],
"start": 6866,
"text": "Then on the arrival of the informant (P.W.4), they demanded money from the informant."
}
},
{
"from_name": null,
"id": "5ea31907f8e44d3ab6c2550168b48445",
"to_name": null,
"type": null,
"value": {
"end": 7160,
"labels": [
"FAC"
],
"start": 6952,
"text": "Further, he stated that the accused persons abused P.W.4 in obscene languages and also assaulted him by means of fist blows and kick blows as a result of which he fell down and sustained injuries on his body."
}
},
{
"from_name": null,
"id": "7c3217426cf14c92b82459747538901b",
"to_name": null,
"type": null,
"value": {
"end": 7247,
"labels": [
"FAC"
],
"start": 7161,
"text": "Further, he stated that due to the said incident, the shirt of the informant was torn."
}
},
{
"from_name": null,
"id": "2565a313d38e4c7b9769a2b184476122",
"to_name": null,
"type": null,
"value": {
"end": 7364,
"labels": [
"FAC"
],
"start": 7248,
"text": "He deposed that the informant lodged a written report at P.S. and then the police sent him to medical for treatment."
}
},
{
"from_name": null,
"id": "23c17a653f3c4aed8eea67ff03ff23a9",
"to_name": null,
"type": null,
"value": {
"end": 7543,
"labels": [
"FAC"
],
"start": 7365,
"text": "During his cross examination, he stated that at the time of incident he was standing 15 meters distance from the spot, but when he reached the spot the accused persons fled away."
}
},
{
"from_name": null,
"id": "0e654fdaefd9431bb5fd9be33eaa31f6",
"to_name": null,
"type": null,
"value": {
"end": 7625,
"labels": [
"FAC"
],
"start": 7544,
"text": "He has admitted that he cannot say the obscene words used by the accused persons."
}
},
{
"from_name": null,
"id": "af62b218642c45518f4e73f810907ab2",
"to_name": null,
"type": null,
"value": {
"end": 7789,
"labels": [
"FAC"
],
"start": 7627,
"text": "P.W.6 who is the Medical Officer deposed before the Court that on 5.9.2006 on police requisition, he examined one Sourav Sahoo (P.W.4) and found the injuries viz."
}
},
{
"from_name": null,
"id": "31283ca188814cc9ab12279e1977a322",
"to_name": null,
"type": null,
"value": {
"end": 8043,
"labels": [
"FAC"
],
"start": 7790,
"text": "All the three injuries are bruise injuries out of which (i) one bruise of size 2cm x 2cm on the occipital region of scalp; (ii) one bruise of 0.5 cm x 1cm over upper eye lid; (iii) one bruise of size 3.5cm x 1cm in the right side of back over the scalp."
}
},
{
"from_name": null,
"id": "6b2b93e78fa04600ad66db96f789aa98",
"to_name": null,
"type": null,
"value": {
"end": 8134,
"labels": [
"FAC"
],
"start": 8044,
"text": "All the injuries are simple in nature and might have been caused by hard and blunt object."
}
},
{
"from_name": null,
"id": "2274b666f4bd47a6b86d7da52d419c6a",
"to_name": null,
"type": null,
"value": {
"end": 8215,
"labels": [
"FAC"
],
"start": 8135,
"text": "He has proved the injury report vide Ext.2 and his signature on it vide Ext.2/1."
}
},
{
"from_name": null,
"id": "414f5327285f464d8b21d85c5d6ea5e8",
"to_name": null,
"type": null,
"value": {
"end": 8344,
"labels": [
"FAC"
],
"start": 8216,
"text": "During his cross examination, P.W.6 stated that such type of injuries can be caused when one falls on a construction work place."
}
},
{
"from_name": null,
"id": "3a2f7d248cde46c2aa218d541227a216",
"to_name": null,
"type": null,
"value": {
"end": 8478,
"labels": [
"ANALYSIS"
],
"start": 8345,
"text": "7. On perusal of the evidence on record, it is evident that P.Ws 1, 2, 3 and 7 have not supported the prosecution case in any manner."
}
},
{
"from_name": null,
"id": "ebc527a4f7bc47a6a7361124f7329821",
"to_name": null,
"type": null,
"value": {
"end": 8695,
"labels": [
"ANALYSIS"
],
"start": 8479,
"text": "Further, P.W.5 who is an occurrence witness has admitted in his cross examination that at the time of incident he was standing 15 meters away from the spot and when he reached the spot, the accused persons fled away."
}
},
{
"from_name": null,
"id": "8b5ccb866874460b84e3ab30ab32bf17",
"to_name": null,
"type": null,
"value": {
"end": 8864,
"labels": [
"ANALYSIS"
],
"start": 8696,
"text": "Whereas in his examination- in-chief, he stated that the accused persons had demanded money from him first and when the informant arrived, they demanded money from him."
}
},
{
"from_name": null,
"id": "5cea1591e04346f5b0b6e666fdfb25ac",
"to_name": null,
"type": null,
"value": {
"end": 9044,
"labels": [
"ANALYSIS"
],
"start": 8865,
"text": "This fact denotes that this witness is not a reliable witness and the inconsistency in the statement of the said witness makes his presence doubtful and the prosecution case weak."
}
},
{
"from_name": null,
"id": "e40de48f8b014aba8b5da801d68bcf0a",
"to_name": null,
"type": null,
"value": {
"end": 9163,
"labels": [
"ANALYSIS"
],
"start": 9045,
"text": "From the testimony of P.W.5, it is not clear as to if he was present at the spot when the whole occurrence took place."
}
},
{
"from_name": null,
"id": "f0b03aa54bb94ed289e9169d397fbab6",
"to_name": null,
"type": null,
"value": {
"end": 9287,
"labels": [
"ANALYSIS"
],
"start": 9164,
"text": "Moreover, this witness could not specifically state the obscene words used by the accused persons to the informant (P.W.4)."
}
},
{
"from_name": null,
"id": "efc237af65484bd59248c74215df2ed9",
"to_name": null,
"type": null,
"value": {
"end": 9545,
"labels": [
"ANALYSIS"
],
"start": 9288,
"text": "With respect to the facts and circumstance of this case, I am of definite opinion that the presence of this witness at the scene of occurrence is doubtful and he has not seen the incident and he cannot be relied upon without having any strong corroboration."
}
},
{
"from_name": null,
"id": "f436a83f7f0143729277f56bad1b2409",
"to_name": null,
"type": null,
"value": {
"end": 9732,
"labels": [
"ANALYSIS"
],
"start": 9546,
"text": "Further, coming to the medical evidence of injuries of victim, it is admitted by P.W.6 (Medical Officer) that the injuries of P.W.4 can be caused by falling on a construction work place."
}
},
{
"from_name": null,
"id": "2e24095f7c464931939eee638b6466d2",
"to_name": null,
"type": null,
"value": {
"end": 9997,
"labels": [
"ANALYSIS"
],
"start": 9733,
"text": "Now coming to the evidence of P.W.4 (informant- cum-victim), it is seen that though P.W.4 has corroborated to the contents of the FIR and proved the said FIR vide Ext.1, but he cannot said who had scribed the FIR which creates a suspicion regarding the FIR itself."
}
},
{
"from_name": null,
"id": "932b41917faf43c29d78f03cb5dc2996",
"to_name": null,
"type": null,
"value": {
"end": 10210,
"labels": [
"ANALYSIS"
],
"start": 9998,
"text": "It is an admitted fact by P.Ws 4 and 5 that many people were gathered at the spot when the occurrence took place, but none of them have been examined by the prosecution to bring forth the truth before this Court."
}
},
{
"from_name": null,
"id": "a2c71c162f534199a3b07e2f8e49c7a7",
"to_name": null,
"type": null,
"value": {
"end": 10291,
"labels": [
"ANALYSIS"
],
"start": 10211,
"text": "Moreover, it is admitted by P.W.4 that the police has not seized his torn shirt."
}
},
{
"from_name": null,
"id": "efdcb4945bfb467fa5646dfc51558a8b",
"to_name": null,
"type": null,
"value": {
"end": 10635,
"labels": [
"ANALYSIS"
],
"start": 10292,
"text": "Keeping in view the facts and essential ingredients of the alleged offence, I am of considered view that the accused persons cannot be convicted solely basing upon the evidence of victim (P.W.4) as there are many loopholes in the case of the prosecution and the testimony of P.W.4 cannot be relied upon without having any strong corroboration."
}
},
{
"from_name": null,
"id": "486338772a5c4099bd933e1daec814d9",
"to_name": null,
"type": null,
"value": {
"end": 10857,
"labels": [
"ANALYSIS"
],
"start": 10636,
"text": "Moreover, the other P.Ws have also not supported or corroborated the version of P.W.4 (informant-cum-victim) except P.W.5 (occurrence witness), but his testimony could not relied upon as there are material contradictions."
}
},
{
"from_name": null,
"id": "e52ed37880ee4890bd1c50feca9e90c8",
"to_name": null,
"type": null,
"value": {
"end": 11009,
"labels": [
"ANALYSIS"
],
"start": 10858,
"text": "Therefore, the prosecution has miserably failed to establish any of the essential ingredients of the offences punishable U/s 384/506/341/323/294/34.\n8."
}
},
{
"from_name": null,
"id": "14e6c83a0a4c480bbec65011b0918908",
"to_name": null,
"type": null,
"value": {
"end": 11196,
"labels": [
"RATIO"
],
"start": 11010,
"text": "In the present case, after analyzing the evidence, I find it fair enough to acquit the accused persons on the ground that prosecution has miserably failed to prove the occurrence itself."
}
},
{
"from_name": null,
"id": "cf71ff07fc0a4d9b8bcf15d073f46d36",
"to_name": null,
"type": null,
"value": {
"end": 11385,
"labels": [
"RPC"
],
"start": 11197,
"text": "9. In the result, the accused persons are found not guilty for the commission of offences U/s 384/506/341/323/294/34 of IPC and thereby he is acquitted therefrom U/S. 248(1) of the Cr.P.C."
}
},
{
"from_name": null,
"id": "bc38ba9f13274042b5fc5972dbb9d1eb",
"to_name": null,
"type": null,
"value": {
"end": 11434,
"labels": [
"RPC"
],
"start": 11386,
"text": "The accused persons be set at liberty forthwith."
}
},
{
"from_name": null,
"id": "a538ab7a2c92408d816f09960f7d87f2",
"to_name": null,
"type": null,
"value": {
"end": 11493,
"labels": [
"RPC"
],
"start": 11435,
"text": "Their bail bond stands cancelled and surety be discharged."
}
},
{
"from_name": null,
"id": "ad787c3d3c5e447d91922fb4d597465f",
"to_name": null,
"type": null,
"value": {
"end": 11575,
"labels": [
"RPC"
],
"start": 11493,
"text": "\n \"Enter this case as mistake of facts for statistical purpose.\"\n "
}
},
{
"from_name": null,
"id": "d383a4254b4b4a91a39d18ad41e5e67e",
"to_name": null,
"type": null,
"value": {
"end": 11726,
"labels": [
"NONE"
],
"start": 11575,
"text": "Judgment is dictated and corrected by me, pronounced in the open court on this the 16th day of February, 2017 under my signature and seal of the Court."
}
},
{
"from_name": null,
"id": "c9c892514fcd47d886194a2a49eb2f0d",
"to_name": null,
"type": null,
"value": {
"end": 11770,
"labels": [
"NONE"
],
"start": 11726,
"text": "\n Judicial Magistrate First Class, Rourkela."
}
},
{
"from_name": null,
"id": "f3cfb11b6df647c0aac146be389e484e",
"to_name": null,
"type": null,
"value": {
"end": 11820,
"labels": [
"NONE"
],
"start": 11770,
"text": "\n List of Prosecution Witnesses: P.W.1 Gandu Oram."
}
},
{
"from_name": null,
"id": "2884ec759b584c02be0f8cb678433ce5",
"to_name": null,
"type": null,
"value": {
"end": 11838,
"labels": [
"NONE"
],
"start": 11820,
"text": "\nP.W.2 Lambu Oram."
}
},
{
"from_name": null,
"id": "ec64f7870ffc4426843bd989528022c1",
"to_name": null,
"type": null,
"value": {
"end": 11857,
"labels": [
"NONE"
],
"start": 11838,
"text": "\nP.W.3 Mangra Oram."
}
},
{
"from_name": null,
"id": "5ad00c73b83a4105a05551b3f91cd824",
"to_name": null,
"type": null,
"value": {
"end": 11877,
"labels": [
"NONE"
],
"start": 11857,
"text": "\nP.W.4 Sourav Sahoo."
}
},
{
"from_name": null,
"id": "a38e45b4045c44c8b049b42571f4dd8a",
"to_name": null,
"type": null,
"value": {
"end": 11898,
"labels": [
"NONE"
],
"start": 11877,
"text": "\nP.W.5 Mohammad Alam."
}
},
{
"from_name": null,
"id": "bb95e7003cd7441cb02bab15f55c556a",
"to_name": null,
"type": null,
"value": {
"end": 11930,
"labels": [
"NONE"
],
"start": 11898,
"text": "\nP.W.6 Dr. Sraban Kumar Pradhan."
}
},
{
"from_name": null,
"id": "8a784dc356424a56987c988cacd58410",
"to_name": null,
"type": null,
"value": {
"end": 11948,
"labels": [
"NONE"
],
"start": 11931,
"text": "P.W.7 Dhaneswar @"
}
},
{
"from_name": null,
"id": "a60e26a445fd4014ad8a2eb536f71997",
"to_name": null,
"type": null,
"value": {
"end": 11963,
"labels": [
"NONE"
],
"start": 11949,
"text": "Dania Mahanta."
}
},
{
"from_name": null,
"id": "5d9465a77c894266bf1be4a6669c325f",
"to_name": null,
"type": null,
"value": {
"end": 11996,
"labels": [
"NONE"
],
"start": 11963,
"text": "\n List of Defence Witnesses: Nil."
}
},
{
"from_name": null,
"id": "31fca6b0af9844048781a6be743a0d78",
"to_name": null,
"type": null,
"value": {
"end": 12151,
"labels": [
"NONE"
],
"start": 11998,
"text": "List of Exts. marked for Prosecution: Ext.1 F.I.R.\n Ext.1/1 Signature of P.W.4 on Ext.1.\n Ext.2 Injury Report.\n Ext.2/1 Signature of P.W.6 on Ext.2."
}
},
{
"from_name": null,
"id": "453f8407c78d4b38b1096b0e00b628cb",
"to_name": null,
"type": null,
"value": {
"end": 12191,
"labels": [
"NONE"
],
"start": 12153,
"text": "List of Exts. marked for Defence: Nil."
}
},
{
"from_name": null,
"id": "75467ecc13eb436f9ede4c1dabc7a13d",
"to_name": null,
"type": null,
"value": {
"end": 12231,
"labels": [
"NONE"
],
"start": 12193,
"text": "List of material objects, if any: Nil."
}
},
{
"from_name": null,
"id": "cc2f7055046c4281be2934e0024b6568",
"to_name": null,
"type": null,
"value": {
"end": 12275,
"labels": [
"NONE"
],
"start": 12231,
"text": "\n Judicial Magistrate First Class, Rourkela."
}
}
]
}
] | 4,167 | {
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA, DISTRICT: SUNDARGARH.\n\nPresent:\n Miss Neha Das, BBA, LL.B.\n Judicial Magistrate First Class,\n Rourkela.\n\n Dated this the 16th day of February, 2017.\n\n G.R.1731 of 2006\n Trial No. 521 of 2016\n(Arising out of Bisra P.S. Case No.68 dated 5.9.2006)\n\nState of Odisha ...... ... Prosecution.\n\n -versus-\n\n1. Makra Oram, aged about 45 years, Son of\n Late Bicha Oram.\n\n2. Pati Oram, aged about 37 years, Son of\n of Mangra Oram.\n\n Both are resident of village: Tulsikani, PS: Bisra,\n Dist: Sundargarh.\n\n ... Accused persons.\n\nAppearances: : Miss A.Choudhury,\n For the State\n\n A.P.P., Rourkela.\n\nFor the Accused No.1 : Sri P.N.Mahato, Advocate,\n\n Rourkela and Associates.\n\nFor the Accused No.1 : Sri R.P.Pattanaik, Advocate,\n\n Rourkela and Associates.\n\n\n Date of argument : 3rd day of February, 2017.\n Date of Judgment\n : 16th day of February, 2017.\n\nOFFENCE U/S. 384/506/341/323/294/34 OF THE INDIAN PENAL CODE\n 1860\n\n J U D G M E N T\n The above named accused persons stands charged for the offence punishable U/s 384/506/341/323/294/34 of the Indian Penal Code, 1860 (Here-in-after in short the IPC).\n 1. The case of the prosecution as unfolded from the FIR is that on 5.9.2006 at about 3.45 P.M., one Sourav Sahu (informant) lodged a written report before the IIC, Bisra P.S., alleging to the effect that on the same day at about 3 P.M., while he supervising work of ANM building at Tulsikani, at that time the accused persons Makra Oram and Pati Oram and two others of the village Tulsikani threatened him by saying that they are MCC persons and demanded Rs.3000/- from him. When he denied to give the money, they abused him in obscene languages like \"MAGHIA, MADARCHOD\" and threatened to kill him and also assaulted him by means of fist blows as a result of which he sustained pain on his head, eye, mouth, back and belly and also sustained injury and fell down on the road. After the occurrence, they fled away from the spot. Sri Mehemood Allam and Sri Dhane Mahata were present at the spot when the occurrence occurred.\n 2. With these allegations, the informant lodged a written report before the IIC, Bisra P.S., who registered the case vide P.S. Case No.68 dated 5.9.2006 U/s 384/506/341/323/294/34 of IPC and directed ASI Ashok Kumar Gochhayat of Bisra P.S. to investigate the case. During course of investigation, the I.O. visited the spot, examined the informant and other witnesses, conducted raid, arrested the accused Pati Oram on 6.10.2006 and forwarded him to Court. Another accused Makra Oram surrendered before the Court on 26.10.2006 and remanded to jail custody. After completion of investigation, the I.O. submitted charge sheet against the accused persons U/s 384/506/341/323/294/34 of IPC to stand their trial before the Court of law.\n Hence, the case.\n 3. The plea of the accused is complete denial and false implication.\n 4. The points which emerges for determination in this case are: (I) Whether on 5.9.2006 at about 3 P.M. at village Tulsikani, the accused persons in furtherance of your common intention committed extortion by putting the informant Sourav Sahoo in fear of life to wit. Kill ?\n (II) Whether on the above date, time and place, the accused persons in furtherance of their common intention wrongfully restraint the informant ?\n (III) Whether on the above date, time and place, the accused persons in furtherance of their common intention voluntarily caused hurt to the informant ?\n (IV) Whether on the above date, time and place, the accused persons in furtherance of their common intention abused the informant in filthy languages in or near a public place causing annoyance to him and others ?\n (V) Whether on the above date, time and place, the accused persons in furtherance of their common intention criminally intimidated the informant with injury to his person with intent to cause alarm to him ?\n 5. To substantiate its case, the prosecution has examined seven witnesses out of whom P.W.4 is the informant and P.W.6 is the Medical Officer. The statement of the accused persons have been recorded U/s 313 of Cr.P.C. On the other hand, no evidence has been adduced on behalf of the accused persons by the defence.\n 6. P.W.4 who is the informant of this case deposed before the Court that he knows both the accused persons and the occurrence took place on 5.9.2006 at about 2 P.M. at Tulsikani while he was supervising the work of ANM building at Tulsikani. Further, he deposed that accused Pati Oram and Makra Oram reached the spot along with two other persons and they identified themselves as MCC person. Further, they demanded Rs.3000/- from him and when he refused to give them money, the accused persons abused him in obscene languages such as \"MAGHIA, MADARCHOD\" for which he felt ashamed. He further stated that the accused persons also assaulted him by means of fist blows and kick blows as a result he sustained injuries on his eye, head and backside and he fell down and his shirt was torn. Thereafter, the accused persons fled away from the spot. He lodged a written report at P.S. and proved the said FIR vide Ext.1 and his signature on it vide Ext.1/1. He further stated that police recorded his statement and sent him for medical examination. During his cross examination, he admitted that he did not know the accused persons prior to the incident. He has also admitted that the police did not seize his torn shirt. He also admitted that he cannot say who had scribed the FIR, but further stated that one staff of Bisra P.S. scribed the said FIR for him.\n P.Ws 1, 2 and 7 deposed that they do not know the informant but they know the accused persons as they are co-villagers. Further, they deposed that they do not have any knowledge about this case. The learned A.P.P. declared the said witnesses as hostile and they did not admit to any of the questions put-forth by the learned A.P.P.\n P.W.3 deposed that he does not know the informant but he knows the accused Makra Oram. Further, he stated that he does not know anything regarding the occurrence of this case.\n P.W.5 deposed that the occurrence took place on 5.9.2006 at about 3 P.M. at Tulsikani. Further, he stated that at the time of incident he was present at the spot i.e. ANM building at Tulsikani. Further, he stated that the accused persons Pati Oram and Makra Oram came to the spot and demanded money from him. Then on the arrival of the informant (P.W.4), they demanded money from the informant. Further, he stated that the accused persons abused P.W.4 in obscene languages and also assaulted him by means of fist blows and kick blows as a result of which he fell down and sustained injuries on his body. Further, he stated that due to the said incident, the shirt of the informant was torn. He deposed that the informant lodged a written report at P.S. and then the police sent him to medical for treatment. During his cross examination, he stated that at the time of incident he was standing 15 meters distance from the spot, but when he reached the spot the accused persons fled away. He has admitted that he cannot say the obscene words used by the accused persons.\n P.W.6 who is the Medical Officer deposed before the Court that on 5.9.2006 on police requisition, he examined one Sourav Sahoo (P.W.4) and found the injuries viz. All the three injuries are bruise injuries out of which (i) one bruise of size 2cm x 2cm on the occipital region of scalp; (ii) one bruise of 0.5 cm x 1cm over upper eye lid; (iii) one bruise of size 3.5cm x 1cm in the right side of back over the scalp. All the injuries are simple in nature and might have been caused by hard and blunt object. He has proved the injury report vide Ext.2 and his signature on it vide Ext.2/1. During his cross examination, P.W.6 stated that such type of injuries can be caused when one falls on a construction work place.\n7. On perusal of the evidence on record, it is evident that P.Ws 1, 2, 3 and 7 have not supported the prosecution case in any manner. Further, P.W.5 who is an occurrence witness has admitted in his cross examination that at the time of incident he was standing 15 meters away from the spot and when he reached the spot, the accused persons fled away. Whereas in his examination- in-chief, he stated that the accused persons had demanded money from him first and when the informant arrived, they demanded money from him. This fact denotes that this witness is not a reliable witness and the inconsistency in the statement of the said witness makes his presence doubtful and the prosecution case weak. From the testimony of P.W.5, it is not clear as to if he was present at the spot when the whole occurrence took place. Moreover, this witness could not specifically state the obscene words used by the accused persons to the informant (P.W.4). With respect to the facts and circumstance of this case, I am of definite opinion that the presence of this witness at the scene of occurrence is doubtful and he has not seen the incident and he cannot be relied upon without having any strong corroboration. Further, coming to the medical evidence of injuries of victim, it is admitted by P.W.6 (Medical Officer) that the injuries of P.W.4 can be caused by falling on a construction work place. Now coming to the evidence of P.W.4 (informant- cum-victim), it is seen that though P.W.4 has corroborated to the contents of the FIR and proved the said FIR vide Ext.1, but he cannot said who had scribed the FIR which creates a suspicion regarding the FIR itself. It is an admitted fact by P.Ws 4 and 5 that many people were gathered at the spot when the occurrence took place, but none of them have been examined by the prosecution to bring forth the truth before this Court. Moreover, it is admitted by P.W.4 that the police has not seized his torn shirt. Keeping in view the facts and essential ingredients of the alleged offence, I am of considered view that the accused persons cannot be convicted solely basing upon the evidence of victim (P.W.4) as there are many loopholes in the case of the prosecution and the testimony of P.W.4 cannot be relied upon without having any strong corroboration. Moreover, the other P.Ws have also not supported or corroborated the version of P.W.4 (informant-cum-victim) except P.W.5 (occurrence witness), but his testimony could not relied upon as there are material contradictions. Therefore, the prosecution has miserably failed to establish any of the essential ingredients of the offences punishable U/s 384/506/341/323/294/34.\n8. In the present case, after analyzing the evidence, I find it fair enough to acquit the accused persons on the ground that prosecution has miserably failed to prove the occurrence itself.\n9. In the result, the accused persons are found not guilty for the commission of offences U/s 384/506/341/323/294/34 of IPC and thereby he is acquitted therefrom U/S. 248(1) of the Cr.P.C. The accused persons be set at liberty forthwith. Their bail bond stands cancelled and surety be discharged.\n \"Enter this case as mistake of facts for statistical purpose.\"\n Judgment is dictated and corrected by me, pronounced in the open court on this the 16th day of February, 2017 under my signature and seal of the Court.\n Judicial Magistrate First Class, Rourkela.\n List of Prosecution Witnesses: P.W.1 Gandu Oram.\nP.W.2 Lambu Oram.\nP.W.3 Mangra Oram.\nP.W.4 Sourav Sahoo.\nP.W.5 Mohammad Alam.\nP.W.6 Dr. Sraban Kumar Pradhan.\nP.W.7 Dhaneswar @ Dania Mahanta.\n List of Defence Witnesses: Nil.\n List of Exts. marked for Prosecution: Ext.1 F.I.R.\n Ext.1/1 Signature of P.W.4 on Ext.1.\n Ext.2 Injury Report.\n Ext.2/1 Signature of P.W.6 on Ext.2.\n List of Exts. marked for Defence: Nil.\n List of material objects, if any: Nil.\n Judicial Magistrate First Class, Rourkela.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b615d5b34a7b493bbe2534c77902c639",
"to_name": null,
"type": null,
"value": {
"end": 104,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nJOSEPH PETER\n\n Vs.\n\nRESPONDENT:\nSTATE OF GOA, DAMAN AND DIU\n\nDATE OF JUDGMENT04/05/1977"
}
},
{
"from_name": null,
"id": "5e4fc7f6e38645a79d3796c04180b51f",
"to_name": null,
"type": null,
"value": {
"end": 1125,
"labels": [
"PREAMBLE"
],
"start": 104,
"text": "\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nSINGH, JASWANT\n\nCITATION:\n\n1977 AIR 1812 1977 SCR (3) 771\n\n1977 SCC (3) 280 (12)\n (14)\nCITATOR INFO :\n\nRF 1989 SC 653\n\nRF 1989 SC1335\n\nACT:\n\n Criminal Procedure Code, 1973 (Act II of 1974), Section\n 354(3)--Discretionary power to choose between capital sen-\n tence and life term is a limited one--Leave should be\n refused when it is difficult to fault the court which has\n exercised such a power under Art. 136 of the Constitution.\n Criminal Procedure Code, 1898, Section 377--Scope of.\n Goa, Daman and Diu (Judicial Commissioner's Court)\n Regulation.1963--Regulation 8(1) does not bar the referred\n jurisdiction of the Judicial Commissioner's Court.\n Sentence--Extenuating circumstances---Circumstance that\n the accused is a young man or that the sentence of death\n has been haunting him for long alone cannot entitle him for\n judicial clemency."
}
},
{
"from_name": null,
"id": "174706c22b9f4057a67cfec9c4b30a91",
"to_name": null,
"type": null,
"value": {
"end": 1136,
"labels": [
"PREAMBLE"
],
"start": 1125,
"text": "\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "1ee58b02fba2484592716ab7b10697a8",
"to_name": null,
"type": null,
"value": {
"end": 1298,
"labels": [
"PREAMBLE"
],
"start": 1136,
"text": "\n The petitioner was convicted for the offence of murder under\n s. 302, I.P.C. and sentenced to death by the Trial Court.\n "
}
},
{
"from_name": null,
"id": "8cd6882340ea46e2a1e944ce68a074cf",
"to_name": null,
"type": null,
"value": {
"end": 1460,
"labels": [
"PREAMBLE"
],
"start": 1298,
"text": "The Judicial Commissioner, Goa confirmed the death sentence\n in the referred trial under s. 374 of the 1898 Code of\n Criminal Procedure."
}
},
{
"from_name": null,
"id": "64c980b0ef9c46c085d7159c2a588369",
"to_name": null,
"type": null,
"value": {
"end": 1717,
"labels": [
"PREAMBLE"
],
"start": 1460,
"text": "\n Dismissing the special leave petition to appeal, the Court.\n HELD: (1) Discretion to choose between the capital sentence\n and life term under s. 354(3) of the 1973 Code of Criminal\n Procedure is limited."
}
},
{
"from_name": null,
"id": "80f8ae78036a483580acde6edca264e7",
"to_name": null,
"type": null,
"value": {
"end": 2061,
"labels": [
"PREAMBLE"
],
"start": 1718,
"text": "If the offence has been perpetrated\n with attendant aggravating circumstances, if the perpetrator\n discloses an extremely depraved state of mind and diaboli-\n cal trickery in committing the homicide, accompanied by\n brutal dealing with the cadaver, infliction of death penalty\n "
}
},
{
"from_name": null,
"id": "27a612a7d2b242bb92efa916ab2975ba",
"to_name": null,
"type": null,
"value": {
"end": 2079,
"labels": [
"PREAMBLE"
],
"start": 2061,
"text": "cannot be avoided."
}
},
{
"from_name": null,
"id": "166f5c1af8b141679df0c62f903e83b2",
"to_name": null,
"type": null,
"value": {
"end": 2257,
"labels": [
"PREAMBLE"
],
"start": 2080,
"text": "Special leave under Art. 136. of the\n Constitution cannot be granted when it is difficult to fault\n the court on any ground, statutory or precedential."
}
},
{
"from_name": null,
"id": "eef17642a08e4578a8f967e4c0fcdf14",
"to_name": null,
"type": null,
"value": {
"end": 2348,
"labels": [
"PREAMBLE"
],
"start": 2258,
"text": "[772 G-\n H, 773 A]\n Ediga Annamma, AIR 1974 SC 799, referred to."
}
},
{
"from_name": null,
"id": "fe0a003be89b4a0ba42ccd7853c55e39",
"to_name": null,
"type": null,
"value": {
"end": 2586,
"labels": [
"PREAMBLE"
],
"start": 2348,
"text": "\n (2) Section 377 of 1898 Code of Criminal Procedure applies\n only to situations where the court at the time of the con-\n firmation of the death sentence consists of two or more\n Judges."
}
},
{
"from_name": null,
"id": "ae480ebdc3134b898880f3284155b55b",
"to_name": null,
"type": null,
"value": {
"end": 2829,
"labels": [
"PREAMBLE"
],
"start": 2587,
"text": "Section 4(1)(i) of the Code of Criminal proce-\n dure, in relation to a Union Territory, brings within the\n\ndefinition of \"High Court\", the highest court of criminal\nappeal for that area, namely, the Judicial Commissioner's\nCourt."
}
},
{
"from_name": null,
"id": "a3240c017263468ca6ea6ece82859d42",
"to_name": null,
"type": null,
"value": {
"end": 3022,
"labels": [
"PREAMBLE"
],
"start": 2830,
"text": "If, at the time the case for confirmation of death\nsentence is being heard, the Judicial Commissioner's Court\nconsists of more than one Judge, at least two Judges must\nattest the confirmation."
}
},
{
"from_name": null,
"id": "5539a8019456472fab73c9a228046ddc",
"to_name": null,
"type": null,
"value": {
"end": 3112,
"labels": [
"PREAMBLE"
],
"start": 3023,
"text": "So long as one Judicial Commis-\nsioner alone functions in the Court, section 377 was not\n"
}
},
{
"from_name": null,
"id": "5fda604c0af44c7cb3ab30edac2521e8",
"to_name": null,
"type": null,
"value": {
"end": 3122,
"labels": [
"PREAMBLE"
],
"start": 3112,
"text": "attracted."
}
},
{
"from_name": null,
"id": "b6ed03fd75c64af88379318e141c6928",
"to_name": null,
"type": null,
"value": {
"end": 3240,
"labels": [
"PREAMBLE"
],
"start": 3123,
"text": "In the present case there is nothing illegal in\na single (i.e.the only) Judicial Commissioner deciding the\nreference."
}
},
{
"from_name": null,
"id": "d9d1280f7b1048c0a45152db5d54ae40",
"to_name": null,
"type": null,
"value": {
"end": 3249,
"labels": [
"PREAMBLE"
],
"start": 3241,
"text": "[773 D-F"
}
},
{
"from_name": null,
"id": "3ed3e6bab1704480941365bc0291e5da",
"to_name": null,
"type": null,
"value": {
"end": 3325,
"labels": [
"PREAMBLE"
],
"start": 3249,
"text": "]\n\n (3) Referral jurisdiction under s. 377 is akin to\nappeal and revision."
}
},
{
"from_name": null,
"id": "959ffcdfa2d14ed1a1796a39e2100489",
"to_name": null,
"type": null,
"value": {
"end": 3500,
"labels": [
"PREAMBLE"
],
"start": 3325,
"text": "Regulation 8(1) of the Goa, Daman and\nDiu (Judicial Commissioner's Court) Regulation 1963 does not\ndisentitle the Judicial Commissioner from exercising power\nu/s. 377, Cr.P.C."
}
},
{
"from_name": null,
"id": "c2201cbd7f3546efbd822f11c91ae274",
"to_name": null,
"type": null,
"value": {
"end": 3611,
"labels": [
"PREAMBLE"
],
"start": 3501,
"text": "In the instant case, the Judicial Commis-\nsioner's confirmation of death sentence is not without\njurisdiction."
}
},
{
"from_name": null,
"id": "205c4e3dc6e044529ce1d6aff803c32c",
"to_name": null,
"type": null,
"value": {
"end": 3620,
"labels": [
"PREAMBLE"
],
"start": 3612,
"text": "[774 C-D"
}
},
{
"from_name": null,
"id": "4ce463a53ffc47d990187575a687af36",
"to_name": null,
"type": null,
"value": {
"end": 3902,
"labels": [
"PREAMBLE"
],
"start": 3620,
"text": "]\n\n (4) Judicial clemency cannot attenuate the sentence of\ndeath on the sole circumstance that the accused was a young\nman and the sentence of death been haunting him for long\nwithout other supplement factors or in the face of surround-\ning beastly circumstances of the crime."
}
},
{
"from_name": null,
"id": "b39e043f56f5462da0870ee4a341fd43",
"to_name": null,
"type": null,
"value": {
"end": 3971,
"labels": [
"PREAMBLE"
],
"start": 3903,
"text": "Possibly, Presiden-\ntial power wider but judicial power is embanked."
}
},
{
"from_name": null,
"id": "d6a6fd5ac6d14d41a1bbb2b286d0fc29",
"to_name": null,
"type": null,
"value": {
"end": 4218,
"labels": [
"PREAMBLE"
],
"start": 3972,
"text": "[774 E-F]\n10--707SCI/77\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Special Leave Peti- tion (Criminal) No. 216/1977.\n (From the Judgment and Order dated 28-9-1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl.\n Appeal No. 17/72)."
}
},
{
"from_name": null,
"id": "599df48bc8604f08bfef7d3ebe2eb26e",
"to_name": null,
"type": null,
"value": {
"end": 4272,
"labels": [
"NONE"
],
"start": 4218,
"text": "\n S.J.S. Fernandez, amicus curiae, for the petitioner."
}
},
{
"from_name": null,
"id": "dd91b37d830444b29615646f37bed10d",
"to_name": null,
"type": null,
"value": {
"end": 4327,
"labels": [
"NONE"
],
"start": 4272,
"text": "\n The Order of the Court was delivered by KRISHNA IYER,"
}
},
{
"from_name": null,
"id": "252c8fec67544ea6a7a4cb5ed47def6c",
"to_name": null,
"type": null,
"value": {
"end": 4562,
"labels": [
"ANALYSIS"
],
"start": 4328,
"text": "J.--A death sentence, with all its dreadful scenario swinging desperately out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu- tioner's rope."
}
},
{
"from_name": null,
"id": "8781516a51034a3e8122de53222893f0",
"to_name": null,
"type": null,
"value": {
"end": 4743,
"labels": [
"ANALYSIS"
],
"start": 4563,
"text": "Even so, judges must enforce the laws, whatever they be, and decide according to the best of their lights, but the laws, are not always just and the lights are not always luminous."
}
},
{
"from_name": null,
"id": "43381517c89d4ba9acaca82f5240e9eb",
"to_name": null,
"type": null,
"value": {
"end": 4811,
"labels": [
"ANALYSIS"
],
"start": 4744,
"text": "Nor, again, are judicial methods always adequate to secure justice."
}
},
{
"from_name": null,
"id": "3a4f69cd016048379bcdd1b3e5cd5bc3",
"to_name": null,
"type": null,
"value": {
"end": 4908,
"labels": [
"ANALYSIS"
],
"start": 4812,
"text": "We are bound by the Penal Code and the Criminal Procedure Code, by the, very oath of our office."
}
},
{
"from_name": null,
"id": "5490b5bb52f948b98fdc247d8e0d5a35",
"to_name": null,
"type": null,
"value": {
"end": 5051,
"labels": [
"STA"
],
"start": 4908,
"text": "\n Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term."
}
},
{
"from_name": null,
"id": "275b19ca74524ad29fb8452b55c5469d",
"to_name": null,
"type": null,
"value": {
"end": 5295,
"labels": [
"PRE_RELIED"
],
"start": 5052,
"text": "It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Edige Annamma, 1974 SC 799, AIR)."
}
},
{
"from_name": null,
"id": "6d275d98357a47e08d08c4f219f94511",
"to_name": null,
"type": null,
"value": {
"end": 5463,
"labels": [
"ANALYSIS"
],
"start": 5296,
"text": "Even so, the discretion is limited and courts can never afford to forget Benjamin' Cardozo's wise guidance: \"The judge, even when he is free, is still not wholly free."
}
},
{
"from_name": null,
"id": "1a3d46b840814049aafe573127e405b4",
"to_name": null,
"type": null,
"value": {
"end": 5498,
"labels": [
"ANALYSIS"
],
"start": 5464,
"text": "He is not to innovate at pleasure."
}
},
{
"from_name": null,
"id": "00353389104b4de1a3eca49a407f7027",
"to_name": null,
"type": null,
"value": {
"end": 5596,
"labels": [
"ANALYSIS"
],
"start": 5499,
"text": "He is not a knight errant roam- ing at will in pursuit of his own ideal of beauty or of goodness."
}
},
{
"from_name": null,
"id": "72d2fe1b68ea472b93a5c9a83c668db0",
"to_name": null,
"type": null,
"value": {
"end": 5656,
"labels": [
"ANALYSIS"
],
"start": 5597,
"text": "He is to draw his inspiration from consecrated principles."
}
},
{
"from_name": null,
"id": "3e53026628694f02a8657ee8d49a9796",
"to_name": null,
"type": null,
"value": {
"end": 5738,
"labels": [
"ANALYSIS"
],
"start": 5656,
"text": "\n He is not to yield to spasmodic sentiment, to vague and unregulated benevolence."
}
},
{
"from_name": null,
"id": "80036affa5544e5d8339ce630f1611eb",
"to_name": null,
"type": null,
"value": {
"end": 5914,
"labels": [
"ANALYSIS"
],
"start": 5739,
"text": "He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by sys- tem, and subordinated to the primordial necessity of order in the social life."
}
},
{
"from_name": null,
"id": "6c54cd14cfcd41ad99a49fbaccd65c08",
"to_name": null,
"type": null,
"value": {
"end": 5988,
"labels": [
"ANALYSIS"
],
"start": 5915,
"text": "Wide enough in all conscience is the field of dis- cretion that remains.\""
}
},
{
"from_name": null,
"id": "cb0f9ea8c2614e4499431804079ba1d0",
"to_name": null,
"type": null,
"value": {
"end": 6071,
"labels": [
"ANALYSIS"
],
"start": 5988,
"text": "\n (Cardoze: The Nature of the Judicial Proc- ess: Wale University Press ( 1921 ) )."
}
},
{
"from_name": null,
"id": "369912560596421a8499a0e0cca166cb",
"to_name": null,
"type": null,
"value": {
"end": 6195,
"labels": [
"ANALYSIS"
],
"start": 6071,
"text": "\n We have heard counsel on the merits and.perused the paper book with some care and see no ground to disturb the conviction."
}
},
{
"from_name": null,
"id": "c8c3419a7b19455f98dc8ce7b36e4aa8",
"to_name": null,
"type": null,
"value": {
"end": 6344,
"labels": [
"ANALYSIS"
],
"start": 6196,
"text": "The question of 'sentence' projects sharply before us and what we. have stated above turns our focus on cicumstances justifying the graver sentence."
}
},
{
"from_name": null,
"id": "ea4e3a83954e471cbe4e1124301ce112",
"to_name": null,
"type": null,
"value": {
"end": 6453,
"labels": [
"ANALYSIS"
],
"start": 6345,
"text": " The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence."
}
},
{
"from_name": null,
"id": "5e58c1fac9e94fb9aae72222b8f81c25",
"to_name": null,
"type": null,
"value": {
"end": 6883,
"labels": [
"ANALYSIS"
],
"start": 6454,
"text": "The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty."
}
},
{
"from_name": null,
"id": "f096fea071894fad8d0b1fd680c66351",
"to_name": null,
"type": null,
"value": {
"end": 7155,
"labels": [
"ANALYSIS"
],
"start": 6884,
"text": "When discretion has been exercised by the trial Court and it is difficult to fault that court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demol- ish the discretionary exercise of power by the inferior court."
}
},
{
"from_name": null,
"id": "c130f17dda5b4843bc915ace43af2738",
"to_name": null,
"type": null,
"value": {
"end": 7268,
"labels": [
"ANALYSIS"
],
"start": 7156,
"text": "So viewed, it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence."
}
},
{
"from_name": null,
"id": "9f03fc5f6065425489e30095f543e13a",
"to_name": null,
"type": null,
"value": {
"end": 7321,
"labels": [
"ANALYSIS"
],
"start": 7269,
"text": "We are unable to, grant leave on, this score either."
}
},
{
"from_name": null,
"id": "778081051acf4a3f94ba4b188d19ccc0",
"to_name": null,
"type": null,
"value": {
"end": 7476,
"labels": [
"ARG_PETITIONER"
],
"start": 7323,
"text": "Counsel for the petitioner has urged that the affirma- tion by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death sentence is illegal."
}
},
{
"from_name": null,
"id": "e2786515e5de40ecac591726497447ee",
"to_name": null,
"type": null,
"value": {
"end": 7490,
"labels": [
"ARG_PETITIONER"
],
"start": 7477,
"text": "According to."
}
},
{
"from_name": null,
"id": "327ae1c5b7e74dbcad27a8d240a0e7c6",
"to_name": null,
"type": null,
"value": {
"end": 7630,
"labels": [
"ARG_PETITIONER"
],
"start": 7491,
"text": "him s. 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner."
}
},
{
"from_name": null,
"id": "b4e3459ea8f04b2b9d3c041015b87344",
"to_name": null,
"type": null,
"value": {
"end": 7660,
"labels": [
"STA"
],
"start": 7631,
"text": "The said section reads: \"377."
}
},
{
"from_name": null,
"id": "9ab487dd4dce498e9c331577b808aeb2",
"to_name": null,
"type": null,
"value": {
"end": 7886,
"labels": [
"STA"
],
"start": 7661,
"text": "In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.\"\n "
}
},
{
"from_name": null,
"id": "aba754a02a6848dcaac96f3d06ea10b8",
"to_name": null,
"type": null,
"value": {
"end": 8069,
"labels": [
"ANALYSIS"
],
"start": 7886,
"text": "This section means, as we understand it, that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them."
}
},
{
"from_name": null,
"id": "3d8ad2f489da4d3198e69127f155efc6",
"to_name": null,
"type": null,
"value": {
"end": 8226,
"labels": [
"ANALYSIS"
],
"start": 8070,
"text": "This provision obviously applies only to situations where the court, at the time of the confirmation of the death sentence., consists of two or more judges."
}
},
{
"from_name": null,
"id": "58f3c8b0bf9d4d51b146f6afb98840ed",
"to_name": null,
"type": null,
"value": {
"end": 8429,
"labels": [
"ANALYSIS"
],
"start": 8226,
"text": "\n It is true that s. 4 (1) (i) in relation to a Union Territory brings within the definition of the 'High Court' the highest court of criminal appeal for that area viz. the Judicial Commissioner's court."
}
},
{
"from_name": null,
"id": "8fe8daeed64d468e89091c5e84b13ca3",
"to_name": null,
"type": null,
"value": {
"end": 8654,
"labels": [
"ANALYSIS"
],
"start": 8430,
"text": "It therefore follows that if, at the time the case for confirmation of the death sentence is being heard, the Judicial Commission- er's court consists of more than one judge, at least two judges must attest the confirmation."
}
},
{
"from_name": null,
"id": "443bfe544f7146429418541d952b9c74",
"to_name": null,
"type": null,
"value": {
"end": 8760,
"labels": [
"ANALYSIS"
],
"start": 8655,
"text": "In the present case it is common ground that when the case was heard and judg- ment pronounced there was."
}
},
{
"from_name": null,
"id": "a4419666a76e4b4f95f8b37d8e6a02e7",
"to_name": null,
"type": null,
"value": {
"end": 8834,
"labels": [
"ANALYSIS"
],
"start": 8761,
"text": "only one Judicial Commissioner, although the sanctioned strength was two."
}
},
{
"from_name": null,
"id": "8f4a83cf523c469f83066b8915158dda",
"to_name": null,
"type": null,
"value": {
"end": 8928,
"labels": [
"ANALYSIS"
],
"start": 8835,
"text": "So long as one Judicial Commissioner alone functioned in the court, s. 377 was not attracted."
}
},
{
"from_name": null,
"id": "a8ab3e7fe0c74879bdbee8b1febaad03",
"to_name": null,
"type": null,
"value": {
"end": 9083,
"labels": [
"ANALYSIS"
],
"start": 8929,
"text": "The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial Commissioner deciding the refer- ence.\n "
}
},
{
"from_name": null,
"id": "5cccea68e8a24109bf0b543be6306941",
"to_name": null,
"type": null,
"value": {
"end": 9351,
"labels": [
"ANALYSIS"
],
"start": 9083,
"text": "We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law's grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are."
}
},
{
"from_name": null,
"id": "c66d2e3330e24f79846e22f3f3639f33",
"to_name": null,
"type": null,
"value": {
"end": 9360,
"labels": [
"ANALYSIS"
],
"start": 9352,
"text": "applied."
}
},
{
"from_name": null,
"id": "01208c180cbd4bbf857a1ff12e4d7bcc",
"to_name": null,
"type": null,
"value": {
"end": 9526,
"labels": [
"ANALYSIS"
],
"start": 9361,
"text": "Even so, exceptional situations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened."
}
},
{
"from_name": null,
"id": "99dbdd15f5bc44a9be1b9a0cd57c6171",
"to_name": null,
"type": null,
"value": {
"end": 9578,
"labels": [
"ANALYSIS"
],
"start": 9527,
"text": "We cannot fault the judgment on this ground either."
}
},
{
"from_name": null,
"id": "5be831a4f2ba4fe99a6ca75b5679fdab",
"to_name": null,
"type": null,
"value": {
"end": 9797,
"labels": [
"ARG_PETITIONER"
],
"start": 9580,
"text": "Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law which prevails against the general."
}
},
{
"from_name": null,
"id": "192bb296ef9e406c8fcc5c116fe621b7",
"to_name": null,
"type": null,
"value": {
"end": 10004,
"labels": [
"ARG_PETITIONER"
],
"start": 9798,
"text": "On that footing he argues that under Regulation, 8 (1) the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao."
}
},
{
"from_name": null,
"id": "49fcf9554c9340f38dea0c0ffcd76374",
"to_name": null,
"type": null,
"value": {
"end": 10168,
"labels": [
"ARG_PETITIONER"
],
"start": 10005,
"text": "According to him, the said Tribunal did not have the powers of confirmation of death sentence, and,therefore, the judicial Commissioner cannot exercise such power."
}
},
{
"from_name": null,
"id": "236ef30e722444f1bca88049b45d410b",
"to_name": null,
"type": null,
"value": {
"end": 10408,
"labels": [
"ARG_PETITIONER"
],
"start": 10169,
"text": "He also argues that under the said provision the Judicial Commissioner' is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi- nal Procedure Code."
}
},
{
"from_name": null,
"id": "18ebe8566cde4248b9ac10d5470e0204",
"to_name": null,
"type": null,
"value": {
"end": 10453,
"labels": [
"ANALYSIS"
],
"start": 10409,
"text": "We see no force in these twin submis- sions."
}
},
{
"from_name": null,
"id": "2be690067e444bac924ca1cf29802956",
"to_name": null,
"type": null,
"value": {
"end": 10545,
"labels": [
"ANALYSIS"
],
"start": 10454,
"text": "A Code is complete and that marks the distinction between a Code and an ordinary enactment."
}
},
{
"from_name": null,
"id": "5956ce0d1df24a1f99c740c17448cc27",
"to_name": null,
"type": null,
"value": {
"end": 10623,
"labels": [
"ANALYSIS"
],
"start": 10546,
"text": "The Criminal Procedure Code, by that canon, is serf-contained and com- plete."
}
},
{
"from_name": null,
"id": "90b4a551757e466badd7fc9d183db7fa",
"to_name": null,
"type": null,
"value": {
"end": 10695,
"labels": [
"ANALYSIS"
],
"start": 10624,
"text": "It defines a High Court which takes in a Judicial Commissioner's Court."
}
},
{
"from_name": null,
"id": "d8cea4f5bdf4451d945f4afa3f6c2813",
"to_name": null,
"type": null,
"value": {
"end": 10713,
"labels": [
"ANALYSIS"
],
"start": 10696,
"text": "(Section 4(1)(i)."
}
},
{
"from_name": null,
"id": "5a8a21bd631f44abadaac4d4aff1f894",
"to_name": null,
"type": null,
"value": {
"end": 10805,
"labels": [
"ANALYSIS"
],
"start": 10714,
"text": "We need not and indeed may not travel beyond the Code into the territory of the Regulation."
}
},
{
"from_name": null,
"id": "96b2f67e014c4338abbc851a32881e3e",
"to_name": null,
"type": null,
"value": {
"end": 10888,
"labels": [
"ANALYSIS"
],
"start": 10806,
"text": "Even otherwise, there is nothing in Regulation 8 ( 1 ) which helps the petitioner."
}
},
{
"from_name": null,
"id": "1d38e805837d47a7aaa96cec3c3bb2bd",
"to_name": null,
"type": null,
"value": {
"end": 11161,
"labels": [
"ANALYSIS"
],
"start": 10889,
"text": "It pro- vides that the Judicial Commissioner shall be the highest criminal 'Court, Appeal and Revision' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level."
}
},
{
"from_name": null,
"id": "519b67b4d0214b74a9f17099c0a1f45b",
"to_name": null,
"type": null,
"value": {
"end": 11638,
"labels": [
"ANALYSIS"
],
"start": 11162,
"text": "Referral jurisdiction, under section 377, is skin to appeal and revision and we think that Regulation 8(1) does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code: nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences, and, there- fore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power."
}
},
{
"from_name": null,
"id": "23915d126a10425da5279620cf13833b",
"to_name": null,
"type": null,
"value": {
"end": 11694,
"labels": [
"ANALYSIS"
],
"start": 11639,
"text": "Regulation 8(1) does not limit the jurisdiction of the."
}
},
{
"from_name": null,
"id": "dd1a29eb6d71443681e6430d6d1faeb5",
"to_name": null,
"type": null,
"value": {
"end": 11758,
"labels": [
"ANALYSIS"
],
"start": 11695,
"text": "Judicial Commission- er in the sense counsel wants us to accept"
}
},
{
"from_name": null,
"id": "be1e39ed713c4b759de6515abffeafd0",
"to_name": null,
"type": null,
"value": {
"end": 11874,
"labels": [
"ANALYSIS"
],
"start": 11758,
"text": ". We therefore hold that the Judicial Commissioner's confirmation of the death sentence is not without jurisdiction."
}
},
{
"from_name": null,
"id": "dd43a6e8fec74f998078e719ae02488b",
"to_name": null,
"type": null,
"value": {
"end": 12132,
"labels": [
"ANALYSIS"
],
"start": 11874,
"text": "\n Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen- tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis- ingly for around six years."
}
},
{
"from_name": null,
"id": "d19248202449452da35e5dd527203a72",
"to_name": null,
"type": null,
"value": {
"end": 12230,
"labels": [
"RATIO"
],
"start": 12133,
"text": "May be that such a long spell of torment may be one circumstance in giving the lesser sen- tence."
}
},
{
"from_name": null,
"id": "97c10d4ba21c46d6a12ca88002b6ef90",
"to_name": null,
"type": null,
"value": {
"end": 12525,
"labels": [
"RATIO"
],
"start": 12231,
"text": "Even s0, we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone, without other supplement- ing factors or in the face of surrounding beastly circum- stances of the crime, judicial clemency can attenuate the sentence."
}
},
{
"from_name": null,
"id": "889f4dab0b6841859552bd2a8c4c4de7",
"to_name": null,
"type": null,
"value": {
"end": 12595,
"labels": [
"RATIO"
],
"start": 12526,
"text": "Possibly, Presidential power is wider but judicial power is embanked."
}
},
{
"from_name": null,
"id": "25a8c480313447f2a2e25ddc71748eb6",
"to_name": null,
"type": null,
"value": {
"end": 12645,
"labels": [
"RPC"
],
"start": 12595,
"text": "\nWe refuse special leave and dismiss the petition."
}
}
]
}
] | 4,107 | {
"text": "PETITIONER:\nJOSEPH PETER\n\n Vs.\n\nRESPONDENT:\nSTATE OF GOA, DAMAN AND DIU\n\nDATE OF JUDGMENT04/05/1977\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nSINGH, JASWANT\n\nCITATION:\n\n1977 AIR 1812 1977 SCR (3) 771\n\n1977 SCC (3) 280 (12)\n (14)\nCITATOR INFO :\n\nRF 1989 SC 653\n\nRF 1989 SC1335\n\nACT:\n\n Criminal Procedure Code, 1973 (Act II of 1974), Section\n 354(3)--Discretionary power to choose between capital sen-\n tence and life term is a limited one--Leave should be\n refused when it is difficult to fault the court which has\n exercised such a power under Art. 136 of the Constitution.\n Criminal Procedure Code, 1898, Section 377--Scope of.\n Goa, Daman and Diu (Judicial Commissioner's Court)\n Regulation.1963--Regulation 8(1) does not bar the referred\n jurisdiction of the Judicial Commissioner's Court.\n Sentence--Extenuating circumstances---Circumstance that\n the accused is a young man or that the sentence of death\n has been haunting him for long alone cannot entitle him for\n judicial clemency.\n\nHEADNOTE:\n The petitioner was convicted for the offence of murder under\n s. 302, I.P.C. and sentenced to death by the Trial Court.\n The Judicial Commissioner, Goa confirmed the death sentence\n in the referred trial under s. 374 of the 1898 Code of\n Criminal Procedure.\n Dismissing the special leave petition to appeal, the Court.\n HELD: (1) Discretion to choose between the capital sentence\n and life term under s. 354(3) of the 1973 Code of Criminal\n Procedure is limited. If the offence has been perpetrated\n with attendant aggravating circumstances, if the perpetrator\n discloses an extremely depraved state of mind and diaboli-\n cal trickery in committing the homicide, accompanied by\n brutal dealing with the cadaver, infliction of death penalty\n cannot be avoided. Special leave under Art. 136. of the\n Constitution cannot be granted when it is difficult to fault\n the court on any ground, statutory or precedential. [772 G-\n H, 773 A]\n Ediga Annamma, AIR 1974 SC 799, referred to.\n (2) Section 377 of 1898 Code of Criminal Procedure applies\n only to situations where the court at the time of the con-\n firmation of the death sentence consists of two or more\n Judges. Section 4(1)(i) of the Code of Criminal proce-\n dure, in relation to a Union Territory, brings within the\n\ndefinition of \"High Court\", the highest court of criminal\nappeal for that area, namely, the Judicial Commissioner's\nCourt. If, at the time the case for confirmation of death\nsentence is being heard, the Judicial Commissioner's Court\nconsists of more than one Judge, at least two Judges must\nattest the confirmation. So long as one Judicial Commis-\nsioner alone functions in the Court, section 377 was not\nattracted. In the present case there is nothing illegal in\na single (i.e.the only) Judicial Commissioner deciding the\nreference. [773 D-F]\n\n (3) Referral jurisdiction under s. 377 is akin to\nappeal and revision.Regulation 8(1) of the Goa, Daman and\nDiu (Judicial Commissioner's Court) Regulation 1963 does not\ndisentitle the Judicial Commissioner from exercising power\nu/s. 377, Cr.P.C. In the instant case, the Judicial Commis-\nsioner's confirmation of death sentence is not without\njurisdiction. [774 C-D]\n\n (4) Judicial clemency cannot attenuate the sentence of\ndeath on the sole circumstance that the accused was a young\nman and the sentence of death been haunting him for long\nwithout other supplement factors or in the face of surround-\ning beastly circumstances of the crime. Possibly, Presiden-\ntial power wider but judicial power is embanked. [774 E-F]\n10--707SCI/77\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Special Leave Peti- tion (Criminal) No. 216/1977.\n (From the Judgment and Order dated 28-9-1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl.\n Appeal No. 17/72).\n S.J.S. Fernandez, amicus curiae, for the petitioner.\n The Order of the Court was delivered by KRISHNA IYER, J.--A death sentence, with all its dreadful scenario swinging desperately out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu- tioner's rope. Even so, judges must enforce the laws, whatever they be, and decide according to the best of their lights, but the laws, are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice. We are bound by the Penal Code and the Criminal Procedure Code, by the, very oath of our office.\n Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term. It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Edige Annamma, 1974 SC 799, AIR). Even so, the discretion is limited and courts can never afford to forget Benjamin' Cardozo's wise guidance: \"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roam- ing at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.\n He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by sys- tem, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of dis- cretion that remains.\"\n (Cardoze: The Nature of the Judicial Proc- ess: Wale University Press ( 1921 ) ).\n We have heard counsel on the merits and.perused the paper book with some care and see no ground to disturb the conviction. The question of 'sentence' projects sharply before us and what we. have stated above turns our focus on cicumstances justifying the graver sentence. The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence. The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty. When discretion has been exercised by the trial Court and it is difficult to fault that court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demol- ish the discretionary exercise of power by the inferior court. So viewed, it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence. We are unable to, grant leave on, this score either.\n Counsel for the petitioner has urged that the affirma- tion by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death sentence is illegal. According to. him s. 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads: \"377. In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.\"\n This section means, as we understand it, that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them. This provision obviously applies only to situations where the court, at the time of the confirmation of the death sentence., consists of two or more judges.\n It is true that s. 4 (1) (i) in relation to a Union Territory brings within the definition of the 'High Court' the highest court of criminal appeal for that area viz. the Judicial Commissioner's court. It therefore follows that if, at the time the case for confirmation of the death sentence is being heard, the Judicial Commission- er's court consists of more than one judge, at least two judges must attest the confirmation. In the present case it is common ground that when the case was heard and judg- ment pronounced there was. only one Judicial Commissioner, although the sanctioned strength was two. So long as one Judicial Commissioner alone functioned in the court, s. 377 was not attracted. The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial Commissioner deciding the refer- ence.\n We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law's grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are. applied. Even so, exceptional situations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either.\n Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law which prevails against the general. On that footing he argues that under Regulation, 8 (1) the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao. According to him, the said Tribunal did not have the powers of confirmation of death sentence, and,therefore, the judicial Commissioner cannot exercise such power. He also argues that under the said provision the Judicial Commissioner' is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi- nal Procedure Code. We see no force in these twin submis- sions. A Code is complete and that marks the distinction between a Code and an ordinary enactment. The Criminal Procedure Code, by that canon, is serf-contained and com- plete. It defines a High Court which takes in a Judicial Commissioner's Court. (Section 4(1)(i). We need not and indeed may not travel beyond the Code into the territory of the Regulation. Even otherwise, there is nothing in Regulation 8 ( 1 ) which helps the petitioner. It pro- vides that the Judicial Commissioner shall be the highest criminal 'Court, Appeal and Revision' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level. Referral jurisdiction, under section 377, is skin to appeal and revision and we think that Regulation 8(1) does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code: nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences, and, there- fore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power. Regulation 8(1) does not limit the jurisdiction of the. Judicial Commission- er in the sense counsel wants us to accept. We therefore hold that the Judicial Commissioner's confirmation of the death sentence is not without jurisdiction.\n Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen- tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis- ingly for around six years. May be that such a long spell of torment may be one circumstance in giving the lesser sen- tence. Even s0, we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone, without other supplement- ing factors or in the face of surrounding beastly circum- stances of the crime, judicial clemency can attenuate the sentence. Possibly, Presidential power is wider but judicial power is embanked.\nWe refuse special leave and dismiss the petition.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "826aa5e582424b298c13c073e880755e",
"to_name": null,
"type": null,
"value": {
"end": 114,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSEVANTILAL KARSONDAS MODI\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA & ANOTHER\n\nDATE OF JUDGMENT30/01/1979"
}
},
{
"from_name": null,
"id": "a9744c4f33a9412f9e93d047e74c54c3",
"to_name": null,
"type": null,
"value": {
"end": 802,
"labels": [
"PREAMBLE"
],
"start": 114,
"text": "\n\nBENCH:\nKOSHAL, A.D.\nBENCH:\nKOSHAL, A.D.\nFAZALALI, SYED MURTAZA\n\nCITATION: 1979 SCR (2)1160\n 1979 AIR 705\n 1979 SCC (2) 58\n\nACT:\n Evidence Act 1972 (1 of 1872)-S. 24-Accused alleged\n\nthat he was assaulted by Customs Officials-No direct\nevidence available-Surrounding circumstances-If could be\ntaken into account-Customs Officials whether person in\nauthority-Confession made to customs officials if admissible\nin evidence.\n\nHEADNOTE:\n On receipt of information that smuggled gold was stored\n\nin it, a large number of senior officials of the Customs\nDepartment surrounded the flat belonging to the brother-in-\nlaw of the appellant and started searching it."
}
},
{
"from_name": null,
"id": "185c3aded9034fb3a7738ff24572c73f",
"to_name": null,
"type": null,
"value": {
"end": 1033,
"labels": [
"PREAMBLE"
],
"start": 803,
"text": "According to\nthe prosecution, while the search was on, the appellant was\nfound peeping from outside through the grille forming part\nof the flat, and started running away, on seeing that the\nsearch was being carried on in the flat."
}
},
{
"from_name": null,
"id": "288c956c5b87407a980ff9059f72fda9",
"to_name": null,
"type": null,
"value": {
"end": 1080,
"labels": [
"PREAMBLE"
],
"start": 1034,
"text": "He was chased by\nthe Customs Staff and caught."
}
},
{
"from_name": null,
"id": "295d546381a04662a7c868838dfd1e2d",
"to_name": null,
"type": null,
"value": {
"end": 1115,
"labels": [
"PREAMBLE"
],
"start": 1081,
"text": "Later his confession was\nrecorded."
}
},
{
"from_name": null,
"id": "6dc9bcead04d4943918a5dc18de4a019",
"to_name": null,
"type": null,
"value": {
"end": 1204,
"labels": [
"PREAMBLE"
],
"start": 1116,
"text": "Along with the appellant several other persons had\nalso been tried for the same offence."
}
},
{
"from_name": null,
"id": "fc7abe0e45d141c4a1b80cb4dc846ed1",
"to_name": null,
"type": null,
"value": {
"end": 1333,
"labels": [
"PREAMBLE"
],
"start": 1205,
"text": "The trial court\nconvicted and sentenced the appellant of an offence under s.\n120B IPC read with s. 135(1)(a) of the Customs Act."
}
},
{
"from_name": null,
"id": "c6b83147fc074cce9324f7203ff1f0f3",
"to_name": null,
"type": null,
"value": {
"end": 1566,
"labels": [
"PREAMBLE"
],
"start": 1333,
"text": "\n\n On appeal the High Court found that the charge under s.\n135(1)(a) and (b) of the Customs Act was not sustainable but\nholding that the offence under other heads was proved, it\nupheld the appellant's conviction and sentence."
}
},
{
"from_name": null,
"id": "17c537d0ec3c4fa7a826360fece6d695",
"to_name": null,
"type": null,
"value": {
"end": 1821,
"labels": [
"PREAMBLE"
],
"start": 1566,
"text": "\n\n It was contended on behalf of the appellant that the\nconfession was the result of an assault on him by the\nCustoms Officials, which not being voluntary was\ninadmissible in evidence under s. 24 of the Evidence Act.\n\n Allowing the appeal."
}
},
{
"from_name": null,
"id": "2357ecb2febf4969b6dbe7789fcc26fe",
"to_name": null,
"type": null,
"value": {
"end": 1842,
"labels": [
"PREAMBLE"
],
"start": 1822,
"text": "^\n\n HELD: 1."
}
},
{
"from_name": null,
"id": "de6fd62a7bd44fa4bd8866ebbd7ddbae",
"to_name": null,
"type": null,
"value": {
"end": 1936,
"labels": [
"PREAMBLE"
],
"start": 1843,
"text": "(i) It is unsafe to regard the appellant's\nconfession as voluntary and therefore trustworthy."
}
},
{
"from_name": null,
"id": "54785d72edcb4d78996d71e1c550c3a6",
"to_name": null,
"type": null,
"value": {
"end": 2069,
"labels": [
"PREAMBLE"
],
"start": 1937,
"text": "The\nconcerned Customs Officials were \"persons in authority\"\nwithin the meaning of that expression used in s. 24 of the\nEvidence Act."
}
},
{
"from_name": null,
"id": "a910895b5aad48e5a8b1f7edea7d1e77",
"to_name": null,
"type": null,
"value": {
"end": 2192,
"labels": [
"PREAMBLE"
],
"start": 2070,
"text": "The confession may well have been obtained in\na manner which would bring it within the ambit of s. 24 of\nthe Evidence Act."
}
},
{
"from_name": null,
"id": "6710ff54e26f4aa8b97d08a88b51896a",
"to_name": null,
"type": null,
"value": {
"end": 2643,
"labels": [
"PREAMBLE"
],
"start": 2193,
"text": "The appellant has been able to prove the\nexistence of circumstances which make it highly probable\nthat his confession is hit by the mandate in section 24.\n[1169H-1170A, 1166C]\n\n (ii) Although there is no direct evidence that force\nwas used on the appellant to extract a confession the\nsurrounding circumstances prevalent at the relevant time in\nthe Customs House where the statement was recorded indicate\nthat all was not well with the manner"
}
},
{
"from_name": null,
"id": "e5f2359587a94cbc8352b85228b5ac18",
"to_name": null,
"type": null,
"value": {
"end": 2711,
"labels": [
"PREAMBLE"
],
"start": 2644,
"text": "in which the\ninterrogation of various accused was being carried on."
}
},
{
"from_name": null,
"id": "810611ed238d4151adc38cedd74622e2",
"to_name": null,
"type": null,
"value": {
"end": 2922,
"labels": [
"PREAMBLE"
],
"start": 2712,
"text": "They\nindicate that the Customs Officials did not stick to ethical\nstandards in the performance of their duties and exhibited\nmuch zeal in bringing the captives to book and had\ntransgressed the limit set by law."
}
},
{
"from_name": null,
"id": "6ff9333dbabb4ca0a6ed1f2c7a55d0a8",
"to_name": null,
"type": null,
"value": {
"end": 3033,
"labels": [
"PREAMBLE"
],
"start": 2923,
"text": "[1166E, 1169B]\n\n (iii) One of the accused in this case was found to have\nseven injuries on his person."
}
},
{
"from_name": null,
"id": "1d556e82e84e4a29a2ebb277acb0b245",
"to_name": null,
"type": null,
"value": {
"end": 3283,
"labels": [
"PREAMBLE"
],
"start": 3034,
"text": "The stand of that accused that\nhe was coerced into making a confession, received support\nfrom the testimony of the doctor who examinedhim so that the probability appears to be that the accused\nreceived his injuries on the hands of the Customs staff."
}
},
{
"from_name": null,
"id": "089b6d7565644f1fb8fdc0f29fb80759",
"to_name": null,
"type": null,
"value": {
"end": 3543,
"labels": [
"PREAMBLE"
],
"start": 3284,
"text": "In\nthe absence of an explanation of the prosecution as to the\nsituation in which he was beaten, it is reasonable to\npresume that the stand taken by him was correct and that the\ninjuries were inflicted as a measure of coercion adopted to\nsecure his confession."
}
},
{
"from_name": null,
"id": "65b031ec38c64362908b4e8316e34749",
"to_name": null,
"type": null,
"value": {
"end": 3689,
"labels": [
"PREAMBLE"
],
"start": 3544,
"text": "Taking these circumstances into\nconsideration, it is unsafe to regard the appellants\nconfession too as voluntary.[1166F, 1168C, 1169G]\n\n "
}
},
{
"from_name": null,
"id": "3c1488055a1e4e4594db1fe5eccfc06d",
"to_name": null,
"type": null,
"value": {
"end": 3743,
"labels": [
"PREAMBLE"
],
"start": 3689,
"text": "Besides, the plea that he had been coerced into making"
}
},
{
"from_name": null,
"id": "895bc68bbf5f4313829cca51cd99cc1c",
"to_name": null,
"type": null,
"value": {
"end": 3758,
"labels": [
"PREAMBLE"
],
"start": 3743,
"text": "\nthe confession"
}
},
{
"from_name": null,
"id": "e56ec5e5083a4d9f8474e2b776a5f180",
"to_name": null,
"type": null,
"value": {
"end": 3856,
"labels": [
"PREAMBLE"
],
"start": 3759,
"text": "was taken at the earliest opportunity i.e. on\nthe day following his release from custody on bail."
}
},
{
"from_name": null,
"id": "e04a614bf4dc4864ab10a5b3edac2c7a",
"to_name": null,
"type": null,
"value": {
"end": 4367,
"labels": [
"PREAMBLE"
],
"start": 3857,
"text": "[1169D]\n\n 2. Being a close relation of the owner of the flat, the\nappellant was perhaps sharing the flat with him and so had\nduplicate set of keys; his brother-in-law might have given\nthe Bandi found on the appellant not for the purpose of\ncarrying the gold but just for use as an ordinary raiment.\nIt is also possible that the appellant became nervous, that\nhe thought that he would be implicated in the crime and\ntherefore, might have started running away on seeing the\nCustoms Officers in the house."
}
},
{
"from_name": null,
"id": "027ffa29bb0e44deabbcbc7a3c11eac9",
"to_name": null,
"type": null,
"value": {
"end": 4504,
"labels": [
"PREAMBLE"
],
"start": 4368,
"text": "Therefore, these factors on\nwhich the High Court relied for sustaining his conviction\ncannot be regarded as incriminating circumstances."
}
},
{
"from_name": null,
"id": "5a563ca5de794db0a2e4dc0c50aa4d45",
"to_name": null,
"type": null,
"value": {
"end": 4530,
"labels": [
"PREAMBLE"
],
"start": 4505,
"text": "[1165F-\n1166A]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "4c183bc9ef124e868336ee02d30fbe01",
"to_name": null,
"type": null,
"value": {
"end": 4572,
"labels": [
"NONE"
],
"start": 4530,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "6ab9d0fa52ac48958524862ce8b4c570",
"to_name": null,
"type": null,
"value": {
"end": 4606,
"labels": [
"NONE"
],
"start": 4573,
"text": "Criminal Appeal No.\n 196 of 1973."
}
},
{
"from_name": null,
"id": "6ec731aaab9949b2820d1e200c9b8aba",
"to_name": null,
"type": null,
"value": {
"end": 4743,
"labels": [
"NONE"
],
"start": 4606,
"text": "\n Appeal by Special Leave from the Judgment and Order dated 7-8-1973 of the Bombay High Court in Criminal Appeal No. 222 of 1970."
}
},
{
"from_name": null,
"id": "6c56a45b6e80431985a384b854b54dfe",
"to_name": null,
"type": null,
"value": {
"end": 4810,
"labels": [
"NONE"
],
"start": 4743,
"text": "\n S. B. Bhasme, P. G. Gokhale and B. R. Agarwala for the Appellant."
}
},
{
"from_name": null,
"id": "4571eca188144471a01a5cdf3baa01c9",
"to_name": null,
"type": null,
"value": {
"end": 4890,
"labels": [
"NONE"
],
"start": 4810,
"text": "\n M. K. Ramamurthi, M. N. Shroff, Mrs. Hemanlaika Wahi for the Respondent No. 1."
}
},
{
"from_name": null,
"id": "e5081acc160f462abcab040ded1267fd",
"to_name": null,
"type": null,
"value": {
"end": 4928,
"labels": [
"NONE"
],
"start": 4890,
"text": "\n R. N. Sachthey for Respondent No. 2."
}
},
{
"from_name": null,
"id": "b68e24d6b7034325909d02ff42e4e56e",
"to_name": null,
"type": null,
"value": {
"end": 4988,
"labels": [
"NONE"
],
"start": 4928,
"text": "\n The Judgment of the Court was delivered by KOSHAL,"
}
},
{
"from_name": null,
"id": "4c7fade0442e40cc91c71bdd369cdfe1",
"to_name": null,
"type": null,
"value": {
"end": 5438,
"labels": [
"RLC"
],
"start": 4989,
"text": "J.-This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Sevantilal Karsondas Modi (the sole appellant before us) for an offence under section 120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act 1962, and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay."
}
},
{
"from_name": null,
"id": "7ee3bff39ba0461e96ef6ed25dac9f0b",
"to_name": null,
"type": null,
"value": {
"end": 5450,
"labels": [
"FAC"
],
"start": 5438,
"text": "\n 2."
}
},
{
"from_name": null,
"id": "621bb61635cf41d892eed211524fd796",
"to_name": null,
"type": null,
"value": {
"end": 5578,
"labels": [
"FAC"
],
"start": 5451,
"text": "The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate."
}
},
{
"from_name": null,
"id": "aed242741abe4d50a36b27ad6ee5893b",
"to_name": null,
"type": null,
"value": {
"end": 5680,
"labels": [
"FAC"
],
"start": 5579,
"text": "Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended."
}
},
{
"from_name": null,
"id": "297a527ab96844fab7a847f48183d0a8",
"to_name": null,
"type": null,
"value": {
"end": 5874,
"labels": [
"FAC"
],
"start": 5681,
"text": "The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under section494 of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "3702a5a3200a4988b3ce0317a6983a5e",
"to_name": null,
"type": null,
"value": {
"end": 5986,
"labels": [
"FAC"
],
"start": 5875,
"text": "Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them."
}
},
{
"from_name": null,
"id": "c909935124994711b2aeeff08da8050e",
"to_name": null,
"type": null,
"value": {
"end": 6086,
"labels": [
"FAC"
],
"start": 5987,
"text": "Charges were framed by him on 10 counts against the other 20 accused who were tried in consequence."
}
},
{
"from_name": null,
"id": "da97755dc73649029c9449536912ef91",
"to_name": null,
"type": null,
"value": {
"end": 6181,
"labels": [
"FAC"
],
"start": 6087,
"text": "At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence."
}
},
{
"from_name": null,
"id": "aaa58bd90e584742b15b9adef6c6952d",
"to_name": null,
"type": null,
"value": {
"end": 6353,
"labels": [
"FAC"
],
"start": 6182,
"text": "Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment."
}
},
{
"from_name": null,
"id": "1a2e0059ce6a4992a186a8b1125d6743",
"to_name": null,
"type": null,
"value": {
"end": 6460,
"labels": [
"FAC"
],
"start": 6354,
"text": "All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23."
}
},
{
"from_name": null,
"id": "12f590ad496745aaad939185685337f4",
"to_name": null,
"type": null,
"value": {
"end": 6514,
"labels": [
"FAC"
],
"start": 6461,
"text": "Accused No. 13 happens to be the appellant before us."
}
},
{
"from_name": null,
"id": "53853d69290f4134965a59bd3c15a381",
"to_name": null,
"type": null,
"value": {
"end": 6780,
"labels": [
"FAC"
],
"start": 6515,
"text": "He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence, under clauses (a) and (b) of sub- section (1) of section 135 of the Customs Act and sentenced to rigorous imprisonment for six months in consequence."
}
},
{
"from_name": null,
"id": "f5cf3cb37af44935b200fcbfcdbda0ca",
"to_name": null,
"type": null,
"value": {
"end": 6954,
"labels": [
"RLC"
],
"start": 6781,
"text": "His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court."
}
},
{
"from_name": null,
"id": "603fdd8dafe54aa0a18292a5c5a80e43",
"to_name": null,
"type": null,
"value": {
"end": 7061,
"labels": [
"FAC"
],
"start": 6954,
"text": "\n 3. The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated."
}
},
{
"from_name": null,
"id": "23590a29a19a43bf81cd19dbb5805005",
"to_name": null,
"type": null,
"value": {
"end": 7544,
"labels": [
"FAC"
],
"start": 7062,
"text": "V. K.\nAsthana, (P.W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as 'Asthana', received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called 'Shivaji Park' was being used for storage of smuggled gold and disbursement thereof to its purchasers."
}
},
{
"from_name": null,
"id": "0b0aca7c080d4b4cbe41bc329187fe32",
"to_name": null,
"type": null,
"value": {
"end": 7691,
"labels": [
"FAC"
],
"start": 7545,
"text": "After the flat had been kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises."
}
},
{
"from_name": null,
"id": "6164f0bc539b45d5901a476dc01196d3",
"to_name": null,
"type": null,
"value": {
"end": 7839,
"labels": [
"FAC"
],
"start": 7692,
"text": "The raiding party which consisted of senior Customs officers, took positions in the vicinity of Sagar Mandir on the morning of 14th September 1966."
}
},
{
"from_name": null,
"id": "18e95c33cc374d13b9a2e02da18e3310",
"to_name": null,
"type": null,
"value": {
"end": 8276,
"labels": [
"FAC"
],
"start": 7840,
"text": "They included B.M. Sevalia, Preventive Officer, Bombay Customs (P.W. 7 and hereinafter referred to as 'Sevalia'), G. N. Alreja, Preventive Officer, Bombay Customs (P.W. 34 and hereinafter mentioned as 'Alreja), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P.W. 144 and hereinafter called 'Ayengar') and D.G. Mugwe, Principal Appraiser in the said Directorate (P.W. 152 and hereinafter referred to as 'Mugwe')."
}
},
{
"from_name": null,
"id": "0968c1f5bb184319ad2ffb264b9ef0c5",
"to_name": null,
"type": null,
"value": {
"end": 8401,
"labels": [
"FAC"
],
"start": 8277,
"text": "Sevalia was deputed to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects."
}
},
{
"from_name": null,
"id": "bf1dd38aa3f34a209e152851b0299715",
"to_name": null,
"type": null,
"value": {
"end": 8552,
"labels": [
"FAC"
],
"start": 8402,
"text": "At about 8.50 A.M., accused No. 12 was seen entering the flat and Sevlalia alerted the other members of the raiding party by giving the agreed signal."
}
},
{
"from_name": null,
"id": "8fa2875a392c4801a286fb24787a522b",
"to_name": null,
"type": null,
"value": {
"end": 8681,
"labels": [
"FAC"
],
"start": 8553,
"text": "Half an hour later, a car stopped at the entrance to the compound of the building andaccused Nos. 5, 6 and 7 alighted therefrom."
}
},
{
"from_name": null,
"id": "21d1e9f61fba49d3a60aa266180430bc",
"to_name": null,
"type": null,
"value": {
"end": 8803,
"labels": [
"FAC"
],
"start": 8682,
"text": "Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance."
}
},
{
"from_name": null,
"id": "150950c6010949ffa37d498d731c5b29",
"to_name": null,
"type": null,
"value": {
"end": 8849,
"labels": [
"FAC"
],
"start": 8804,
"text": "He turned back and so did his two companions."
}
},
{
"from_name": null,
"id": "376f57f8f58b444faec4e9ecf6ba6294",
"to_name": null,
"type": null,
"value": {
"end": 8949,
"labels": [
"FAC"
],
"start": 8850,
"text": "All three of them took to their heels but were caught by the raiding party on a direction by Mugwe."
}
},
{
"from_name": null,
"id": "6529cac8037b436ab81a0384284f73ff",
"to_name": null,
"type": null,
"value": {
"end": 8991,
"labels": [
"FAC"
],
"start": 8950,
"text": "Accused No. 12 was found inside the flat."
}
},
{
"from_name": null,
"id": "7a97a5b575654ff4a27987f4cd3315a9",
"to_name": null,
"type": null,
"value": {
"end": 9108,
"labels": [
"FAC"
],
"start": 8992,
"text": "The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each."
}
},
{
"from_name": null,
"id": "e64caf669e4d4678b235c6d9982abbb3",
"to_name": null,
"type": null,
"value": {
"end": 9228,
"labels": [
"FAC"
],
"start": 9109,
"text": "All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives."
}
},
{
"from_name": null,
"id": "d516b6a08cb64af9a678ced37c624295",
"to_name": null,
"type": null,
"value": {
"end": 9372,
"labels": [
"FAC"
],
"start": 9229,
"text": "Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing accounts exhibit 'O' were found lying in the passage forming part of the flat."
}
},
{
"from_name": null,
"id": "46eb348e22234632ab615c6b8255ff16",
"to_name": null,
"type": null,
"value": {
"end": 9390,
"labels": [
"FAC"
],
"start": 9373,
"text": "Bandi exhibit J-2"
}
},
{
"from_name": null,
"id": "ccc94530e9794eb781bbad76ccf7d0ac",
"to_name": null,
"type": null,
"value": {
"end": 9427,
"labels": [
"FAC"
],
"start": 9391,
"text": "was secured from a room of the flat."
}
},
{
"from_name": null,
"id": "b577af0833e24e1e88eddfe5f1f779f6",
"to_name": null,
"type": null,
"value": {
"end": 9573,
"labels": [
"FAC"
],
"start": 9428,
"text": "A search of the person of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the flat, and sheets of accounts exhibit 'S'.\n "
}
},
{
"from_name": null,
"id": "b27432c1d65f487ea12575cb21773177",
"to_name": null,
"type": null,
"value": {
"end": 9753,
"labels": [
"FAC"
],
"start": 9573,
"text": "While the search was going on, accused No. 13 was found peeping from outside through a grille forming part of the flat but started running away on seeing what was happening inside."
}
},
{
"from_name": null,
"id": "bdf3cda1c1ab438d90c842906e81f998",
"to_name": null,
"type": null,
"value": {
"end": 9822,
"labels": [
"FAC"
],
"start": 9754,
"text": "He was chased and captured and two keys were seized from his person."
}
},
{
"from_name": null,
"id": "c587ad617db3465f8313c8cde2df5101",
"to_name": null,
"type": null,
"value": {
"end": 9930,
"labels": [
"FAC"
],
"start": 9823,
"text": "One of them was found to fit the lock on the outer door of the flat and the other to fit the latch therein."
}
},
{
"from_name": null,
"id": "cf172ed86a974c50a9951a4d5fb1e435",
"to_name": null,
"type": null,
"value": {
"end": 9994,
"labels": [
"FAC"
],
"start": 9931,
"text": "He was also found wearing a bandi similar to bandi exhibit J-2."
}
},
{
"from_name": null,
"id": "96000c8ca159402f8d550c6964d844b5",
"to_name": null,
"type": null,
"value": {
"end": 10146,
"labels": [
"FAC"
],
"start": 9995,
"text": "At his instance four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered from underneath the mattress lying on a bed in the flat."
}
},
{
"from_name": null,
"id": "77ad6a8d0e214cb49d9c301412d71e1d",
"to_name": null,
"type": null,
"value": {
"end": 10218,
"labels": [
"FAC"
],
"start": 10146,
"text": "\n Accused Nos. 5 to 7 and 13 were interrogated by the Customs officials."
}
},
{
"from_name": null,
"id": "ad14d1ee731840838722c2b5883fd0fc",
"to_name": null,
"type": null,
"value": {
"end": 10319,
"labels": [
"FAC"
],
"start": 10219,
"text": "The statement of accused No. 13 exhibit Z-383 was recorded by Ayengar on the 15th of September 1966."
}
},
{
"from_name": null,
"id": "7fbfebaf9f3645edb69e43c79ac4da32",
"to_name": null,
"type": null,
"value": {
"end": 10514,
"labels": [
"FAC"
],
"start": 10319,
"text": "\nIn that statement, the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services available to the principal accused named J. K. Shah."
}
},
{
"from_name": null,
"id": "547160d3bb48435b84cc0ec625f06dc1",
"to_name": null,
"type": null,
"value": {
"end": 10789,
"labels": [
"FAC"
],
"start": 10515,
"text": "The long and short of the statement may be summarised thus: One day J. K. Shah called accused No. 13, gave him some cloth and sent him in the company of one Goverdhan Das to have the cloth tailored into bandis of a special type having two wide and long pockets in the front."
}
},
{
"from_name": null,
"id": "424bb08d6f154d8d8b8039098f6cdfc3",
"to_name": null,
"type": null,
"value": {
"end": 10830,
"labels": [
"FAC"
],
"start": 10790,
"text": "The cloth supplied was thick and strong."
}
},
{
"from_name": null,
"id": "0b1fa86362c14296ba8acd0676d93f63",
"to_name": null,
"type": null,
"value": {
"end": 10999,
"labels": [
"FAC"
],
"start": 10831,
"text": "A few days after the bandis were ready, accused No. 13 was taken to the flat in question by his sister's husband, named Natwarlal (accused No. 12) or by accused No. 15."
}
},
{
"from_name": null,
"id": "ac571fc4ab0141c6b8297b71a0401aef",
"to_name": null,
"type": null,
"value": {
"end": 11233,
"labels": [
"FAC"
],
"start": 10999,
"text": "\n Thereafter accused No. 13 visited the flat several times when he would receive bandis containing gold brought from outside and store them in the flat or would remove such bandis from the flat to other places in town."
}
},
{
"from_name": null,
"id": "e73118a478204158a3679dbd9d2d42a6",
"to_name": null,
"type": null,
"value": {
"end": 11276,
"labels": [
"FAC"
],
"start": 11234,
"text": "J. K. Shah had given him keys of the flat."
}
},
{
"from_name": null,
"id": "edb4082d30e24927b052d52ef877399c",
"to_name": null,
"type": null,
"value": {
"end": 11531,
"labels": [
"FAC"
],
"start": 11277,
"text": "Whatever gold was removed by him from the flat, was either deposited by him in a room on the second floor of a building situated in Modi Street or delivered to J. K. Shah in the latter's office on the 3rd floor of building No. 111 situated in Tambakanta."
}
},
{
"from_name": null,
"id": "fa8f2432d0bf4904a39262c6f8fc8771",
"to_name": null,
"type": null,
"value": {
"end": 11668,
"labels": [
"FAC"
],
"start": 11531,
"text": "\n The room in Modi Street had a telephone the number whereof was 262283 and a key of this room was supplied to him by J. K. Shah."
}
},
{
"from_name": null,
"id": "8a2fc36f3a324fd6bec617d2fe394d36",
"to_name": null,
"type": null,
"value": {
"end": 11802,
"labels": [
"FAC"
],
"start": 11669,
"text": "He used to receive orders either from J. K. Shah or from accused No. 15 to go to the flat in Sagar Mandir and receive the gold there."
}
},
{
"from_name": null,
"id": "b3b6edd70f724658817dcf6bf5e8efc9",
"to_name": null,
"type": null,
"value": {
"end": 11871,
"labels": [
"FAC"
],
"start": 11803,
"text": "He received gold in this way on the 12th and 13th of September 1966."
}
},
{
"from_name": null,
"id": "f29095445db242c0a37853a1f6c3bf33",
"to_name": null,
"type": null,
"value": {
"end": 12162,
"labels": [
"FAC"
],
"start": 11872,
"text": "On the day of his capture he was in the room in Modi Street when he received a telephone call from J. K. Shah at 11 or 11.15 A.M. requiring him to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J. K. Shah was to be informed on the telephone."
}
},
{
"from_name": null,
"id": "f6ff5237a510457fb3e6662d54b4b21b",
"to_name": null,
"type": null,
"value": {
"end": 12274,
"labels": [
"FAC"
],
"start": 12163,
"text": "Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong."
}
},
{
"from_name": null,
"id": "f1997d912bb94aa4accb6ab8d18d57bc",
"to_name": null,
"type": null,
"value": {
"end": 12330,
"labels": [
"FAC"
],
"start": 12275,
"text": "For that purpose he looked through a broken ventilator."
}
},
{
"from_name": null,
"id": "a53a13ea249345468deeb835bc3dcde8",
"to_name": null,
"type": null,
"value": {
"end": 12438,
"labels": [
"FAC"
],
"start": 12331,
"text": "While he was coming towards the road on the beach nearby he was detained and was taken inside the building."
}
},
{
"from_name": null,
"id": "4cc698ca96504e54be2cd97c17364b02",
"to_name": null,
"type": null,
"value": {
"end": 12623,
"labels": [
"FAC"
],
"start": 12438,
"text": "\n While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir."
}
},
{
"from_name": null,
"id": "895a4599fd6c4760b4ecd37e2f43b218",
"to_name": null,
"type": null,
"value": {
"end": 12918,
"labels": [
"ANALYSIS"
],
"start": 12633,
"text": "4. The evidence relied upon by the prosecution against accused No. 13 may be split up under the following heads: (a) He was seen visiting the flat in Sagar Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who were watching the premises under the orders of Mugwe."
}
},
{
"from_name": null,
"id": "4fdd322480da4d8b82142453d9f36218",
"to_name": null,
"type": null,
"value": {
"end": 13031,
"labels": [
"ANALYSIS"
],
"start": 12918,
"text": "\n (b) He was peeping into flat No. 13 between 11 A.M. and 12 noon on the 14th of September 1966."
}
},
{
"from_name": null,
"id": "57a9b376e84d49758be824715823899f",
"to_name": null,
"type": null,
"value": {
"end": 13169,
"labels": [
"ANALYSIS"
],
"start": 13031,
"text": "\n (c) When he found that the flat was under search by officers belonging to the Customs Department, he tried to run away."
}
},
{
"from_name": null,
"id": "52704b1f19a04197876116830d96577b",
"to_name": null,
"type": null,
"value": {
"end": 13257,
"labels": [
"ANALYSIS"
],
"start": 13169,
"text": "\n (d) He was found in possession of keys fitting the locks of the flat."
}
},
{
"from_name": null,
"id": "d8b7f305a10647c8a68c75c36f1453de",
"to_name": null,
"type": null,
"value": {
"end": 13279,
"labels": [
"ANALYSIS"
],
"start": 13257,
"text": "\n (e)"
}
},
{
"from_name": null,
"id": "f5a7d1bf7a804afb8677002ff12bdaa3",
"to_name": null,
"type": null,
"value": {
"end": 13407,
"labels": [
"ANALYSIS"
],
"start": 13280,
"text": "He was wearing a bandi similar to bandi exhibit J-2 which is a special type of bandi suitable for carrying gold slabs secretly."
}
},
{
"from_name": null,
"id": "9d5367edbdbb4d7a8e815226b6cedaa8",
"to_name": null,
"type": null,
"value": {
"end": 13526,
"labels": [
"ANALYSIS"
],
"start": 13407,
"text": "\n (f) 4 slabs of gold and 10 gold bangles were recovered from underneath the mattress at his instance."
}
},
{
"from_name": null,
"id": "52972302ca834afc878053ffb60be43b",
"to_name": null,
"type": null,
"value": {
"end": 13619,
"labels": [
"ANALYSIS"
],
"start": 13526,
"text": "\n (g) The confession made by him and contained in statement exhibit Z-383.\n "
}
},
{
"from_name": null,
"id": "35a27413f1934e8aa90880a4772d7753",
"to_name": null,
"type": null,
"value": {
"end": 13771,
"labels": [
"RLC"
],
"start": 13619,
"text": "The learned trial Magistrate found all the above heads to have been established and that is why he convicted and sentenced accused No. 13 on two counts."
}
},
{
"from_name": null,
"id": "ebb2739a3b894d17915bd9412e2b4928",
"to_name": null,
"type": null,
"value": {
"end": 13842,
"labels": [
"RLC"
],
"start": 13772,
"text": "The High Court took a different view in relation to heads (a) and (f)."
}
},
{
"from_name": null,
"id": "48b52e24433c48c1b86fad0ef16e29bb",
"to_name": null,
"type": null,
"value": {
"end": 14206,
"labels": [
"RLC"
],
"start": 13843,
"text": "It was of the opinion that the identification of accused No. 13 by the Customs officials on the 8th, 9th and 13th of September 1966 could not safely be relied upon as they had seen people coming into and going out the Sagar Mandir only from a distance and for very short periods of time so that their view of such people could possibly be mere \"fleeting glances\"."
}
},
{
"from_name": null,
"id": "228af527ad194212bb55c472d4b7b301",
"to_name": null,
"type": null,
"value": {
"end": 14495,
"labels": [
"RLC"
],
"start": 14207,
"text": "It further held the alleged recovery of four gold slabs and 10 gold bangles to be unreliable as the marginal witness to the recovery memo who was produced in court by the prosecution did not support it and stated that he had not seen accused No. 13 pointing out the slabs and the bangles."
}
},
{
"from_name": null,
"id": "82e4da25aeee49b6849c8e58a4ddb47a",
"to_name": null,
"type": null,
"value": {
"end": 14646,
"labels": [
"RLC"
],
"start": 14496,
"text": "The High Court concluded therefore that the charge under clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act was not sustainable."
}
},
{
"from_name": null,
"id": "f88851f689d240cdb836e22a944b3fa6",
"to_name": null,
"type": null,
"value": {
"end": 14849,
"labels": [
"RLC"
],
"start": 14647,
"text": "However it found the other heads of evidence proved and on the basis thereof upheld the conviction and sentence in relation to the charge of conspiracy to commit the other offences just above described."
}
},
{
"from_name": null,
"id": "dfa6e92253564956903a7f1ef5133d0b",
"to_name": null,
"type": null,
"value": {
"end": 15008,
"labels": [
"ANALYSIS"
],
"start": 14849,
"text": "\n 5. After hearing learned counsel for the parties at length we find ourselves unable to uphold the impugned judgment in so far as accused No. 13 is concerned."
}
},
{
"from_name": null,
"id": "f3b517f296e94775aaa54063d8c2b7f0",
"to_name": null,
"type": null,
"value": {
"end": 15313,
"labels": [
"ANALYSIS"
],
"start": 15009,
"text": "The circumstances that he was found peeping into the flat, that he tried to run away on seeing the Customs officials searching the premises, that he was in possession of duplicate keys of the flat and that he was found wearing a bandi similar to bandi exhibit J-2 are not incompatible with his innocence."
}
},
{
"from_name": null,
"id": "822f1dc6fe8b4ea092a76d1e67b4d3d6",
"to_name": null,
"type": null,
"value": {
"end": 15527,
"labels": [
"ANALYSIS"
],
"start": 15314,
"text": "He was a close relation of accused No. 12 who has been found to the person really incharge of the flat and it would thus be natural for him (accused No. 13) to share the flat with the permission of accused No. 12."
}
},
{
"from_name": null,
"id": "abea04708b9744398e4eea8f2b5530a9",
"to_name": null,
"type": null,
"value": {
"end": 15700,
"labels": [
"ANALYSIS"
],
"start": 15528,
"text": "In so living with his brother-in-law he may have been given to wear the bandi found on his person not for the purpose of carrying gold but just for use as ordinary raiment."
}
},
{
"from_name": null,
"id": "0601c8bdd2f64453a9064f38df8960bd",
"to_name": null,
"type": null,
"value": {
"end": 15895,
"labels": [
"ANALYSIS"
],
"start": 15701,
"text": "Again, in a city like Bombay it is not unusual for persons sharing a particular accommodation to be provided with separate sets of keys for each in order to facilitate ingress or egress at will."
}
},
{
"from_name": null,
"id": "4edffa92b08a49dd892e08fb1895433b",
"to_name": null,
"type": null,
"value": {
"end": 16145,
"labels": [
"ANALYSIS"
],
"start": 15896,
"text": "Further, an innocent man finding his premises being watched by persons in authority may well feel funky at the prospect of a false implication on the basis of a mere suspicion (which may or may not be well-founded and may try to make himself scarce."
}
},
{
"from_name": null,
"id": "64424b1fb17e4d9ca661ae37385a8898",
"to_name": null,
"type": null,
"value": {
"end": 16280,
"labels": [
"ANALYSIS"
],
"start": 16146,
"text": "Without more, the circumstances covered by heads (b), (c), (d), and (e), therefore, cannot be regarded as incriminating circumstances."
}
},
{
"from_name": null,
"id": "1dcf1545be794206accaa2d2c816dc44",
"to_name": null,
"type": null,
"value": {
"end": 16358,
"labels": [
"ANALYSIS"
],
"start": 16281,
"text": "So the conviction really rests on the confession attributed to the appellant."
}
},
{
"from_name": null,
"id": "7cf0e9aaff024ade823cea65269484a9",
"to_name": null,
"type": null,
"value": {
"end": 16480,
"labels": [
"ANALYSIS"
],
"start": 16359,
"text": "If it is found to be voluntary and true it may receive some support from the four heads of evidence just above described."
}
},
{
"from_name": null,
"id": "46ce089dfa9e41a58520dd4ff3b81f1a",
"to_name": null,
"type": null,
"value": {
"end": 16794,
"labels": [
"ANALYSIS"
],
"start": 16481,
"text": "If, on the other hand, the confession appears to be either untrue in any material particular or having been caused by any inducement, threat or promise such as is described in section 24 of the Evidence Act, it must fall and with it fall the other heads of evidence, leaving no material to support the conviction."
}
},
{
"from_name": null,
"id": "3923d5acea824c69afbc7b0b75302124",
"to_name": null,
"type": null,
"value": {
"end": 16988,
"labels": [
"ANALYSIS"
],
"start": 16795,
"text": "As it is, we find that the appellant has been able to prove the existence of circumstances which make it highly probable that his confession is hit by the mandate in section 24 above mentioned."
}
},
{
"from_name": null,
"id": "b0568fe242fa431f842f874b10823ac4",
"to_name": null,
"type": null,
"value": {
"end": 17038,
"labels": [
"ANALYSIS"
],
"start": 16989,
"text": "Our reasons for coming to this conclusion follow."
}
},
{
"from_name": null,
"id": "2593aa25a2e741938f6cb9be920d48e5",
"to_name": null,
"type": null,
"value": {
"end": 17446,
"labels": [
"ANALYSIS"
],
"start": 17038,
"text": "\n 6. The case set up by accused No. 13 in so far as his confession is concerned, mainly consists of a plea that it was the result of an assault on him by the Customs officers including Ayengar and Sevalia and that the latter had forced him into making an endorsement in his own hand-writing under the confessional statement to the effect that statement was voluntary and had been explained to him by Sevalia."
}
},
{
"from_name": null,
"id": "04153130e2e0415697b5e1e46f2cc318",
"to_name": null,
"type": null,
"value": {
"end": 17769,
"labels": [
"ANALYSIS"
],
"start": 17446,
"text": "\nNaturally, the story of the assault has been stoutly denied by Ayengar and Sevalia; but then the circumstances prevailing at the relevant time in the Customs House where the statement was recorded definitely indicate that all was not well with the manner in which the interrogation of various accused was being carried on."
}
},
{
"from_name": null,
"id": "640f381d09ed48f5881cec53801e4eec",
"to_name": null,
"type": null,
"value": {
"end": 18086,
"labels": [
"ANALYSIS"
],
"start": 17770,
"text": "In this connection the outstanding feature of the situation is the fact that accused No. 15 when examined by Dr. S. R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M. was found to have on his person seven injuries which the doctor has described thus: \"(1) Ecchymosis below right eye, outer part, 1/2\"x1/3\"."
}
},
{
"from_name": null,
"id": "dd86c233972c4e0d9a7713944e319f40",
"to_name": null,
"type": null,
"value": {
"end": 18103,
"labels": [
"ANALYSIS"
],
"start": 18087,
"text": "blackish colour."
}
},
{
"from_name": null,
"id": "65d6503e10d04dd9892dcfdddfe5df1c",
"to_name": null,
"type": null,
"value": {
"end": 18197,
"labels": [
"ANALYSIS"
],
"start": 18103,
"text": "\n (2) Ecchymosis below left eye, middle, 1/4\"X1/4\"\n blackish colour."
}
},
{
"from_name": null,
"id": "323fc8c1aaab43a386e529afb49002e0",
"to_name": null,
"type": null,
"value": {
"end": 18264,
"labels": [
"ANALYSIS"
],
"start": 18197,
"text": "\n (3) diffused contused area, 21/2\"X3\", on right thigh, upper part."
}
},
{
"from_name": null,
"id": "e3c4b70e1b114e7c87e90204a6ae04ae",
"to_name": null,
"type": null,
"value": {
"end": 18344,
"labels": [
"ANALYSIS"
],
"start": 18264,
"text": "\n (4) Contused area on right buttock, 3\" x 2\", lower part, wheal (?) marks seen."
}
},
{
"from_name": null,
"id": "22074e594ed047ecae10c822c5d3230e",
"to_name": null,
"type": null,
"value": {
"end": 18450,
"labels": [
"ANALYSIS"
],
"start": 18344,
"text": "\n (5) diffused contused area on left thigh, back and outer part, 5\" X 2\", wheal (?) marks seen transverse."
}
},
{
"from_name": null,
"id": "a06d62bf6d57498c85ccd0056e3df811",
"to_name": null,
"type": null,
"value": {
"end": 18521,
"labels": [
"ANALYSIS"
],
"start": 18450,
"text": "\n (6) Transverse wheal (?) marks on back of left knee."
}
},
{
"from_name": null,
"id": "0fb88ae1e0b8421e846fb22c6fced1fd",
"to_name": null,
"type": null,
"value": {
"end": 18587,
"labels": [
"ANALYSIS"
],
"start": 18521,
"text": "\n (7) Contused area on back of left leg, 2\" X 1\"."
}
},
{
"from_name": null,
"id": "f3f4afe7c02f47919bb768aed445cc86",
"to_name": null,
"type": null,
"value": {
"end": 18683,
"labels": [
"ANALYSIS"
],
"start": 18589,
"text": "According to the doctor, these injuries appeared to have been caused two to four days earlier."
}
},
{
"from_name": null,
"id": "8ab8f14782704160b4aec7576fe14947",
"to_name": null,
"type": null,
"value": {
"end": 18774,
"labels": [
"ANALYSIS"
],
"start": 18684,
"text": "Admittedly accused No. 15 was apprehended by the Customs staff on the 14th September 1966."
}
},
{
"from_name": null,
"id": "dc8620c7f276480787439da36f5fb40d",
"to_name": null,
"type": null,
"value": {
"end": 18997,
"labels": [
"ANALYSIS"
],
"start": 18775,
"text": "No explanation whatsoever is offered for his injuries by the prosecution but the stand taken by accused No. 15 himself in this behalf may be stated in his own words \"At that time, there were six Customs Officers around me."
}
},
{
"from_name": null,
"id": "b6ae9cba3dd849948b375e174e05f118",
"to_name": null,
"type": null,
"value": {
"end": 19043,
"labels": [
"ANALYSIS"
],
"start": 18998,
"text": "In the gallery, I was again shown the 4 keys."
}
},
{
"from_name": null,
"id": "9facfe12d2cf466bbb59826cc3249317",
"to_name": null,
"type": null,
"value": {
"end": 19119,
"labels": [
"ANALYSIS"
],
"start": 19044,
"text": "I was again asked about the said keys and I had again given the same reply."
}
},
{
"from_name": null,
"id": "8a632bef7bd349eeb61ecfe2cd96d162",
"to_name": null,
"type": null,
"value": {
"end": 19214,
"labels": [
"ANALYSIS"
],
"start": 19120,
"text": "The said officers on hearing this, get enraged and began to say that I was stating falsehoods."
}
},
{
"from_name": null,
"id": "fec4ff674048442cb7588429ccb3b62e",
"to_name": null,
"type": null,
"value": {
"end": 19272,
"labels": [
"ANALYSIS"
],
"start": 19215,
"text": "One of the officers then asked me to take out my clothes."
}
},
{
"from_name": null,
"id": "9e81b0fe46724cc79e4e77de0071fceb",
"to_name": null,
"type": null,
"value": {
"end": 19345,
"labels": [
"ANALYSIS"
],
"start": 19273,
"text": "I had then worn one under wear and a pant and one bush-coat and a ganji."
}
},
{
"from_name": null,
"id": "b359c8b56b7444b6a4cb0cf80915880a",
"to_name": null,
"type": null,
"value": {
"end": 19466,
"labels": [
"ANALYSIS"
],
"start": 19346,
"text": "I was then asked to remove my pant as well as my underwear by the said officer and I did so accordingly against my will."
}
},
{
"from_name": null,
"id": "651351c7eccc48df85506f4276954b64",
"to_name": null,
"type": null,
"value": {
"end": 19541,
"labels": [
"ANALYSIS"
],
"start": 19466,
"text": "\n That officer then ordered me to sit in the position of \"a chair\"."
}
},
{
"from_name": null,
"id": "7280ec58de934b4ab542cbcd6f326f2b",
"to_name": null,
"type": null,
"value": {
"end": 19623,
"labels": [
"ANALYSIS"
],
"start": 19542,
"text": "I was so asked to sit like a chair without the support of a wall even to my back."
}
},
{
"from_name": null,
"id": "258afc45a98b48ec8701422ffe48cdde",
"to_name": null,
"type": null,
"value": {
"end": 19683,
"labels": [
"ANALYSIS"
],
"start": 19624,
"text": "The six officers were then standing around me at that time."
}
},
{
"from_name": null,
"id": "d2adde88852b4a7caa55cabc8f5f51a3",
"to_name": null,
"type": null,
"value": {
"end": 19771,
"labels": [
"ANALYSIS"
],
"start": 19684,
"text": "After making me to sit in that chair position they began to ask me about the said keys."
}
},
{
"from_name": null,
"id": "7105ab3613a2440eab05dea5a823a51a",
"to_name": null,
"type": null,
"value": {
"end": 19825,
"labels": [
"ANALYSIS"
],
"start": 19772,
"text": "I had again given the same reply about the said keys."
}
},
{
"from_name": null,
"id": "3a32b3733fe5459285b9bdd91eace34a",
"to_name": null,
"type": null,
"value": {
"end": 19933,
"labels": [
"ANALYSIS"
],
"start": 19826,
"text": "If I moved a little from the position of a chair given to me, I was kicked by all the officers immediately."
}
},
{
"from_name": null,
"id": "d70ddbe4d5054aae9693fa9770896327",
"to_name": null,
"type": null,
"value": {
"end": 19985,
"labels": [
"ANALYSIS"
],
"start": 19934,
"text": "I was able to sit in that position for 4-5 minutes."
}
},
{
"from_name": null,
"id": "8576dc116bce4518b344cb0d1a98cefb",
"to_name": null,
"type": null,
"value": {
"end": 20017,
"labels": [
"ANALYSIS"
],
"start": 19986,
"text": "I used to fall down thereafter."
}
},
{
"from_name": null,
"id": "223f0118cc604d48b0af2f39de4da7f6",
"to_name": null,
"type": null,
"value": {
"end": 20106,
"labels": [
"ANALYSIS"
],
"start": 20018,
"text": "I used to be kicked therefor, made to stand again and asked to resume the same position."
}
},
{
"from_name": null,
"id": "e5509c4bbe9b42b1a743c18fb850b7fe",
"to_name": null,
"type": null,
"value": {
"end": 20227,
"labels": [
"ANALYSIS"
],
"start": 20107,
"text": "In this way, I had fallen and had been assaulted again and again by the said officers for about an hour or so.\n "
}
},
{
"from_name": null,
"id": "68a631f3aec74a0ba7355fe5333a9ee7",
"to_name": null,
"type": null,
"value": {
"end": 20401,
"labels": [
"ANALYSIS"
],
"start": 20227,
"text": "While I was so being questioned and made to sit in that position again and again, one of the officers had gone out and had returned with a ruler in hand having a round shape."
}
},
{
"from_name": null,
"id": "813a18d3c37b41e2bc614047e0b9a4eb",
"to_name": null,
"type": null,
"value": {
"end": 20557,
"labels": [
"ANALYSIS"
],
"start": 20402,
"text": "As I was made to sit in that position of a chair, I often used to move therefrom, the officers immediately used to assault me and I used to get up thereby."
}
},
{
"from_name": null,
"id": "8f283c82dd7046ff96361afddbcd8e70",
"to_name": null,
"type": null,
"value": {
"end": 20710,
"labels": [
"ANALYSIS"
],
"start": 20558,
"text": "Out of the Custom Officers the officer who had the ruler in his hand used to assault me therewith, and the other officers used to assault me with kicks."
}
},
{
"from_name": null,
"id": "0dc72ad77c9c4f879c226c57b8d6fffb",
"to_name": null,
"type": null,
"value": {
"end": 20902,
"labels": [
"ANALYSIS"
],
"start": 20711,
"text": "I had been assaulted with that ruler on my left buttock, on my right buttock, on the back portion of the calf of my left, leg, on my right thigh, on the backside of my both legs etc. "
}
},
{
"from_name": null,
"id": "3bf9471692064f4697867846a6f4787c",
"to_name": null,
"type": null,
"value": {
"end": 21030,
"labels": [
"ANALYSIS"
],
"start": 20902,
"text": "I had received injuries at all these places stated by me above and as a result of this assault on me, I could not even stand up."
}
},
{
"from_name": null,
"id": "da56ea20afdb4497b3bac0e5cc0f1a23",
"to_name": null,
"type": null,
"value": {
"end": 21220,
"labels": [
"ANALYSIS"
],
"start": 21031,
"text": "Throughout the assault; I was being questioned again and again about the said keys by all the said officers and at every time I was stating that I did not know anything more about the same."
}
},
{
"from_name": null,
"id": "8cfab11eb8dc486b80c449458ff8b8bd",
"to_name": null,
"type": null,
"value": {
"end": 21296,
"labels": [
"ANALYSIS"
],
"start": 21221,
"text": "Thereafter I had fallen down on the ground with my face towards the ground."
}
},
{
"from_name": null,
"id": "8eeadd2e8ece4274b8f4934c5c1b898f",
"to_name": null,
"type": null,
"value": {
"end": 21349,
"labels": [
"ANALYSIS"
],
"start": 21297,
"text": "All the said six officers then went away.\"\n "
}
},
{
"from_name": null,
"id": "8b84adf32f2246d1ad677b93064eeca7",
"to_name": null,
"type": null,
"value": {
"end": 21871,
"labels": [
"ANALYSIS"
],
"start": 21349,
"text": "This stand may not be devoid of exaggeration and embellishment but it receives great support from the testimony of Dr. Joglekar (D.W.I.) so that the probability appears to be that accused No. 15 received his injuries at the hands of the Customs staff and there being no explanation on the part of prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken by him is correct and that the injuries were inflicted on him as a measure of coercion adopted to secure his confession."
}
},
{
"from_name": null,
"id": "776eb9300b8f4125853947039a47384f",
"to_name": null,
"type": null,
"value": {
"end": 22144,
"labels": [
"ANALYSIS"
],
"start": 21871,
"text": "\n In coming to a contrary conclusion, the High Court was mainly influenced by the fact that although accused No. 15 had filed a complaint in court against the concerned officers of the Department of Customs, he did not prosecute it but had it dismissed for default."
}
},
{
"from_name": null,
"id": "369b4bd8c66242b899eaa711b000b02b",
"to_name": null,
"type": null,
"value": {
"end": 22329,
"labels": [
"ANALYSIS"
],
"start": 22145,
"text": "The High Court observed in this connection: \"The only explanation for this unusual attitude offered by him to the Court is that he was afraid of vindicative attitude from the officers."
}
},
{
"from_name": null,
"id": "de37147b2598453ba38b2e9857e06d19",
"to_name": null,
"type": null,
"value": {
"end": 22477,
"labels": [
"ANALYSIS"
],
"start": 22330,
"text": "We have not been able to conceive how officers could have adopted any vindicative attitude, when accused No. 15 was not concerned with any offence."
}
},
{
"from_name": null,
"id": "69dcafdfc5cb40719a019d02ff0aaef8",
"to_name": null,
"type": null,
"value": {
"end": 22614,
"labels": [
"ANALYSIS"
],
"start": 22478,
"text": "Be that as it may, the fact remains that the complaint was not prosecuted and the evidence was recorded behind the back of the officers."
}
},
{
"from_name": null,
"id": "7309acde162b4b519f670db5bb616d88",
"to_name": null,
"type": null,
"value": {
"end": 22826,
"labels": [
"ANALYSIS"
],
"start": 22614,
"text": "\n It is not possible to hold on the present material that assaulting by the officers was for the purposes of extorting some confession and such assault alone was the cause of the injuries received by him."
}
},
{
"from_name": null,
"id": "75a0bcc9257a44208820d8ee729c7051",
"to_name": null,
"type": null,
"value": {
"end": 23129,
"labels": [
"ANALYSIS"
],
"start": 22827,
"text": "Beyond, therefore, creating a fog of suspicion, the injuries proved to have been caused to accused No. 15, cannot indicate that all the accused were subjected to torture, assault and pressure for giving statements to the liking of officers or compelling them to sign the prepared statements.\"\n "
}
},
{
"from_name": null,
"id": "9ab009b9e286407e8d46e7dd97980155",
"to_name": null,
"type": null,
"value": {
"end": 23245,
"labels": [
"ANALYSIS"
],
"start": 23129,
"text": "We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No. 15."
}
},
{
"from_name": null,
"id": "7dcea0473c8f49568fd42c79ec9623c0",
"to_name": null,
"type": null,
"value": {
"end": 23408,
"labels": [
"ANALYSIS"
],
"start": 23245,
"text": "\nAs we have already pointed out, the time of infliction of injuries coincided with the day on which accused No. 15 was apprehended and his confession was recorded."
}
},
{
"from_name": null,
"id": "4275621c011f4b23876b842f1201af1c",
"to_name": null,
"type": null,
"value": {
"end": 23717,
"labels": [
"ANALYSIS"
],
"start": 23409,
"text": "In this situation it was the imperative duty of theprosecution to explain the circumstances in which it became necessary for force to be used by the Customs staff on the person of accused No. 15 and in the absence of any such explanation there is no reason why his plea should not be taken at its face value."
}
},
{
"from_name": null,
"id": "f64f6f9e4b9a470b97bbc049092ed24b",
"to_name": null,
"type": null,
"value": {
"end": 23729,
"labels": [
"ANALYSIS"
],
"start": 23717,
"text": "\n 7."
}
},
{
"from_name": null,
"id": "c740e4b4a7074b96a8cf9c05ad177a12",
"to_name": null,
"type": null,
"value": {
"end": 24134,
"labels": [
"ANALYSIS"
],
"start": 23730,
"text": "We are of course not directly concerned with the voluntary nature of the confession of accused No. 15 in this appeal but the circumstances discussed in the last paragraph indicate that the Custom of officials did not stick to ethical standards in the performance of their duties and, on the other hand, exhibited such a zeal in bringing the captives to book as transgressed the limits set thereon by law."
}
},
{
"from_name": null,
"id": "367b0b88917642fe90fa69cfb705c414",
"to_name": null,
"type": null,
"value": {
"end": 24343,
"labels": [
"ANALYSIS"
],
"start": 24135,
"text": "We have already alluded to the fact that the High Court itself did not regard the recovery of four gold slabs and 10 gold bangles alleged to have been made at the instance of accused No. 13 to be trustworthy."
}
},
{
"from_name": null,
"id": "754f37c276cd4928964b97806f28f694",
"to_name": null,
"type": null,
"value": {
"end": 24569,
"labels": [
"ANALYSIS"
],
"start": 24344,
"text": "Besides, the plea of accused No. 13 that he was coerced into making the confession was taken at the earliest opportunity, i.e., on the 20th of September 1966 which was the day next to that of his release from custody on bail."
}
},
{
"from_name": null,
"id": "67b3ab9065ec4c80b3e66bad2ecfe75b",
"to_name": null,
"type": null,
"value": {
"end": 24785,
"labels": [
"ANALYSIS"
],
"start": 24570,
"text": "That plea is contained in letter exhibit 29 addressed by him on that date to the Additional Collector of Customs, Bombay, which contained the following averments:- \"From the 14th instant at 12 noon till about 3 p.m."
}
},
{
"from_name": null,
"id": "a62e73259dc5444c80d9724626eb8a18",
"to_name": null,
"type": null,
"value": {
"end": 25053,
"labels": [
"ANALYSIS"
],
"start": 24786,
"text": "I was locked up along in one room with some Customs Officers who continuously interrogated me, threatened and physically assaulted me to make and sign a statement prepared by them after ascertaining a few personal questions from me pertaining to my family and myself."
}
},
{
"from_name": null,
"id": "df26b6151642454bb70147ccc5e1c746",
"to_name": null,
"type": null,
"value": {
"end": 25160,
"labels": [
"ANALYSIS"
],
"start": 25054,
"text": "I was not allowed to sleep during the entire night of the 14th/15th and was not allowed to see any person."
}
},
{
"from_name": null,
"id": "a951d7d4af98493fb77ef1461875073d",
"to_name": null,
"type": null,
"value": {
"end": 25332,
"labels": [
"ANALYSIS"
],
"start": 25161,
"text": "The statement was written out by the officers themselves in English language and it was not explained to me and my signature was obtained which I have signed in Gujarathi."
}
},
{
"from_name": null,
"id": "04edecd1c49943c0a145afb93cf23bea",
"to_name": null,
"type": null,
"value": {
"end": 25492,
"labels": [
"ANALYSIS"
],
"start": 25333,
"text": "As a result of this threat, coercion and complete exhaustion, I had no alternative but to sign the statement after which only I was allowed to rest.\"\n "
}
},
{
"from_name": null,
"id": "d35b1c845e904c6e8bef3647511740e6",
"to_name": null,
"type": null,
"value": {
"end": 25693,
"labels": [
"ANALYSIS"
],
"start": 25492,
"text": "Taking note of these circumstances we would consider it extremely unsafe to regard the confession exhibit Z-383 signed by the appellant as having been made by him voluntarily and therefore trustworthy."
}
},
{
"from_name": null,
"id": "a1f48d333e9749b389b185a462bc2d60",
"to_name": null,
"type": null,
"value": {
"end": 26098,
"labels": [
"RATIO"
],
"start": 25694,
"text": "The appellant, in our opinion, has shown the existence of circumstances which make it appear to the Court that the confession may well have been obtained in a manner which would bring it within the ambitof section 24 of the Evidence Act, it being undisputed that the concerned officers of the Department of Customs were \"persons in authority\" within the meaning of that expression as used in the section."
}
},
{
"from_name": null,
"id": "4212659721af4c9cb30a3df38867eb4f",
"to_name": null,
"type": null,
"value": {
"end": 26153,
"labels": [
"RPC"
],
"start": 26098,
"text": "\n 8. In the result the appeal succeeds and is accepted."
}
},
{
"from_name": null,
"id": "cb47ee4290e54e5b96c39ddfdaf1e3c5",
"to_name": null,
"type": null,
"value": {
"end": 26400,
"labels": [
"RPC"
],
"start": 26153,
"text": "\n The judgment of the High Court is reversed, the conviction recorded against and the sentence imposed upon the appellant by the learned trial Magistrate and upheld by the High Court are set aside and he is acquitted of the charge in its entirety."
}
},
{
"from_name": null,
"id": "6596646e7d164fe3a944a712969f3166",
"to_name": null,
"type": null,
"value": {
"end": 26423,
"labels": [
"NONE"
],
"start": 26400,
"text": "\n N.V.K. "
}
},
{
"from_name": null,
"id": "41a1b6d45c36465c80be49667ee38c8c",
"to_name": null,
"type": null,
"value": {
"end": 26438,
"labels": [
"NONE"
],
"start": 26423,
"text": "Appeal allowed."
}
}
]
}
] | 4,269 | {
"text": "PETITIONER:\nSEVANTILAL KARSONDAS MODI\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA & ANOTHER\n\nDATE OF JUDGMENT30/01/1979\n\nBENCH:\nKOSHAL, A.D.\nBENCH:\nKOSHAL, A.D.\nFAZALALI, SYED MURTAZA\n\nCITATION: 1979 SCR (2)1160\n 1979 AIR 705\n 1979 SCC (2) 58\n\nACT:\n Evidence Act 1972 (1 of 1872)-S. 24-Accused alleged\n\nthat he was assaulted by Customs Officials-No direct\nevidence available-Surrounding circumstances-If could be\ntaken into account-Customs Officials whether person in\nauthority-Confession made to customs officials if admissible\nin evidence.\n\nHEADNOTE:\n On receipt of information that smuggled gold was stored\n\nin it, a large number of senior officials of the Customs\nDepartment surrounded the flat belonging to the brother-in-\nlaw of the appellant and started searching it. According to\nthe prosecution, while the search was on, the appellant was\nfound peeping from outside through the grille forming part\nof the flat, and started running away, on seeing that the\nsearch was being carried on in the flat. He was chased by\nthe Customs Staff and caught. Later his confession was\nrecorded. Along with the appellant several other persons had\nalso been tried for the same offence. The trial court\nconvicted and sentenced the appellant of an offence under s.\n120B IPC read with s. 135(1)(a) of the Customs Act.\n\n On appeal the High Court found that the charge under s.\n135(1)(a) and (b) of the Customs Act was not sustainable but\nholding that the offence under other heads was proved, it\nupheld the appellant's conviction and sentence.\n\n It was contended on behalf of the appellant that the\nconfession was the result of an assault on him by the\nCustoms Officials, which not being voluntary was\ninadmissible in evidence under s. 24 of the Evidence Act.\n\n Allowing the appeal.\n^\n\n HELD: 1. (i) It is unsafe to regard the appellant's\nconfession as voluntary and therefore trustworthy. The\nconcerned Customs Officials were \"persons in authority\"\nwithin the meaning of that expression used in s. 24 of the\nEvidence Act. The confession may well have been obtained in\na manner which would bring it within the ambit of s. 24 of\nthe Evidence Act. The appellant has been able to prove the\nexistence of circumstances which make it highly probable\nthat his confession is hit by the mandate in section 24.\n[1169H-1170A, 1166C]\n\n (ii) Although there is no direct evidence that force\nwas used on the appellant to extract a confession the\nsurrounding circumstances prevalent at the relevant time in\nthe Customs House where the statement was recorded indicate\nthat all was not well with the manner in which the\ninterrogation of various accused was being carried on. They\nindicate that the Customs Officials did not stick to ethical\nstandards in the performance of their duties and exhibited\nmuch zeal in bringing the captives to book and had\ntransgressed the limit set by law. [1166E, 1169B]\n\n (iii) One of the accused in this case was found to have\nseven injuries on his person. The stand of that accused that\nhe was coerced into making a confession, received support\nfrom the testimony of the doctor who examinedhim so that the probability appears to be that the accused\nreceived his injuries on the hands of the Customs staff. In\nthe absence of an explanation of the prosecution as to the\nsituation in which he was beaten, it is reasonable to\npresume that the stand taken by him was correct and that the\ninjuries were inflicted as a measure of coercion adopted to\nsecure his confession. Taking these circumstances into\nconsideration, it is unsafe to regard the appellants\nconfession too as voluntary.[1166F, 1168C, 1169G]\n\n Besides, the plea that he had been coerced into making\nthe confession was taken at the earliest opportunity i.e. on\nthe day following his release from custody on bail. [1169D]\n\n 2. Being a close relation of the owner of the flat, the\nappellant was perhaps sharing the flat with him and so had\nduplicate set of keys; his brother-in-law might have given\nthe Bandi found on the appellant not for the purpose of\ncarrying the gold but just for use as an ordinary raiment.\nIt is also possible that the appellant became nervous, that\nhe thought that he would be implicated in the crime and\ntherefore, might have started running away on seeing the\nCustoms Officers in the house. Therefore, these factors on\nwhich the High Court relied for sustaining his conviction\ncannot be regarded as incriminating circumstances. [1165F-\n1166A]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 196 of 1973.\n Appeal by Special Leave from the Judgment and Order dated 7-8-1973 of the Bombay High Court in Criminal Appeal No. 222 of 1970.\n S. B. Bhasme, P. G. Gokhale and B. R. Agarwala for the Appellant.\n M. K. Ramamurthi, M. N. Shroff, Mrs. Hemanlaika Wahi for the Respondent No. 1.\n R. N. Sachthey for Respondent No. 2.\n The Judgment of the Court was delivered by KOSHAL, J.-This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Sevantilal Karsondas Modi (the sole appellant before us) for an offence under section 120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act 1962, and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay.\n 2. The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended. The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under section494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them. Charges were framed by him on 10 counts against the other 20 accused who were tried in consequence. At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence. Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment. All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be the appellant before us. He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence, under clauses (a) and (b) of sub- section (1) of section 135 of the Customs Act and sentenced to rigorous imprisonment for six months in consequence. His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court.\n 3. The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated. V. K.\nAsthana, (P.W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as 'Asthana', received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called 'Shivaji Park' was being used for storage of smuggled gold and disbursement thereof to its purchasers. After the flat had been kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises. The raiding party which consisted of senior Customs officers, took positions in the vicinity of Sagar Mandir on the morning of 14th September 1966. They included B.M. Sevalia, Preventive Officer, Bombay Customs (P.W. 7 and hereinafter referred to as 'Sevalia'), G. N. Alreja, Preventive Officer, Bombay Customs (P.W. 34 and hereinafter mentioned as 'Alreja), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P.W. 144 and hereinafter called 'Ayengar') and D.G. Mugwe, Principal Appraiser in the said Directorate (P.W. 152 and hereinafter referred to as 'Mugwe'). Sevalia was deputed to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects. At about 8.50 A.M., accused No. 12 was seen entering the flat and Sevlalia alerted the other members of the raiding party by giving the agreed signal.\nHalf an hour later, a car stopped at the entrance to the compound of the building andaccused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance. He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside the flat. The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each. All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives. Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing accounts exhibit 'O' were found lying in the passage forming part of the flat. Bandi exhibit J-2 was secured from a room of the flat. A search of the person of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the flat, and sheets of accounts exhibit 'S'.\n While the search was going on, accused No. 13 was found peeping from outside through a grille forming part of the flat but started running away on seeing what was happening inside. He was chased and captured and two keys were seized from his person. One of them was found to fit the lock on the outer door of the flat and the other to fit the latch therein. He was also found wearing a bandi similar to bandi exhibit J-2. At his instance four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered from underneath the mattress lying on a bed in the flat.\n Accused Nos. 5 to 7 and 13 were interrogated by the Customs officials. The statement of accused No. 13 exhibit Z-383 was recorded by Ayengar on the 15th of September 1966.\nIn that statement, the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services available to the principal accused named J. K. Shah. The long and short of the statement may be summarised thus: One day J. K. Shah called accused No. 13, gave him some cloth and sent him in the company of one Goverdhan Das to have the cloth tailored into bandis of a special type having two wide and long pockets in the front. The cloth supplied was thick and strong. A few days after the bandis were ready, accused No. 13 was taken to the flat in question by his sister's husband, named Natwarlal (accused No. 12) or by accused No. 15.\n Thereafter accused No. 13 visited the flat several times when he would receive bandis containing gold brought from outside and store them in the flat or would remove such bandis from the flat to other places in town. J. K. Shah had given him keys of the flat. Whatever gold was removed by him from the flat, was either deposited by him in a room on the second floor of a building situated in Modi Street or delivered to J. K. Shah in the latter's office on the 3rd floor of building No. 111 situated in Tambakanta.\n The room in Modi Street had a telephone the number whereof was 262283 and a key of this room was supplied to him by J. K. Shah. He used to receive orders either from J. K. Shah or from accused No. 15 to go to the flat in Sagar Mandir and receive the gold there. He received gold in this way on the 12th and 13th of September 1966. On the day of his capture he was in the room in Modi Street when he received a telephone call from J. K. Shah at 11 or 11.15 A.M. requiring him to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J. K. Shah was to be informed on the telephone. Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong. For that purpose he looked through a broken ventilator. While he was coming towards the road on the beach nearby he was detained and was taken inside the building.\n While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir.\n 4. The evidence relied upon by the prosecution against accused No. 13 may be split up under the following heads: (a) He was seen visiting the flat in Sagar Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who were watching the premises under the orders of Mugwe.\n (b) He was peeping into flat No. 13 between 11 A.M. and 12 noon on the 14th of September 1966.\n (c) When he found that the flat was under search by officers belonging to the Customs Department, he tried to run away.\n (d) He was found in possession of keys fitting the locks of the flat.\n (e) He was wearing a bandi similar to bandi exhibit J-2 which is a special type of bandi suitable for carrying gold slabs secretly.\n (f) 4 slabs of gold and 10 gold bangles were recovered from underneath the mattress at his instance.\n (g) The confession made by him and contained in statement exhibit Z-383.\n The learned trial Magistrate found all the above heads to have been established and that is why he convicted and sentenced accused No. 13 on two counts. The High Court took a different view in relation to heads (a) and (f). It was of the opinion that the identification of accused No. 13 by the Customs officials on the 8th, 9th and 13th of September 1966 could not safely be relied upon as they had seen people coming into and going out the Sagar Mandir only from a distance and for very short periods of time so that their view of such people could possibly be mere \"fleeting glances\". It further held the alleged recovery of four gold slabs and 10 gold bangles to be unreliable as the marginal witness to the recovery memo who was produced in court by the prosecution did not support it and stated that he had not seen accused No. 13 pointing out the slabs and the bangles. The High Court concluded therefore that the charge under clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act was not sustainable. However it found the other heads of evidence proved and on the basis thereof upheld the conviction and sentence in relation to the charge of conspiracy to commit the other offences just above described.\n 5. After hearing learned counsel for the parties at length we find ourselves unable to uphold the impugned judgment in so far as accused No. 13 is concerned. The circumstances that he was found peeping into the flat, that he tried to run away on seeing the Customs officials searching the premises, that he was in possession of duplicate keys of the flat and that he was found wearing a bandi similar to bandi exhibit J-2 are not incompatible with his innocence. He was a close relation of accused No. 12 who has been found to the person really incharge of the flat and it would thus be natural for him (accused No. 13) to share the flat with the permission of accused No. 12. In so living with his brother-in-law he may have been given to wear the bandi found on his person not for the purpose of carrying gold but just for use as ordinary raiment. Again, in a city like Bombay it is not unusual for persons sharing a particular accommodation to be provided with separate sets of keys for each in order to facilitate ingress or egress at will. Further, an innocent man finding his premises being watched by persons in authority may well feel funky at the prospect of a false implication on the basis of a mere suspicion (which may or may not be well-founded and may try to make himself scarce. Without more, the circumstances covered by heads (b), (c), (d), and (e), therefore, cannot be regarded as incriminating circumstances. So the conviction really rests on the confession attributed to the appellant. If it is found to be voluntary and true it may receive some support from the four heads of evidence just above described. If, on the other hand, the confession appears to be either untrue in any material particular or having been caused by any inducement, threat or promise such as is described in section 24 of the Evidence Act, it must fall and with it fall the other heads of evidence, leaving no material to support the conviction. As it is, we find that the appellant has been able to prove the existence of circumstances which make it highly probable that his confession is hit by the mandate in section 24 above mentioned. Our reasons for coming to this conclusion follow.\n 6. The case set up by accused No. 13 in so far as his confession is concerned, mainly consists of a plea that it was the result of an assault on him by the Customs officers including Ayengar and Sevalia and that the latter had forced him into making an endorsement in his own hand-writing under the confessional statement to the effect that statement was voluntary and had been explained to him by Sevalia.\nNaturally, the story of the assault has been stoutly denied by Ayengar and Sevalia; but then the circumstances prevailing at the relevant time in the Customs House where the statement was recorded definitely indicate that all was not well with the manner in which the interrogation of various accused was being carried on. In this connection the outstanding feature of the situation is the fact that accused No. 15 when examined by Dr. S. R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M. was found to have on his person seven injuries which the doctor has described thus: \"(1) Ecchymosis below right eye, outer part, 1/2\"x1/3\". blackish colour.\n (2) Ecchymosis below left eye, middle, 1/4\"X1/4\"\n blackish colour.\n (3) diffused contused area, 21/2\"X3\", on right thigh, upper part.\n (4) Contused area on right buttock, 3\" x 2\", lower part, wheal (?) marks seen.\n (5) diffused contused area on left thigh, back and outer part, 5\" X 2\", wheal (?) marks seen transverse.\n (6) Transverse wheal (?) marks on back of left knee.\n (7) Contused area on back of left leg, 2\" X 1\".\n According to the doctor, these injuries appeared to have been caused two to four days earlier. Admittedly accused No. 15 was apprehended by the Customs staff on the 14th September 1966. No explanation whatsoever is offered for his injuries by the prosecution but the stand taken by accused No. 15 himself in this behalf may be stated in his own words \"At that time, there were six Customs Officers around me. In the gallery, I was again shown the 4 keys. I was again asked about the said keys and I had again given the same reply. The said officers on hearing this, get enraged and began to say that I was stating falsehoods. One of the officers then asked me to take out my clothes. I had then worn one under wear and a pant and one bush-coat and a ganji. I was then asked to remove my pant as well as my underwear by the said officer and I did so accordingly against my will.\n That officer then ordered me to sit in the position of \"a chair\". I was so asked to sit like a chair without the support of a wall even to my back. The six officers were then standing around me at that time. After making me to sit in that chair position they began to ask me about the said keys. I had again given the same reply about the said keys. If I moved a little from the position of a chair given to me, I was kicked by all the officers immediately. I was able to sit in that position for 4-5 minutes. I used to fall down thereafter. I used to be kicked therefor, made to stand again and asked to resume the same position. In this way, I had fallen and had been assaulted again and again by the said officers for about an hour or so.\n While I was so being questioned and made to sit in that position again and again, one of the officers had gone out and had returned with a ruler in hand having a round shape. As I was made to sit in that position of a chair, I often used to move therefrom, the officers immediately used to assault me and I used to get up thereby. Out of the Custom Officers the officer who had the ruler in his hand used to assault me therewith, and the other officers used to assault me with kicks. I had been assaulted with that ruler on my left buttock, on my right buttock, on the back portion of the calf of my left, leg, on my right thigh, on the backside of my both legs etc. I had received injuries at all these places stated by me above and as a result of this assault on me, I could not even stand up. Throughout the assault; I was being questioned again and again about the said keys by all the said officers and at every time I was stating that I did not know anything more about the same. Thereafter I had fallen down on the ground with my face towards the ground. All the said six officers then went away.\"\n This stand may not be devoid of exaggeration and embellishment but it receives great support from the testimony of Dr. Joglekar (D.W.I.) so that the probability appears to be that accused No. 15 received his injuries at the hands of the Customs staff and there being no explanation on the part of prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken by him is correct and that the injuries were inflicted on him as a measure of coercion adopted to secure his confession.\n In coming to a contrary conclusion, the High Court was mainly influenced by the fact that although accused No. 15 had filed a complaint in court against the concerned officers of the Department of Customs, he did not prosecute it but had it dismissed for default. The High Court observed in this connection: \"The only explanation for this unusual attitude offered by him to the Court is that he was afraid of vindicative attitude from the officers. We have not been able to conceive how officers could have adopted any vindicative attitude, when accused No. 15 was not concerned with any offence. Be that as it may, the fact remains that the complaint was not prosecuted and the evidence was recorded behind the back of the officers.\n It is not possible to hold on the present material that assaulting by the officers was for the purposes of extorting some confession and such assault alone was the cause of the injuries received by him. Beyond, therefore, creating a fog of suspicion, the injuries proved to have been caused to accused No. 15, cannot indicate that all the accused were subjected to torture, assault and pressure for giving statements to the liking of officers or compelling them to sign the prepared statements.\"\n We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No. 15.\nAs we have already pointed out, the time of infliction of injuries coincided with the day on which accused No. 15 was apprehended and his confession was recorded. In this situation it was the imperative duty of theprosecution to explain the circumstances in which it became necessary for force to be used by the Customs staff on the person of accused No. 15 and in the absence of any such explanation there is no reason why his plea should not be taken at its face value.\n 7. We are of course not directly concerned with the voluntary nature of the confession of accused No. 15 in this appeal but the circumstances discussed in the last paragraph indicate that the Custom of officials did not stick to ethical standards in the performance of their duties and, on the other hand, exhibited such a zeal in bringing the captives to book as transgressed the limits set thereon by law. We have already alluded to the fact that the High Court itself did not regard the recovery of four gold slabs and 10 gold bangles alleged to have been made at the instance of accused No. 13 to be trustworthy. Besides, the plea of accused No. 13 that he was coerced into making the confession was taken at the earliest opportunity, i.e., on the 20th of September 1966 which was the day next to that of his release from custody on bail. That plea is contained in letter exhibit 29 addressed by him on that date to the Additional Collector of Customs, Bombay, which contained the following averments:- \"From the 14th instant at 12 noon till about 3 p.m. I was locked up along in one room with some Customs Officers who continuously interrogated me, threatened and physically assaulted me to make and sign a statement prepared by them after ascertaining a few personal questions from me pertaining to my family and myself. I was not allowed to sleep during the entire night of the 14th/15th and was not allowed to see any person. The statement was written out by the officers themselves in English language and it was not explained to me and my signature was obtained which I have signed in Gujarathi. As a result of this threat, coercion and complete exhaustion, I had no alternative but to sign the statement after which only I was allowed to rest.\"\n Taking note of these circumstances we would consider it extremely unsafe to regard the confession exhibit Z-383 signed by the appellant as having been made by him voluntarily and therefore trustworthy. The appellant, in our opinion, has shown the existence of circumstances which make it appear to the Court that the confession may well have been obtained in a manner which would bring it within the ambitof section 24 of the Evidence Act, it being undisputed that the concerned officers of the Department of Customs were \"persons in authority\" within the meaning of that expression as used in the section.\n 8. In the result the appeal succeeds and is accepted.\n The judgment of the High Court is reversed, the conviction recorded against and the sentence imposed upon the appellant by the learned trial Magistrate and upheld by the High Court are set aside and he is acquitted of the charge in its entirety.\n N.V.K. Appeal allowed.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "adb17b39ad1a4328b2d7a12814e49a05",
"to_name": null,
"type": null,
"value": {
"end": 93,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF CIVIL JUDGE-cum-JUDICIAL MAGISTRATE FIRST\nCLASS, ROURKELA,DISTRICT:SUNDARGARH"
}
},
{
"from_name": null,
"id": "5afd1993ad7a43c5800f9cd59127ab75",
"to_name": null,
"type": null,
"value": {
"end": 205,
"labels": [
"PREAMBLE"
],
"start": 93,
"text": "\n\nPresent:\n\n Miss Chinmayee Panda, B.A.LL.B.(Hons.)\n Civil Judge-cum-JMFC,\n Rourkela."
}
},
{
"from_name": null,
"id": "feed086b6f0947a1b7f06b5afc192fd2",
"to_name": null,
"type": null,
"value": {
"end": 287,
"labels": [
"PREAMBLE"
],
"start": 217,
"text": "Date of Argument: -23.05.2017\n\n Date of Judgment: -01.06.2017"
}
},
{
"from_name": null,
"id": "b05bdb4ed4fe4ab6b4dfdc3e4e1d05b1",
"to_name": null,
"type": null,
"value": {
"end": 832,
"labels": [
"PREAMBLE"
],
"start": 299,
"text": "2(a)ccCase No.117/00\n Trial No. 480/14\n\n State\n Vrs.\n\n1. Soni Tanty, aged about 44 years, W/o-Padu Tanty,\nAt-Brahamanitrang, Singh Basti,PS-Brahamanitrang Singh Basti,\nDist-Sundargarh,\n\n ...Accused\n\nCounsel for the State....... Ld. A.P.P, Rourkela\n\nCounsel for the defence.....Sri.Rameswar Prasad & Associates\n Status of the accused :On bail\n\n Offence U/S. 47 (f) B & O Excise Act\n J U D G M E N T\n 1."
}
},
{
"from_name": null,
"id": "896ad5399bf4416ab4cf0be1c0f0a525",
"to_name": null,
"type": null,
"value": {
"end": 979,
"labels": [
"FAC"
],
"start": 833,
"text": "The accused stands charged for allegedly committing offence u/s 47(f) of Bihar & Orissa Excise Act (hereinafter referred to as B & O Excise Act) ."
}
},
{
"from_name": null,
"id": "f6157c4fc3f64724b78eb6d692f0a5ef",
"to_name": null,
"type": null,
"value": {
"end": 1311,
"labels": [
"FAC"
],
"start": 980,
"text": "2. The case of the prosecution as unfolded from the PR is that on 26.10.1999 at about 05.30 PM while the then SI of Excise, Panposh charge, Sri.Md.Zamir Hussain was performing patrolling duty along with his staff at Singh basti, Brahamanitrang area, on receipt of reliable information he conducted raid in the house of the accused."
}
},
{
"from_name": null,
"id": "c0915faea5fc44f6b71625a351436077",
"to_name": null,
"type": null,
"value": {
"end": 1573,
"labels": [
"FAC"
],
"start": 1312,
"text": "After observing all legal formalities of search, he searched the house of the accused and recovered one earthen pot containing some liquid substance, which on measurement was found to be 15 Kg along with the one steel head and earthen steel having liquor smell."
}
},
{
"from_name": null,
"id": "1e6b2b6a86ae4d718bb9f4b37802021e",
"to_name": null,
"type": null,
"value": {
"end": 1679,
"labels": [
"FAC"
],
"start": 1574,
"text": "He tested the contents of the earthen pot by blue litmus paper and the blue litmus paper turned into red."
}
},
{
"from_name": null,
"id": "3bd82dd4312a4a5891ba282d91ce84c4",
"to_name": null,
"type": null,
"value": {
"end": 1805,
"labels": [
"FAC"
],
"start": 1680,
"text": "From such test and from his departmental experience and distillery training, he confirmed the same to be nothing but FM Wash."
}
},
{
"from_name": null,
"id": "a30bdc2bc7d44cf9b596843f2633a060",
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"FAC"
],
"start": 1806,
"text": "Hence, he seized the same in presence of witnesses and prepared seizure list."
}
},
{
"from_name": null,
"id": "4d703e8959b7432d836630ebc89c99bd",
"to_name": null,
"type": null,
"value": {
"end": 1989,
"labels": [
"FAC"
],
"start": 1884,
"text": "After drawing the sample, he destroyed the rest of the seized articles due to inconvenience in transport."
}
},
{
"from_name": null,
"id": "e343060cdbec4cd8ac47dc993db2ccb8",
"to_name": null,
"type": null,
"value": {
"end": 2197,
"labels": [
"FAC"
],
"start": 1991,
"text": "On the basis of the P.R. submitted by the I.O. ,cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 47(f) of Bihar and Orissa Excise Act."
}
},
{
"from_name": null,
"id": "f1ab592caac9494eaa038e0d89cd2998",
"to_name": null,
"type": null,
"value": {
"end": 2215,
"labels": [
"FAC"
],
"start": 2198,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "ada8d049c47e4cc98eb0a16619db1699",
"to_name": null,
"type": null,
"value": {
"end": 2267,
"labels": [
"FAC"
],
"start": 2215,
"text": "\n 3. The plea of defence is one of complete denial ."
}
},
{
"from_name": null,
"id": "385b01ae6e0c4b94a8a9ab9425b00dee",
"to_name": null,
"type": null,
"value": {
"end": 2310,
"labels": [
"ISSUE"
],
"start": 2269,
"text": "4. Points for determination : (i) "
}
},
{
"from_name": null,
"id": "402ba8d05655405a8662ddf8b5da6ce8",
"to_name": null,
"type": null,
"value": {
"end": 2564,
"labels": [
"ISSUE"
],
"start": 2310,
"text": "Whether on 26.10.1999 at about 05.30 A.M , at Sing basti, Brahamanitrang, area the Excise officials seized 15 Kgs of FM Wash from exclusive and conscious possession of the accused ?\n (ii) Whether the seized articles was nothing but fermented mahua wash ?"
}
},
{
"from_name": null,
"id": "d6f5b267bf94473f847abcb1e2872b2f",
"to_name": null,
"type": null,
"value": {
"end": 2781,
"labels": [
"FAC"
],
"start": 2566,
"text": "5. In order to substantiate its case prosecution has examined as many as two witnesses out of whom P.W.2, is the SI of Excise, P.W.1, is the Excise staff who had accompanied P.W.2 during the alleged patrolling duty."
}
},
{
"from_name": null,
"id": "924affb6b295470586398dabb68a14a4",
"to_name": null,
"type": null,
"value": {
"end": 2879,
"labels": [
"FAC"
],
"start": 2782,
"text": "On the other hand the defence has preferred not to examine any witness on behalf of the accused ."
}
},
{
"from_name": null,
"id": "c82af3bc21894efb8a27d322938dfb29",
"to_name": null,
"type": null,
"value": {
"end": 3338,
"labels": [
"FAC"
],
"start": 2881,
"text": "6. In order to establish seizure, P.W.2 has deposed that on 26.10.1999 at about 05.30 PM while he had been for patrolling duty with his staff at Singh basti,Brahamanitrang area, on receipt of reliable information he conducted raid in the house of the accused and after observing all legal formalities of search, he searched the house of the accused and recovered one earthen steel head with liquor smell and one earthen pot containing some liquid substance."
}
},
{
"from_name": null,
"id": "b5558ee1d58e423992001371c85abac7",
"to_name": null,
"type": null,
"value": {
"end": 3425,
"labels": [
"FAC"
],
"start": 3339,
"text": "From the evidence of P.W.2, it is found that on measurement it was found to be 15 Kg ."
}
},
{
"from_name": null,
"id": "2c2074da852b457899beaedef49aaa6a",
"to_name": null,
"type": null,
"value": {
"end": 3539,
"labels": [
"FAC"
],
"start": 3425,
"text": "\nHe has further stated that he tested the contents of the earthen pot by blue litmus paper and it turned into red."
}
},
{
"from_name": null,
"id": "022491472c9f482a94de79e4bbc2ace8",
"to_name": null,
"type": null,
"value": {
"end": 3688,
"labels": [
"FAC"
],
"start": 3540,
"text": "As per his evidence from such test and from his departmental experience and distillery training, P.W.2 confirmed the same to be nothing but FM Wash."
}
},
{
"from_name": null,
"id": "ecf52b81865340a38e5674d096aa237f",
"to_name": null,
"type": null,
"value": {
"end": 3777,
"labels": [
"FAC"
],
"start": 3689,
"text": "Hence, he seized the same in presence of witnesses and prepared seizure list vide Ext.1."
}
},
{
"from_name": null,
"id": "4050387641824089899b046bb891ce50",
"to_name": null,
"type": null,
"value": {
"end": 3935,
"labels": [
"FAC"
],
"start": 3778,
"text": "The SI of Excise also drew sample for the purpose of chemical examination and destroyed the rest of the seized articles at the spot in presence of witnesses."
}
},
{
"from_name": null,
"id": "5fbb85f088df44ddbdb96c37a0256d26",
"to_name": null,
"type": null,
"value": {
"end": 3994,
"labels": [
"FAC"
],
"start": 3936,
"text": "P.W.1 has also deposed in the same light as that of P.W.2."
}
},
{
"from_name": null,
"id": "55f14886557141069bfed7be28f4ef15",
"to_name": null,
"type": null,
"value": {
"end": 4110,
"labels": [
"FAC"
],
"start": 3994,
"text": "\n During the course of cross-examination of P.W.2 had admitted that the seized sample was not produced in the court."
}
},
{
"from_name": null,
"id": "deb064dfba1c41838479cd3ed65a34d5",
"to_name": null,
"type": null,
"value": {
"end": 4302,
"labels": [
"ANALYSIS"
],
"start": 4111,
"text": "It appears from the evidence adduced that though the spot of seizure was the house of the accused but no independent witness has been examined by the prosecution to prove the fact of seizure."
}
},
{
"from_name": null,
"id": "1fb89a684c5a43e6b308b7776d242e0c",
"to_name": null,
"type": null,
"value": {
"end": 4422,
"labels": [
"ANALYSIS"
],
"start": 4303,
"text": "In the absence of independent corroboration to the evidence of the Excise personnel the prosecution case is suspicious."
}
},
{
"from_name": null,
"id": "debb407392c5480f9c724b056d27d3c5",
"to_name": null,
"type": null,
"value": {
"end": 4534,
"labels": [
"ANALYSIS"
],
"start": 4423,
"text": "Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article."
}
},
{
"from_name": null,
"id": "2c3e35a41b2343bf95089e660bb88969",
"to_name": null,
"type": null,
"value": {
"end": 4691,
"labels": [
"ANALYSIS"
],
"start": 4535,
"text": "In view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful."
}
},
{
"from_name": null,
"id": "139b630653b14a9db2aac3e486efedb4",
"to_name": null,
"type": null,
"value": {
"end": 4866,
"labels": [
"ANALYSIS"
],
"start": 4691,
"text": "\nHence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts."
}
},
{
"from_name": null,
"id": "1ea10fce4dd4430baf2a3bdb9ecf040c",
"to_name": null,
"type": null,
"value": {
"end": 5052,
"labels": [
"ANALYSIS"
],
"start": 4867,
"text": "7. So far as the nature of liquor is concerned though P.W.2 has deposed that he tested the contents of the earthen pot with the help of blue litmus paper and such paper turned into red."
}
},
{
"from_name": null,
"id": "7726313548a64d59893492f240a3f54a",
"to_name": null,
"type": null,
"value": {
"end": 5173,
"labels": [
"ANALYSIS"
],
"start": 5053,
"text": "But during course of cross-examination he had admitted that he has not affixed the said litmus paper in the case record."
}
},
{
"from_name": null,
"id": "4827cbcb1d5749cb9016cf9f5d6e0376",
"to_name": null,
"type": null,
"value": {
"end": 5434,
"labels": [
"ANALYSIS"
],
"start": 5173,
"text": "\nSimilarly though in his examination in chief, P.W.2 has deposed that he drew sample from the seized article for the purpose of chemical examination but, during course of his cross-examination he has stated that the sample was not sent for chemical examination."
}
},
{
"from_name": null,
"id": "856c900a7b314a7cbce73c4cc399c00d",
"to_name": null,
"type": null,
"value": {
"end": 5518,
"labels": [
"ANALYSIS"
],
"start": 5435,
"text": "He has also admitted that he has not filed his experience certificate in the court."
}
},
{
"from_name": null,
"id": "4c3d4dd68db3462091d257c5e5e55143",
"to_name": null,
"type": null,
"value": {
"end": 5587,
"labels": [
"ANALYSIS"
],
"start": 5519,
"text": "Law is well settled that chemical test is the surest test of liquor."
}
},
{
"from_name": null,
"id": "6392d5c529a54e9bafb8b26e2c1c57ef",
"to_name": null,
"type": null,
"value": {
"end": 5915,
"labels": [
"ANALYSIS"
],
"start": 5588,
"text": "Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc. has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test."
}
},
{
"from_name": null,
"id": "17c731a993d740618c24972aa446a191",
"to_name": null,
"type": null,
"value": {
"end": 6066,
"labels": [
"ANALYSIS"
],
"start": 5916,
"text": "In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W2."
}
},
{
"from_name": null,
"id": "7c98448db97f4e5d8720229615141f3a",
"to_name": null,
"type": null,
"value": {
"end": 6193,
"labels": [
"ANALYSIS"
],
"start": 6067,
"text": "In view of the above discussion, the allegation that the seized article is nothing but fermented mahua wash comes under cloud."
}
},
{
"from_name": null,
"id": "b134bdc685864731a53ba38d2419d13b",
"to_name": null,
"type": null,
"value": {
"end": 6342,
"labels": [
"ANALYSIS"
],
"start": 6194,
"text": "Hence, it can be safely concluded that prosecution has failed to prove that the seized article is fermented mahua wash beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "ddfec7e947da483d9ff01d6366efa668",
"to_name": null,
"type": null,
"value": {
"end": 6534,
"labels": [
"RATIO"
],
"start": 6343,
"text": "08. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself."
}
},
{
"from_name": null,
"id": "65e2ec8fb8db40cfad33e8a6e402df29",
"to_name": null,
"type": null,
"value": {
"end": 6711,
"labels": [
"RPC"
],
"start": 6536,
"text": "In the result I hold the accused not guilty of offence u/s 47(f) of Bihar and Orissa Excise Act and he is acquitted therefrom as per the provision of section 248(1) of Cr.P.C."
}
},
{
"from_name": null,
"id": "f78a16c1f34a450d9e9d0214578f6c1f",
"to_name": null,
"type": null,
"value": {
"end": 6823,
"labels": [
"RPC"
],
"start": 6712,
"text": "The accused be set at liberty forthwith and be discharged from his bail bond so far as this case is concerned ."
}
},
{
"from_name": null,
"id": "1bfec358ada744dd895f96264f9220ff",
"to_name": null,
"type": null,
"value": {
"end": 6997,
"labels": [
"RPC"
],
"start": 6825,
"text": "9. The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "67ffd27d2bcd496ba6e62b8a25629d08",
"to_name": null,
"type": null,
"value": {
"end": 7059,
"labels": [
"RPC"
],
"start": 6999,
"text": "Enter this case as mistake of fact for statistical purpose ."
}
},
{
"from_name": null,
"id": "179110a06914460289e99a346c87a1e8",
"to_name": null,
"type": null,
"value": {
"end": 7095,
"labels": [
"NONE"
],
"start": 7061,
"text": "CivilJudge-cum-J.M.F.C., Rourkela."
}
},
{
"from_name": null,
"id": "87084e8160424a01a560a8e13c97e623",
"to_name": null,
"type": null,
"value": {
"end": 7289,
"labels": [
"NONE"
],
"start": 7095,
"text": "\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court in presence of the accused under my signature and seal on this the 01st day of June, 2017."
}
},
{
"from_name": null,
"id": "6370b223cf1f435a9b2ba01bf1c882f5",
"to_name": null,
"type": null,
"value": {
"end": 7326,
"labels": [
"NONE"
],
"start": 7289,
"text": "\n Civil Judge-cum-J.M.F.C., Rourkela."
}
},
{
"from_name": null,
"id": "18f476903dab4a7ea8fb84b0a77faf1a",
"to_name": null,
"type": null,
"value": {
"end": 7470,
"labels": [
"NONE"
],
"start": 7328,
"text": "LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Baikuntha Patel P.W. 2 Md.Zamir Hussain LIST OF WITNESSES EXAMINED FOR THE DEFENCE:"
}
},
{
"from_name": null,
"id": "4688b64abb084b02b11cf03d869dd945",
"to_name": null,
"type": null,
"value": {
"end": 7662,
"labels": [
"NONE"
],
"start": 7471,
"text": "Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Signature of P.W.1 P.W.1/2 Signature of P.W.2 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil."
}
},
{
"from_name": null,
"id": "952d8aedf613427cbf275caea79133c6",
"to_name": null,
"type": null,
"value": {
"end": 7712,
"labels": [
"NONE"
],
"start": 7662,
"text": "\nLIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION."
}
},
{
"from_name": null,
"id": "f6ac0260abb943a18ebe8949266f1726",
"to_name": null,
"type": null,
"value": {
"end": 7767,
"labels": [
"NONE"
],
"start": 7712,
"text": "\n N i l.\n LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE."
}
},
{
"from_name": null,
"id": "88680b421592497384a65dd81d5488b7",
"to_name": null,
"type": null,
"value": {
"end": 7814,
"labels": [
"NONE"
],
"start": 7767,
"text": "\n N i l. 6 Civil Judge-cum-J.M.F.C., Rourkela."
}
}
]
}
] | 4,099 | {
"text": "IN THE COURT OF CIVIL JUDGE-cum-JUDICIAL MAGISTRATE FIRST\nCLASS, ROURKELA,DISTRICT:SUNDARGARH\n\nPresent:\n\n Miss Chinmayee Panda, B.A.LL.B.(Hons.)\n Civil Judge-cum-JMFC,\n Rourkela.\n\n Date of Argument: -23.05.2017\n\n Date of Judgment: -01.06.2017\n\n 2(a)ccCase No.117/00\n Trial No. 480/14\n\n State\n Vrs.\n\n1. Soni Tanty, aged about 44 years, W/o-Padu Tanty,\nAt-Brahamanitrang, Singh Basti,PS-Brahamanitrang Singh Basti,\nDist-Sundargarh,\n\n ...Accused\n\nCounsel for the State....... Ld. A.P.P, Rourkela\n\nCounsel for the defence.....Sri.Rameswar Prasad & Associates\n Status of the accused :On bail\n\n Offence U/S. 47 (f) B & O Excise Act\n J U D G M E N T\n 1. The accused stands charged for allegedly committing offence u/s 47(f) of Bihar & Orissa Excise Act (hereinafter referred to as B & O Excise Act) .\n2. The case of the prosecution as unfolded from the PR is that on 26.10.1999 at about 05.30 PM while the then SI of Excise, Panposh charge, Sri.Md.Zamir Hussain was performing patrolling duty along with his staff at Singh basti, Brahamanitrang area, on receipt of reliable information he conducted raid in the house of the accused. After observing all legal formalities of search, he searched the house of the accused and recovered one earthen pot containing some liquid substance, which on measurement was found to be 15 Kg along with the one steel head and earthen steel having liquor smell. He tested the contents of the earthen pot by blue litmus paper and the blue litmus paper turned into red. From such test and from his departmental experience and distillery training, he confirmed the same to be nothing but FM Wash. Hence, he seized the same in presence of witnesses and prepared seizure list. After drawing the sample, he destroyed the rest of the seized articles due to inconvenience in transport.\n On the basis of the P.R. submitted by the I.O. ,cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 47(f) of Bihar and Orissa Excise Act. Hence, this case.\n 3. The plea of defence is one of complete denial .\n 4. Points for determination : (i) Whether on 26.10.1999 at about 05.30 A.M , at Sing basti, Brahamanitrang, area the Excise officials seized 15 Kgs of FM Wash from exclusive and conscious possession of the accused ?\n (ii) Whether the seized articles was nothing but fermented mahua wash ?\n 5. In order to substantiate its case prosecution has examined as many as two witnesses out of whom P.W.2, is the SI of Excise, P.W.1, is the Excise staff who had accompanied P.W.2 during the alleged patrolling duty. On the other hand the defence has preferred not to examine any witness on behalf of the accused .\n 6. In order to establish seizure, P.W.2 has deposed that on 26.10.1999 at about 05.30 PM while he had been for patrolling duty with his staff at Singh basti,Brahamanitrang area, on receipt of reliable information he conducted raid in the house of the accused and after observing all legal formalities of search, he searched the house of the accused and recovered one earthen steel head with liquor smell and one earthen pot containing some liquid substance. From the evidence of P.W.2, it is found that on measurement it was found to be 15 Kg .\nHe has further stated that he tested the contents of the earthen pot by blue litmus paper and it turned into red. As per his evidence from such test and from his departmental experience and distillery training, P.W.2 confirmed the same to be nothing but FM Wash. Hence, he seized the same in presence of witnesses and prepared seizure list vide Ext.1. The SI of Excise also drew sample for the purpose of chemical examination and destroyed the rest of the seized articles at the spot in presence of witnesses. P.W.1 has also deposed in the same light as that of P.W.2.\n During the course of cross-examination of P.W.2 had admitted that the seized sample was not produced in the court. It appears from the evidence adduced that though the spot of seizure was the house of the accused but no independent witness has been examined by the prosecution to prove the fact of seizure. In the absence of independent corroboration to the evidence of the Excise personnel the prosecution case is suspicious. Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article. In view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful.\nHence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts.\n7. So far as the nature of liquor is concerned though P.W.2 has deposed that he tested the contents of the earthen pot with the help of blue litmus paper and such paper turned into red. But during course of cross-examination he had admitted that he has not affixed the said litmus paper in the case record.\nSimilarly though in his examination in chief, P.W.2 has deposed that he drew sample from the seized article for the purpose of chemical examination but, during course of his cross-examination he has stated that the sample was not sent for chemical examination. He has also admitted that he has not filed his experience certificate in the court. Law is well settled that chemical test is the surest test of liquor. Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc. has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test. In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W2. In view of the above discussion, the allegation that the seized article is nothing but fermented mahua wash comes under cloud. Hence, it can be safely concluded that prosecution has failed to prove that the seized article is fermented mahua wash beyond all reasonable doubts.\n08. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself.\n In the result I hold the accused not guilty of offence u/s 47(f) of Bihar and Orissa Excise Act and he is acquitted therefrom as per the provision of section 248(1) of Cr.P.C. The accused be set at liberty forthwith and be discharged from his bail bond so far as this case is concerned .\n 9. The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court.\n Enter this case as mistake of fact for statistical purpose .\n CivilJudge-cum-J.M.F.C., Rourkela.\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court in presence of the accused under my signature and seal on this the 01st day of June, 2017.\n Civil Judge-cum-J.M.F.C., Rourkela.\n LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Baikuntha Patel P.W. 2 Md.Zamir Hussain LIST OF WITNESSES EXAMINED FOR THE DEFENCE: Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Signature of P.W.1 P.W.1/2 Signature of P.W.2 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil.\nLIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION.\n N i l.\n LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE.\n N i l. 6 Civil Judge-cum-J.M.F.C., Rourkela.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "65d50c578c6d4f4d9290e05e86af5a20",
"to_name": null,
"type": null,
"value": {
"end": 78,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD"
}
},
{
"from_name": null,
"id": "894d5b98b01146538bfae9e8a958b94f",
"to_name": null,
"type": null,
"value": {
"end": 117,
"labels": [
"PREAMBLE"
],
"start": 78,
"text": "\n\nCRIMINAL APPLICATION NO. 3121 OF 2018"
}
},
{
"from_name": null,
"id": "bc836330b33349a48267d33c19f36b13",
"to_name": null,
"type": null,
"value": {
"end": 146,
"labels": [
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],
"start": 119,
"text": "1. Raghunath Udelal Mahale,"
}
},
{
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"id": "932e833b31cf471b99311fe82623d61a",
"to_name": null,
"type": null,
"value": {
"end": 174,
"labels": [
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],
"start": 147,
"text": " .. APPLICANTS."
}
},
{
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"id": "8682919b1f6b43bc8846a3111b0ace2d",
"to_name": null,
"type": null,
"value": {
"end": 210,
"labels": [
"PREAMBLE"
],
"start": 179,
"text": "Age 68 yars, Occ. Nil,\n R/o."
}
},
{
"from_name": null,
"id": "170fdf9b42cb4c38b1e2069501912ef8",
"to_name": null,
"type": null,
"value": {
"end": 253,
"labels": [
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],
"start": 211,
"text": "A/p. Chaugaon,\n Taluka and Dist. Dhule."
}
},
{
"from_name": null,
"id": "47134fb56fab4a9281ed727ab3eb81bb",
"to_name": null,
"type": null,
"value": {
"end": 318,
"labels": [
"PREAMBLE"
],
"start": 253,
"text": "\n\n2. Uttam Udelal Mahale\n Age 54 years, Occ. Service,\n R/o."
}
},
{
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"id": "4a3c78700de2471399cbd2f0ebe7b482",
"to_name": null,
"type": null,
"value": {
"end": 359,
"labels": [
"PREAMBLE"
],
"start": 319,
"text": "A/p. Chaugaon,\n Tal. And Dist. Dhule."
}
},
{
"from_name": null,
"id": "bb1d06e350a74799a5c216e2126801a7",
"to_name": null,
"type": null,
"value": {
"end": 424,
"labels": [
"PREAMBLE"
],
"start": 359,
"text": "\n\n3. Rohini Uttam Mahale\n Age 53 years, Occ. Service,\n R/o."
}
},
{
"from_name": null,
"id": "da9af435648b4bd3bb78462be84fb341",
"to_name": null,
"type": null,
"value": {
"end": 464,
"labels": [
"PREAMBLE"
],
"start": 425,
"text": "A/p. Chaugaon,\n Tal and Dist. Dhule."
}
},
{
"from_name": null,
"id": "da5357c142c24da3b2e95484110c4bd6",
"to_name": null,
"type": null,
"value": {
"end": 520,
"labels": [
"PREAMBLE"
],
"start": 464,
"text": "\n\n4. Bhagesh Uttam Mahale\n Age 22 years Occ. Student,"
}
},
{
"from_name": null,
"id": "72b711c771a14de5bb7032f534a8a94f",
"to_name": null,
"type": null,
"value": {
"end": 544,
"labels": [
"PREAMBLE"
],
"start": 520,
"text": "\n R/o. A/p. Chaugaon,"
}
},
{
"from_name": null,
"id": "37ddb4a442d64a37ae73b7417030e336",
"to_name": null,
"type": null,
"value": {
"end": 553,
"labels": [
"PREAMBLE"
],
"start": 544,
"text": "\n Tal."
}
},
{
"from_name": null,
"id": "7bb80f1ddc204650be1316e6b9d5e729",
"to_name": null,
"type": null,
"value": {
"end": 570,
"labels": [
"PREAMBLE"
],
"start": 554,
"text": "And Dist. Dhule."
}
},
{
"from_name": null,
"id": "046330b065eb4ca7bcf4129b35043fa9",
"to_name": null,
"type": null,
"value": {
"end": 589,
"labels": [
"PREAMBLE"
],
"start": 570,
"text": "\n\n VERSUS\n\n"
}
},
{
"from_name": null,
"id": "2f1c927276a0495fb645a22be87a008d",
"to_name": null,
"type": null,
"value": {
"end": 798,
"labels": [
"PREAMBLE"
],
"start": 589,
"text": "1. The State of Maharashtra\n through Police Station Officer,\n Dhule Taluka Police Station, Dhule.\n\n2. Lalita Somnath Mahale\nAge 30 years, Occ. Household & Agriculture,\nR/o. Chaugaon,\nTal and Dist. Dhule."
}
},
{
"from_name": null,
"id": "6055ef288beb470db30d4a8d48fec988",
"to_name": null,
"type": null,
"value": {
"end": 936,
"labels": [
"PREAMBLE"
],
"start": 799,
"text": " .. RESPONDENTS.\n\nMr. A.S. Kale h/f. Talekar & Associates for applicants.\nMr. V.S. Chaudhari, APP for respondent No.1."
}
},
{
"from_name": null,
"id": "33e9f29266b94a95ba94d5557f5137eb",
"to_name": null,
"type": null,
"value": {
"end": 1056,
"labels": [
"PREAMBLE"
],
"start": 937,
"text": "Mr. H.F. Pawar, h/f. Advocate V.P. Raje, for respondent No.2.\n\n CORAM :"
}
},
{
"from_name": null,
"id": "9debdcb6f7104601aa64ca43d262e53a",
"to_name": null,
"type": null,
"value": {
"end": 1144,
"labels": [
"PREAMBLE"
],
"start": 1057,
"text": "T. V. NALAWADE &\n K.K. SONAWANE, JJ"
}
},
{
"from_name": null,
"id": "bbad59a9844147348752e5ca19a7f8c3",
"to_name": null,
"type": null,
"value": {
"end": 1218,
"labels": [
"PREAMBLE"
],
"start": 1195,
"text": "DATE : 14th JUNE, 2019."
}
},
{
"from_name": null,
"id": "ba1e7d70c32f4da7892e95ee96852c1c",
"to_name": null,
"type": null,
"value": {
"end": 1260,
"labels": [
"PREAMBLE"
],
"start": 1220,
"text": "ORAL JUDGMENT : [ PER K.K. SONAWANE, J]:"
}
},
{
"from_name": null,
"id": "e888b33baed5405e85279eaa467b7338",
"to_name": null,
"type": null,
"value": {
"end": 1270,
"labels": [
"NONE"
],
"start": 1260,
"text": " 1. Heard."
}
},
{
"from_name": null,
"id": "66f9caf77aa64a0787a06abb8e2b9830",
"to_name": null,
"type": null,
"value": {
"end": 1311,
"labels": [
"NONE"
],
"start": 1271,
"text": "Rule. Rule is made returnable forthwith."
}
},
{
"from_name": null,
"id": "eb20480d65c34a5f82aa9ec332213ae7",
"to_name": null,
"type": null,
"value": {
"end": 1392,
"labels": [
"NONE"
],
"start": 1312,
"text": "Matter is taken up for finality with the consent of learned counsel for parties."
}
},
{
"from_name": null,
"id": "2430666335e0417f839a2157669d84b4",
"to_name": null,
"type": null,
"value": {
"end": 1883,
"labels": [
"FAC"
],
"start": 1394,
"text": "2. The applicants preferred present application under Section 482 of the Code of Criminal Procedure (\"Cr.P.C.\") seeking relief to quash and set aside the First Information Report (\"FIR\") bearing Crime No.229/2018 registered at Dhule Taluka Police Station, for the offence punishable under Sections 442, 323, 504, 506, 427 r/w. 34 of the Indian Penal Code (\"IPC\"); as well as the proceeding of Charge Sheet bearing No. 268 of 2018 filed pursuant to the investigation of the aforesaid crime."
}
},
{
"from_name": null,
"id": "d25ddea98b6c4221b2357cbc1875ef63",
"to_name": null,
"type": null,
"value": {
"end": 2169,
"labels": [
"FAC"
],
"start": 1883,
"text": "\n 3. It is the case of the prosecution that the first informant Sau. Lalita Mahale on 31.7.2018, approached to the police of Dhule Taluka Police Station and filed report that the applicants are her distant relatives and residing in the same village Chaugaon, Taluka and District Dhule."
}
},
{
"from_name": null,
"id": "721bbbc1a5224739aaa792e27f95729f",
"to_name": null,
"type": null,
"value": {
"end": 2331,
"labels": [
"FAC"
],
"start": 2170,
"text": "There were strain relations in between the family of the first informant and the applicants on account of dispute of pathway from the Bandh of agricultural land."
}
},
{
"from_name": null,
"id": "fbcfe1de31734844932d6c9298c9eb89",
"to_name": null,
"type": null,
"value": {
"end": 2571,
"labels": [
"FAC"
],
"start": 2332,
"text": "It has been contended that the agricultural land of the first informant was located adjoining to the land of the applicants and on account of Bandh, there were frequent quarrels in between the family of the first informant and the accused."
}
},
{
"from_name": null,
"id": "9567cf81d1244e2fbcb7248ca9fab548",
"to_name": null,
"type": null,
"value": {
"end": 2762,
"labels": [
"FAC"
],
"start": 2572,
"text": "It has been alleged that prior to 56 months of the incident, the applicant Raghunath allowed his buffaloes for grazing in the land of the first informant and caused damage to the onion crop."
}
},
{
"from_name": null,
"id": "2c7e5b0b554a45b69a40520723fb6f3a",
"to_name": null,
"type": null,
"value": {
"end": 2963,
"labels": [
"FAC"
],
"start": 2763,
"text": "There was altercation in between the first informant and the applicants, which resulted into filing a criminal complaint to the police and the matter is pending before the learned Magistrate at Dhule."
}
},
{
"from_name": null,
"id": "8e6a9b42b1904712be1ed81dff26bf5b",
"to_name": null,
"type": null,
"value": {
"end": 3253,
"labels": [
"FAC"
],
"start": 2964,
"text": "According to first informant, the applicants on one or the other pretext used to pick up quarrels with the family members of first informant, but, being adjoining land owners, the family members of the first informant did not pay any attention to the quarrelsome conduct of the applicants."
}
},
{
"from_name": null,
"id": "8138efff18e24d04afe1c29963e7c7c4",
"to_name": null,
"type": null,
"value": {
"end": 3345,
"labels": [
"FAC"
],
"start": 3254,
"text": "The first informant further alleged that on 29.7.2018, her husband had gone out of station."
}
},
{
"from_name": null,
"id": "c536085d86fe42a389f7684f0a8d6120",
"to_name": null,
"type": null,
"value": {
"end": 3399,
"labels": [
"FAC"
],
"start": 3346,
"text": "She was doing the agricultural operation in her land."
}
},
{
"from_name": null,
"id": "ecd7e39f4b044f358974670d66b20954",
"to_name": null,
"type": null,
"value": {
"end": 3507,
"labels": [
"FAC"
],
"start": 3400,
"text": "At that time, the applicant Raghunath and other applicants were also doing agricultural work in their land."
}
},
{
"from_name": null,
"id": "846b2408add248a08d6285f7182b2c83",
"to_name": null,
"type": null,
"value": {
"end": 3711,
"labels": [
"FAC"
],
"start": 3508,
"text": "At about 4.30 to 5.00 p.m. when the first informant was busy in agricultural operation, that time, the applicant Uttam suddenly appeared on the back side of the first informant and he caught hold to her."
}
},
{
"from_name": null,
"id": "284b1bbfabf740cc9e6cc0adb3fdc63d",
"to_name": null,
"type": null,
"value": {
"end": 3770,
"labels": [
"FAC"
],
"start": 3712,
"text": "The first informant became frightened and yelled for help."
}
},
{
"from_name": null,
"id": "433b34c1d23448198cccdb1766a23cb2",
"to_name": null,
"type": null,
"value": {
"end": 3807,
"labels": [
"FAC"
],
"start": 3771,
"text": "She pushed the applicant Uttam back."
}
},
{
"from_name": null,
"id": "141d1294ddcd48808331dde66dc710a2",
"to_name": null,
"type": null,
"value": {
"end": 3910,
"labels": [
"FAC"
],
"start": 3808,
"text": "On hearing shouts of the first informant, the other applicants also rushed to the scene of occurrence."
}
},
{
"from_name": null,
"id": "c61de8b43e6643beb43cafba48cadf79",
"to_name": null,
"type": null,
"value": {
"end": 4039,
"labels": [
"FAC"
],
"start": 3911,
"text": "The applicant Raghunath exhorted to kill the first informant as she was not ready to withdraw the proceeding filed in the court."
}
},
{
"from_name": null,
"id": "c798d2b3114d4baba8e7cb103c2fa4bb",
"to_name": null,
"type": null,
"value": {
"end": 4116,
"labels": [
"FAC"
],
"start": 4040,
"text": "The other applicants started jostling the first informant and hurled abuses."
}
},
{
"from_name": null,
"id": "d37e51a3431746ee9c1bf56f769f4d2f",
"to_name": null,
"type": null,
"value": {
"end": 4228,
"labels": [
"FAC"
],
"start": 4117,
"text": "The applicant Raghunath assaulted the first informant with stick and uttered filthy words by pulling her saree."
}
},
{
"from_name": null,
"id": "ac75a2ff6bc6412cb78af560fdf4a97c",
"to_name": null,
"type": null,
"value": {
"end": 4330,
"labels": [
"FAC"
],
"start": 4229,
"text": "The applicant Bhagesh attempted to outrage the modesty of the first informant by pressing her breast."
}
},
{
"from_name": null,
"id": "b6dc8813919a4c29a311f99442558e43",
"to_name": null,
"type": null,
"value": {
"end": 4384,
"labels": [
"FAC"
],
"start": 4331,
"text": "They all gave threats of life to the first informant."
}
},
{
"from_name": null,
"id": "0758a675444e4f7caaaf05cb7eb8ea89",
"to_name": null,
"type": null,
"value": {
"end": 4523,
"labels": [
"FAC"
],
"start": 4385,
"text": "Meanwhile, the adjoining land owners intervened in the scuffle and they extricated the first informant from the clutches of the applicant."
}
},
{
"from_name": null,
"id": "e1d263080b7b454dabf0e9297d153846",
"to_name": null,
"type": null,
"value": {
"end": 4607,
"labels": [
"FAC"
],
"start": 4524,
"text": "It has been alleged that the clothes of the first informant were torn in the fight."
}
},
{
"from_name": null,
"id": "d92a6b337746490c9c56f64939cd965c",
"to_name": null,
"type": null,
"value": {
"end": 4674,
"labels": [
"FAC"
],
"start": 4608,
"text": "The bangles and chain beads from her neck were broken on the spot."
}
},
{
"from_name": null,
"id": "5497a123f8be45bda34ea5c246a6ea16",
"to_name": null,
"type": null,
"value": {
"end": 4760,
"labels": [
"FAC"
],
"start": 4675,
"text": "Thereafter, the first informant visited to the concerned police and filed the report."
}
},
{
"from_name": null,
"id": "4b6228ff50d14b31b3ac22bcda11e711",
"to_name": null,
"type": null,
"value": {
"end": 4871,
"labels": [
"FAC"
],
"start": 4760,
"text": "\n Pursuant to the report, the police of Dhule Taluka P.S. registered the crime and set the penal law in motion."
}
},
{
"from_name": null,
"id": "c88514312ae8480295f74068a40193a2",
"to_name": null,
"type": null,
"value": {
"end": 4887,
"labels": [
"FAC"
],
"start": 4873,
"text": "4] "
}
},
{
"from_name": null,
"id": "6b9426b14b5a4e69b2f40d96b360636b",
"to_name": null,
"type": null,
"value": {
"end": 5075,
"labels": [
"FAC"
],
"start": 4887,
"text": "Pending investigation, the applicant preferred the present application by invoking the remedy under Section 482 of Cr.P.C. to quash and set aside the criminal proceeding filed againt them."
}
},
{
"from_name": null,
"id": "9242ab81b9de496a913ed31956897254",
"to_name": null,
"type": null,
"value": {
"end": 5172,
"labels": [
"FAC"
],
"start": 5076,
"text": "Meanwhile, the I.O.\n recorded statements of the witnesses acquainted with the facts of the case."
}
},
{
"from_name": null,
"id": "b6c0b9ba19a34de9a4a5aea973489ada",
"to_name": null,
"type": null,
"value": {
"end": 5356,
"labels": [
"FAC"
],
"start": 5173,
"text": "He collected the relevant document and after completion of investigation, the I.O.\n filed charge sheet against the applicants, which is pending before the learned Magistrate at Dhule."
}
},
{
"from_name": null,
"id": "28f64f2a2b2d4944b5a533ccf3519187",
"to_name": null,
"type": null,
"value": {
"end": 5502,
"labels": [
"FAC"
],
"start": 5357,
"text": "The applicants also prayed to quash and set aside the proceeding of charge sheet filed against them pursuant to the FIR bearing No.\n 268 of 2018."
}
},
{
"from_name": null,
"id": "247e4a7aaa9248d99731ed339c9fbd33",
"to_name": null,
"type": null,
"value": {
"end": 5636,
"labels": [
"ARG_PETITIONER"
],
"start": 5502,
"text": "\n 5] The learned counsel for the applicant vehemently submits that the entire FIR is false, fabricated and not genuine one."
}
},
{
"from_name": null,
"id": "1140c86dd42f441ea3a85d53d0163417",
"to_name": null,
"type": null,
"value": {
"end": 5734,
"labels": [
"ARG_PETITIONER"
],
"start": 5637,
"text": "The first informant attempted to embroil the applicants by making false allegations in this case."
}
},
{
"from_name": null,
"id": "8df8352ab83146c9b8f13c2faf7a52d3",
"to_name": null,
"type": null,
"value": {
"end": 5837,
"labels": [
"ARG_PETITIONER"
],
"start": 5734,
"text": "\n The applicants are innocent of the charges pitted against them and they have not committed any crime."
}
},
{
"from_name": null,
"id": "78cecba30a1c43c1827c6126007177ad",
"to_name": null,
"type": null,
"value": {
"end": 5968,
"labels": [
"ARG_PETITIONER"
],
"start": 5838,
"text": "The learned counsel for the applicants drawn attention of this court towards the documents of civil proceeding produced on record."
}
},
{
"from_name": null,
"id": "8f1e2ef12a0141719eb19511e41534c7",
"to_name": null,
"type": null,
"value": {
"end": 6167,
"labels": [
"ARG_PETITIONER"
],
"start": 5969,
"text": "It has been contended that the family members of the first informant attempted to make demand of right of way from the Bandh of the agricultural land of the applicants by claiming easementary right."
}
},
{
"from_name": null,
"id": "5759677c28d04441a1926b659f37ae81",
"to_name": null,
"type": null,
"value": {
"end": 6310,
"labels": [
"ARG_PETITIONER"
],
"start": 6168,
"text": "There was a dispute in between the two families on account of path way claimed by the family members of the informant for going to their land."
}
},
{
"from_name": null,
"id": "ca5c9a5f664442c7810e9f4e6ffd4ce8",
"to_name": null,
"type": null,
"value": {
"end": 6420,
"labels": [
"ARG_PETITIONER"
],
"start": 6311,
"text": "They had also initiated proceeding under Section 143 of the Maharashtra Land Revenue Code for a right of way."
}
},
{
"from_name": null,
"id": "8848748fa66c419289185bfeffd72763",
"to_name": null,
"type": null,
"value": {
"end": 6576,
"labels": [
"ARG_PETITIONER"
],
"start": 6421,
"text": "The Tahsildar, Dhule rejected the application of the husband of first informant for claiming the right of way from the agricultural land of the applicants."
}
},
{
"from_name": null,
"id": "d497fdbfdeda40f7835c57cca626e35d",
"to_name": null,
"type": null,
"value": {
"end": 6698,
"labels": [
"ARG_PETITIONER"
],
"start": 6577,
"text": "The revision was also preferred by the husband of first informant under Section 257 of the Maharashtra Land Revenue Code."
}
},
{
"from_name": null,
"id": "0c6fa9b709c540228a5b47f3cce47557",
"to_name": null,
"type": null,
"value": {
"end": 6773,
"labels": [
"ARG_PETITIONER"
],
"start": 6699,
"text": "It was also turned down by the concerned Sub Divisional Magistrate, Dhule."
}
},
{
"from_name": null,
"id": "ef1698f9b89b49d48424ea426077d33f",
"to_name": null,
"type": null,
"value": {
"end": 6925,
"labels": [
"ARG_PETITIONER"
],
"start": 6774,
"text": "Taking umbrage of the failure in the revenue proceeding, the family members of first informant used to pick up quarrels with the applicants frequently."
}
},
{
"from_name": null,
"id": "e7b18733ecf547589f9711e32f62c784",
"to_name": null,
"type": null,
"value": {
"end": 7070,
"labels": [
"ARG_PETITIONER"
],
"start": 6926,
"text": "The applicant Uttam Mahale also filed an application to the concerned police for preventive action against the family members of the applicants."
}
},
{
"from_name": null,
"id": "f26da2f585854fa19c3e39e198429c91",
"to_name": null,
"type": null,
"value": {
"end": 7242,
"labels": [
"ARG_PETITIONER"
],
"start": 7071,
"text": "Despite the same, the applicants, in the month of February 2018, filed a false private complaint against the applicants for the allegation of assault and intimidation etc."
}
},
{
"from_name": null,
"id": "eb4fe41e949b4746885010ee197ce0d1",
"to_name": null,
"type": null,
"value": {
"end": 7304,
"labels": [
"ARG_PETITIONER"
],
"start": 7243,
"text": "The matter is pending before the learned Magistrate at Dhule."
}
},
{
"from_name": null,
"id": "179661259c4641068ab2d57e111052f7",
"to_name": null,
"type": null,
"value": {
"end": 7424,
"labels": [
"ARG_PETITIONER"
],
"start": 7305,
"text": "According to learned counsel, the applicant No.4 is the student and one of the aspirants of Civil Services Examination."
}
},
{
"from_name": null,
"id": "c02f565ecac8426aa825483052aba7f0",
"to_name": null,
"type": null,
"value": {
"end": 7486,
"labels": [
"ARG_PETITIONER"
],
"start": 7425,
"text": "At the relevant time, he was studying at Unique Academy Pune."
}
},
{
"from_name": null,
"id": "0313d0f27a7747549ab91a7bef45e84e",
"to_name": null,
"type": null,
"value": {
"end": 7567,
"labels": [
"ARG_PETITIONER"
],
"start": 7486,
"text": "\nHe was not present at the scene of occurrence as alleged by the first informant."
}
},
{
"from_name": null,
"id": "c3b947ef24cd4896bd8e21092e72a00e",
"to_name": null,
"type": null,
"value": {
"end": 7696,
"labels": [
"ARG_PETITIONER"
],
"start": 7567,
"text": "\nThe applicant No.2 was also at the relevant time I.e on 29.7.2018. busy in the meeting convened by the management of the school."
}
},
{
"from_name": null,
"id": "8f26b127357541248e81e4d76fe82928",
"to_name": null,
"type": null,
"value": {
"end": 7746,
"labels": [
"ARG_PETITIONER"
],
"start": 7697,
"text": "He produced the Attendance Certificate on record."
}
},
{
"from_name": null,
"id": "a8e7f37cf3b14eb48557b337183007d4",
"to_name": null,
"type": null,
"value": {
"end": 7846,
"labels": [
"ARG_PETITIONER"
],
"start": 7747,
"text": "According to learned counsel, the present proceeding is totally false, baseless and fabricated one."
}
},
{
"from_name": null,
"id": "a815ca60b6d2439c8b1c4b12d0234842",
"to_name": null,
"type": null,
"value": {
"end": 7892,
"labels": [
"ARG_PETITIONER"
],
"start": 7847,
"text": "It is nothing but an abuse of process of law."
}
},
{
"from_name": null,
"id": "b971580792dc4fce8c141aa25aaea904",
"to_name": null,
"type": null,
"value": {
"end": 8001,
"labels": [
"ARG_PETITIONER"
],
"start": 7893,
"text": "Therefore, the criminal proceedings initiated against the applicant is required to be quashed and set aside."
}
},
{
"from_name": null,
"id": "5495f1bde4414b989b4310e7a924d31b",
"to_name": null,
"type": null,
"value": {
"end": 8341,
"labels": [
"ARG_RESPONDENT"
],
"start": 8001,
"text": "\n 6] The learned APP as well as learned counsel for respondent No. 2 first informant vociferously opposed the contentions putforth on behalf of applicants and submit that the allegations of assault on behalf of complainant in the FIR discloses commission of crime punishable under Sections 354A, 427, 447, 323, 504, 506 r/w. 34 of the IPC."
}
},
{
"from_name": null,
"id": "8e553523396742a7ad1fa7d505de333f",
"to_name": null,
"type": null,
"value": {
"end": 8438,
"labels": [
"ARG_RESPONDENT"
],
"start": 8342,
"text": "The complainant categorically described the episode of outraging her modesty and assault on her."
}
},
{
"from_name": null,
"id": "3f6cbd28ca994501a041db6b23cf030d",
"to_name": null,
"type": null,
"value": {
"end": 8521,
"labels": [
"ARG_RESPONDENT"
],
"start": 8439,
"text": "There are concrete allegations of assault and outraging modesty by the applicants."
}
},
{
"from_name": null,
"id": "af39dec553fe47cb830dfb1d5568c903",
"to_name": null,
"type": null,
"value": {
"end": 8615,
"labels": [
"ANALYSIS"
],
"start": 8521,
"text": "\n 7] We have given anxious consideration to the submissions advanced on behalf of both sides."
}
},
{
"from_name": null,
"id": "36cbbe318a6448e2b4703fb2ac5a1517",
"to_name": null,
"type": null,
"value": {
"end": 8669,
"labels": [
"ANALYSIS"
],
"start": 8616,
"text": "We have also perused the document produced on record."
}
},
{
"from_name": null,
"id": "1ce3d2e3502b4e82ae5145bdf0f26fc7",
"to_name": null,
"type": null,
"value": {
"end": 8777,
"labels": [
"ANALYSIS"
],
"start": 8670,
"text": "Admittedly, the relations between the family members of the first informant are strain and not cordial one."
}
},
{
"from_name": null,
"id": "b523bdb46b6d4f7a9b9092f99ee7ff7d",
"to_name": null,
"type": null,
"value": {
"end": 8875,
"labels": [
"ANALYSIS"
],
"start": 8778,
"text": "There was a dispute on account of path way from the Bandh of the agricultural land of applicants."
}
},
{
"from_name": null,
"id": "f68dac44a3ad4a7cb511c1aa17d5a433",
"to_name": null,
"type": null,
"value": {
"end": 9123,
"labels": [
"ANALYSIS"
],
"start": 8876,
"text": "The documents produced on record show that the husband of first informant filed proceeding before the revenue authority for claiming the easementary right of way for ingress and egress to his land from the Bandh of agricultural land of applicants."
}
},
{
"from_name": null,
"id": "60545097088042a7b1e835387ece60b5",
"to_name": null,
"type": null,
"value": {
"end": 9161,
"labels": [
"ANALYSIS"
],
"start": 9124,
"text": "He did not succeed in the proceeding."
}
},
{
"from_name": null,
"id": "b4b6813d8b7349fab0318d90cf059631",
"to_name": null,
"type": null,
"value": {
"end": 9276,
"labels": [
"ANALYSIS"
],
"start": 9162,
"text": "There was also attempt to file criminal complaint against the applicants for charges of assault, indimidation etc."
}
},
{
"from_name": null,
"id": "18ed70d8a2644fd997fa2bfdbe603b71",
"to_name": null,
"type": null,
"value": {
"end": 9586,
"labels": [
"ANALYSIS"
],
"start": 9277,
"text": "The document of Attendance Certificate produced on record on behalf of applicant No.2 about his presence in the meeting convened by the Management of the school on the day of incident, created doubt about the veracity and truthfulness of the allegations nurtured against the applicants by the first informant."
}
},
{
"from_name": null,
"id": "964e7b974e5f47a7a1be223204913645",
"to_name": null,
"type": null,
"value": {
"end": 9715,
"labels": [
"ANALYSIS"
],
"start": 9587,
"text": "It is also a fact that the applicant No.4 was pursuing his studies for Civil Services Examination in the coaching class at Pune."
}
},
{
"from_name": null,
"id": "b0c4113e28454dd9a5b148c453038b01",
"to_name": null,
"type": null,
"value": {
"end": 9807,
"labels": [
"ANALYSIS"
],
"start": 9716,
"text": "His attendance in the coaching class at Pune also devastated the gravity of the allegation."
}
},
{
"from_name": null,
"id": "d417f67d25ac4dbc80db0a80fa6e788c",
"to_name": null,
"type": null,
"value": {
"end": 9971,
"labels": [
"ANALYSIS"
],
"start": 9808,
"text": "The first informant cast allegations about molestation against applicant No.4 Bhagyesh whose presence at the scene of occurrence found improbable and unbelievable."
}
},
{
"from_name": null,
"id": "062cc314574a427ca234c7913239db5d",
"to_name": null,
"type": null,
"value": {
"end": 10131,
"labels": [
"ANALYSIS"
],
"start": 9972,
"text": "In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants."
}
},
{
"from_name": null,
"id": "fc4221b633d94967b2f714e5ef16230f",
"to_name": null,
"type": null,
"value": {
"end": 10284,
"labels": [
"ANALYSIS"
],
"start": 10132,
"text": "There is no propriety to allow the prosecution to continue against present applicants, in which the ultimate probability of conviction is totally bleak."
}
},
{
"from_name": null,
"id": "0e3bb869f65840a5a0d1e3a772913a40",
"to_name": null,
"type": null,
"value": {
"end": 10468,
"labels": [
"PRE_RELIED"
],
"start": 10284,
"text": "\n 8] It is worth to mention that the Honourable Apex Court in the case of Madhavrao Jiwaji Rao Schindia AIR 1988 SC 709 above categorically elucidated in paragraph No. 7 as under: \"7."
}
},
{
"from_name": null,
"id": "3d0b4d1d28e64c3ba3f6aae026bd830b",
"to_name": null,
"type": null,
"value": {
"end": 10698,
"labels": [
"PRE_RELIED"
],
"start": 10469,
"text": "The legal position is wellsettled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence."
}
},
{
"from_name": null,
"id": "0f1ed3f316bf4500bcf0a21ac205b7d4",
"to_name": null,
"type": null,
"value": {
"end": 10909,
"labels": [
"PRE_RELIED"
],
"start": 10699,
"text": "It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."
}
},
{
"from_name": null,
"id": "ace2abd0b6da4427ae96a7291518a0c3",
"to_name": null,
"type": null,
"value": {
"end": 11492,
"labels": [
"PRE_RELIED"
],
"start": 10910,
"text": "This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.\"\n 9] The Honourable Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others reported in MANU/SC/0115/1992 : 1991(1) RCR(Cri), 383 (SC)"
}
},
{
"from_name": null,
"id": "905e8adf07524e26bba6974a57b00e61",
"to_name": null,
"type": null,
"value": {
"end": 11701,
"labels": [
"PRE_RELIED"
],
"start": 11493,
"text": "held that \"where the proceedings is instituted with an ulterior motive or were the allegations made in the complaint are absurd and improbable, the Court would be within its power to quash the complaint/FIR\"."
}
},
{
"from_name": null,
"id": "70f4b708e66645dda945a845f5ac51bd",
"to_name": null,
"type": null,
"value": {
"end": 12020,
"labels": [
"PRE_RELIED"
],
"start": 11701,
"text": "\n Moreover, if the allegations in the FIR against the applicants are taken at their face value and accepted the same in its entirety would not constitute any offence or make out case against applicants, in such circumstances, there would not be any propriety to allow the prosecution to proceed further into the matter."
}
},
{
"from_name": null,
"id": "76f3d15a882d454680b265d00c0b3ae8",
"to_name": null,
"type": null,
"value": {
"end": 12156,
"labels": [
"RATIO"
],
"start": 12020,
"text": "\n 9] In the instant case, the attending circumstances demonstrate that the present proceeding is nothing but an abuse of process of law."
}
},
{
"from_name": null,
"id": "7cfd83616adb46fc96a8cd1eb6de9471",
"to_name": null,
"type": null,
"value": {
"end": 12249,
"labels": [
"RATIO"
],
"start": 12157,
"text": "It is not just and proper to compel the applicants to unnecessarily face the agony of trial."
}
},
{
"from_name": null,
"id": "1518a1fc722c415a9733ab0156a994e4",
"to_name": null,
"type": null,
"value": {
"end": 12409,
"labels": [
"RATIO"
],
"start": 12250,
"text": "In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants."
}
},
{
"from_name": null,
"id": "58ffc968f61e4a2db3ce8a4fbfbc7165",
"to_name": null,
"type": null,
"value": {
"end": 12525,
"labels": [
"RATIO"
],
"start": 12410,
"text": "If the applicants are compelled to face the trial, it would be an futile efforts and would cause injustice to them."
}
},
{
"from_name": null,
"id": "17300531af584c96b6c70cdc46d64713",
"to_name": null,
"type": null,
"value": {
"end": 12643,
"labels": [
"RATIO"
],
"start": 12526,
"text": "It would also dissipate the precious time of Court of law as the possibility of ultimate conviction is totally bleak."
}
},
{
"from_name": null,
"id": "14bfc71f7de9431c82e768ce3ce2f9c6",
"to_name": null,
"type": null,
"value": {
"end": 12791,
"labels": [
"RATIO"
],
"start": 12644,
"text": "The ends of justice would be served by ensuring that the applicants may not be forced unnecessarily to go on litigations before the Criminal Court."
}
},
{
"from_name": null,
"id": "4dc52e7200f14785a981604809fd8e0f",
"to_name": null,
"type": null,
"value": {
"end": 12888,
"labels": [
"RATIO"
],
"start": 12792,
"text": "Hence, penal proceeding initiated against these applicants deserves to be quashed and set aside."
}
},
{
"from_name": null,
"id": "4d8e4d59da454a01a6970a8293c6120c",
"to_name": null,
"type": null,
"value": {
"end": 12988,
"labels": [
"RPC"
],
"start": 12889,
"text": "Therefore, we proceed to pass following order : :ORDER: 1] The criminal application stands allowed."
}
},
{
"from_name": null,
"id": "2d97ef812bb649688061b17cc022ca8b",
"to_name": null,
"type": null,
"value": {
"end": 13049,
"labels": [
"RPC"
],
"start": 12988,
"text": "\n 2] Relief is granted in terms of prayer clause (A) and (D)."
}
},
{
"from_name": null,
"id": "b4dc9f9399a149379cead9e15ee7d97a",
"to_name": null,
"type": null,
"value": {
"end": 13252,
"labels": [
"RPC"
],
"start": 13050,
"text": "Crime No.\n 229 of 2018 filed against the applicants for the offence punishable under Sections 354A, 427, 447, 323, 504, 506 r/w. 34 of IPC at Dhule Taluka Police Station is quashed and set aside."
}
},
{
"from_name": null,
"id": "9f7cd0864598401383f7a1a6fa339368",
"to_name": null,
"type": null,
"value": {
"end": 13419,
"labels": [
"RPC"
],
"start": 13253,
"text": "The Charge sheet No. 268 of 2018 filed before the JMFC, Dhule filed pursuant to the aforesaid crime is also quashed and set aside to the extent of present applicants."
}
},
{
"from_name": null,
"id": "c4fec48d8e0a4759893eaeae917524b4",
"to_name": null,
"type": null,
"value": {
"end": 13458,
"labels": [
"RPC"
],
"start": 13419,
"text": "\n 3] Rule made absolute in those terms."
}
},
{
"from_name": null,
"id": "e413689e06174938bfaf59a027649abc",
"to_name": null,
"type": null,
"value": {
"end": 13481,
"labels": [
"NONE"
],
"start": 13458,
"text": "\n grt/ [K.K. SONAWANE]"
}
},
{
"from_name": null,
"id": "f0f7cb803e6d450bacc1f24a48c917e4",
"to_name": null,
"type": null,
"value": {
"end": 13537,
"labels": [
"NONE"
],
"start": 13490,
"text": "[T. V. NALAWADE] JUDGE. JUDGE"
}
}
]
}
] | 4,130 | {
"text": "IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD\n\nCRIMINAL APPLICATION NO. 3121 OF 2018\n\n1. Raghunath Udelal Mahale, .. APPLICANTS.\n Age 68 yars, Occ. Nil,\n R/o. A/p. Chaugaon,\n Taluka and Dist. Dhule.\n\n2. Uttam Udelal Mahale\n Age 54 years, Occ. Service,\n R/o. A/p. Chaugaon,\n Tal. And Dist. Dhule.\n\n3. Rohini Uttam Mahale\n Age 53 years, Occ. Service,\n R/o. A/p. Chaugaon,\n Tal and Dist. Dhule.\n\n4. Bhagesh Uttam Mahale\n Age 22 years Occ. Student,\n R/o. A/p. Chaugaon,\n Tal. And Dist. Dhule.\n\n VERSUS\n\n1. The State of Maharashtra\n through Police Station Officer,\n Dhule Taluka Police Station, Dhule.\n\n2. Lalita Somnath Mahale\nAge 30 years, Occ. Household & Agriculture,\nR/o. Chaugaon,\nTal and Dist. Dhule. .. RESPONDENTS.\n\nMr. A.S. Kale h/f. Talekar & Associates for applicants.\nMr. V.S. Chaudhari, APP for respondent No.1.\nMr. H.F. Pawar, h/f. Advocate V.P. Raje, for respondent No.2.\n\n CORAM : T. V. NALAWADE &\n K.K. SONAWANE, JJ\n\n DATE : 14th JUNE, 2019.\n\nORAL JUDGMENT : [ PER K.K. SONAWANE, J]: 1. Heard. Rule. Rule is made returnable forthwith. Matter is taken up for finality with the consent of learned counsel for parties.\n 2. The applicants preferred present application under Section 482 of the Code of Criminal Procedure (\"Cr.P.C.\") seeking relief to quash and set aside the First Information Report (\"FIR\") bearing Crime No.229/2018 registered at Dhule Taluka Police Station, for the offence punishable under Sections 442, 323, 504, 506, 427 r/w. 34 of the Indian Penal Code (\"IPC\"); as well as the proceeding of Charge Sheet bearing No. 268 of 2018 filed pursuant to the investigation of the aforesaid crime.\n 3. It is the case of the prosecution that the first informant Sau. Lalita Mahale on 31.7.2018, approached to the police of Dhule Taluka Police Station and filed report that the applicants are her distant relatives and residing in the same village Chaugaon, Taluka and District Dhule. There were strain relations in between the family of the first informant and the applicants on account of dispute of pathway from the Bandh of agricultural land. It has been contended that the agricultural land of the first informant was located adjoining to the land of the applicants and on account of Bandh, there were frequent quarrels in between the family of the first informant and the accused. It has been alleged that prior to 56 months of the incident, the applicant Raghunath allowed his buffaloes for grazing in the land of the first informant and caused damage to the onion crop. There was altercation in between the first informant and the applicants, which resulted into filing a criminal complaint to the police and the matter is pending before the learned Magistrate at Dhule. According to first informant, the applicants on one or the other pretext used to pick up quarrels with the family members of first informant, but, being adjoining land owners, the family members of the first informant did not pay any attention to the quarrelsome conduct of the applicants. The first informant further alleged that on 29.7.2018, her husband had gone out of station. She was doing the agricultural operation in her land. At that time, the applicant Raghunath and other applicants were also doing agricultural work in their land. At about 4.30 to 5.00 p.m. when the first informant was busy in agricultural operation, that time, the applicant Uttam suddenly appeared on the back side of the first informant and he caught hold to her. The first informant became frightened and yelled for help. She pushed the applicant Uttam back. On hearing shouts of the first informant, the other applicants also rushed to the scene of occurrence. The applicant Raghunath exhorted to kill the first informant as she was not ready to withdraw the proceeding filed in the court. The other applicants started jostling the first informant and hurled abuses. The applicant Raghunath assaulted the first informant with stick and uttered filthy words by pulling her saree. The applicant Bhagesh attempted to outrage the modesty of the first informant by pressing her breast. They all gave threats of life to the first informant. Meanwhile, the adjoining land owners intervened in the scuffle and they extricated the first informant from the clutches of the applicant. It has been alleged that the clothes of the first informant were torn in the fight. The bangles and chain beads from her neck were broken on the spot. Thereafter, the first informant visited to the concerned police and filed the report.\n Pursuant to the report, the police of Dhule Taluka P.S. registered the crime and set the penal law in motion.\n 4] Pending investigation, the applicant preferred the present application by invoking the remedy under Section 482 of Cr.P.C. to quash and set aside the criminal proceeding filed againt them. Meanwhile, the I.O.\n recorded statements of the witnesses acquainted with the facts of the case. He collected the relevant document and after completion of investigation, the I.O.\n filed charge sheet against the applicants, which is pending before the learned Magistrate at Dhule. The applicants also prayed to quash and set aside the proceeding of charge sheet filed against them pursuant to the FIR bearing No.\n 268 of 2018.\n 5] The learned counsel for the applicant vehemently submits that the entire FIR is false, fabricated and not genuine one. The first informant attempted to embroil the applicants by making false allegations in this case.\n The applicants are innocent of the charges pitted against them and they have not committed any crime. The learned counsel for the applicants drawn attention of this court towards the documents of civil proceeding produced on record. It has been contended that the family members of the first informant attempted to make demand of right of way from the Bandh of the agricultural land of the applicants by claiming easementary right. There was a dispute in between the two families on account of path way claimed by the family members of the informant for going to their land. They had also initiated proceeding under Section 143 of the Maharashtra Land Revenue Code for a right of way. The Tahsildar, Dhule rejected the application of the husband of first informant for claiming the right of way from the agricultural land of the applicants. The revision was also preferred by the husband of first informant under Section 257 of the Maharashtra Land Revenue Code. It was also turned down by the concerned Sub Divisional Magistrate, Dhule. Taking umbrage of the failure in the revenue proceeding, the family members of first informant used to pick up quarrels with the applicants frequently. The applicant Uttam Mahale also filed an application to the concerned police for preventive action against the family members of the applicants. Despite the same, the applicants, in the month of February 2018, filed a false private complaint against the applicants for the allegation of assault and intimidation etc. The matter is pending before the learned Magistrate at Dhule. According to learned counsel, the applicant No.4 is the student and one of the aspirants of Civil Services Examination. At the relevant time, he was studying at Unique Academy Pune.\nHe was not present at the scene of occurrence as alleged by the first informant.\nThe applicant No.2 was also at the relevant time I.e on 29.7.2018. busy in the meeting convened by the management of the school. He produced the Attendance Certificate on record. According to learned counsel, the present proceeding is totally false, baseless and fabricated one. It is nothing but an abuse of process of law. Therefore, the criminal proceedings initiated against the applicant is required to be quashed and set aside.\n 6] The learned APP as well as learned counsel for respondent No. 2 first informant vociferously opposed the contentions putforth on behalf of applicants and submit that the allegations of assault on behalf of complainant in the FIR discloses commission of crime punishable under Sections 354A, 427, 447, 323, 504, 506 r/w. 34 of the IPC. The complainant categorically described the episode of outraging her modesty and assault on her. There are concrete allegations of assault and outraging modesty by the applicants.\n 7] We have given anxious consideration to the submissions advanced on behalf of both sides. We have also perused the document produced on record. Admittedly, the relations between the family members of the first informant are strain and not cordial one. There was a dispute on account of path way from the Bandh of the agricultural land of applicants. The documents produced on record show that the husband of first informant filed proceeding before the revenue authority for claiming the easementary right of way for ingress and egress to his land from the Bandh of agricultural land of applicants. He did not succeed in the proceeding. There was also attempt to file criminal complaint against the applicants for charges of assault, indimidation etc. The document of Attendance Certificate produced on record on behalf of applicant No.2 about his presence in the meeting convened by the Management of the school on the day of incident, created doubt about the veracity and truthfulness of the allegations nurtured against the applicants by the first informant. It is also a fact that the applicant No.4 was pursuing his studies for Civil Services Examination in the coaching class at Pune. His attendance in the coaching class at Pune also devastated the gravity of the allegation. The first informant cast allegations about molestation against applicant No.4 Bhagyesh whose presence at the scene of occurrence found improbable and unbelievable. In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants. There is no propriety to allow the prosecution to continue against present applicants, in which the ultimate probability of conviction is totally bleak.\n 8] It is worth to mention that the Honourable Apex Court in the case of Madhavrao Jiwaji Rao Schindia AIR 1988 SC 709 above categorically elucidated in paragraph No. 7 as under: \"7. The legal position is wellsettled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.\"\n 9] The Honourable Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others reported in MANU/SC/0115/1992 : 1991(1) RCR(Cri), 383 (SC) held that \"where the proceedings is instituted with an ulterior motive or were the allegations made in the complaint are absurd and improbable, the Court would be within its power to quash the complaint/FIR\".\n Moreover, if the allegations in the FIR against the applicants are taken at their face value and accepted the same in its entirety would not constitute any offence or make out case against applicants, in such circumstances, there would not be any propriety to allow the prosecution to proceed further into the matter.\n 9] In the instant case, the attending circumstances demonstrate that the present proceeding is nothing but an abuse of process of law. It is not just and proper to compel the applicants to unnecessarily face the agony of trial. In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants. If the applicants are compelled to face the trial, it would be an futile efforts and would cause injustice to them. It would also dissipate the precious time of Court of law as the possibility of ultimate conviction is totally bleak. The ends of justice would be served by ensuring that the applicants may not be forced unnecessarily to go on litigations before the Criminal Court. Hence, penal proceeding initiated against these applicants deserves to be quashed and set aside. Therefore, we proceed to pass following order : :ORDER: 1] The criminal application stands allowed.\n 2] Relief is granted in terms of prayer clause (A) and (D). Crime No.\n 229 of 2018 filed against the applicants for the offence punishable under Sections 354A, 427, 447, 323, 504, 506 r/w. 34 of IPC at Dhule Taluka Police Station is quashed and set aside. The Charge sheet No. 268 of 2018 filed before the JMFC, Dhule filed pursuant to the aforesaid crime is also quashed and set aside to the extent of present applicants.\n 3] Rule made absolute in those terms.\n grt/ [K.K. SONAWANE] [T. V. NALAWADE] JUDGE. JUDGE "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "c532803e87714fe4b41207c2b70b5ad1",
"to_name": null,
"type": null,
"value": {
"end": 60,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOLLECTOR OF CENTRAL EXCISE, SHILLONG\n\n Vs."
}
},
{
"from_name": null,
"id": "a7d696eb88ff4a869178199e224ec581",
"to_name": null,
"type": null,
"value": {
"end": 126,
"labels": [
"PREAMBLE"
],
"start": 60,
"text": "\n\nRESPONDENT:\nWOOD CRAFT PRODUCTS LTD.\n\nDATE OF JUDGMENT20/03/1995"
}
},
{
"from_name": null,
"id": "b6d6b58cc8304a7e8c5cadb0b2638d23",
"to_name": null,
"type": null,
"value": {
"end": 338,
"labels": [
"PREAMBLE"
],
"start": 128,
"text": "BENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBHARUCHA S.P. (J)\nPARIPOORNAN, K.S.(J)\n\nCITATION: JT 1995 (3) 207\n 1995 SCC (3) 454\n 1995 SCALE (2)364\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "4f37068f18f049278d6c2a1a549032d4",
"to_name": null,
"type": null,
"value": {
"end": 355,
"labels": [
"NONE"
],
"start": 338,
"text": "\nJ.S. VERMA, J., "
}
},
{
"from_name": null,
"id": "5edade8a3e8e4fbabc2a37f643833422",
"to_name": null,
"type": null,
"value": {
"end": 654,
"labels": [
"FAC"
],
"start": 355,
"text": "1.The main question for decision in these appeals and the connected matters is whether \"block boards\" are to be classified under Heading No. 44.08, Sub-heading No. 4408.90 as claimed by the revenue or under Heading No. 44.10, Sub- heading No. 4410.90 as claimed by the manufacturers of block boards."
}
},
{
"from_name": null,
"id": "d31fd3dcb9784a359f88c9e9c04385bd",
"to_name": null,
"type": null,
"value": {
"end": 788,
"labels": [
"FAC"
],
"start": 655,
"text": "The controversy relates to three periods, namely, from 28.2.1986 to 19.3.1990, from 20.3.1990 to 28.2.1992 and from 1.3.1992 onwards."
}
},
{
"from_name": null,
"id": "3e25db86d86a415c9e849e2a438685b1",
"to_name": null,
"type": null,
"value": {
"end": 1181,
"labels": [
"FAC"
],
"start": 789,
"text": "The division into three periods is on account of the fact that an amended Chapter Note 5 in Chapter 44 was introduced w.e.f 19.3.1990 on account of the controversy which had been raised about the classification of block boards and, thereafter, we.f 1.3.1992 a second amendment was made in Chapter Note 5 on account of the surviving controversy even after the amendment made w.e.f. 19.3.1990.\n"
}
},
{
"from_name": null,
"id": "dc2e5e98ae4d48d4b7924224633571a4",
"to_name": null,
"type": null,
"value": {
"end": 1251,
"labels": [
"FAC"
],
"start": 1181,
"text": "These appeals and the connected matters relate to these three periods."
}
},
{
"from_name": null,
"id": "35ca5dd7dda6436396771562dd4cb0ef",
"to_name": null,
"type": null,
"value": {
"end": 1648,
"labels": [
"RLC"
],
"start": 1252,
"text": "2.For the first period, the Tribunal held in the main judgment dated 18.10.1989 reported in 1992 (60) E.L.T. 668 that block board does not fall within Heading No. 44.08, Sub-heading 4408.90 and the more appropriate classification would be under Heading No. 44.10, Sub-heading No. 4410.90.\nThis decision being in favour of the manufacturers, the appeals relating to this period are by the revenue."
}
},
{
"from_name": null,
"id": "643fc6edfecd4f259a251876cdbcface",
"to_name": null,
"type": null,
"value": {
"end": 1868,
"labels": [
"RLC"
],
"start": 1649,
"text": "For the second period writ petitions filed by the manufacturers in the Gauhati High Court were allowed by the judgment dated 23.3.1993 reported in 1993 (66) E.L.T. 345 Arunachal Forests Products Ltd. vs. Union of India."
}
},
{
"from_name": null,
"id": "5dc0fe0b99ee4a768a0ddee1ae369bab",
"to_name": null,
"type": null,
"value": {
"end": 1940,
"labels": [
"RLC"
],
"start": 1869,
"text": "Civil Appeal Nos.\n39774020/94 are by the revenue against that decision."
}
},
{
"from_name": null,
"id": "f03fee46fa7c4864af6cdf9bc771cab7",
"to_name": null,
"type": null,
"value": {
"end": 2147,
"labels": [
"RLC"
],
"start": 1941,
"text": "For the third period, the writ petitions filed by the manufacturers in the Gauhati High Court have failed being dismissed by the judgment dated 17.3.1993 and the manufacturers have challenged that decision."
}
},
{
"from_name": null,
"id": "d36c3c7746a04f929fce037f821e11ba",
"to_name": null,
"type": null,
"value": {
"end": 2258,
"labels": [
"ANALYSIS"
],
"start": 2147,
"text": "\n 3.At the outset, the competing headings with reference to which the question has to be decided may be quoted."
}
},
{
"from_name": null,
"id": "132e74fb39b24240a80c93c04030e4c2",
"to_name": null,
"type": null,
"value": {
"end": 2343,
"labels": [
"ANALYSIS"
],
"start": 2259,
"text": "They are as under:- \"44.08 Plywood, veneered panels and similar laminated wood 4408."
}
},
{
"from_name": null,
"id": "5a86b102ad484d3997e629f86e75456d",
"to_name": null,
"type": null,
"value": {
"end": 2394,
"labels": [
"ANALYSIS"
],
"start": 2344,
"text": "10 Marine plywood and aircraft plywood 30% 4408.20"
}
},
{
"from_name": null,
"id": "6566a478623649948a0c8093a09951b0",
"to_name": null,
"type": null,
"value": {
"end": 2523,
"labels": [
"ANALYSIS"
],
"start": 2395,
"text": "Plywood for tea-chests when cut to size in panels or shocks and packed in sets 30% 4408.30"
}
},
{
"from_name": null,
"id": "0e40987b1a9e42b987bbb3afda1a7a0c",
"to_name": null,
"type": null,
"value": {
"end": 2552,
"labels": [
"ANALYSIS"
],
"start": 2524,
"text": "Decorative plywood - 4408.40"
}
},
{
"from_name": null,
"id": "973167c2fa2b440c97325bcc40435abf",
"to_name": null,
"type": null,
"value": {
"end": 2635,
"labels": [
"ANALYSIS"
],
"start": 2553,
"text": "Cuttings and trimmings of plywood of width not exceeding 5 centimeters Nil 4408.90"
}
},
{
"from_name": null,
"id": "559692c8eabc4ff6bf77f57bf6731f7a",
"to_name": null,
"type": null,
"value": {
"end": 2754,
"labels": [
"ANALYSIS"
],
"start": 2636,
"text": "Others 30% 44.10 Articles of wood not elsewhere specified 20% 4410. 10"
}
},
{
"from_name": null,
"id": "05bd58831eb9402ba47a7d097859076f",
"to_name": null,
"type": null,
"value": {
"end": 2825,
"labels": [
"ANALYSIS"
],
"start": 2755,
"text": "Flush door 30% 4410.90 Others"
}
},
{
"from_name": null,
"id": "2101b5e0363e4e7d9fc63ea738e9f3d4",
"to_name": null,
"type": null,
"value": {
"end": 2857,
"labels": [
"ANALYSIS"
],
"start": 2846,
"text": "12% -------"
}
},
{
"from_name": null,
"id": "021b4faa19724a87bb80d7f7fd4dc8c9",
"to_name": null,
"type": null,
"value": {
"end": 2965,
"labels": [
"ANALYSIS"
],
"start": 2858,
"text": "With effect from 19.3.1990, amended Chapter Note 5 in Chapter 44 was introduced which read as follows:- \"5."
}
},
{
"from_name": null,
"id": "7cfa0d72c0ff49a59dd66e51e598797e",
"to_name": null,
"type": null,
"value": {
"end": 3400,
"labels": [
"ANALYSIS"
],
"start": 2966,
"text": "For the purposes of heading No. 44.08 the expression 'similar laminated wood' includes block board, laminated board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies and also panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibre board, wood waste glued together, asbestos or cork.\""
}
},
{
"from_name": null,
"id": "d829239e021445d79f31a43be563e799",
"to_name": null,
"type": null,
"value": {
"end": 3520,
"labels": [
"ANALYSIS"
],
"start": 3400,
"text": "\n Thereafter with effect from 1.3.1992 a second amendment was made in Chapter Note 5 after which it read as follows: \"5."
}
},
{
"from_name": null,
"id": "4c6f5b098d3a40828792aa6a47cdf9c0",
"to_name": null,
"type": null,
"value": {
"end": 3974,
"labels": [
"ANALYSIS"
],
"start": 3521,
"text": "For the purposes of heading No. 44.08 the expression 'similar laminated wood' includes block board, laminated board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued or otherwise joined together and surfaced with the outer plies and also panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibre board, wood waste glued together, asbestos or cork."
}
},
{
"from_name": null,
"id": "348913d5707c422796a7deba35400d4b",
"to_name": null,
"type": null,
"value": {
"end": 4044,
"labels": [
"ANALYSIS"
],
"start": 3975,
"text": "\"\n 4. \"Block board\" has not been expressly if specified in any entry."
}
},
{
"from_name": null,
"id": "37a934a9fff34c4d88d9b5977ca8cf3f",
"to_name": null,
"type": null,
"value": {
"end": 4329,
"labels": [
"ARG_PETITIONER"
],
"start": 4045,
"text": "The revenue contends that \"block board\" is covered by the expression \"similar laminated wood\" in the heading \"Plywood, veneered panels and similar laminated wood\" of Heading No. 44.08 and, therefore, falls under the sub-heading No. 4408.90 \"other\" which is the residuary Sub- heading."
}
},
{
"from_name": null,
"id": "c11b4b6b774c4dd0b3982415dbf44f92",
"to_name": null,
"type": null,
"value": {
"end": 4627,
"labels": [
"ARG_RESPONDENT"
],
"start": 4330,
"text": "On the other hand, the manufacturers of block board contend that it is an \"article of wood\" and, therefore, falls under heading \"articles of wood not elsewhere specified\" of Heading No. 44. 10, Sub-heading No.\n 4410.90 \"other\" which is the residuary entry since it is not \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "41d6c0090f4f4c0ebe8d69b564be32cd",
"to_name": null,
"type": null,
"value": {
"end": 5190,
"labels": [
"ANALYSIS"
],
"start": 4628,
"text": "The basis of the rival con- tentions is that according to the manufacturers such an indication flows from the ISI Glossary of Terms, while according to the revenue the structure of the central excise tariff in the Central Excise Tariff Act, 1985 is the adoption of a detailed central excise tariff based broadly on the system of classification derived from the Interna- tional Convention called the Brussels' Convention on the harmonised Commodity Description and Coding System (Harmo- nised System of Nomenclature called \"HSN\") with the necessary modifications."
}
},
{
"from_name": null,
"id": "1d8fad22391e45f5bfe7d86914ec818c",
"to_name": null,
"type": null,
"value": {
"end": 5627,
"labels": [
"ARG_PETITIONER"
],
"start": 5191,
"text": "The revenue contends that the expression It similar laminated wood\" in Heading No. 44.08 expressly includes block board, laminated wood and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued or otherwise joined together and surfaced with the outer plies as clarified by the amendment in Chapter Note 5 which was always the meaning of the expression \"similar laminated wood\" according to HSN."
}
},
{
"from_name": null,
"id": "7b1fdf3c1f464ae99407cf4f6b3651d2",
"to_name": null,
"type": null,
"value": {
"end": 5791,
"labels": [
"ARG_PETITIONER"
],
"start": 5628,
"text": "The revenue, contends that this is how the expression was always understood in the HSN which is the pattern adopted while enacting Central Excise Tariff Act, 1985."
}
},
{
"from_name": null,
"id": "0d1fb5b0721a4247b45148b847d52834",
"to_name": null,
"type": null,
"value": {
"end": 5969,
"labels": [
"ARG_PETITIONER"
],
"start": 5792,
"text": "According to the revenue, the ISI Glossary of Terms being for a different purpose is not the appropriate aid to construction of these, headings in the Central Excise Tariff Act."
}
},
{
"from_name": null,
"id": "82050fdabb2a426d83d19b9850fcfaec",
"to_name": null,
"type": null,
"value": {
"end": 6197,
"labels": [
"ARG_PETITIONER"
],
"start": 5970,
"text": "The revenue contends that the amendments made in Chapter Note 5 were only with a view to clarify this position and end the controversy which was raised by the manufacturers relating to construction of these headings in the Act."
}
},
{
"from_name": null,
"id": "28b1b3cc5cff43b4b711bc3eaa0e5456",
"to_name": null,
"type": null,
"value": {
"end": 6599,
"labels": [
"ARG_PETITIONER"
],
"start": 6198,
"text": "On this basis, the revenue urges that the Tribunal's decision relating to the first period from 28.2.1986 to 19.3.1990 reported in 1992 (60) E.L.T. 668 and of the High Court for the second period from 20.3.1990 to 28.2.1992 reported in 1993 (66) E.L.T. 345 deserve to be reversed maintaining the decision of the High Court for the third period from 1.3.1992 onwards which is against the manufacturers."
}
},
{
"from_name": null,
"id": "85a8ef1c21684a3699285bcaece1dda1",
"to_name": null,
"type": null,
"value": {
"end": 6766,
"labels": [
"ANALYSIS"
],
"start": 6600,
"text": "It is obvious that in the event of the revenue succeeding in respect of the first period, it must follow that the revenue must succeed for the other two periods also."
}
},
{
"from_name": null,
"id": "9ba76c5ee52d466fafd995823a0907fe",
"to_name": null,
"type": null,
"value": {
"end": 7324,
"labels": [
"ANALYSIS"
],
"start": 6767,
"text": "It is equally obvious that for the third period from 1.3,1992 onwards, in view of the clear wording of the amended Chapter Note 5 w.e.f 1.3.1992, the question is beyond controversy since the expression \"glued or otherwise joined together\" has been added in Chapter Note 5 to make it beyond controversy that block boards of all kinds fall within the expression \"similar laminated wood\".\n5.It is significant that Heading No. 44.12 of the HSN is the same as Heading No.44.08of the Indian Tariff and reads \"Plywood, veneered panels and similar lami-nated wood\"."
}
},
{
"from_name": null,
"id": "1a4601fae9f0422c9c2ce32f0c2e7049",
"to_name": null,
"type": null,
"value": {
"end": 7459,
"labels": [
"ANALYSIS"
],
"start": 7325,
"text": "The explanatory notes on the HSN indicate the meaning of the expression \"similar laminated wood\" as un- der:- \"Similar laminated wood."
}
},
{
"from_name": null,
"id": "203fa2ae535744f7874b4d509ff8fcae",
"to_name": null,
"type": null,
"value": {
"end": 7675,
"labels": [
"ANALYSIS"
],
"start": 7460,
"text": "This group can be divided into two categories: Block board, lamin board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies."
}
},
{
"from_name": null,
"id": "b4055a95f961436c8cab28c45e7837d4",
"to_name": null,
"type": null,
"value": {
"end": 7794,
"labels": [
"ANALYSIS"
],
"start": 7701,
"text": "Panels of this kind are very rigid and strong and can be used without framing or backing.\"\n6."
}
},
{
"from_name": null,
"id": "f8787388faf642248ff678afef2b66fd",
"to_name": null,
"type": null,
"value": {
"end": 8062,
"labels": [
"ANALYSIS"
],
"start": 7795,
"text": "It is clear that if the expression \"similar laminated wood\" in the Indian Tariff is understood as it meant under the HSN on which pattern the Central Excise Tariff Act is based, then block boards of all kinds would fall within the expression \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "6e42f440afff41b5b9110b0848773ff0",
"to_name": null,
"type": null,
"value": {
"end": 8116,
"labels": [
"ANALYSIS"
],
"start": 8063,
"text": "This is how the amended Chapter Note reads expressly."
}
},
{
"from_name": null,
"id": "4c00a4f275254de594dafbba2a4127ef",
"to_name": null,
"type": null,
"value": {
"end": 8329,
"labels": [
"ANALYSIS"
],
"start": 8117,
"text": "The question is whether it can be so read even for the earlier periods particularly the first period before amendment of Chapter Note 5 to expressly include block board in the expression \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "f074d0d134164f688ea1cd504352b626",
"to_name": null,
"type": null,
"value": {
"end": 8541,
"labels": [
"ANALYSIS"
],
"start": 8330,
"text": "7. The ISI Glossary contains the following definitions:- \"Laminated wood-An assembled product made up of layers of wood and adhesive in which the grains of adjacent layers are parallel.\n "
}
},
{
"from_name": null,
"id": "38bb8f5e290f4d0caadc490f3ad2b59d",
"to_name": null,
"type": null,
"value": {
"end": 8871,
"labels": [
"ANALYSIS"
],
"start": 8541,
"text": "Block board A board having a core made up of strips of wood, each not exceeding 25 nun in width, laid separately or glued or otherwise joined to form a slab which is glued between two or more outer veneers with the direction of the grain of the core blocks running at right angles to that of the adjacent outer veneers (See Fig.)."
}
},
{
"from_name": null,
"id": "ec82b7a75dc449ab81b6cc083f952c51",
"to_name": null,
"type": null,
"value": {
"end": 9043,
"labels": [
"ANALYSIS"
],
"start": 8872,
"text": "8. The Tribunal has taken the view that the block boards manufactured by these manufactures do not conform to the definition of \"laminated wood\" given in the ISI Glossary."
}
},
{
"from_name": null,
"id": "685c17e658c745559136333a02309613",
"to_name": null,
"type": null,
"value": {
"end": 9353,
"labels": [
"ANALYSIS"
],
"start": 9043,
"text": "\nIt further held that the block boards are similar to \"flush doors\" and, therefore, the more appropriate classification is under Heading No. 44.10 which specifies the flush doors as a specific category and other articles of wood not else- where specified would fall under the residuary sub-heading No. 4410.90."
}
},
{
"from_name": null,
"id": "e19e057150534394a6d5de08adc8a2fa",
"to_name": null,
"type": null,
"value": {
"end": 9413,
"labels": [
"ANALYSIS"
],
"start": 9354,
"text": "Reliance was placed on the definitions in the ISI Glossary."
}
},
{
"from_name": null,
"id": "22a02feefde843958557073d97bd72e7",
"to_name": null,
"type": null,
"value": {
"end": 10275,
"labels": [
"ANALYSIS"
],
"start": 9414,
"text": "9. After the amendment made in Chapter Note 5 w.e.f 19.3.1990 for the period from 20.3.19W to 28.2.1992, the High Court in 1993 (66) E.L.T. 345 placed reliance similarly on the ISI Glossary to hold that where no artificial means by way of glue or metal fastener is used to hold the blocks together and where the blocks of woods are separately laid, they are \"otherwise joined together\" to form a slab and, therefore, such block boards could fall under Heading No.\n44.08, sub-heading No. 4408.90 in the light of Chapter Note 5 as amended from 1.3.1992 but in the absence, of the. words as or otherwise joined\" from Chapter Note 5 as introduced w.e.f 19.3.1990, only block boards in which the core is com- posed of blocks of woods \"glued together\" would fall under Heading No. 44.08, Subheading No. 4408.90 during the second period between 20.3.1990 to 28.2.1992."
}
},
{
"from_name": null,
"id": "7256864a6aa64ef0a342a4ec3c821657",
"to_name": null,
"type": null,
"value": {
"end": 10614,
"labels": [
"ANALYSIS"
],
"start": 10276,
"text": "In other words, for the second period the High Court took the view that the only block boards in which blocks of wood arc put together by applying adhesive or glue ,in between, could fall under Heading No. 44.08, Sub-heading No. 4408.90 in viewof Chapter Note 5 as introduced w.e.f 19.3.1990 prior to its further amendment w.e.f 1.3.1992."
}
},
{
"from_name": null,
"id": "ec81d78d1a624606a20b55ffb4188548",
"to_name": null,
"type": null,
"value": {
"end": 11465,
"labels": [
"ANALYSIS"
],
"start": 10615,
"text": "After the further amend- ment made in Chapter Note 5 w.e.f. 1.3.1992 by enlargement of the expression \"glued together\" to \"glued or otherwise joined together\", the High Court for the third period commencing from 1.3.1992 held that all kinds of block boards whether glued together or joined and kept in place by any other mode fall under the Heading No. 44.08, Sub-heading No.\n4408.90.\n10.Having heard learned counsel for the parties, we are satisfied that the contention of the revenue must be accepted with the result that the decision of the Tribunal reported in 1992 (60) E.L.T. 668 for the first period and that of the High Court reported in 1993 (66) E.L.T, 345 for the second period must be reversed, while the decision dated 17.3.1993 of the High Court against the manufacturers for the third period commencing from 1.3.1992 must be affirmed.\n"
}
},
{
"from_name": null,
"id": "7e144b30cad64e30b99a5f9ffd2711c5",
"to_name": null,
"type": null,
"value": {
"end": 11703,
"labels": [
"ANALYSIS"
],
"start": 11465,
"text": "11. The Statement of Objects and Reasons of the Central Excise Tariff Bill, 1985 which led to the enactment of the Central Excise Tariff Act, 1985 is indicative of the pattern of the structure of the central excise tariff enacted therein."
}
},
{
"from_name": null,
"id": "c717b16fd2034b69bc1f6a7a86641a07",
"to_name": null,
"type": null,
"value": {
"end": 11845,
"labels": [
"ANALYSIS"
],
"start": 11704,
"text": "It reads as under: \"Central Excise duty is now levied at the rates specified.in the First Schedule to the Central Excises and Salt Act, 1944."
}
},
{
"from_name": null,
"id": "1383e5f547d6442eb6eefb8f2a24e2e9",
"to_name": null,
"type": null,
"value": {
"end": 11923,
"labels": [
"ANALYSIS"
],
"start": 11846,
"text": "The Central Excises and Salt Act, 1944 originally provided for only 11 items."
}
},
{
"from_name": null,
"id": "db6fb84a6c1947abbcc737c86e445274",
"to_name": null,
"type": null,
"value": {
"end": 11971,
"labels": [
"ANALYSIS"
],
"start": 11924,
"text": "The number of Items has since increased to 137."
}
},
{
"from_name": null,
"id": "2c25df152c084f58a025b6e9dc3ab1ac",
"to_name": null,
"type": null,
"value": {
"end": 12113,
"labels": [
"ANALYSIS"
],
"start": 11972,
"text": "The levy, which was selective in nature, to start with, acquired a comprehensive coverage in 1975, when the residuary Item 68 was introduced."
}
},
{
"from_name": null,
"id": "951d3c94366e4828965b7af65e537cf3",
"to_name": null,
"type": null,
"value": {
"end": 12235,
"labels": [
"ANALYSIS"
],
"start": 12113,
"text": "\n Thus, barring a few Items like opium, alcohol, etc., all other manufactured goods now come under the scope of this levy."
}
},
{
"from_name": null,
"id": "8a8250f0c375401182f908e8c93435a7",
"to_name": null,
"type": null,
"value": {
"end": 12771,
"labels": [
"ANALYSIS"
],
"start": 12235,
"text": "\n 2.The Technical Study Group on Central Excise Tariff, which was set up by the Government in 1984 to conduct a comprehensive inquiry into the structure of the central excise tariff has suggested the adoption of a detailed central excise tariff based broadly on the system of classification derived from the international Convention on the Harmonised Commodity Description and Coding System (Harmonised system) with such contractions or modifications thereto as are necessary to fall within the scope of the levy of central excise duty."
}
},
{
"from_name": null,
"id": "1647677ea9e94dc39dd5115b66fda4b2",
"to_name": null,
"type": null,
"value": {
"end": 12905,
"labels": [
"ANALYSIS"
],
"start": 12772,
"text": "The Group has also suggested that the new tariff should be provided for by a separate Act to be called the Central Excise Tariff Act."
}
},
{
"from_name": null,
"id": "40ee63cfc9d74f25b12d7b8ed54d3853",
"to_name": null,
"type": null,
"value": {
"end": 13101,
"labels": [
"ANALYSIS"
],
"start": 12905,
"text": "\n 3.The tariff suggested by the Study Group is based on an internationally accepted nomenclature, in the formulation of which all considerations, technical and legal, have been taken into account."
}
},
{
"from_name": null,
"id": "fb967866e9e74419a2e37d7570ea2837",
"to_name": null,
"type": null,
"value": {
"end": 13176,
"labels": [
"ANALYSIS"
],
"start": 13102,
"text": "It should, therefore, reduce disputes on account of tariff classification."
}
},
{
"from_name": null,
"id": "67f5cfc83ad34bbe9914a0f240b58ec6",
"to_name": null,
"type": null,
"value": {
"end": 13440,
"labels": [
"ANALYSIS"
],
"start": 13177,
"text": "Besides, since the tariff would be on the lines of the Harmonised System, it would bring about considerable alignment between the customs and central excise tariffs and thus facilitate charging of additional customs duty on imports equivalent to excise duty."
}
},
{
"from_name": null,
"id": "7b8f2b89c0174537b3d201629ac8cb08",
"to_name": null,
"type": null,
"value": {
"end": 13684,
"labels": [
"ANALYSIS"
],
"start": 13441,
"text": "Accordingly, it is proposed to specify the Central excise tariff suggested by the Study Group by a separate tariff Act in- stead of the present system of the tariff being governed by the First Schedule to the Central Excises and Salt Act 1944."
}
},
{
"from_name": null,
"id": "b72cfc4eba9943dda72caaafed53eff4",
"to_name": null,
"type": null,
"value": {
"end": 13896,
"labels": [
"ANALYSIS"
],
"start": 13684,
"text": "\n 4.The main features of the Bill are as follows :- (i)The tariff included in the Schedule to the Bill has been made more de tailed and comprehensive, thus obviating the need for having a residuary tariff Item.\n "
}
},
{
"from_name": null,
"id": "bc73246eb6634722b87066eac16bc93b",
"to_name": null,
"type": null,
"value": {
"end": 13991,
"labels": [
"ANALYSIS"
],
"start": 13896,
"text": "Goods of the same class have been grouped together to enable parity in treatment xxx xxx xxx 5."
}
},
{
"from_name": null,
"id": "5e0ab0d0cdd544b09a9a1a14cb592672",
"to_name": null,
"type": null,
"value": {
"end": 14046,
"labels": [
"ANALYSIS"
],
"start": 13992,
"text": "The Bill seeks to achieve the above objects."
}
},
{
"from_name": null,
"id": "51f2428e75c8484db40deedb256e83a5",
"to_name": null,
"type": null,
"value": {
"end": 14067,
"labels": [
"ANALYSIS"
],
"start": 14046,
"text": "\n (emphasis supplied)"
}
},
{
"from_name": null,
"id": "6cabcaa894134d129cfc304710a2a5d2",
"to_name": null,
"type": null,
"value": {
"end": 14332,
"labels": [
"ANALYSIS"
],
"start": 14068,
"text": "12.It is significant, as expressly stated, in the Statement of Objects and Reasons, that the central excise tariffs are based on the HSN and the internationally accepted nomenclature was taken into account to \"reduce disputes on account of tariff classification\"."
}
},
{
"from_name": null,
"id": "7f8308398a1f4f02ba1dc7f701d88c6d",
"to_name": null,
"type": null,
"value": {
"end": 14487,
"labels": [
"ANALYSIS"
],
"start": 14333,
"text": "Accordingly, for resolving any dispute relating to tariff classification, a safe guide is the internationally accepted nomenclature emerging from the HSN."
}
},
{
"from_name": null,
"id": "9dfc729410e940fcbd9f56209117b236",
"to_name": null,
"type": null,
"value": {
"end": 14742,
"labels": [
"ANALYSIS"
],
"start": 14488,
"text": "This being the expressly acknowledged basis of the structure of central excise tariff in the Act and the tariff classification made therein, in case of any doubt the HSN is a safe guide for ascertaining the true meaning of any expression used in the Act."
}
},
{
"from_name": null,
"id": "b5822ec9def642238373dff3ebb5f0bc",
"to_name": null,
"type": null,
"value": {
"end": 15154,
"labels": [
"ANALYSIS"
],
"start": 14743,
"text": "The ISI Glossary of Terms has a different purpose and, therefore,, the specific purpose of tariff classification for which the internationally accepted nomenclature in HSN has been adopted, for enacting the Central Excise Tariff Act, 1985, must be preferred, in case of any difference between the meaning of the expression given in the HSN and the meaning of that term given in the Glossary of Terms of the ISI."
}
},
{
"from_name": null,
"id": "f4ad710b551a4b14846c886eade8d14c",
"to_name": null,
"type": null,
"value": {
"end": 15371,
"labels": [
"ANALYSIS"
],
"start": 15155,
"text": "13. A comparison of Chapter 44 in the Central Excise Tariff Act 1985 and the corresponding chapter in the HSN (Harmonised System of Nomenclature) of the Customs Cooperation Council (CCC) shows that they are, similar."
}
},
{
"from_name": null,
"id": "ce6f8addd17f4beaa97e740d3d65c56a",
"to_name": null,
"type": null,
"value": {
"end": 15519,
"labels": [
"ANALYSIS"
],
"start": 15372,
"text": "Heading No. 44.08 of the Indian Tariff is \"Plywood, veneered panels and similar laminated wood\" which is identical to Heading No. 44.12 of die HSN."
}
},
{
"from_name": null,
"id": "d2ff0960b21341f3b479b73ffdd97bf3",
"to_name": null,
"type": null,
"value": {
"end": 15759,
"labels": [
"ANALYSIS"
],
"start": 15520,
"text": "For this reason, the expression \"similar laminated wood\" in the identical heading in the Indian tariffs and the HSN should have the same meaning since the pattern of the Indian tariff of the classification made therein is based on the HDN."
}
},
{
"from_name": null,
"id": "a3a463d361e049659534757ff2264e59",
"to_name": null,
"type": null,
"value": {
"end": 15851,
"labels": [
"ANALYSIS"
],
"start": 15760,
"text": "The explanatory note in the HSN expressly includes block board in \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "32cd4fea79f64aceb4676fb0ba051651",
"to_name": null,
"type": null,
"value": {
"end": 16033,
"labels": [
"ANALYSIS"
],
"start": 15852,
"text": "the word used in the expression is \"similar\" and not \" same which means that the block board to be included in this heading need not be the same as laminated wood but similar to it."
}
},
{
"from_name": null,
"id": "5f54c6d8b18445deb7096d91512ee3d8",
"to_name": null,
"type": null,
"value": {
"end": 16220,
"labels": [
"ANALYSIS"
],
"start": 16034,
"text": "The ISI Glossary of Terms defines \"laminated wood\" and \"block board\" separately to indicate that block board is not included in the definition of \"laminated wood\" for the purpose of ISI."
}
},
{
"from_name": null,
"id": "5d09cb56d7204795a9c68ba9434ebe3a",
"to_name": null,
"type": null,
"value": {
"end": 16410,
"labels": [
"ANALYSIS"
],
"start": 16221,
"text": "On the other hand, HSN in the explanatory note expressly says that block board is \" a similar laminated wood\" wherein the core is thick and composed of bloc\", and surfaced with outer plies."
}
},
{
"from_name": null,
"id": "6990538074854497b308c936adde6783",
"to_name": null,
"type": null,
"value": {
"end": 16564,
"labels": [
"ANALYSIS"
],
"start": 16410,
"text": "\nAll kinds of block boards answer this description being comprised of the core composed of blocks which arc joined together and surfaced with outer plies."
}
},
{
"from_name": null,
"id": "d7c66b6b490f4cb183c1ee3721aa4b2c",
"to_name": null,
"type": null,
"value": {
"end": 16685,
"labels": [
"ANALYSIS"
],
"start": 16565,
"text": "This is the basic requirement according to the explanatory note in the HSN to make the article \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "bbe02cf285d44162a69c4f8860e425e6",
"to_name": null,
"type": null,
"value": {
"end": 16871,
"labels": [
"ANALYSIS"
],
"start": 16686,
"text": "The process by which the core composed of blocks is kept together 'in plate to form the core between the outer plies is not significant for classification of the article as block board."
}
},
{
"from_name": null,
"id": "036ba040bdf54579840a1ef38bdcce6b",
"to_name": null,
"type": null,
"value": {
"end": 17452,
"labels": [
"ANALYSIS"
],
"start": 16872,
"text": "The fact that all kinds of block boards irrespective of the manner in which the blocks composing the core are kept together in place are known as block boards, makes this evident It is clear that any article having a core composed of blocks of wood kept together in place between outer plies is a block board and blockboard is included within the expression \"similar laminated wood\" for the purpose of bringing it within the heading \"Plywood, veneered panels and similar laminated wood\" which is Heading No. 44.08 in the Indian tariff as it is in Heading No. 44.12 of the HSN.\n14."
}
},
{
"from_name": null,
"id": "51439a2b0fd446428ad2433fefeece82",
"to_name": null,
"type": null,
"value": {
"end": 17943,
"labels": [
"ANALYSIS"
],
"start": 17453,
"text": "The mere fact that on account of the dispute raised by the manufacturers, Chapter Note 5 was amended w.e.f.\n19.3.1990 to bring it in line with the corresponding explanatory note in the HSN and the expression \"glued together\" used therein was enlarged by a further amendment therein w.e.f. 1.3.1992 to read \"glued or otherwise joined together\" does not indicate that block board was not included in the expression \"similar laminated wood\" in Heading No. 44.08 as it stood from the beginning."
}
},
{
"from_name": null,
"id": "bd151ffdf53749c5a475a64ed1710544",
"to_name": null,
"type": null,
"value": {
"end": 18065,
"labels": [
"ANALYSIS"
],
"start": 17944,
"text": "It is significant that no amendment was made in the Heading and that the amendment was made only in the explanatory note."
}
},
{
"from_name": null,
"id": "555f68554d1f4519a89dabf92326556f",
"to_name": null,
"type": null,
"value": {
"end": 18401,
"labels": [
"ANALYSIS"
],
"start": 18065,
"text": "\nThe exercise of amendment of Chapter Note 5 was ex abundante cautela merely to clarify and make explicit that which was implicit earlier in the expression \"similar laminated wood\"\n since the identical heading was lifted from the HSN wherein an explanatory note existed, including block board in the expression \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "e4eadbf7999544c0a21204d436495bde",
"to_name": null,
"type": null,
"value": {
"end": 18683,
"labels": [
"ANALYSIS"
],
"start": 18402,
"text": "In our opinion, the express provision made for \"flush doors\" in Heading No. 44.\n 10, Subheading No. 4410.10 is no indication, in the context, that block board must be classified as an article of wood not elsewhere specified under Heading No. 44.10, Subheading No. 4410.90 \"others\"."
}
},
{
"from_name": null,
"id": "ffa205c44c5e4d118a225a99cf2c45dc",
"to_name": null,
"type": null,
"value": {
"end": 18928,
"labels": [
"ANALYSIS"
],
"start": 18684,
"text": "It merely means that \"flush door\"\n being expressly classified under Heading No. 44.10, Sub- heading No. 4410. 10, is taken out of the ambit of \"similar laminated wood\" in Heading No. 44.08 leaving the rest included in that expression untouched."
}
},
{
"from_name": null,
"id": "3674b8e780ba4d30a752492a691f92e2",
"to_name": null,
"type": null,
"value": {
"end": 19160,
"labels": [
"ANALYSIS"
],
"start": 18929,
"text": "AL do not think that the specification of \"flush door\" under Heading No.44. 10, Sub-heading No. 4410. 10 has the effect of also excluding block board from \"similar laminated wood\" in Heading No.\n 44.08, Subheading No. 4408.90.\n 15."
}
},
{
"from_name": null,
"id": "4d7471265c6e467ea1b4037bf4a2fdfb",
"to_name": null,
"type": null,
"value": {
"end": 19501,
"labels": [
"ANALYSIS"
],
"start": 19161,
"text": "The meaning of the expression \"similar laminated wood\"\n in the heading \"Plywood, veneered panels and similar lami- nated wood\" given in the explanatory note to the HSN for Heading No. 44.12 therein, identical to Heading No. 44.08 in the Indian tariff is also in accord with the general meaning of the relevant words used in that expression."
}
},
{
"from_name": null,
"id": "8a157d1751584b70894a707a19e8d754",
"to_name": null,
"type": null,
"value": {
"end": 19622,
"labels": [
"ANALYSIS"
],
"start": 19502,
"text": "The heading means that it covers ' plywood\" and \",veneered panels\"\n together with all kinds of \"similar laminated wood\"."
}
},
{
"from_name": null,
"id": "7aa4204cc4b44762a0ac2f81fefcbc85",
"to_name": null,
"type": null,
"value": {
"end": 19800,
"labels": [
"ANALYSIS"
],
"start": 19623,
"text": "In other words, treating \"plywood\" or \"veneered panels\" as \"laminated wood\", it covers all kinds of laminated wood bearing any resemblance with \"plywood\" or \"veneered panels\".\n "
}
},
{
"from_name": null,
"id": "acc88558f667417bb148c6ecedeac8dd",
"to_name": null,
"type": null,
"value": {
"end": 19864,
"labels": [
"ANALYSIS"
],
"start": 19800,
"text": "The word \"similar\" is expansive and not restrictive like \"same\"."
}
},
{
"from_name": null,
"id": "551262fb131445769c38f0b1d4cc0550",
"to_name": null,
"type": null,
"value": {
"end": 19970,
"labels": [
"ANALYSIS"
],
"start": 19865,
"text": "Thus, some resemblance with \"plywood\" or \"veneered panels\" is enough provided the article can be treated."
}
},
{
"from_name": null,
"id": "17fff99d46b3498da34cb1b5f475a3ae",
"to_name": null,
"type": null,
"value": {
"end": 19991,
"labels": [
"ANALYSIS"
],
"start": 19971,
"text": "as \"laminated wood\"."
}
},
{
"from_name": null,
"id": "ca41e29c79984c64878821e03cf712b4",
"to_name": null,
"type": null,
"value": {
"end": 20203,
"labels": [
"ANALYSIS"
],
"start": 19992,
"text": "The sweep of the heading is, therefore, wide and resort to the residuary heading No. 44.10 is to be had only when a liberal construction of the wide heading No.\n 44.08 cannot accommodate \"block board\" within it."
}
},
{
"from_name": null,
"id": "32724f3e4c66439db35793a447d44e08",
"to_name": null,
"type": null,
"value": {
"end": 20380,
"labels": [
"ANALYSIS"
],
"start": 20203,
"text": "\n 16. The significant words are \"plywood\", \"veneered panels\"\n and \"laminated wood\" with reference to the meaning of which, the ambit of Heading No. 44.08 has to be determined.\n "
}
},
{
"from_name": null,
"id": "40f96cd23f1e45c787dd818d0999798b",
"to_name": null,
"type": null,
"value": {
"end": 20583,
"labels": [
"ANALYSIS"
],
"start": 20380,
"text": "In the Oxford Encyclopedic English Dictionary, the meanings given are: Plywood a strong thin board consisting of two or more layers glued and pressed together with the direction of the grain alternating."
}
},
{
"from_name": null,
"id": "361e8a55ca7a4d4a8e994c8d24ae6d09",
"to_name": null,
"type": null,
"value": {
"end": 20645,
"labels": [
"ANALYSIS"
],
"start": 20584,
"text": "\"\n \"Blockboard a plywood board with a core of wooden strips.\""
}
},
{
"from_name": null,
"id": "23c5260f7ba049219bdb4c0ada9751a0",
"to_name": null,
"type": null,
"value": {
"end": 20701,
"labels": [
"ANALYSIS"
],
"start": 20645,
"text": "\n \"Lamination the manufacture by placing layer on layer."
}
},
{
"from_name": null,
"id": "3dce8478094b474fbaba75e8ba751d8a",
"to_name": null,
"type": null,
"value": {
"end": 20880,
"labels": [
"ANALYSIS"
],
"start": 20702,
"text": "\"\n The New Encyclopaedia Britannica, Volume 19, Macropaedia, under the heading \"Forestry and Wood Production\", in the section \"Wood Utilization\" at pages 420-21 states - \"Veneer."
}
},
{
"from_name": null,
"id": "05f79443de8c41bebb833a14af550ca4",
"to_name": null,
"type": null,
"value": {
"end": 20955,
"labels": [
"ANALYSIS"
],
"start": 20881,
"text": "Veneer is a thin layer, or sheet, of wood that is uniform in thickness...."
}
},
{
"from_name": null,
"id": "b3b12e88f91546b2b434acce525aadfd",
"to_name": null,
"type": null,
"value": {
"end": 21023,
"labels": [
"ANALYSIS"
],
"start": 20955,
"text": "\n xxx xxx xxx \"Plywood and laminated constructions."
}
},
{
"from_name": null,
"id": "c65d4438d7e44213932e51250558134e",
"to_name": null,
"type": null,
"value": {
"end": 21084,
"labels": [
"ANALYSIS"
],
"start": 21024,
"text": "Plywood and laminated constructions arc glued-wood products."
}
},
{
"from_name": null,
"id": "276531a2386f4890978c68b6497554d9",
"to_name": null,
"type": null,
"value": {
"end": 21292,
"labels": [
"ANALYSIS"
],
"start": 21085,
"text": "Although gluing is an old art, practiced since ancient times the modem development of various products was made possible by the improvement of glues especially by the production of synthetic resin adhesives."
}
},
{
"from_name": null,
"id": "4c789f33f4254cdfa48c2b830aee7036",
"to_name": null,
"type": null,
"value": {
"end": 21444,
"labels": [
"ANALYSIS"
],
"start": 21292,
"text": "\n Plywood is a panel product manufactured by gluing together one or more veneers to both sides of a veneer solid wood, or reconstituted wood core (...)."
}
},
{
"from_name": null,
"id": "bc2b049086744525a54072b7e55a0fb7",
"to_name": null,
"type": null,
"value": {
"end": 21701,
"labels": [
"ANALYSIS"
],
"start": 21445,
"text": "In the case of solid-wood- core plywood and reconstituted-wood-core plywood, an additional intermediate step is the production of cores, which are made by lateral gluing of blocks or strips of wood or by gluing oriented wood chips or flakes with adhesives."
}
},
{
"from_name": null,
"id": "37d4cae8b88a41cc8b707fb7309c534a",
"to_name": null,
"type": null,
"value": {
"end": 21725,
"labels": [
"ANALYSIS"
],
"start": 21701,
"text": "\n xxx xxx xxx"
}
},
{
"from_name": null,
"id": "7ca863e0efb74bb1aa110015e5b7af04",
"to_name": null,
"type": null,
"value": {
"end": 21785,
"labels": [
"ANALYSIS"
],
"start": 21726,
"text": "\"Another important glued product is laminated wood...\"\n 17."
}
},
{
"from_name": null,
"id": "4ce0b713ee29445bb66be20b7b83264b",
"to_name": null,
"type": null,
"value": {
"end": 22003,
"labels": [
"ANALYSIS"
],
"start": 21786,
"text": "In Vol., 7, Micropaedia, at page 123, it says - \"Lamination, in technology, the process of building up successive layers of a substance such as wood or textiles, and bonding them with resin to form a finished product."
}
},
{
"from_name": null,
"id": "b12c09ba4e06467f91a79af32ae90e43",
"to_name": null,
"type": null,
"value": {
"end": 22389,
"labels": [
"ANALYSIS"
],
"start": 22003,
"text": "\n Laminated board, for example, consists of thin layers of wood bonded together;.........\n 18.The meaning of the significant words and description of the wood products as intermediate materials meant for manufacture of final products clearly indicate that \"laminated wood\" means a wood product prepared by placing layer on layer and \"block board\" is a plywood board with a core of wood."
}
},
{
"from_name": null,
"id": "a2697f5efb874ad8ad87aab53672e0c0",
"to_name": null,
"type": null,
"value": {
"end": 22544,
"labels": [
"ANALYSIS"
],
"start": 22390,
"text": "Any plywood board with a core of wood in which there are layers, one above the other is, therefore, laminated wood similar to plywood or, veneered panels."
}
},
{
"from_name": null,
"id": "bd081e63b8df450c858937abc8a369cb",
"to_name": null,
"type": null,
"value": {
"end": 22654,
"labels": [
"ANALYSIS"
],
"start": 22545,
"text": "It is \"similar laminated wood\" included in the heading \"Plywood, veneered panels and similar laminated wood\"."
}
},
{
"from_name": null,
"id": "8cf7b8f2cb4f4bb08397a0be1f6d04b2",
"to_name": null,
"type": null,
"value": {
"end": 22734,
"labels": [
"ANALYSIS"
],
"start": 22654,
"text": "\n Similarity with, and not identity with plywood or veneered panels is required."
}
},
{
"from_name": null,
"id": "8b1abf3b2c8b43b78457fd1a553d96c2",
"to_name": null,
"type": null,
"value": {
"end": 22951,
"labels": [
"ANALYSIS"
],
"start": 22735,
"text": "In Nat Steel Equipment Private Ltd. vs.\n Collector of Central Excise, 1988 (34) E.L.T. 8 (S.C.), while considering the meaning of the word \"similar\" in a tariff item, in similar context, it was stated thus: \"........"
}
},
{
"from_name": null,
"id": "0b6f84126fbd46bf9caafe16408b6140",
"to_name": null,
"type": null,
"value": {
"end": 23005,
"labels": [
"ANALYSIS"
],
"start": 22952,
"text": "The expression \"similar\" is a significant expression."
}
},
{
"from_name": null,
"id": "43df8c6ea0ed42e3bf37b0d6591ef8a9",
"to_name": null,
"type": null,
"value": {
"end": 23133,
"labels": [
"ANALYSIS"
],
"start": 23006,
"text": "It does not mean identical but it means corresponding to or resembling to in many respects; like; or having a general likeness."
}
},
{
"from_name": null,
"id": "11e387b09f4c4075b81742aa4233423d",
"to_name": null,
"type": null,
"value": {
"end": 23258,
"labels": [
"ANALYSIS"
],
"start": 23134,
"text": "statute does not contemplate that goods classed under the words of 'similar description shall be in all respects the same."
}
},
{
"from_name": null,
"id": "72581c476f4d4433bfcf49c9a28656ad",
"to_name": null,
"type": null,
"value": {
"end": 23302,
"labels": [
"ANALYSIS"
],
"start": 23259,
"text": "If it did these words would be unnecessary."
}
},
{
"from_name": null,
"id": "2fef1ebbb09842eab91299a9b8c365ae",
"to_name": null,
"type": null,
"value": {
"end": 23380,
"labels": [
"ANALYSIS"
],
"start": 23303,
"text": "These were intended to embrace goods but not identical with those goods.....\""
}
},
{
"from_name": null,
"id": "af33630ca7f645ec8d1e39262b0129e2",
"to_name": null,
"type": null,
"value": {
"end": 23418,
"labels": [
"ANALYSIS"
],
"start": 23380,
"text": "\n (at page 10) This test is satisfied."
}
},
{
"from_name": null,
"id": "8c76a67ba3e14a1ebc46d89924939894",
"to_name": null,
"type": null,
"value": {
"end": 23635,
"labels": [
"ANALYSIS"
],
"start": 23419,
"text": "Thus, the meaning given to the expression \"similar laminated wood\" in the HSN is not any special meaning thereof but the general meaning as un- derstood internationally in the field of \"Forestry and Wood Production\"."
}
},
{
"from_name": null,
"id": "dd9119e3db0e4e14ae6d3566d1f34b40",
"to_name": null,
"type": null,
"value": {
"end": 24124,
"labels": [
"RATIO"
],
"start": 23635,
"text": "\n 19.We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the central excise tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself"
}
},
{
"from_name": null,
"id": "8dbafbd083bf4666ba8a41c8a4bf14dc",
"to_name": null,
"type": null,
"value": {
"end": 24336,
"labels": [
"RATIO"
],
"start": 24125,
"text": "The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN."
}
},
{
"from_name": null,
"id": "72e16566e837470c8f26fd2ede7522a4",
"to_name": null,
"type": null,
"value": {
"end": 24488,
"labels": [
"RATIO"
],
"start": 24337,
"text": "In the HSN, block board is included within the meaning of the expression \"similar laminated wood\" in the same context of classification of block board."
}
},
{
"from_name": null,
"id": "0e1198a61dac44c1ba73a5192b18a3d2",
"to_name": null,
"type": null,
"value": {
"end": 24793,
"labels": [
"RATIO"
],
"start": 24489,
"text": "Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian tariff of a different intention."
}
},
{
"from_name": null,
"id": "d78ed796f7e148f1a17abf850ade17f2",
"to_name": null,
"type": null,
"value": {
"end": 25124,
"labels": [
"RATIO"
],
"start": 24793,
"text": "\n20.In our opinion, the expression \"similar laminated wood\"\nin Heading No. 44.08 as it stood from the beginning must be construed to include within it block board of all kinds so that the amendment in Chapter Note 5 w e.f 19.3.1990 and w.e.f 1.3.1992 merely clarified and explicit that which was implicit in the heading throughout."
}
},
{
"from_name": null,
"id": "5b19f75fdff44fd6ba74aee009b6f1a7",
"to_name": null,
"type": null,
"value": {
"end": 25233,
"labels": [
"RATIO"
],
"start": 25125,
"text": "These amendments were obviously made to end the dispute raised by the manufacturers by an express statement."
}
},
{
"from_name": null,
"id": "6856bc6a81b647c1a8d7e88e65cf6ddf",
"to_name": null,
"type": null,
"value": {
"end": 25359,
"labels": [
"RATIO"
],
"start": 25234,
"text": "Any further discussion with reference to the definitions in the ISI Glossary is unnecessary for the reason already indicated."
}
},
{
"from_name": null,
"id": "c87e1e257ea44b88bb448038a285ea96",
"to_name": null,
"type": null,
"value": {
"end": 25670,
"labels": [
"RPC"
],
"start": 25360,
"text": "21. The result is that the decision of the Tribunal reported in 1992 (60) E.L.T. 668 and that of the High Court in 1993 (66) E.L.T. 345 arc reversed, while the decision of the High Court dated 17.3.1993 for the third period commencing from 1.3.1992 is affirmed even though for dif- ferent reasons given herein."
}
},
{
"from_name": null,
"id": "a816b670584841149de261cb642e5dbc",
"to_name": null,
"type": null,
"value": {
"end": 25794,
"labels": [
"RPC"
],
"start": 25671,
"text": "22. Consequently, all the appeals of the revenue are allowed while the appeals and SLPs of the manufacturers arc dismissed."
}
},
{
"from_name": null,
"id": "7be54380e5a24c7897f153fcc8edc4e0",
"to_name": null,
"type": null,
"value": {
"end": 25804,
"labels": [
"RPC"
],
"start": 25795,
"text": "No costs."
}
}
]
}
] | 4,277 | {
"text": "PETITIONER:\nCOLLECTOR OF CENTRAL EXCISE, SHILLONG\n\n Vs.\n\nRESPONDENT:\nWOOD CRAFT PRODUCTS LTD.\n\nDATE OF JUDGMENT20/03/1995\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBHARUCHA S.P. (J)\nPARIPOORNAN, K.S.(J)\n\nCITATION: JT 1995 (3) 207\n 1995 SCC (3) 454\n 1995 SCALE (2)364\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\nJ.S. VERMA, J., 1.The main question for decision in these appeals and the connected matters is whether \"block boards\" are to be classified under Heading No. 44.08, Sub-heading No. 4408.90 as claimed by the revenue or under Heading No. 44.10, Sub- heading No. 4410.90 as claimed by the manufacturers of block boards. The controversy relates to three periods, namely, from 28.2.1986 to 19.3.1990, from 20.3.1990 to 28.2.1992 and from 1.3.1992 onwards. The division into three periods is on account of the fact that an amended Chapter Note 5 in Chapter 44 was introduced w.e.f 19.3.1990 on account of the controversy which had been raised about the classification of block boards and, thereafter, we.f 1.3.1992 a second amendment was made in Chapter Note 5 on account of the surviving controversy even after the amendment made w.e.f. 19.3.1990.\nThese appeals and the connected matters relate to these three periods.\n2.For the first period, the Tribunal held in the main judgment dated 18.10.1989 reported in 1992 (60) E.L.T. 668 that block board does not fall within Heading No. 44.08, Sub-heading 4408.90 and the more appropriate classification would be under Heading No. 44.10, Sub-heading No. 4410.90.\nThis decision being in favour of the manufacturers, the appeals relating to this period are by the revenue. For the second period writ petitions filed by the manufacturers in the Gauhati High Court were allowed by the judgment dated 23.3.1993 reported in 1993 (66) E.L.T. 345 Arunachal Forests Products Ltd. vs. Union of India. Civil Appeal Nos.\n39774020/94 are by the revenue against that decision. For the third period, the writ petitions filed by the manufacturers in the Gauhati High Court have failed being dismissed by the judgment dated 17.3.1993 and the manufacturers have challenged that decision.\n 3.At the outset, the competing headings with reference to which the question has to be decided may be quoted. They are as under:- \"44.08 Plywood, veneered panels and similar laminated wood 4408. 10 Marine plywood and aircraft plywood 30% 4408.20 Plywood for tea-chests when cut to size in panels or shocks and packed in sets 30% 4408.30 Decorative plywood - 4408.40 Cuttings and trimmings of plywood of width not exceeding 5 centimeters Nil 4408.90 Others 30% 44.10 Articles of wood not elsewhere specified 20% 4410. 10 Flush door 30% 4410.90 Others 12% ------- With effect from 19.3.1990, amended Chapter Note 5 in Chapter 44 was introduced which read as follows:- \"5. For the purposes of heading No. 44.08 the expression 'similar laminated wood' includes block board, laminated board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies and also panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibre board, wood waste glued together, asbestos or cork.\"\n Thereafter with effect from 1.3.1992 a second amendment was made in Chapter Note 5 after which it read as follows: \"5. For the purposes of heading No. 44.08 the expression 'similar laminated wood' includes block board, laminated board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued or otherwise joined together and surfaced with the outer plies and also panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibre board, wood waste glued together, asbestos or cork. \"\n 4. \"Block board\" has not been expressly if specified in any entry. The revenue contends that \"block board\" is covered by the expression \"similar laminated wood\" in the heading \"Plywood, veneered panels and similar laminated wood\" of Heading No. 44.08 and, therefore, falls under the sub-heading No. 4408.90 \"other\" which is the residuary Sub- heading. On the other hand, the manufacturers of block board contend that it is an \"article of wood\" and, therefore, falls under heading \"articles of wood not elsewhere specified\" of Heading No. 44. 10, Sub-heading No.\n 4410.90 \"other\" which is the residuary entry since it is not \"similar laminated wood\". The basis of the rival con- tentions is that according to the manufacturers such an indication flows from the ISI Glossary of Terms, while according to the revenue the structure of the central excise tariff in the Central Excise Tariff Act, 1985 is the adoption of a detailed central excise tariff based broadly on the system of classification derived from the Interna- tional Convention called the Brussels' Convention on the harmonised Commodity Description and Coding System (Harmo- nised System of Nomenclature called \"HSN\") with the necessary modifications. The revenue contends that the expression It similar laminated wood\" in Heading No. 44.08 expressly includes block board, laminated wood and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued or otherwise joined together and surfaced with the outer plies as clarified by the amendment in Chapter Note 5 which was always the meaning of the expression \"similar laminated wood\" according to HSN.\nThe revenue, contends that this is how the expression was always understood in the HSN which is the pattern adopted while enacting Central Excise Tariff Act, 1985. According to the revenue, the ISI Glossary of Terms being for a different purpose is not the appropriate aid to construction of these, headings in the Central Excise Tariff Act. The revenue contends that the amendments made in Chapter Note 5 were only with a view to clarify this position and end the controversy which was raised by the manufacturers relating to construction of these headings in the Act. On this basis, the revenue urges that the Tribunal's decision relating to the first period from 28.2.1986 to 19.3.1990 reported in 1992 (60) E.L.T. 668 and of the High Court for the second period from 20.3.1990 to 28.2.1992 reported in 1993 (66) E.L.T. 345 deserve to be reversed maintaining the decision of the High Court for the third period from 1.3.1992 onwards which is against the manufacturers. It is obvious that in the event of the revenue succeeding in respect of the first period, it must follow that the revenue must succeed for the other two periods also. It is equally obvious that for the third period from 1.3,1992 onwards, in view of the clear wording of the amended Chapter Note 5 w.e.f 1.3.1992, the question is beyond controversy since the expression \"glued or otherwise joined together\" has been added in Chapter Note 5 to make it beyond controversy that block boards of all kinds fall within the expression \"similar laminated wood\".\n5.It is significant that Heading No. 44.12 of the HSN is the same as Heading No.44.08of the Indian Tariff and reads \"Plywood, veneered panels and similar lami-nated wood\". The explanatory notes on the HSN indicate the meaning of the expression \"similar laminated wood\" as un- der:- \"Similar laminated wood. This group can be divided into two categories: Block board, lamin board and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies.\n Panels of this kind are very rigid and strong and can be used without framing or backing.\"\n6. It is clear that if the expression \"similar laminated wood\" in the Indian Tariff is understood as it meant under the HSN on which pattern the Central Excise Tariff Act is based, then block boards of all kinds would fall within the expression \"similar laminated wood\". This is how the amended Chapter Note reads expressly. The question is whether it can be so read even for the earlier periods particularly the first period before amendment of Chapter Note 5 to expressly include block board in the expression \"similar laminated wood\".\n7. The ISI Glossary contains the following definitions:- \"Laminated wood-An assembled product made up of layers of wood and adhesive in which the grains of adjacent layers are parallel.\n Block board A board having a core made up of strips of wood, each not exceeding 25 nun in width, laid separately or glued or otherwise joined to form a slab which is glued between two or more outer veneers with the direction of the grain of the core blocks running at right angles to that of the adjacent outer veneers (See Fig.).\n8. The Tribunal has taken the view that the block boards manufactured by these manufactures do not conform to the definition of \"laminated wood\" given in the ISI Glossary.\nIt further held that the block boards are similar to \"flush doors\" and, therefore, the more appropriate classification is under Heading No. 44.10 which specifies the flush doors as a specific category and other articles of wood not else- where specified would fall under the residuary sub-heading No. 4410.90. Reliance was placed on the definitions in the ISI Glossary.\n9. After the amendment made in Chapter Note 5 w.e.f 19.3.1990 for the period from 20.3.19W to 28.2.1992, the High Court in 1993 (66) E.L.T. 345 placed reliance similarly on the ISI Glossary to hold that where no artificial means by way of glue or metal fastener is used to hold the blocks together and where the blocks of woods are separately laid, they are \"otherwise joined together\" to form a slab and, therefore, such block boards could fall under Heading No.\n44.08, sub-heading No. 4408.90 in the light of Chapter Note 5 as amended from 1.3.1992 but in the absence, of the. words as or otherwise joined\" from Chapter Note 5 as introduced w.e.f 19.3.1990, only block boards in which the core is com- posed of blocks of woods \"glued together\" would fall under Heading No. 44.08, Subheading No. 4408.90 during the second period between 20.3.1990 to 28.2.1992. In other words, for the second period the High Court took the view that the only block boards in which blocks of wood arc put together by applying adhesive or glue ,in between, could fall under Heading No. 44.08, Sub-heading No. 4408.90 in viewof Chapter Note 5 as introduced w.e.f 19.3.1990 prior to its further amendment w.e.f 1.3.1992. After the further amend- ment made in Chapter Note 5 w.e.f. 1.3.1992 by enlargement of the expression \"glued together\" to \"glued or otherwise joined together\", the High Court for the third period commencing from 1.3.1992 held that all kinds of block boards whether glued together or joined and kept in place by any other mode fall under the Heading No. 44.08, Sub-heading No.\n4408.90.\n10.Having heard learned counsel for the parties, we are satisfied that the contention of the revenue must be accepted with the result that the decision of the Tribunal reported in 1992 (60) E.L.T. 668 for the first period and that of the High Court reported in 1993 (66) E.L.T, 345 for the second period must be reversed, while the decision dated 17.3.1993 of the High Court against the manufacturers for the third period commencing from 1.3.1992 must be affirmed.\n11. The Statement of Objects and Reasons of the Central Excise Tariff Bill, 1985 which led to the enactment of the Central Excise Tariff Act, 1985 is indicative of the pattern of the structure of the central excise tariff enacted therein. It reads as under: \"Central Excise duty is now levied at the rates specified.in the First Schedule to the Central Excises and Salt Act, 1944. The Central Excises and Salt Act, 1944 originally provided for only 11 items. The number of Items has since increased to 137. The levy, which was selective in nature, to start with, acquired a comprehensive coverage in 1975, when the residuary Item 68 was introduced.\n Thus, barring a few Items like opium, alcohol, etc., all other manufactured goods now come under the scope of this levy.\n 2.The Technical Study Group on Central Excise Tariff, which was set up by the Government in 1984 to conduct a comprehensive inquiry into the structure of the central excise tariff has suggested the adoption of a detailed central excise tariff based broadly on the system of classification derived from the international Convention on the Harmonised Commodity Description and Coding System (Harmonised system) with such contractions or modifications thereto as are necessary to fall within the scope of the levy of central excise duty. The Group has also suggested that the new tariff should be provided for by a separate Act to be called the Central Excise Tariff Act.\n 3.The tariff suggested by the Study Group is based on an internationally accepted nomenclature, in the formulation of which all considerations, technical and legal, have been taken into account. It should, therefore, reduce disputes on account of tariff classification. Besides, since the tariff would be on the lines of the Harmonised System, it would bring about considerable alignment between the customs and central excise tariffs and thus facilitate charging of additional customs duty on imports equivalent to excise duty. Accordingly, it is proposed to specify the Central excise tariff suggested by the Study Group by a separate tariff Act in- stead of the present system of the tariff being governed by the First Schedule to the Central Excises and Salt Act 1944.\n 4.The main features of the Bill are as follows :- (i)The tariff included in the Schedule to the Bill has been made more de tailed and comprehensive, thus obviating the need for having a residuary tariff Item.\n Goods of the same class have been grouped together to enable parity in treatment xxx xxx xxx 5. The Bill seeks to achieve the above objects.\n (emphasis supplied) 12.It is significant, as expressly stated, in the Statement of Objects and Reasons, that the central excise tariffs are based on the HSN and the internationally accepted nomenclature was taken into account to \"reduce disputes on account of tariff classification\". Accordingly, for resolving any dispute relating to tariff classification, a safe guide is the internationally accepted nomenclature emerging from the HSN. This being the expressly acknowledged basis of the structure of central excise tariff in the Act and the tariff classification made therein, in case of any doubt the HSN is a safe guide for ascertaining the true meaning of any expression used in the Act. The ISI Glossary of Terms has a different purpose and, therefore,, the specific purpose of tariff classification for which the internationally accepted nomenclature in HSN has been adopted, for enacting the Central Excise Tariff Act, 1985, must be preferred, in case of any difference between the meaning of the expression given in the HSN and the meaning of that term given in the Glossary of Terms of the ISI.\n13. A comparison of Chapter 44 in the Central Excise Tariff Act 1985 and the corresponding chapter in the HSN (Harmonised System of Nomenclature) of the Customs Cooperation Council (CCC) shows that they are, similar.\nHeading No. 44.08 of the Indian Tariff is \"Plywood, veneered panels and similar laminated wood\" which is identical to Heading No. 44.12 of die HSN. For this reason, the expression \"similar laminated wood\" in the identical heading in the Indian tariffs and the HSN should have the same meaning since the pattern of the Indian tariff of the classification made therein is based on the HDN. The explanatory note in the HSN expressly includes block board in \"similar laminated wood\". the word used in the expression is \"similar\" and not \" same which means that the block board to be included in this heading need not be the same as laminated wood but similar to it. The ISI Glossary of Terms defines \"laminated wood\" and \"block board\" separately to indicate that block board is not included in the definition of \"laminated wood\" for the purpose of ISI. On the other hand, HSN in the explanatory note expressly says that block board is \" a similar laminated wood\" wherein the core is thick and composed of bloc\", and surfaced with outer plies.\nAll kinds of block boards answer this description being comprised of the core composed of blocks which arc joined together and surfaced with outer plies. This is the basic requirement according to the explanatory note in the HSN to make the article \"similar laminated wood\". The process by which the core composed of blocks is kept together 'in plate to form the core between the outer plies is not significant for classification of the article as block board. The fact that all kinds of block boards irrespective of the manner in which the blocks composing the core are kept together in place are known as block boards, makes this evident It is clear that any article having a core composed of blocks of wood kept together in place between outer plies is a block board and blockboard is included within the expression \"similar laminated wood\" for the purpose of bringing it within the heading \"Plywood, veneered panels and similar laminated wood\" which is Heading No. 44.08 in the Indian tariff as it is in Heading No. 44.12 of the HSN.\n14. The mere fact that on account of the dispute raised by the manufacturers, Chapter Note 5 was amended w.e.f.\n19.3.1990 to bring it in line with the corresponding explanatory note in the HSN and the expression \"glued together\" used therein was enlarged by a further amendment therein w.e.f. 1.3.1992 to read \"glued or otherwise joined together\" does not indicate that block board was not included in the expression \"similar laminated wood\" in Heading No. 44.08 as it stood from the beginning. It is significant that no amendment was made in the Heading and that the amendment was made only in the explanatory note.\nThe exercise of amendment of Chapter Note 5 was ex abundante cautela merely to clarify and make explicit that which was implicit earlier in the expression \"similar laminated wood\"\n since the identical heading was lifted from the HSN wherein an explanatory note existed, including block board in the expression \"similar laminated wood\". In our opinion, the express provision made for \"flush doors\" in Heading No. 44.\n 10, Subheading No. 4410.10 is no indication, in the context, that block board must be classified as an article of wood not elsewhere specified under Heading No. 44.10, Subheading No. 4410.90 \"others\". It merely means that \"flush door\"\n being expressly classified under Heading No. 44.10, Sub- heading No. 4410. 10, is taken out of the ambit of \"similar laminated wood\" in Heading No. 44.08 leaving the rest included in that expression untouched. AL do not think that the specification of \"flush door\" under Heading No.44. 10, Sub-heading No. 4410. 10 has the effect of also excluding block board from \"similar laminated wood\" in Heading No.\n 44.08, Subheading No. 4408.90.\n 15. The meaning of the expression \"similar laminated wood\"\n in the heading \"Plywood, veneered panels and similar lami- nated wood\" given in the explanatory note to the HSN for Heading No. 44.12 therein, identical to Heading No. 44.08 in the Indian tariff is also in accord with the general meaning of the relevant words used in that expression. The heading means that it covers ' plywood\" and \",veneered panels\"\n together with all kinds of \"similar laminated wood\". In other words, treating \"plywood\" or \"veneered panels\" as \"laminated wood\", it covers all kinds of laminated wood bearing any resemblance with \"plywood\" or \"veneered panels\".\n The word \"similar\" is expansive and not restrictive like \"same\". Thus, some resemblance with \"plywood\" or \"veneered panels\" is enough provided the article can be treated. as \"laminated wood\". The sweep of the heading is, therefore, wide and resort to the residuary heading No. 44.10 is to be had only when a liberal construction of the wide heading No.\n 44.08 cannot accommodate \"block board\" within it.\n 16. The significant words are \"plywood\", \"veneered panels\"\n and \"laminated wood\" with reference to the meaning of which, the ambit of Heading No. 44.08 has to be determined.\n In the Oxford Encyclopedic English Dictionary, the meanings given are: Plywood a strong thin board consisting of two or more layers glued and pressed together with the direction of the grain alternating. \"\n \"Blockboard a plywood board with a core of wooden strips.\"\n \"Lamination the manufacture by placing layer on layer. \"\n The New Encyclopaedia Britannica, Volume 19, Macropaedia, under the heading \"Forestry and Wood Production\", in the section \"Wood Utilization\" at pages 420-21 states - \"Veneer. Veneer is a thin layer, or sheet, of wood that is uniform in thickness....\n xxx xxx xxx \"Plywood and laminated constructions. Plywood and laminated constructions arc glued-wood products. Although gluing is an old art, practiced since ancient times the modem development of various products was made possible by the improvement of glues especially by the production of synthetic resin adhesives.\n Plywood is a panel product manufactured by gluing together one or more veneers to both sides of a veneer solid wood, or reconstituted wood core (...). In the case of solid-wood- core plywood and reconstituted-wood-core plywood, an additional intermediate step is the production of cores, which are made by lateral gluing of blocks or strips of wood or by gluing oriented wood chips or flakes with adhesives.\n xxx xxx xxx \"Another important glued product is laminated wood...\"\n 17. In Vol., 7, Micropaedia, at page 123, it says - \"Lamination, in technology, the process of building up successive layers of a substance such as wood or textiles, and bonding them with resin to form a finished product.\n Laminated board, for example, consists of thin layers of wood bonded together;.........\n 18.The meaning of the significant words and description of the wood products as intermediate materials meant for manufacture of final products clearly indicate that \"laminated wood\" means a wood product prepared by placing layer on layer and \"block board\" is a plywood board with a core of wood. Any plywood board with a core of wood in which there are layers, one above the other is, therefore, laminated wood similar to plywood or, veneered panels. It is \"similar laminated wood\" included in the heading \"Plywood, veneered panels and similar laminated wood\".\n Similarity with, and not identity with plywood or veneered panels is required. In Nat Steel Equipment Private Ltd. vs.\n Collector of Central Excise, 1988 (34) E.L.T. 8 (S.C.), while considering the meaning of the word \"similar\" in a tariff item, in similar context, it was stated thus: \"........ The expression \"similar\" is a significant expression. It does not mean identical but it means corresponding to or resembling to in many respects; like; or having a general likeness. statute does not contemplate that goods classed under the words of 'similar description shall be in all respects the same. If it did these words would be unnecessary. These were intended to embrace goods but not identical with those goods.....\"\n (at page 10) This test is satisfied. Thus, the meaning given to the expression \"similar laminated wood\" in the HSN is not any special meaning thereof but the general meaning as un- derstood internationally in the field of \"Forestry and Wood Production\".\n 19.We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the central excise tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression \"similar laminated wood\" in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian tariff of a different intention.\n20.In our opinion, the expression \"similar laminated wood\"\nin Heading No. 44.08 as it stood from the beginning must be construed to include within it block board of all kinds so that the amendment in Chapter Note 5 w e.f 19.3.1990 and w.e.f 1.3.1992 merely clarified and explicit that which was implicit in the heading throughout. These amendments were obviously made to end the dispute raised by the manufacturers by an express statement. Any further discussion with reference to the definitions in the ISI Glossary is unnecessary for the reason already indicated.\n21. The result is that the decision of the Tribunal reported in 1992 (60) E.L.T. 668 and that of the High Court in 1993 (66) E.L.T. 345 arc reversed, while the decision of the High Court dated 17.3.1993 for the third period commencing from 1.3.1992 is affirmed even though for dif- ferent reasons given herein.\n22. Consequently, all the appeals of the revenue are allowed while the appeals and SLPs of the manufacturers arc dismissed. No costs."
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"end": 702,
"labels": [
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"start": 0,
"text": "PETITIONER:\nCOLLECTOR OF CUSTOMS, BOMBAY\n\nVs.\n\nRESPONDENT:\nK. MOHAN & CO. EXPORTS\n\nDATE OF JUDGMENT25/09/1989\n\nBENCH:\nRANGNATHAN, S.\nBENCH:\nRANGNATHAN, S.\nKANIA, M.H.\n\nCITATION:\n\n1989 AIR 2250 1989 SCR Supl. (1) 231\n\n1989 SCC Supl. (2) 337 JT 1989 (3) 740\n\n1989 SCALE (2)712\n\nACT:\n Customs Act 1962--Customs Tariff Act 1975--Section\n\n3--Import of metallised polyester films rolls--Whether\nentitled to exemption from payment of countervailing duty\nunder notification No. 228/76 dated 2.8.1976 issued under\nSection 25(1) of the Customs Act.\n\nHEADNOTE:\n The Respondent firm imported from Japan, \"metallised\n\npolyester films\" which were in the shape of film rolls\nseveral metres long."
}
},
{
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"id": "2e03d983f47f476f93037aea9a2ae56e",
"to_name": "text",
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"value": {
"end": 851,
"labels": [
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],
"start": 703,
"text": "The goods were cleared on payment of\ncustoms duty as well as additional duty/countervailing duty\nleviable under section 3 of the Customs Tariff Act."
}
},
{
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"id": "761c168ac1a343709d59c4af7f1ae40d",
"to_name": "text",
"type": "labels",
"value": {
"end": 971,
"labels": [
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],
"start": 852,
"text": "Thereaf-\nter the Respondent firm moved three applications claiming\nrefund of the additional duty of customs paid by it."
}
},
{
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"id": "dbfce1b4174c40d49e514e67be5e16a7",
"to_name": "text",
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"value": {
"end": 1086,
"labels": [
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],
"start": 972,
"text": "The\nclaim was made under the terms of a notification of exemp-\ntion issued under section 25(1) of the Customs Act."
}
},
{
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"id": "cf9c5b5552984233b325f4d9f13f5afc",
"to_name": "text",
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"value": {
"end": 1364,
"labels": [
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],
"start": 1087,
"text": "Under\nnotification No 228/76 dated 2.8.1976, an exemption from the\nCustoms Tariff Act was granted in respect of \"articles made\nof plastics, all sort but excluding those specified in the\nTable annexed and failing under Chapter 39 of the First\nSchedule to the Customs Tariff Act."
}
},
{
"from_name": "label",
"id": "d11a7b42b9e64e69b89b50518feb3e24",
"to_name": "text",
"type": "labels",
"value": {
"end": 1439,
"labels": [
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],
"start": 1364,
"text": "\n\n The Tribunal accepted the claim of refund made by the'\nRespondent."
}
},
{
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"id": "8731a0d657474ba882e2d4453e37134f",
"to_name": "text",
"type": "labels",
"value": {
"end": 1737,
"labels": [
"PREAMBLE"
],
"start": 1440,
"text": "In so doing it relied on the decisions of the\nMadras High Court in Precise Impex P. Ltd. v. Collector,\n[1985] 21 ELT 84, of the Calcutta High Court in Continental\nMarketing P. Ltd. v. Union, [1987] 28 ELT 11 and of the\nBombay High Court in A.V. Jain v. Union, WP 2136 of 1986\ndecided on 30.1.1987."
}
},
{
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"id": "411e2b6cb67e4ed59fe2124c583bca83",
"to_name": "text",
"type": "labels",
"value": {
"end": 1903,
"labels": [
"PREAMBLE"
],
"start": 1738,
"text": "The Tribunal also referred to its\nearlier decision in Export India Corporation P. Ltd. v.\nCollector; and Collector v. Fancy Dying and Printing Works\nBombay.\n\n "
}
},
{
"from_name": "label",
"id": "ef6b970ea09943078fbcbfa6b25089d2",
"to_name": "text",
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"value": {
"end": 2088,
"labels": [
"PREAMBLE"
],
"start": 1903,
"text": "The Tribunal held that the goods imported by the Re-\nspondent were articles made of plastics but they were\n\"films\" and thus not one of the Categories of articles\nmentioned in the Table."
}
},
{
"from_name": "label",
"id": "1c6771ec6cc746fea4910eb6b6d67589",
"to_name": "text",
"type": "labels",
"value": {
"end": 2236,
"labels": [
"PREAMBLE"
],
"start": 2088,
"text": "\n\n Aggrieved by the decision of the Tribunal, the Collector\nof Customs has filed these appeals under section 130-E(B) of\nthe Customs Act 1962."
}
},
{
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"id": "0d3aba2e6a40497a9835b95dd74bec14",
"to_name": "text",
"type": "labels",
"value": {
"end": 2398,
"labels": [
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],
"start": 2236,
"text": "\n232\n\n Before this Court the Department contended that the\n\n\ngoods are \"sheets\" or \"foils\" or other \"rectangular or\nprofile shape\" and hence liable to duty."
}
},
{
"from_name": "label",
"id": "23a8d06888314767aa3b2d10e9372fb3",
"to_name": "text",
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"value": {
"end": 2543,
"labels": [
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],
"start": 2399,
"text": "The assesses'\nassertion is that the goods are \"films\" though specie of\nplastics articles yet they are different from any mentioned\nin the table."
}
},
{
"from_name": "label",
"id": "0c68cae6c1644c0bb4bf52b7e6ab8251",
"to_name": "text",
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"value": {
"end": 2683,
"labels": [
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],
"start": 2544,
"text": "According to it even if they are treated only\nas thin sheets of plastic material, they can be described\nonly as \"sheetings\" and not sheets."
}
},
{
"from_name": "label",
"id": "74860a88310f4de3aa3e758e9d295a39",
"to_name": "text",
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"value": {
"end": 3149,
"labels": [
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],
"start": 2683,
"text": "\n\n On consideration of the rival contentions advanced by\nthe parties and after making reference to the other relevant\nnotifications granting exemption issued under rule 8(1) of\nthe Central Excise Rules in respect of items falling under\nItem No. 15A of the Central Excise Tariff Act, this Court\ndismissing the appeals,\n\n HELD: Films made of plastic fall in a category of their\nown and do not fail within the categories of articles ex-\ncepted by the Table."
}
},
{
"from_name": "label",
"id": "c0721934d2fe4406adbe85ab05517240",
"to_name": "text",
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"value": {
"end": 3243,
"labels": [
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],
"start": 3150,
"text": "Film is a well-known, distinct and\nindependent category of plastic article known to commerce."
}
},
{
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"id": "2155115b481c4e4cbf9b4669e385ff8d",
"to_name": "text",
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"value": {
"end": 3509,
"labels": [
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],
"start": 3243,
"text": "\n[235A]\n\n The Court agreed with the view of the Bombay High Court\nthat, though for certain purposes there is a distinction\nbetween \"films\", \"foils\" and \"sheets\", so far as the article\npresently in question is concerned it is recognised in trade\nonly as \"film\"."
}
},
{
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"id": "a730184520d44668b6591d914d2968ab",
"to_name": "text",
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"value": {
"end": 3603,
"labels": [
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],
"start": 3510,
"text": "[238F]\n\n The goods under consideration cannot be described either\nas \"foils or sheets\"."
}
},
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"end": 3902,
"labels": [
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],
"start": 3604,
"text": "A film roll of indefinite length and\nnot in the form of individual cut piece can be more appro-\npriately described as \"sheetings\" rather than' 'sheets\".\n[238G ;239A]\n\n The expression \"other rectangular or profile shapes\" in\nthe table is also not appropriate to bring in the items in\nquestion."
}
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{
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"id": "dfbaa7a2e4c94771ba45f38d3ac368ef",
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"end": 4012,
"labels": [
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],
"start": 3903,
"text": "For one thing, the articles have a distinct name\nin the market as \"films\" and therefore they are outside the\n"
}
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{
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"id": "86685fa211b1455ea0c1aceb106a6837",
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"labels": [
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],
"start": 4012,
"text": "table."
}
},
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"to_name": "text",
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"value": {
"end": 4311,
"labels": [
"PREAMBLE"
],
"start": 4019,
"text": "It will not be possible to accept the contention that\narticles which have a clear commercial identity as \"films\"\nshould be brought within the wide and vague expression\n\"other rectangular or profile shapes\", because if the film\nis cut into small pieces each piece will be rectangular in\nshape."
}
},
{
"from_name": "label",
"id": "bd6d8b0fefd24e718f73eaac556c5f62",
"to_name": "text",
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"value": {
"end": 4412,
"labels": [
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],
"start": 4312,
"text": "The items imported do not come in a rectangular shape\nthey are imported as rolls of polyester films."
}
},
{
"from_name": "label",
"id": "75e88c657ebe4176be77151312316067",
"to_name": "text",
"type": "labels",
"value": {
"end": 4456,
"labels": [
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],
"start": 4413,
"text": "They are not\narticles of rectangular shape."
}
},
{
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"id": "ebfd69d482004934b1a66ad303db3f89",
"to_name": "text",
"type": "labels",
"value": {
"end": 4485,
"labels": [
"PREAMBLE"
],
"start": 4457,
"text": "Nor would it be possible to\n"
}
},
{
"from_name": "label",
"id": "9b6aa7ec7d2f49a69997367b9baf36fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 4523,
"labels": [
"PREAMBLE"
],
"start": 4485,
"text": "treat them as of other \"profile\" shape"
}
},
{
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"id": "c6bf94fd6f734b23b2450e27691e6e1e",
"to_name": "text",
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"value": {
"end": 4693,
"labels": [
"PREAMBLE"
],
"start": 4523,
"text": ". The Court was unable\nto attribute any precise meaning to the expression \"profile\"\nshape but it cannot be taken to be comprehensive enough to\ntake in any shape whatever."
}
},
{
"from_name": "label",
"id": "5dca0aea1807446984ef0a134621b1cf",
"to_name": "text",
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"value": {
"end": 5018,
"labels": [
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],
"start": 4694,
"text": "If the expression \"rectangular\"\nor other \"profile\" shape in the table is given\n233\nsuch wide and unrestricted interpretation then practically\nany article of plastic can be brought within the meaning of\none or other of the expressions used in the Table and thus\nthe entire exemption can be altogether deprived of any\ncontent."
}
},
{
"from_name": "label",
"id": "0dbac141af904a9290d5a2575405c0fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 5221,
"labels": [
"PREAMBLE"
],
"start": 5019,
"text": "The Court took the view that the articles are\n\"films\" and, as, this expression does not find specific\nmention in the table, the assessee is entitled to exemption\nunder the main part of the notification."
}
},
{
"from_name": "label",
"id": "d8d566355ba648c1a5bd55d20f80b80f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5247,
"labels": [
"PREAMBLE"
],
"start": 5222,
"text": "[239E-H; 240A]\n\nJUDGMENT:"
}
},
{
"from_name": "label",
"id": "3492f4d702294862ba426bff5fbc3863",
"to_name": "text",
"type": "labels",
"value": {
"end": 5338,
"labels": [
"NONE"
],
"start": 5247,
"text": " CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.\n 1573/88, 3954/87 and 3370 of 1988."
}
},
{
"from_name": "label",
"id": "a25e0c9d46e045ff95f3e4ea5f1418be",
"to_name": "text",
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"value": {
"end": 5624,
"labels": [
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],
"start": 5346,
"text": "From the Judgment and Order dated 1.2.1988, 10.6.1987 and 28:4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/1373/85-C Order No. 87.,88-C, 1704/83-D Order No. 463/87-D and Appeal No. C-605 1986(C) in Order No. 429/88-C respectively."
}
},
{
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"id": "8f5fb3618c4b4bc3a039efff5403aec7",
"to_name": "text",
"type": "labels",
"value": {
"end": 5711,
"labels": [
"NONE"
],
"start": 5624,
"text": "\n A.K. Ganguli, P. Parmeshwaran, T.V.S.N. Chari and Mrs.\nSushma Suri for the Appellant."
}
},
{
"from_name": "label",
"id": "8c231465562248caa32ea86982795749",
"to_name": "text",
"type": "labels",
"value": {
"end": 5771,
"labels": [
"NONE"
],
"start": 5711,
"text": "\nS. Ganesh, K.J. John and San jay Grover for the Respondent."
}
},
{
"from_name": "label",
"id": "cee792ade29a49748c3cd180c38768cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 5830,
"labels": [
"NONE"
],
"start": 5771,
"text": "\nThe Judgment of the Court was delivered by RANGANATHAN, J."
}
},
{
"from_name": "label",
"id": "6c68628decd64c5195f2f1d84e6fd317",
"to_name": "text",
"type": "labels",
"value": {
"end": 5920,
"labels": [
"FAC"
],
"start": 5831,
"text": "These three appeals under Section 130-E(b) of the Customs Act, 1962 raise the same issue."
}
},
{
"from_name": "label",
"id": "366a09fd1b2943acbbbe6b40987cad15",
"to_name": "text",
"type": "labels",
"value": {
"end": 5970,
"labels": [
"FAC"
],
"start": 5921,
"text": "They are therefore disposed of by a common order."
}
},
{
"from_name": "label",
"id": "304e8429402e4d739c290032dda2d274",
"to_name": "text",
"type": "labels",
"value": {
"end": 6100,
"labels": [
"FAC"
],
"start": 5972,
"text": "The respondent--M/s. K. Mohan & Co.--imported, from Japan, \"metallised poIyester films\" under an import licence dated 14.6.1978."
}
},
{
"from_name": "label",
"id": "a184c29f066a400095b4bed3a3df84bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 6174,
"labels": [
"FAC"
],
"start": 6101,
"text": "The goods were admittedly in the shape of film rolls several metres long."
}
},
{
"from_name": "label",
"id": "a4ad900f4b7743c6bed667da42fb7d15",
"to_name": "text",
"type": "labels",
"value": {
"end": 6387,
"labels": [
"FAC"
],
"start": 6175,
"text": "They were cleared on payment of customs duty leviable under the Customs Act, 1962 (CA) as well as the additional duty of customs (or countervailing duty) leviable under s. 3 of the Customs Tariff Act, 1976 (CTA)."
}
},
{
"from_name": "label",
"id": "4dfb64f245c645d1a1818116631b6df4",
"to_name": "text",
"type": "labels",
"value": {
"end": 6522,
"labels": [
"FAC"
],
"start": 6388,
"text": "Subsequently, the respondent firm made three applica- tions for the refund of the amount of the additional duty of customs paid by it."
}
},
{
"from_name": "label",
"id": "c3ee4418946045dda434cad55f4a0122",
"to_name": "text",
"type": "labels",
"value": {
"end": 6630,
"labels": [
"FAC"
],
"start": 6523,
"text": "The claim for refund was based on the terms of a notification of exemption issued under s. 25(1) of the CA."
}
},
{
"from_name": "label",
"id": "4062eb25d5a8489bad887501c8431dce",
"to_name": "text",
"type": "labels",
"value": {
"end": 6965,
"labels": [
"FAC"
],
"start": 6631,
"text": "Under notification no. 228/76 dated 2.8.1976, an exemption from the customs duty payable under s. 3 of the CTA was granted in respect of \"articles made of plastics, all sorts, but excluding those specified in the table an- nexed hereto and falling within Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)\"."
}
},
{
"from_name": "label",
"id": "4715cab8ff73413083bac01807a230e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7233,
"labels": [
"FAC"
],
"start": 6966,
"text": "The annexed table 234 excepted the following items from the purview of the exemp- tion: \"Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets\"."
}
},
{
"from_name": "label",
"id": "63251f2fb3344aeebc17bdc1e95f6db2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7396,
"labels": [
"FAC"
],
"start": 7233,
"text": "\nNotification No. 443 dated 29.11.76 omitted the words of notification no. 228 which have been underlined above but left the main notification otherwise untouched."
}
},
{
"from_name": "label",
"id": "e371f3bcd96a4b99b8cd3b46b8f2bea6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7458,
"labels": [
"FAC"
],
"start": 7396,
"text": "\n The assesses' claim for refund was accepted by the Tribunal."
}
},
{
"from_name": "label",
"id": "7e124f3f366644e7a325d36de5ba04ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 7550,
"labels": [
"FAC"
],
"start": 7459,
"text": "The Tribunal held that the goods imported by the respondent were articles made of plastics."
}
},
{
"from_name": "label",
"id": "df80729969bb44729e8c7803ff55e299",
"to_name": "text",
"type": "labels",
"value": {
"end": 7639,
"labels": [
"FAC"
],
"start": 7551,
"text": "But they were 'films' and not one of the categories of articles enumerated in the table."
}
},
{
"from_name": "label",
"id": "d16b3db1778748888220a64a1162f169",
"to_name": "text",
"type": "labels",
"value": {
"end": 7967,
"labels": [
"FAC"
],
"start": 7640,
"text": "In reaching its conclusion, the Tribunal followed the decisions, of the Madras High Court in Precise Impex P. Ltd. v. Collector, [1985] 21 ELT 84, of the Calcut- ta High Court in Continental Marketing P. Ltd. v. Union, [1987] 28 ELT 11 and of the Bombay High Court in A.V. Jain v. Union, WP 2136 of 1986, decided on 30.1. 1987."
}
},
{
"from_name": "label",
"id": "2b208e2c8bd04b32a552b02318eb3e0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8127,
"labels": [
"FAC"
],
"start": 7968,
"text": "The Tribu- nal also referred to its own earlier decisions in Export India Corpn. P. Ltd. v. Collector and Collector v. Fancy Dyeing and Printing works, Bombay."
}
},
{
"from_name": "label",
"id": "02e5afe43dbe480e923f0ea95e61dbbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 8220,
"labels": [
"FAC"
],
"start": 8128,
"text": "The Collector of Customs is aggrieved by the orders of the Tribunal and hence these appeals."
}
},
{
"from_name": "label",
"id": "c050121c78bd47f6948acf51a337d727",
"to_name": "text",
"type": "labels",
"value": {
"end": 8339,
"labels": [
"FAC"
],
"start": 8221,
"text": "There are three appeals as there were three appli- cations for refund by the assessee in respect of different periods."
}
},
{
"from_name": "label",
"id": "bace91983da74dbe8e0e8fc19c383a97",
"to_name": "text",
"type": "labels",
"value": {
"end": 8428,
"labels": [
"FAC"
],
"start": 8339,
"text": "\n There is no dispute before us that the goods in question are articles made of plastics."
}
},
{
"from_name": "label",
"id": "714bc7dc7fc84736958ddc871844d22c",
"to_name": "text",
"type": "labels",
"value": {
"end": 8615,
"labels": [
"FAC"
],
"start": 8429,
"text": "This being so, the assessee is entitled to the exemption conferred by the notification unless the goods answer the description of one or other of the specific items set out in the table."
}
},
{
"from_name": "label",
"id": "1e2b1060585541639dd9cf3c55227faa",
"to_name": "text",
"type": "labels",
"value": {
"end": 8667,
"labels": [
"FAC"
],
"start": 8616,
"text": "The onus of showing this is clearly on the Revenue."
}
},
{
"from_name": "label",
"id": "0c4086bbc5314e7dbdc279a5cacd7f10",
"to_name": "text",
"type": "labels",
"value": {
"end": 8797,
"labels": [
"ARG_PETITIONER"
],
"start": 8668,
"text": "The department contends that the goods are \"sheets\" or \"foils\" or \"other rectangular or profile shapes\" and hence liable to duty."
}
},
{
"from_name": "label",
"id": "018c1a7608e34d7f8e8deb2b93a6c192",
"to_name": "text",
"type": "labels",
"value": {
"end": 8932,
"labels": [
"ARG_RESPONDENT"
],
"start": 8798,
"text": "On the other hand the assesses' case is that they are \"films\", a specie of plastic articles different from any mentioned in the table."
}
},
{
"from_name": "label",
"id": "e04f45557b614b50bfae7a7a5c766162",
"to_name": "text",
"type": "labels",
"value": {
"end": 9112,
"labels": [
"ARG_PETITIONER"
],
"start": 8932,
"text": "\nIt is alternatively contended that, even if they are treated only as thin sheets of plastic material, they can be more accurately described only as \"sheetings\" and not \"sheets\".\n "
}
},
{
"from_name": "label",
"id": "8877e8b2612745e69d12b4217619b5fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9213,
"labels": [
"ARG_PETITIONER"
],
"start": 9112,
"text": "It is pointed out that the goods are in the form of large rolls containing films several metres long."
}
},
{
"from_name": "label",
"id": "0b684a6ad1e04529881d4504e6407732",
"to_name": "text",
"type": "labels",
"value": {
"end": 9404,
"labels": [
"ARG_PETITIONER"
],
"start": 9214,
"text": "Such huge lengths can only be called \"sheetings\" for the expression \"sheets\", it is said, connotes only smaller lengths or bits cut out from \"sheetings\" which mean sheets of immense lengths."
}
},
{
"from_name": "label",
"id": "b924768a8d56459d97003e3a1d6b8d8d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9575,
"labels": [
"ARG_PETITIONER"
],
"start": 9405,
"text": "Also, being in the form of rolls, they cannot be said to be articles of \"rectangular shape\" merely because, when cut into segments, they may fall into rectangular pieces."
}
},
{
"from_name": "label",
"id": "f03dc219643f42eba56cc7bb23e92a7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9855,
"labels": [
"ANALYSIS"
],
"start": 9575,
"text": "\n235 After giving the matter our careful consideration, we are of opinion that the view taken by the three High Courts and the Tribunal that \"films\" made of plastic fall in a category of their own and do not fall within the categories of articles excepted by the table is correct."
}
},
{
"from_name": "label",
"id": "9ba955f3adf746088b23f473c8c043bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10241,
"labels": [
"ANALYSIS"
],
"start": 9856,
"text": "We have come to this conclusion because there are various statutory indications and other material which support such a conclu- sion: (1) Duty under the CTA in respect of artificial resins, plastic materials of various types and articles thereof is leviable under s. 3 read with Chapter 39, containing heading nos. 39.01/06 and 39.01/07 in section VII of the First Schedule to the CTA."
}
},
{
"from_name": "label",
"id": "6298ea7ca1964c7d8b6288df1c35f4b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 10388,
"labels": [
"ANALYSIS"
],
"start": 10242,
"text": "This aspect found a reference in the original notification no. 228 but was omitted, apparently as being redundant, by the amendment of 29.11.1976."
}
},
{
"from_name": "label",
"id": "84e02aa2b35a47189836525eb0d2e555",
"to_name": "text",
"type": "labels",
"value": {
"end": 10580,
"labels": [
"ANALYSIS"
],
"start": 10389,
"text": "In Note 3 at the commencement of the said Chapter 39, clause (c) talks of \"seamless tubes, rods, sticks and profile shape while clause (d) refers to \"plates, sheets, films, foils and strips\"."
}
},
{
"from_name": "label",
"id": "bcd02334e27248a7a0ad1470adc7c34d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10697,
"labels": [
"ANALYSIS"
],
"start": 10581,
"text": "This indicates that plates, sheets, films, foils, etc. are categories of plastic articles distinct from one another."
}
},
{
"from_name": "label",
"id": "81fdf86b30e74148bf3ddb78a44426f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10818,
"labels": [
"ANALYSIS"
],
"start": 10697,
"text": "\n (2) Notification No. 228 contains a reference to the tariff schedule under the Central Excises & Salt Act, 1944 (CESA)."
}
},
{
"from_name": "label",
"id": "3920c26a08f0485ea70d34228cd175e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11103,
"labels": [
"ANALYSIS"
],
"start": 10819,
"text": "The CESA, read with item 15A of its First Schedule, provides for the levy of an ad valorem duty of excise on all \"artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof\" described in greater detail in sub-items (1) to (4) thereunder."
}
},
{
"from_name": "label",
"id": "4e1f2d1ee80a44f89d49138013a394f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11632,
"labels": [
"ANALYSIS"
],
"start": 11104,
"text": "Of these, sub-item (2) reads: (2) Articles made of plastics all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexi- ble, including lay flat tubings and polyvinyl chloride sheets, not otherwise specified\"; and Explanation I appended to item 15A clari- fies: \"For the purpose of sub-section (2), \"plas- tics\" means the various artificial or synthet- ic resins or plastic materials or cellulose esters and ethers included in sub-item (1)\"-"
}
},
{
"from_name": "label",
"id": "d2eebc0191204808b99aa03f7a41bbd2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12095,
"labels": [
"ANALYSIS"
],
"start": 11633,
"text": "Comparing item 15A of the CESA tariff with the notification under consideration, it will be seen that the intention was to exempt, from countervailing duty, \"articles made of plastics, all sorts\" (the expression \"plastic\" having the very wide meaning given to it in Explanation 236 I of the CESA tariff) and falling within the main part of sub-item (2) of item 15A and to deny exemption to goods which fall under the second (inclusive) part of the said sub-item."
}
},
{
"from_name": "label",
"id": "743d3cb2d9964e2d8017d0d544fb02ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 12196,
"labels": [
"ANALYSIS"
],
"start": 12096,
"text": "In this context it is of some interest to refer to item 15A as substituted by the Finance Act, 1982."
}
},
{
"from_name": "label",
"id": "a2dc17254069465296d5d7f77bce5c70",
"to_name": "text",
"type": "labels",
"value": {
"end": 12326,
"labels": [
"ANALYSIS"
],
"start": 12197,
"text": "This item describes in greater detail than before various \"artificial and synthetic resins and plastic materials\" liable to duty."
}
},
{
"from_name": "label",
"id": "f5a4fc615f5a4537a024da8b1204eafb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12575,
"labels": [
"ANALYSIS"
],
"start": 12326,
"text": "\nof these item (2) reads: \"Article of materials described in sub-item (1) including the following, namely: Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not: lay flat tubings not containing any textile material."
}
},
{
"from_name": "label",
"id": "66d8b643652b4f59a3232a9d711dc581",
"to_name": "text",
"type": "labels",
"value": {
"end": 12672,
"labels": [
"ANALYSIS"
],
"start": 12575,
"text": "\nThis item, it will be seen, does not stick to the classifi- cation made earlier in sub-item (2)."
}
},
{
"from_name": "label",
"id": "914104c163a04dc6840a0686ad58cfc6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13003,
"labels": [
"ANALYSIS"
],
"start": 12673,
"text": "However, it does make a distinction between \"sheeting, sheets and films\".\n (3) There are a number of exemption notifications issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the CESA Tariff which make a pointed reference to 'films' and draw a similar distinction as above."
}
},
{
"from_name": "label",
"id": "f9c1032f3fe047989673795e9c43bdaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 13347,
"labels": [
"ANALYSIS"
],
"start": 13004,
"text": "Notification No. 68 of 1971 dated 29.5. 1971 exempts articles made of plastics, all sorts, falling under sub-item (2) of Item No. 15A except (i) rigid plastic boards, sheeting, sheets and films, whether laminat- ed or not; and (ii) flexible polyvinyl chloride sheeting, sheets, films and lay-flat tubings not containing any tex- tile material."
}
},
{
"from_name": "label",
"id": "e7a92c0e586044d2a2a8ac51b032a124",
"to_name": "text",
"type": "labels",
"value": {
"end": 13520,
"labels": [
"ANALYSIS"
],
"start": 13347,
"text": "Notification No.69 of 1971, dated 29.5.1971, read with notification No. 7417 and 107/73, exempts articles made of polyurethane foam except, inter alia, sheets and sheetings."
}
},
{
"from_name": "label",
"id": "17644fa563814927a7120eed0ad78ad6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13650,
"labels": [
"ANALYSIS"
],
"start": 13521,
"text": "Notification No. 70 of 1971, of the same date, restricts the duty on rigid polyvinyl chloride boards, sheeting, sheets and films."
}
},
{
"from_name": "label",
"id": "9929ccbf2bc84e07b47024ee67affd6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13894,
"labels": [
"ANALYSIS"
],
"start": 13651,
"text": "Notification No. 71 of 1971, also of the same date, grants limited exemption, subject to certain conditions to rigid plastic boards, sheeting, sheets and films, whether laminated or not, other than those manu- factured from polyvinyl chloride."
}
},
{
"from_name": "label",
"id": "868c116b113940ea85e1b4a3b18546f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14214,
"labels": [
"ANALYSIS"
],
"start": 13894,
"text": "Notification No.72 of 1971 of the same date limits the excise duty in respect of flexi- ble polyvinyl chloride sheeting, sheets, films and lay-flat tubings, not containing any textile material and falling under sub-item (2) of Item No. 15A to 25 per cent (amended later to 30%) ad valorem, subject to certain conditions."
}
},
{
"from_name": "label",
"id": "5be9621da6b945d78cc0f2efe543ca9b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14411,
"labels": [
"ANALYSIS"
],
"start": 14215,
"text": "Notification No. 39 of 1973 dated 1.3. 1973, exempts rigid and flexible polyvinyl chloride films of thickness below 0.25 mm as well as polyvinyl chloride lay flat tubings in certain circumstances."
}
},
{
"from_name": "label",
"id": "bb3fbbc37af34a4aa26cbadb2a227517",
"to_name": "text",
"type": "labels",
"value": {
"end": 14617,
"labels": [
"ANALYSIS"
],
"start": 14412,
"text": "By notifi- 237 cation No. 151 of 1975 dated 31.5.1975 exemption was granted in respect of cellulose tri-acetate, when intended for use in the manufacture of cine-films, X-ray films or photograph- ic films."
}
},
{
"from_name": "label",
"id": "20ec857551df4255b7fb3ae70a32a859",
"to_name": "text",
"type": "labels",
"value": {
"end": 14864,
"labels": [
"ANALYSIS"
],
"start": 14618,
"text": "Item 15B talks of \"film or sheet\" of cellulose and a notification of 1981 specifically added item 15BB to the Tariff under CESA dealing with polyster films as a separate item, though this entry was subsequently omitted by the Finance Act of 1982."
}
},
{
"from_name": "label",
"id": "a4e66ac2d1184712bb479f4d8b8b418c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14984,
"labels": [
"ANALYSIS"
],
"start": 14865,
"text": "All these indicate that 'film' is a well-known, distinct and independent category of plastic article known to commerce."
}
},
{
"from_name": "label",
"id": "998e3123755d46e1a4fb6a940222a1fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 15179,
"labels": [
"ANALYSIS"
],
"start": 14984,
"text": "\n (4) There is a like distinction maintained even by the notifications issued under section 25 of the Customs Act in regard to items falling within chapter 39 of the First Schedule to CETA."
}
},
{
"from_name": "label",
"id": "d97438262e894ac3a851ac8bdb08bafc",
"to_name": "text",
"type": "labels",
"value": {
"end": 15348,
"labels": [
"ANALYSIS"
],
"start": 15180,
"text": "Notification No. 227 dated 2.8.1976 limits the rate of duty on various items, two of which are--\"film scrap\" and \"cellulose nitrate sheets and cellulose nitrate films\"."
}
},
{
"from_name": "label",
"id": "ca528951e635466e85d892e14b29f9a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 15540,
"labels": [
"ANALYSIS"
],
"start": 15349,
"text": "We then have notification No. 223 of the same date, which falls for interpretation now and which omits a refer- ence to \"films\" while enumerating various other categories of plastic articles."
}
},
{
"from_name": "label",
"id": "bbf9aa730a9c4964887e384cde58566d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15701,
"labels": [
"ANALYSIS"
],
"start": 15541,
"text": "Notification No. 229, also of 2nd August, 1976, restricted the customs duty on metallised or plain plastic films imported for certain specified purposes to 60%."
}
},
{
"from_name": "label",
"id": "b7f3a07763344c45809419838122a080",
"to_name": "text",
"type": "labels",
"value": {
"end": 15832,
"labels": [
"ANALYSIS"
],
"start": 15702,
"text": "Notification Nos. 230 dated 2nd August, 1976 and 36 of 1.3. 1978, also granted limited exemption to other types of polyster films."
}
},
{
"from_name": "label",
"id": "33f7e4bc74c445fea76f121b1ec4e1a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 16119,
"labels": [
"ANALYSIS"
],
"start": 15833,
"text": "(We must, however, point out that these last two notifications are somewhat ambiguous for our present purposes as they also specifically provide for an exemption to the said articles from the additional duty which, on the argument of the assessee before us, would be really unnecessary."
}
},
{
"from_name": "label",
"id": "4cccaeed796d4c7783eb8b90f07e35eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 16277,
"labels": [
"ARG_PETITIONER"
],
"start": 16119,
"text": "\n The Revenue's stand is that the articles in question may be films in a generic sense but that, in this particular case, they are either 'foils' or 'sheets'."
}
},
{
"from_name": "label",
"id": "03f36ae3c8ab46e781c5ca3692db2399",
"to_name": "text",
"type": "labels",
"value": {
"end": 16444,
"labels": [
"ARG_PETITIONER"
],
"start": 16278,
"text": "For this purpose our attention is drawn to the discussions contained in the Bombay case where the issue was decided on the basis of evidence produced by both parties."
}
},
{
"from_name": "label",
"id": "27e283be21124bbab224838e290bd447",
"to_name": "text",
"type": "labels",
"value": {
"end": 16677,
"labels": [
"ANALYSIS"
],
"start": 16445,
"text": "This shows that according to the glossary of terms used in the plastic industry issued by the Indian Standards Institution (IS 2828-1954, as well as in 1979), a film is \"a sheeting having nominal thickness not greater than 0.25 mm\"."
}
},
{
"from_name": "label",
"id": "632246c769b94d38a1146ce8dfc1701b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16936,
"labels": [
"ANALYSIS"
],
"start": 16678,
"text": "A report of the Chief Chemist of the Customs Department as well as extracts from certain text books were produced to show that 'foil' is the term \"applied to materials which are made in continuous rolls and are less than 1/1000th of an inch thick (0.254 mm)."
}
},
{
"from_name": "label",
"id": "46f6dabe9cb84c1da99a0cd186b520cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 17028,
"labels": [
"ANALYSIS"
],
"start": 16937,
"text": "In the present case, the film rolls were of thickness varying between 0.025 mm to 0.501 mm."
}
},
{
"from_name": "label",
"id": "1f5adfcdb3084598bdab5bf9fd338b23",
"to_name": "text",
"type": "labels",
"value": {
"end": 17229,
"labels": [
"ANALYSIS"
],
"start": 17029,
"text": "It is, therefore, submitted that to the extent the material was less than .0254 mm in thickness it would constitute 'foils' and to the extent 238 it exceeded 0.25 mm in thickness it will be a 'sheet'."
}
},
{
"from_name": "label",
"id": "9731b0c4c324461293742e4a8d639b32",
"to_name": "text",
"type": "labels",
"value": {
"end": 17416,
"labels": [
"ANALYSIS"
],
"start": 17230,
"text": "It is urged that since 'sheets' and 'foils' are specifically mentioned in the entry in question, the imported goods, at least to the extent indicated above, cannot qualify for exemption."
}
},
{
"from_name": "label",
"id": "6006735aeb9d4ab98e5ff0883e90520b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17807,
"labels": [
"ANALYSIS"
],
"start": 17416,
"text": "\n The answer given by the Bombay High Court to the conten- tion that the goods were 'foils' was that while it may be that, technically and scientifically speaking, the articles in question may be capable of being characterised as 'foils', one is concerned in a customs or excise matter not so much with the technical or scientific definitions of these terms but rather with commercial usage."
}
},
{
"from_name": "label",
"id": "09fdd2b3a7cd4df79e4f00fe715da51a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18132,
"labels": [
"ANALYSIS"
],
"start": 17808,
"text": "One has to see how the trade understands the expression \"films\" and one should also bear in mind in this connection that the expres- sions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use."
}
},
{
"from_name": "label",
"id": "130a9891f41a4b34b5c66bcbf2b229fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18309,
"labels": [
"ANALYSIS"
],
"start": 18133,
"text": "The question is whether the trade under- stands the article presently in question as a 'film' or whether there is a distinction in trade usage also between 'foils' and 'films'."
}
},
{
"from_name": "label",
"id": "d34d1350b0eb4078b68c85204faf2728",
"to_name": "text",
"type": "labels",
"value": {
"end": 18523,
"labels": [
"ANALYSIS"
],
"start": 18310,
"text": "It has been pointed out by the Bombay High Court, on the basis of the evidence before it, that in the understanding of those who are in this particular trade, metallised polyester films are referred to as 'films'."
}
},
{
"from_name": "label",
"id": "58472419388a4ee89483af22dc2135ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 18648,
"labels": [
"ANALYSIS"
],
"start": 18523,
"text": "\nReference has been made to the classification made by the only manufacturer of polyester films in India for purposes of CEA."
}
},
{
"from_name": "label",
"id": "4533415846f6446db9a434a123560b02",
"to_name": "text",
"type": "labels",
"value": {
"end": 18872,
"labels": [
"ANALYSIS"
],
"start": 18649,
"text": "Reference has also been made to the brochures brought out by the Japanese manufacturers of the goods in question which show that metallised polyester 'films' could consist of films of the thickness of even 12 to 25 microns."
}
},
{
"from_name": "label",
"id": "df0482e794df439ebce317af55e5454a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19099,
"labels": [
"ANALYSIS"
],
"start": 18872,
"text": "\nIt has been pointed out that, under the Import-Export Policy of India for 1984-85, reference has been made to metallised polyester 'films' having thickness of even less than 6 microns which are used in the electronic industry."
}
},
{
"from_name": "label",
"id": "3183ea806ed341de918aa82074893ba3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19446,
"labels": [
"ANALYSIS"
],
"start": 19099,
"text": "\n In the light of the above material and the absence of any additional material led in the present case, we agree with the view of the Bombay High Court that, though for certain purposes there is a distinction between 'films', 'foils' and 'sheets', so far as the article presently in question is concerned it is recognised in trade only as 'film'."
}
},
{
"from_name": "label",
"id": "bd0c0f7095e24ef0b9f983e566464ef2",
"to_name": "text",
"type": "labels",
"value": {
"end": 19584,
"labels": [
"ANALYSIS"
],
"start": 19447,
"text": "It is difficult to imagine any person going to the market and asking for these films by describing them either as 'foils' or as 'sheets'."
}
},
{
"from_name": "label",
"id": "26ab5f8c4790477f84cdf8053585b166",
"to_name": "text",
"type": "labels",
"value": {
"end": 19703,
"labels": [
"ANALYSIS"
],
"start": 19585,
"text": "We are therefore of opinion that the goods under consideration cannot be described either as 'foils' or as 'sheets'.\n "
}
},
{
"from_name": "label",
"id": "393b9cf8e15a4d6cbec6a0e7ebbdc7ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 19857,
"labels": [
"ANALYSIS"
],
"start": 19703,
"text": "There is also another reason why the articles in the present case, to the extent they have thickness of more than 0.25 mm cannot be described as 'sheets'."
}
},
{
"from_name": "label",
"id": "fd2931551f7346e2af58e98c9934557e",
"to_name": "text",
"type": "labels",
"value": {
"end": 20081,
"labels": [
"ARG_RESPONDENT"
],
"start": 19858,
"text": "Shri Ganesh for the assessee contended--and we 239 think rightly--that a film roll of indefinite length and not in the form of individual cut pieces can be more appropri- ately described as 'sheetings' rather than 'sheets'."
}
},
{
"from_name": "label",
"id": "9229f8fc0eb04ca9bd34af7956c44f14",
"to_name": "text",
"type": "labels",
"value": {
"end": 20291,
"labels": [
"ANALYSIS"
],
"start": 20082,
"text": "The Indian Standard Institution also defines 'sheets' as a piece of plastic 'sheeting' produced as an individual piece rather than in a continuous length or cut as an individual piece from a continuous length."
}
},
{
"from_name": "label",
"id": "452d65e90894409a84625a46331ba27e",
"to_name": "text",
"type": "labels",
"value": {
"end": 20429,
"labels": [
"ANALYSIS"
],
"start": 20292,
"text": "We have also earlier pointed out that there are various items in various notifications making distinct reference to sheets and sheetings."
}
},
{
"from_name": "label",
"id": "bc9bbb74cb5b42589763fa7b11507c6b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20503,
"labels": [
"ANALYSIS"
],
"start": 20430,
"text": "Actually, we also think that there is a factual confusion on this aspect."
}
},
{
"from_name": "label",
"id": "a5afbe40504a44b68920027f32d24198",
"to_name": "text",
"type": "labels",
"value": {
"end": 20746,
"labels": [
"ANALYSIS"
],
"start": 20503,
"text": "\n While One of the Collectors has referred to the goods as being of thickness varying between 0.025 mm and 0.501 mm, it is seen from another of the orders that the goods are 3000 metres in length, 0.501 mm in width and 0.025 mm in thick- ness."
}
},
{
"from_name": "label",
"id": "0edb0b4f4fda4ebd8020b3a47aef5d87",
"to_name": "text",
"type": "labels",
"value": {
"end": 20879,
"labels": [
"ANALYSIS"
],
"start": 20747,
"text": "If the latter is the correct version and all the goods are only 0.025 mm in thickness, the question now posed will not at all arise."
}
},
{
"from_name": "label",
"id": "0a6b0c7436b146cebad576395ead0b48",
"to_name": "text",
"type": "labels",
"value": {
"end": 21182,
"labels": [
"ANALYSIS"
],
"start": 20880,
"text": "However, as indicated above, there is force in the contention of Shri Ganesh that if the articles be held not to be 'films', because they exceed 0.25 mm in thickness, they would be 'sheetings' rather than 'sheets' and would therefore not fall within the meaning of the expression \"sheets\" in the table."
}
},
{
"from_name": "label",
"id": "94eef7e1485d4d51850fb79748cf652e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21339,
"labels": [
"RATIO"
],
"start": 21182,
"text": "\n We would also like to add that the expression 'other rectangular or profile shapes' in the table is also not appropriate to bring in the items in question."
}
},
{
"from_name": "label",
"id": "21e5bd7d51654d2ca7ef349c1b0ca3fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 21478,
"labels": [
"RATIO"
],
"start": 21340,
"text": "For one thing, the articles have a distinct name in the market as 'films' and therefore they are outside the table as already pointed out."
}
},
{
"from_name": "label",
"id": "2bad9a0aea754675a7f204cb0b37632e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21855,
"labels": [
"RATIO"
],
"start": 21479,
"text": "For the same reasons as we have mentioned in the context of 'foils' and 'sheets'; it will not be possible to accept the contention that articles which have a clear commercial identity as 'films' should be brought within the wide and vague expression \"other rectangular or profile shapes\", because, if the film is cut into small pieces, each piece will be rectangular in shape,"
}
},
{
"from_name": "label",
"id": "155569b82dec403ea2d26785fa0c48ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 21957,
"labels": [
"RATIO"
],
"start": 21856,
"text": "The items imported do not come in a rectangular shape; they are imported as rolls of polyester films."
}
},
{
"from_name": "label",
"id": "995912770ce44cb8b913e90aa2fc1bff",
"to_name": "text",
"type": "labels",
"value": {
"end": 22001,
"labels": [
"RATIO"
],
"start": 21958,
"text": "They are not articles of rectangular shape."
}
},
{
"from_name": "label",
"id": "c25daaf76dbd4d74a20fb5f6d74c8810",
"to_name": "text",
"type": "labels",
"value": {
"end": 22070,
"labels": [
"RATIO"
],
"start": 22002,
"text": "Nor would it be possible to treat them as of other 'profile' shapes."
}
},
{
"from_name": "label",
"id": "225e17582c8d4afa819adc093abff632",
"to_name": "text",
"type": "labels",
"value": {
"end": 22255,
"labels": [
"RATIO"
],
"start": 22071,
"text": "We are unable to attribute any precise meaning to the expression 'profile' shape but it cannot be taken to be comprehensive enough to take in any shape what- ever, as is contended for."
}
},
{
"from_name": "label",
"id": "06fa3bf091cf4d8eac7c27766a9c75af",
"to_name": "text",
"type": "labels",
"value": {
"end": 22595,
"labels": [
"RATIO"
],
"start": 22256,
"text": "If we give the expression 'rec- tangular or other profile shapes' in the table such wide and unrestricted interpretation as is suggested, then practical- ly any article of plastic can be brought within the meaning of one or other of the expressions used in the table and thus the entire exemption can be altogether deprived of any content."
}
},
{
"from_name": "label",
"id": "047df6dd0eaa4550b7bd625de37fc0d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 22819,
"labels": [
"RPC"
],
"start": 22597,
"text": "For the above reasons, we are of opinion that the articles are 240 'films' and, as this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification."
}
},
{
"from_name": "label",
"id": "d4f21263ebeb4a04b57e7516be02d9ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 22941,
"labels": [
"RPC"
],
"start": 22820,
"text": "The conclusion arrived at by the Tribunal is therefore upheld and these appeals are dismissed with no orders as to costs."
}
},
{
"from_name": "label",
"id": "89f50067fdc8430b86676322ebcc1865",
"to_name": "text",
"type": "labels",
"value": {
"end": 22978,
"labels": [
"RPC"
],
"start": 22941,
"text": "\n Y. Lal "
}
},
{
"from_name": "label",
"id": "7205421edb59411486d0ecffb01c6137",
"to_name": "text",
"type": "labels",
"value": {
"end": 22998,
"labels": [
"RPC"
],
"start": 22978,
"text": "Appeals dis- missed."
}
}
]
}
] | 1,742 | {
"text": "PETITIONER:\nCOLLECTOR OF CUSTOMS, BOMBAY\n\nVs.\n\nRESPONDENT:\nK. MOHAN & CO. EXPORTS\n\nDATE OF JUDGMENT25/09/1989\n\nBENCH:\nRANGNATHAN, S.\nBENCH:\nRANGNATHAN, S.\nKANIA, M.H.\n\nCITATION:\n\n1989 AIR 2250 1989 SCR Supl. (1) 231\n\n1989 SCC Supl. (2) 337 JT 1989 (3) 740\n\n1989 SCALE (2)712\n\nACT:\n Customs Act 1962--Customs Tariff Act 1975--Section\n\n3--Import of metallised polyester films rolls--Whether\nentitled to exemption from payment of countervailing duty\nunder notification No. 228/76 dated 2.8.1976 issued under\nSection 25(1) of the Customs Act.\n\nHEADNOTE:\n The Respondent firm imported from Japan, \"metallised\n\npolyester films\" which were in the shape of film rolls\nseveral metres long. The goods were cleared on payment of\ncustoms duty as well as additional duty/countervailing duty\nleviable under section 3 of the Customs Tariff Act. Thereaf-\nter the Respondent firm moved three applications claiming\nrefund of the additional duty of customs paid by it. The\nclaim was made under the terms of a notification of exemp-\ntion issued under section 25(1) of the Customs Act. Under\nnotification No 228/76 dated 2.8.1976, an exemption from the\nCustoms Tariff Act was granted in respect of \"articles made\nof plastics, all sort but excluding those specified in the\nTable annexed and failing under Chapter 39 of the First\nSchedule to the Customs Tariff Act.\n\n The Tribunal accepted the claim of refund made by the'\nRespondent. In so doing it relied on the decisions of the\nMadras High Court in Precise Impex P. Ltd. v. Collector,\n[1985] 21 ELT 84, of the Calcutta High Court in Continental\nMarketing P. Ltd. v. Union, [1987] 28 ELT 11 and of the\nBombay High Court in A.V. Jain v. Union, WP 2136 of 1986\ndecided on 30.1.1987. The Tribunal also referred to its\nearlier decision in Export India Corporation P. Ltd. v.\nCollector; and Collector v. Fancy Dying and Printing Works\nBombay.\n\n The Tribunal held that the goods imported by the Re-\nspondent were articles made of plastics but they were\n\"films\" and thus not one of the Categories of articles\nmentioned in the Table.\n\n Aggrieved by the decision of the Tribunal, the Collector\nof Customs has filed these appeals under section 130-E(B) of\nthe Customs Act 1962.\n232\n\n Before this Court the Department contended that the\n\n\ngoods are \"sheets\" or \"foils\" or other \"rectangular or\nprofile shape\" and hence liable to duty. The assesses'\nassertion is that the goods are \"films\" though specie of\nplastics articles yet they are different from any mentioned\nin the table. According to it even if they are treated only\nas thin sheets of plastic material, they can be described\nonly as \"sheetings\" and not sheets.\n\n On consideration of the rival contentions advanced by\nthe parties and after making reference to the other relevant\nnotifications granting exemption issued under rule 8(1) of\nthe Central Excise Rules in respect of items falling under\nItem No. 15A of the Central Excise Tariff Act, this Court\ndismissing the appeals,\n\n HELD: Films made of plastic fall in a category of their\nown and do not fail within the categories of articles ex-\ncepted by the Table. Film is a well-known, distinct and\nindependent category of plastic article known to commerce.\n[235A]\n\n The Court agreed with the view of the Bombay High Court\nthat, though for certain purposes there is a distinction\nbetween \"films\", \"foils\" and \"sheets\", so far as the article\npresently in question is concerned it is recognised in trade\nonly as \"film\". [238F]\n\n The goods under consideration cannot be described either\nas \"foils or sheets\". A film roll of indefinite length and\nnot in the form of individual cut piece can be more appro-\npriately described as \"sheetings\" rather than' 'sheets\".\n[238G ;239A]\n\n The expression \"other rectangular or profile shapes\" in\nthe table is also not appropriate to bring in the items in\nquestion. For one thing, the articles have a distinct name\nin the market as \"films\" and therefore they are outside the\ntable. It will not be possible to accept the contention that\narticles which have a clear commercial identity as \"films\"\nshould be brought within the wide and vague expression\n\"other rectangular or profile shapes\", because if the film\nis cut into small pieces each piece will be rectangular in\nshape. The items imported do not come in a rectangular shape\nthey are imported as rolls of polyester films. They are not\narticles of rectangular shape. Nor would it be possible to\ntreat them as of other \"profile\" shape. The Court was unable\nto attribute any precise meaning to the expression \"profile\"\nshape but it cannot be taken to be comprehensive enough to\ntake in any shape whatever. If the expression \"rectangular\"\nor other \"profile\" shape in the table is given\n233\nsuch wide and unrestricted interpretation then practically\nany article of plastic can be brought within the meaning of\none or other of the expressions used in the Table and thus\nthe entire exemption can be altogether deprived of any\ncontent. The Court took the view that the articles are\n\"films\" and, as, this expression does not find specific\nmention in the table, the assessee is entitled to exemption\nunder the main part of the notification. [239E-H; 240A]\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.\n 1573/88, 3954/87 and 3370 of 1988.\n From the Judgment and Order dated 1.2.1988, 10.6.1987 and 28:4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/1373/85-C Order No. 87.,88-C, 1704/83-D Order No. 463/87-D and Appeal No. C-605 1986(C) in Order No. 429/88-C respectively.\n A.K. Ganguli, P. Parmeshwaran, T.V.S.N. Chari and Mrs.\nSushma Suri for the Appellant.\nS. Ganesh, K.J. John and San jay Grover for the Respondent.\nThe Judgment of the Court was delivered by RANGANATHAN, J. These three appeals under Section 130-E(b) of the Customs Act, 1962 raise the same issue. They are therefore disposed of by a common order.\n The respondent--M/s. K. Mohan & Co.--imported, from Japan, \"metallised poIyester films\" under an import licence dated 14.6.1978. The goods were admittedly in the shape of film rolls several metres long. They were cleared on payment of customs duty leviable under the Customs Act, 1962 (CA) as well as the additional duty of customs (or countervailing duty) leviable under s. 3 of the Customs Tariff Act, 1976 (CTA). Subsequently, the respondent firm made three applica- tions for the refund of the amount of the additional duty of customs paid by it. The claim for refund was based on the terms of a notification of exemption issued under s. 25(1) of the CA. Under notification no. 228/76 dated 2.8.1976, an exemption from the customs duty payable under s. 3 of the CTA was granted in respect of \"articles made of plastics, all sorts, but excluding those specified in the table an- nexed hereto and falling within Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)\". The annexed table 234 excepted the following items from the purview of the exemp- tion: \"Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets\".\nNotification No. 443 dated 29.11.76 omitted the words of notification no. 228 which have been underlined above but left the main notification otherwise untouched.\n The assesses' claim for refund was accepted by the Tribunal. The Tribunal held that the goods imported by the respondent were articles made of plastics. But they were 'films' and not one of the categories of articles enumerated in the table. In reaching its conclusion, the Tribunal followed the decisions, of the Madras High Court in Precise Impex P. Ltd. v. Collector, [1985] 21 ELT 84, of the Calcut- ta High Court in Continental Marketing P. Ltd. v. Union, [1987] 28 ELT 11 and of the Bombay High Court in A.V. Jain v. Union, WP 2136 of 1986, decided on 30.1. 1987. The Tribu- nal also referred to its own earlier decisions in Export India Corpn. P. Ltd. v. Collector and Collector v. Fancy Dyeing and Printing works, Bombay. The Collector of Customs is aggrieved by the orders of the Tribunal and hence these appeals. There are three appeals as there were three appli- cations for refund by the assessee in respect of different periods.\n There is no dispute before us that the goods in question are articles made of plastics. This being so, the assessee is entitled to the exemption conferred by the notification unless the goods answer the description of one or other of the specific items set out in the table. The onus of showing this is clearly on the Revenue. The department contends that the goods are \"sheets\" or \"foils\" or \"other rectangular or profile shapes\" and hence liable to duty. On the other hand the assesses' case is that they are \"films\", a specie of plastic articles different from any mentioned in the table.\nIt is alternatively contended that, even if they are treated only as thin sheets of plastic material, they can be more accurately described only as \"sheetings\" and not \"sheets\".\n It is pointed out that the goods are in the form of large rolls containing films several metres long. Such huge lengths can only be called \"sheetings\" for the expression \"sheets\", it is said, connotes only smaller lengths or bits cut out from \"sheetings\" which mean sheets of immense lengths. Also, being in the form of rolls, they cannot be said to be articles of \"rectangular shape\" merely because, when cut into segments, they may fall into rectangular pieces.\n235 After giving the matter our careful consideration, we are of opinion that the view taken by the three High Courts and the Tribunal that \"films\" made of plastic fall in a category of their own and do not fall within the categories of articles excepted by the table is correct. We have come to this conclusion because there are various statutory indications and other material which support such a conclu- sion: (1) Duty under the CTA in respect of artificial resins, plastic materials of various types and articles thereof is leviable under s. 3 read with Chapter 39, containing heading nos. 39.01/06 and 39.01/07 in section VII of the First Schedule to the CTA. This aspect found a reference in the original notification no. 228 but was omitted, apparently as being redundant, by the amendment of 29.11.1976. In Note 3 at the commencement of the said Chapter 39, clause (c) talks of \"seamless tubes, rods, sticks and profile shape while clause (d) refers to \"plates, sheets, films, foils and strips\". This indicates that plates, sheets, films, foils, etc. are categories of plastic articles distinct from one another.\n (2) Notification No. 228 contains a reference to the tariff schedule under the Central Excises & Salt Act, 1944 (CESA). The CESA, read with item 15A of its First Schedule, provides for the levy of an ad valorem duty of excise on all \"artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof\" described in greater detail in sub-items (1) to (4) thereunder. Of these, sub-item (2) reads: (2) Articles made of plastics all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexi- ble, including lay flat tubings and polyvinyl chloride sheets, not otherwise specified\"; and Explanation I appended to item 15A clari- fies: \"For the purpose of sub-section (2), \"plas- tics\" means the various artificial or synthet- ic resins or plastic materials or cellulose esters and ethers included in sub-item (1)\"- Comparing item 15A of the CESA tariff with the notification under consideration, it will be seen that the intention was to exempt, from countervailing duty, \"articles made of plastics, all sorts\" (the expression \"plastic\" having the very wide meaning given to it in Explanation 236 I of the CESA tariff) and falling within the main part of sub-item (2) of item 15A and to deny exemption to goods which fall under the second (inclusive) part of the said sub-item. In this context it is of some interest to refer to item 15A as substituted by the Finance Act, 1982. This item describes in greater detail than before various \"artificial and synthetic resins and plastic materials\" liable to duty.\nof these item (2) reads: \"Article of materials described in sub-item (1) including the following, namely: Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not: lay flat tubings not containing any textile material.\nThis item, it will be seen, does not stick to the classifi- cation made earlier in sub-item (2). However, it does make a distinction between \"sheeting, sheets and films\".\n (3) There are a number of exemption notifications issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the CESA Tariff which make a pointed reference to 'films' and draw a similar distinction as above. Notification No. 68 of 1971 dated 29.5. 1971 exempts articles made of plastics, all sorts, falling under sub-item (2) of Item No. 15A except (i) rigid plastic boards, sheeting, sheets and films, whether laminat- ed or not; and (ii) flexible polyvinyl chloride sheeting, sheets, films and lay-flat tubings not containing any tex- tile material.Notification No.69 of 1971, dated 29.5.1971, read with notification No. 7417 and 107/73, exempts articles made of polyurethane foam except, inter alia, sheets and sheetings. Notification No. 70 of 1971, of the same date, restricts the duty on rigid polyvinyl chloride boards, sheeting, sheets and films. Notification No. 71 of 1971, also of the same date, grants limited exemption, subject to certain conditions to rigid plastic boards, sheeting, sheets and films, whether laminated or not, other than those manu- factured from polyvinyl chloride.Notification No.72 of 1971 of the same date limits the excise duty in respect of flexi- ble polyvinyl chloride sheeting, sheets, films and lay-flat tubings, not containing any textile material and falling under sub-item (2) of Item No. 15A to 25 per cent (amended later to 30%) ad valorem, subject to certain conditions.\nNotification No. 39 of 1973 dated 1.3. 1973, exempts rigid and flexible polyvinyl chloride films of thickness below 0.25 mm as well as polyvinyl chloride lay flat tubings in certain circumstances. By notifi- 237 cation No. 151 of 1975 dated 31.5.1975 exemption was granted in respect of cellulose tri-acetate, when intended for use in the manufacture of cine-films, X-ray films or photograph- ic films. Item 15B talks of \"film or sheet\" of cellulose and a notification of 1981 specifically added item 15BB to the Tariff under CESA dealing with polyster films as a separate item, though this entry was subsequently omitted by the Finance Act of 1982. All these indicate that 'film' is a well-known, distinct and independent category of plastic article known to commerce.\n (4) There is a like distinction maintained even by the notifications issued under section 25 of the Customs Act in regard to items falling within chapter 39 of the First Schedule to CETA. Notification No. 227 dated 2.8.1976 limits the rate of duty on various items, two of which are--\"film scrap\" and \"cellulose nitrate sheets and cellulose nitrate films\". We then have notification No. 223 of the same date, which falls for interpretation now and which omits a refer- ence to \"films\" while enumerating various other categories of plastic articles. Notification No. 229, also of 2nd August, 1976, restricted the customs duty on metallised or plain plastic films imported for certain specified purposes to 60%. Notification Nos. 230 dated 2nd August, 1976 and 36 of 1.3. 1978, also granted limited exemption to other types of polyster films. (We must, however, point out that these last two notifications are somewhat ambiguous for our present purposes as they also specifically provide for an exemption to the said articles from the additional duty which, on the argument of the assessee before us, would be really unnecessary.\n The Revenue's stand is that the articles in question may be films in a generic sense but that, in this particular case, they are either 'foils' or 'sheets'. For this purpose our attention is drawn to the discussions contained in the Bombay case where the issue was decided on the basis of evidence produced by both parties. This shows that according to the glossary of terms used in the plastic industry issued by the Indian Standards Institution (IS 2828-1954, as well as in 1979), a film is \"a sheeting having nominal thickness not greater than 0.25 mm\". A report of the Chief Chemist of the Customs Department as well as extracts from certain text books were produced to show that 'foil' is the term \"applied to materials which are made in continuous rolls and are less than 1/1000th of an inch thick (0.254 mm). In the present case, the film rolls were of thickness varying between 0.025 mm to 0.501 mm. It is, therefore, submitted that to the extent the material was less than .0254 mm in thickness it would constitute 'foils' and to the extent 238 it exceeded 0.25 mm in thickness it will be a 'sheet'. It is urged that since 'sheets' and 'foils' are specifically mentioned in the entry in question, the imported goods, at least to the extent indicated above, cannot qualify for exemption.\n The answer given by the Bombay High Court to the conten- tion that the goods were 'foils' was that while it may be that, technically and scientifically speaking, the articles in question may be capable of being characterised as 'foils', one is concerned in a customs or excise matter not so much with the technical or scientific definitions of these terms but rather with commercial usage. One has to see how the trade understands the expression \"films\" and one should also bear in mind in this connection that the expres- sions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use. The question is whether the trade under- stands the article presently in question as a 'film' or whether there is a distinction in trade usage also between 'foils' and 'films'. It has been pointed out by the Bombay High Court, on the basis of the evidence before it, that in the understanding of those who are in this particular trade, metallised polyester films are referred to as 'films'.\nReference has been made to the classification made by the only manufacturer of polyester films in India for purposes of CEA. Reference has also been made to the brochures brought out by the Japanese manufacturers of the goods in question which show that metallised polyester 'films' could consist of films of the thickness of even 12 to 25 microns.\nIt has been pointed out that, under the Import-Export Policy of India for 1984-85, reference has been made to metallised polyester 'films' having thickness of even less than 6 microns which are used in the electronic industry.\n In the light of the above material and the absence of any additional material led in the present case, we agree with the view of the Bombay High Court that, though for certain purposes there is a distinction between 'films', 'foils' and 'sheets', so far as the article presently in question is concerned it is recognised in trade only as 'film'. It is difficult to imagine any person going to the market and asking for these films by describing them either as 'foils' or as 'sheets'. We are therefore of opinion that the goods under consideration cannot be described either as 'foils' or as 'sheets'.\n There is also another reason why the articles in the present case, to the extent they have thickness of more than 0.25 mm cannot be described as 'sheets'. Shri Ganesh for the assessee contended--and we 239 think rightly--that a film roll of indefinite length and not in the form of individual cut pieces can be more appropri- ately described as 'sheetings' rather than 'sheets'. The Indian Standard Institution also defines 'sheets' as a piece of plastic 'sheeting' produced as an individual piece rather than in a continuous length or cut as an individual piece from a continuous length. We have also earlier pointed out that there are various items in various notifications making distinct reference to sheets and sheetings. Actually, we also think that there is a factual confusion on this aspect.\n While One of the Collectors has referred to the goods as being of thickness varying between 0.025 mm and 0.501 mm, it is seen from another of the orders that the goods are 3000 metres in length, 0.501 mm in width and 0.025 mm in thick- ness. If the latter is the correct version and all the goods are only 0.025 mm in thickness, the question now posed will not at all arise. However, as indicated above, there is force in the contention of Shri Ganesh that if the articles be held not to be 'films', because they exceed 0.25 mm in thickness, they would be 'sheetings' rather than 'sheets' and would therefore not fall within the meaning of the expression \"sheets\" in the table.\n We would also like to add that the expression 'other rectangular or profile shapes' in the table is also not appropriate to bring in the items in question. For one thing, the articles have a distinct name in the market as 'films' and therefore they are outside the table as already pointed out. For the same reasons as we have mentioned in the context of 'foils' and 'sheets'; it will not be possible to accept the contention that articles which have a clear commercial identity as 'films' should be brought within the wide and vague expression \"other rectangular or profile shapes\", because, if the film is cut into small pieces, each piece will be rectangular in shape, The items imported do not come in a rectangular shape; they are imported as rolls of polyester films. They are not articles of rectangular shape. Nor would it be possible to treat them as of other 'profile' shapes. We are unable to attribute any precise meaning to the expression 'profile' shape but it cannot be taken to be comprehensive enough to take in any shape what- ever, as is contended for. If we give the expression 'rec- tangular or other profile shapes' in the table such wide and unrestricted interpretation as is suggested, then practical- ly any article of plastic can be brought within the meaning of one or other of the expressions used in the table and thus the entire exemption can be altogether deprived of any content.\n For the above reasons, we are of opinion that the articles are 240 'films' and, as this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification. The conclusion arrived at by the Tribunal is therefore upheld and these appeals are dismissed with no orders as to costs.\n Y. Lal Appeals dis- missed.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"id": "9339d7e40933471485b5d160e063c702",
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"labels": [
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"start": 0,
"text": " IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n CRL.A. 12/2009 & CRL.M (B) No. 23/2009\n\n Reserved on: 24th March 2009"
}
},
{
"from_name": null,
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"labels": [
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],
"start": 212,
"text": "Decision on: April 8, 2009\n\n BAL BAHADUR ..... Appellant\n Through Mr. Bharat Bhushan &\n Mr. R.S. Bhoria, Advocates\n versus\n\n CUSTOMS AIR CUSTOMS OFFICER\n IGI AIRPORT, NEW DELHI ..... Respondents"
}
},
{
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"value": {
"end": 718,
"labels": [
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],
"start": 539,
"text": "\n Through Mr.Satish Aggarwal, Mr. Shirish\n Aggarwal, and Mr. Sushil Kaushik, Advocates\n\n CORAM:\n HON'BLE DR. JUSTICE S. MURALIDHAR"
}
},
{
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"type": null,
"value": {
"end": 809,
"labels": [
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],
"start": 727,
"text": "1. Whether Reporters of local papers may be\n allowed to see the judgment?"
}
},
{
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"id": "a3783bec07f24875a9ce556d0337f2a6",
"to_name": null,
"type": null,
"value": {
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"labels": [
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"start": 836,
"text": "Yes\n 2."
}
},
{
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"id": "c7dea6fe1e7d4272ade1e8f1bfa8cec0",
"to_name": null,
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"value": {
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"labels": [
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],
"start": 849,
"text": "To be referred to the Reporter or not?"
}
},
{
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"id": "03ca46a534484ebea3449ddd317a3315",
"to_name": null,
"type": null,
"value": {
"end": 915,
"labels": [
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"start": 905,
"text": "Yes\n "
}
},
{
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"to_name": null,
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"value": {
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"labels": [
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],
"start": 915,
"text": "3. Whether the judgment should be reported in Digest?"
}
},
{
"from_name": null,
"id": "c390511323b04baa8f3937a312945ce6",
"to_name": null,
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"labels": [
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],
"start": 969,
"text": "Yes\n\n\n JUDGMENT\n"
}
},
{
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"to_name": null,
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"labels": [
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],
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"text": "Dr. S. MURALIDHAR, J."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 1373,
"labels": [
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],
"start": 1032,
"text": "1. This appeal is directed against the judgment dated 27 th August 2008, passed by the learned Special Judge, NDPS, New Delhi in SC No. 75/04 holding the appellant guilty of committing offences punishable under Section 21(c) as well as Section 23 (c) read with Section 28 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act)."
}
},
{
"from_name": null,
"id": "bdfff08d5a6b488a8f1a12d689381396",
"to_name": null,
"type": null,
"value": {
"end": 1795,
"labels": [
"RLC"
],
"start": 1374,
"text": "It is also directed against the order dated 29th August 2008, passed by the learned Special Judge, NDPS sentencing the appellant to undergo rigorous imprisonment (RI) for 10 years with fine of Rs. 1 lakh and in default of payment of fine imprisonment for a further period of one year for the offence under Section 21(c) NDPS Act and an identical sentence for the offence under Section 23(c) read with Section 28 NDPS Act."
}
},
{
"from_name": null,
"id": "025df1fb63fe4d048914a5b8121b867b",
"to_name": null,
"type": null,
"value": {
"end": 1857,
"labels": [
"RLC"
],
"start": 1796,
"text": " Both sentences were directed to run concurrently."
}
},
{
"from_name": null,
"id": "4cd2163a342e4319a3f27bbdefceb39e",
"to_name": null,
"type": null,
"value": {
"end": 1885,
"labels": [
"NONE"
],
"start": 1859,
"text": "Case of the prosecution 2."
}
},
{
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"id": "081fc84e1da54c65857c48bf5fb7120e",
"to_name": null,
"type": null,
"value": {
"end": 2212,
"labels": [
"FAC"
],
"start": 1886,
"text": "The case of the prosecution is that on 28th January 2000 the appellant, a Nepalese passport holder, was asked by the Customs Officer in the departure area of the IGI Airport, New Delhi where he was waiting after immigration check up to board a flight to Bangkok, whether he was carrying any narcotic drugs or other contraband."
}
},
{
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"id": "3b8154122ba843599d04f4c32b46e012",
"to_name": null,
"type": null,
"value": {
"end": 2327,
"labels": [
"FAC"
],
"start": 2213,
"text": "When he replied in the negative, the appellant was escorted to the departure hall where two witnesses were called."
}
},
{
"from_name": null,
"id": "b547bdfe3c1247c589f15a09c3b0f1f2",
"to_name": null,
"type": null,
"value": {
"end": 2373,
"labels": [
"FAC"
],
"start": 2328,
"text": "These were PW-5 Lachman and one Satish Kumar."
}
},
{
"from_name": null,
"id": "5cd5882d2b5040f09efb50969d067d7a",
"to_name": null,
"type": null,
"value": {
"end": 2574,
"labels": [
"FAC"
],
"start": 2373,
"text": "\n The appellant was served a notice under Section 50 NDPS Act informing him in vernacular that his search could be conducted in the presence of either a Magistrate or a Gazetted Officer of the Customs."
}
},
{
"from_name": null,
"id": "762c01d15e4a43019888bc0e0f72e0c8",
"to_name": null,
"type": null,
"value": {
"end": 2636,
"labels": [
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],
"start": 2575,
"text": "His search was conducted but nothing incriminating was found."
}
},
{
"from_name": null,
"id": "4ac15511212a473fb07597015f0cb678",
"to_name": null,
"type": null,
"value": {
"end": 2721,
"labels": [
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],
"start": 2637,
"text": "However, since appellant was looking uneasy he was subjected to a sustained enquiry."
}
},
{
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"id": "721253a1f5e4418eab0442fec372bf4d",
"to_name": null,
"type": null,
"value": {
"end": 2804,
"labels": [
"FAC"
],
"start": 2722,
"text": "He then admitted to have concealed capsules filled with heroin inside his stomach."
}
},
{
"from_name": null,
"id": "c264e0df79f5409293397e24490fbc66",
"to_name": null,
"type": null,
"value": {
"end": 2890,
"labels": [
"FAC"
],
"start": 2804,
"text": "\n He volunteered to eject them but stated that he could not do so without medical aid."
}
},
{
"from_name": null,
"id": "7759a7ffb30a4af0bd6729aa419799fa",
"to_name": null,
"type": null,
"value": {
"end": 2978,
"labels": [
"FAC"
],
"start": 2892,
"text": "3. The appellant was arrested in the intervening night of 28th and 29th January, 2000."
}
},
{
"from_name": null,
"id": "7155fc925615401db1a5c617d3f17b3a",
"to_name": null,
"type": null,
"value": {
"end": 3068,
"labels": [
"FAC"
],
"start": 2979,
"text": "A panchanama was prepared of the seizure of the appellant’s air ticket and boarding pass."
}
},
{
"from_name": null,
"id": "861459aa449a446eb36b228d757367f2",
"to_name": null,
"type": null,
"value": {
"end": 3359,
"labels": [
"FAC"
],
"start": 3069,
"text": "The appellant made a statement on 29.1.2000 under Section 67 NDPS Act stating that he had come to Delhi on 14.1.2000 from Nepal and stayed at a hotel in Majnu Ka Teela, Delhi where a foreigner met him and offered to pay him 500 US dollar for carrying capsules filled with heroin to Bangkok."
}
},
{
"from_name": null,
"id": "d5bbb8fec0714ed0a9579cb5a0a9781b",
"to_name": null,
"type": null,
"value": {
"end": 3494,
"labels": [
"FAC"
],
"start": 3360,
"text": "The said person visited him on the evening of 28.1.2000 and delivered 80 capsules filled with heroin along with a Thai Airways ticket."
}
},
{
"from_name": null,
"id": "29d08d012acb41e6859af332185435dd",
"to_name": null,
"type": null,
"value": {
"end": 3608,
"labels": [
"FAC"
],
"start": 3495,
"text": " On 29th January 2000 the appellant informed the Customs Officials that he was ready to eject the capsules."
}
},
{
"from_name": null,
"id": "f348cc1758a44995947a5ff8d4b3c443",
"to_name": null,
"type": null,
"value": {
"end": 3820,
"labels": [
"FAC"
],
"start": 3609,
"text": "In the toilet he ejected 48 cylindrical capsules wrapped with white colour plastic surface of similar size in the presence of witnesses as well as Shri B.C. Gogna, Air Custom Officer (who was examined as PW- 1)."
}
},
{
"from_name": null,
"id": "ed423bdd24dc4e3a84e07af33ca94ef4",
"to_name": null,
"type": null,
"value": {
"end": 3888,
"labels": [
"FAC"
],
"start": 3821,
"text": "A pinch of powder was taken from each of the 48 recovered capsules."
}
},
{
"from_name": null,
"id": "38c9b47c74e04aa2ad7b3412df2b0671",
"to_name": null,
"type": null,
"value": {
"end": 3984,
"labels": [
"FAC"
],
"start": 3888,
"text": "\n When tested with the field drug test kit it gave a positive result for the presence of heroin."
}
},
{
"from_name": null,
"id": "04697c6baefd40fab52e3552c2c83386",
"to_name": null,
"type": null,
"value": {
"end": 4243,
"labels": [
"FAC"
],
"start": 3986,
"text": "4. Since the appellant admitted that he had more heroin filled capsules in his abdomen and required medical help, he was produced before the Additional Chief Metropolitan Magistrate who ordered his admission to the Ram Manohar Lohia Hospital (RML Hospital)."
}
},
{
"from_name": null,
"id": "907b94a0cd5d4ead9c4978eb27f0b057",
"to_name": null,
"type": null,
"value": {
"end": 4306,
"labels": [
"FAC"
],
"start": 4244,
"text": "The appellant remained in RML Hospital till 4th February 2000."
}
},
{
"from_name": null,
"id": "e9b6399d8ad04c27bfd8393b3f6756ea",
"to_name": null,
"type": null,
"value": {
"end": 4407,
"labels": [
"FAC"
],
"start": 4307,
"text": "During this period, he evacuated 51 more capsules which were again sealed in four different packets."
}
},
{
"from_name": null,
"id": "f35cff704296411a9be6dd7a1e96fa71",
"to_name": null,
"type": null,
"value": {
"end": 4620,
"labels": [
"FAC"
],
"start": 4408,
"text": "He was discharged on 4th February 2000, brought to the IGI Airport where in the presence of two witnesses he was shown the four sealed packets and the witnesses signed them certifying that they were not tampered."
}
},
{
"from_name": null,
"id": "30e2670442b94f7182e51528f073fc7e",
"to_name": null,
"type": null,
"value": {
"end": 4728,
"labels": [
"FAC"
],
"start": 4621,
"text": "The four packets were cut, opened and examined, counted and tallied with the details in the recovery memos."
}
},
{
"from_name": null,
"id": "f734b2517d354d7b899d7d29f957e673",
"to_name": null,
"type": null,
"value": {
"end": 4828,
"labels": [
"FAC"
],
"start": 4729,
"text": "The capsules were opened and a pinch of the substance from each capsule tested positive for heroin."
}
},
{
"from_name": null,
"id": "c2bbf5329c69420fa89e2143e93b4c7e",
"to_name": null,
"type": null,
"value": {
"end": 4991,
"labels": [
"FAC"
],
"start": 4828,
"text": "\n 5. The case of the prosecution is that the heroin recovered from the 48 capsules ejected by the appellant in the Airport on 29 th January 2000 weighed 437 grams."
}
},
{
"from_name": null,
"id": "c1c0a9b7262f4de0aef184e3c0d19ae5",
"to_name": null,
"type": null,
"value": {
"end": 5128,
"labels": [
"FAC"
],
"start": 4992,
"text": "The heroin recovered from the 51 capsules ejected in the RML Hospital between 29th January 2000 and 4th February 2000 weighed 458 grams."
}
},
{
"from_name": null,
"id": "34410bc50f9e4ccda58328e9d1f95044",
"to_name": null,
"type": null,
"value": {
"end": 5206,
"labels": [
"FAC"
],
"start": 5129,
"text": "These were therefore commercial quantity in terms of Section 21 (c) NDPS Act."
}
},
{
"from_name": null,
"id": "a0706bedfd9f4848b5f9adb5a79bddbf",
"to_name": null,
"type": null,
"value": {
"end": 5432,
"labels": [
"FAC"
],
"start": 5207,
"text": "The samples sent to the Central Revenue Control Laboratory (CRCL) were tested and found to contain Diacetylmorphine (DAM) of percentage 76.16 (vide report dated 10th March 2000) and 72.24% (vide report dated 24th March 2000)."
}
},
{
"from_name": null,
"id": "27275828398749a3885771471087a13b",
"to_name": null,
"type": null,
"value": {
"end": 5576,
"labels": [
"FAC"
],
"start": 5432,
"text": "\n 6. On 4th May 2000, Shri B.C. Gogna (PW 1) filed a complaint under Sections 21, 23 and 28 NDPS Act in the Special Court for NDPS cases, Delhi."
}
},
{
"from_name": null,
"id": "ea38b7e635854adc93886146dc45bc89",
"to_name": null,
"type": null,
"value": {
"end": 5737,
"labels": [
"FAC"
],
"start": 5577,
"text": "Thereafter 15 prosecution witnesses (PWs) out of the 24 listed were examined by the complainant (the Respondent herein) and the prosecution evidence was closed."
}
},
{
"from_name": null,
"id": "fd4181ce1baa415dad884618e0e28ac3",
"to_name": null,
"type": null,
"value": {
"end": 5883,
"labels": [
"FAC"
],
"start": 5738,
"text": "The trial ultimately concluded after eight years and the impugned judgment and order as noted in para 1 were passed by the learned Special judge."
}
},
{
"from_name": null,
"id": "d6fca398b996495babb3678b8bf2a141",
"to_name": null,
"type": null,
"value": {
"end": 5979,
"labels": [
"FAC"
],
"start": 5883,
"text": "\n 7. The present appeal was sent by the appellant from the jail and listed on 19th January 2009."
}
},
{
"from_name": null,
"id": "beb57f3603e64b989d843cbaa6e288c7",
"to_name": null,
"type": null,
"value": {
"end": 6100,
"labels": [
"FAC"
],
"start": 5980,
"text": "Mr.Bharat Bhushan, learned counsel on the panel of the Delhi Legal Services Authority (DLSA) appeared for the appellant."
}
},
{
"from_name": null,
"id": "69a9e0f2cf7041f8b02b824f69ae4cdb",
"to_name": null,
"type": null,
"value": {
"end": 6248,
"labels": [
"FAC"
],
"start": 6101,
"text": "Since as on 29th January 2009, the appellant had completed 8 years, 11 months and 25 days of the sentence, the hearing of the appeal was expedited."
}
},
{
"from_name": null,
"id": "571b5ff84a8441d0bb6518f4ffbfe377",
"to_name": null,
"type": null,
"value": {
"end": 6309,
"labels": [
"NONE"
],
"start": 6250,
"text": "Effect of public witness to the recovery turning hostile 8."
}
},
{
"from_name": null,
"id": "98dbe8a59de54f369b5a34083e35964c",
"to_name": null,
"type": null,
"value": {
"end": 6440,
"labels": [
"ARG_PETITIONER"
],
"start": 6310,
"text": "It is first submitted that the case itself was a planted one as no public witness was able to support the case of the prosecution."
}
},
{
"from_name": null,
"id": "6cc2849e508d4e8fa9e0ded95785513e",
"to_name": null,
"type": null,
"value": {
"end": 6528,
"labels": [
"ARG_PETITIONER"
],
"start": 6441,
"text": "The case hinged on the recoveries of the capsules containing heroin from the appellant."
}
},
{
"from_name": null,
"id": "6a0efcee26e14cc48476c1b7ea476ec2",
"to_name": null,
"type": null,
"value": {
"end": 6625,
"labels": [
"ARG_PETITIONER"
],
"start": 6529,
"text": "The sole public witness Lachman Dass PW-5 turned hostile and refused to support the prosecution."
}
},
{
"from_name": null,
"id": "3b3bf7a9e4474f46a2d7e47c8bfda36e",
"to_name": null,
"type": null,
"value": {
"end": 6779,
"labels": [
"ARG_PETITIONER"
],
"start": 6626,
"text": "Reliance is place on the judgment of the Supreme Court in Narcotics Control Bureau, Mumbai v. Abdullah Hussain Juma & Anr., 2003 (2) C.C. Cases (SC) 155."
}
},
{
"from_name": null,
"id": "2d032568a0c444e794fb918ee879f0b9",
"to_name": null,
"type": null,
"value": {
"end": 6914,
"labels": [
"ARG_PETITIONER"
],
"start": 6780,
"text": "Also the Doctor (PW 15) in whose presence the capsules were recovered at the RML Hospital did not support the case of the prosecution."
}
},
{
"from_name": null,
"id": "d088baf9461f405992e1caea36072cbe",
"to_name": null,
"type": null,
"value": {
"end": 7050,
"labels": [
"ARG_PETITIONER"
],
"start": 6915,
"text": "Reliance is also placed on the judgment of this Court in Prithvi Pal Singh @ Munna v. State, 2000 (2) C.C. Cases HC 174 in this regard."
}
},
{
"from_name": null,
"id": "916fbef136aa4336b657c4c7c48b81a3",
"to_name": null,
"type": null,
"value": {
"end": 7101,
"labels": [
"NONE"
],
"start": 7052,
"text": "9. This Court has considered the said submission."
}
},
{
"from_name": null,
"id": "6d21496505b94305a5e12cbb46ceac58",
"to_name": null,
"type": null,
"value": {
"end": 7170,
"labels": [
"ANALYSIS"
],
"start": 7102,
"text": "The evidence of PW-5 Lachman indeed did not support the prosecution."
}
},
{
"from_name": null,
"id": "5921e8e74c3d473da965cb2c3d5e67ca",
"to_name": null,
"type": null,
"value": {
"end": 7382,
"labels": [
"ANALYSIS"
],
"start": 7171,
"text": "PW-5 nevertheless states that he and Satish Chander were called in the departure hall of IGI Airport; that the officers asked the appellant whether he was carrying any contraband to which he replied in negative."
}
},
{
"from_name": null,
"id": "4056219663ca4e3b9c5a458b3476fe32",
"to_name": null,
"type": null,
"value": {
"end": 7468,
"labels": [
"ANALYSIS"
],
"start": 7383,
"text": "PW 5 also confirms that the officers served notice under Section 50 on the appellant."
}
},
{
"from_name": null,
"id": "9e2cfe91a0fa41738911b93777253c10",
"to_name": null,
"type": null,
"value": {
"end": 7552,
"labels": [
"ANALYSIS"
],
"start": 7469,
"text": "He states that on search of the bag of the accused nothing incriminating was found."
}
},
{
"from_name": null,
"id": "9efc2829ebc84ddc83ca0a93445b3523",
"to_name": null,
"type": null,
"value": {
"end": 7604,
"labels": [
"ANALYSIS"
],
"start": 7552,
"text": "\n Therefore, these facts in fact stand corroborated."
}
},
{
"from_name": null,
"id": "5614bba8c2c54454b90880257dd5205b",
"to_name": null,
"type": null,
"value": {
"end": 7749,
"labels": [
"ANALYSIS"
],
"start": 7605,
"text": "What the witness denied was that the accused had admitted to concealing capsules in his body and that he offered to eject them with medical aid."
}
},
{
"from_name": null,
"id": "49bf96348dab445b97582239ec3a6b18",
"to_name": null,
"type": null,
"value": {
"end": 7911,
"labels": [
"ANALYSIS"
],
"start": 7750,
"text": "The record shows that the prosecution dropped the other public witnesses Om Kumar and Satish Kumar since they could not be served with summons for several dates."
}
},
{
"from_name": null,
"id": "95f4757d377d4402a0fc2e8463134c3c",
"to_name": null,
"type": null,
"value": {
"end": 8138,
"labels": [
"ANALYSIS"
],
"start": 7911,
"text": "\n 10. There may be practical problems faced by the Customs officials in getting independent witnesses for the searches and recoveries made at the international airport, particularly when passengers are waiting to board flights."
}
},
{
"from_name": null,
"id": "20f40d2dc55549298cd9d7277bbb68c4",
"to_name": null,
"type": null,
"value": {
"end": 8271,
"labels": [
"ANALYSIS"
],
"start": 8139,
"text": "Still, if the prosecution has named an independent witness it will have to take the consequence of his subsequently turning hostile."
}
},
{
"from_name": null,
"id": "ed232a9a01884cbe942b5c5e8e6d6c25",
"to_name": null,
"type": null,
"value": {
"end": 8379,
"labels": [
"ANALYSIS"
],
"start": 8272,
"text": "However, in the instant case the proof of the recoveries made does not hinge on the evidence of PW 5 alone."
}
},
{
"from_name": null,
"id": "c1f0182fcdfa400aa4b81255329f6bf7",
"to_name": null,
"type": null,
"value": {
"end": 8469,
"labels": [
"ANALYSIS"
],
"start": 8380,
"text": "The case of the prosecution stands fortified by the detailed evidence of PW-1 Shri Gogna."
}
},
{
"from_name": null,
"id": "1481033e4b3d47a3b193a969bbeab3e9",
"to_name": null,
"type": null,
"value": {
"end": 8609,
"labels": [
"ANALYSIS"
],
"start": 8470,
"text": "The criticism that he is not an independent witness is to no avail since this witness was not cross- examined by counsel for the appellant."
}
},
{
"from_name": null,
"id": "44b8873eaecc4f499df81d98a1f17fc9",
"to_name": null,
"type": null,
"value": {
"end": 8818,
"labels": [
"ANALYSIS"
],
"start": 8610,
"text": "The case record shows that despite several opportunities being given over an extended period of nearly three years, counsel for the appellant did not cross examine PW 1 Shri Gogna for one or the other reason."
}
},
{
"from_name": null,
"id": "f4604265effc486db7b071c536c622fd",
"to_name": null,
"type": null,
"value": {
"end": 8892,
"labels": [
"ANALYSIS"
],
"start": 8819,
"text": "The opportunity to do so was closed by the trial court on 8th March 2004."
}
},
{
"from_name": null,
"id": "bbb0744eb845434090c61d79e76162d6",
"to_name": null,
"type": null,
"value": {
"end": 9054,
"labels": [
"RATIO"
],
"start": 8893,
"text": "Having perused the orders passed by the Special Court from time to time, this Court finds that the trial court cannot be held to have acted unfairly in doing so."
}
},
{
"from_name": null,
"id": "975195ada2764ec19bf67198865f8ab5",
"to_name": null,
"type": null,
"value": {
"end": 9130,
"labels": [
"ANALYSIS"
],
"start": 9055,
"text": "Also, no request was made to the trial court for recalling PW 1 thereafter."
}
},
{
"from_name": null,
"id": "5cafc1799cd44026aa04bc53ee0464dd",
"to_name": null,
"type": null,
"value": {
"end": 9285,
"labels": [
"ANALYSIS"
],
"start": 9131,
"text": "The facts in Abdullah Hussain Juma and Prithvi Pal Singh (supra) reveal that those decisions are distinguishable in their application to the present case."
}
},
{
"from_name": null,
"id": "e24455afb8bb473f85e5715610e6ee9d",
"to_name": null,
"type": null,
"value": {
"end": 9377,
"labels": [
"ANALYSIS"
],
"start": 9286,
"text": "The case of the prosecution hinges on the evidence of PW 1 which has remained un- rebutted."
}
},
{
"from_name": null,
"id": "ba91b791e57040db806dfd15205b1293",
"to_name": null,
"type": null,
"value": {
"end": 9527,
"labels": [
"ANALYSIS"
],
"start": 9377,
"text": "\n 11. What is also against the appellant is the confessional statements made by him to the Custom Officials under Section 67 of the Customs Act, 1962."
}
},
{
"from_name": null,
"id": "a46e68bca5e8466e8459b08680e5dd85",
"to_name": null,
"type": null,
"value": {
"end": 9680,
"labels": [
"ANALYSIS"
],
"start": 9527,
"text": "\n It was sought to be urged that the statements were dictated by the Custom Officials themselves since the appellant could not have possibly known Hindi."
}
},
{
"from_name": null,
"id": "c0b9b25feb0d4080bc720528c6671b00",
"to_name": null,
"type": null,
"value": {
"end": 9819,
"labels": [
"ANALYSIS"
],
"start": 9681,
"text": "Learned SPP has pointed out that the accused although a Nepali did know Hindi and in fact the statements were written out by him in Hindi."
}
},
{
"from_name": null,
"id": "6cae5e7123594f63863a84604dafac15",
"to_name": null,
"type": null,
"value": {
"end": 9906,
"labels": [
"ANALYSIS"
],
"start": 9819,
"text": "\n On a perusal of the record, this submission of the learned APP appears to be correct."
}
},
{
"from_name": null,
"id": "44cb4ffd663e4517815262ee69a26152",
"to_name": null,
"type": null,
"value": {
"end": 9965,
"labels": [
"ANALYSIS"
],
"start": 9908,
"text": "12. The law on this aspect is also against the appellant."
}
},
{
"from_name": null,
"id": "b385e904c4e54352af64c5397479fee5",
"to_name": null,
"type": null,
"value": {
"end": 10214,
"labels": [
"PRE_RELIED"
],
"start": 9966,
"text": "In Kanhaiyalal v.\n Union of India 2008 (1) JCC(Narcotics) 23, the Supreme Court has held that the statement made under Section 67 can be used as a confession against the person making it and is not affected by Sections 24 to 27 of the Evidence Act."
}
},
{
"from_name": null,
"id": "3788c912313a409890a5a1fa23c2fe45",
"to_name": null,
"type": null,
"value": {
"end": 10345,
"labels": [
"PRE_RELIED"
],
"start": 10215,
"text": "This has been followed by this Court in Rehmatullah v.\n Narcotics Control Bureau 2008 (3) JCC (Narcotics) 174.\n Other evidence 13."
}
},
{
"from_name": null,
"id": "b8ad7428767f4476a8c25b18c0011e0b",
"to_name": null,
"type": null,
"value": {
"end": 10593,
"labels": [
"ANALYSIS"
],
"start": 10346,
"text": "In light of the above evidence, the criticism of the learned counsel for the appellant of the evidence of PW-15 (Dr. S.K. Sharma, Head of the Department (Emergency) R.M.L. Hospital) that it does not support the case of the prosecution loses force."
}
},
{
"from_name": null,
"id": "51b4bceba0414a8da7e8f9ad8a87915b",
"to_name": null,
"type": null,
"value": {
"end": 10905,
"labels": [
"ANALYSIS"
],
"start": 10594,
"text": "While it is correct that Dr. Sharma has stated that he had no personal knowledge as to what happened during the period 29th to 4th February 2000, the case record contains several documents of the OPD record of RML Hospital which show that the accused ejected different quantities of capsules on different dates."
}
},
{
"from_name": null,
"id": "a38d1bd92abf4e158a75b43783b0f877",
"to_name": null,
"type": null,
"value": {
"end": 10962,
"labels": [
"ANALYSIS"
],
"start": 10906,
"text": "All these documents have been proved by PW-1 B.C. Gogna."
}
},
{
"from_name": null,
"id": "09e7c3632db84947bf652da40da2ad1c",
"to_name": null,
"type": null,
"value": {
"end": 11080,
"labels": [
"ANALYSIS"
],
"start": 10963,
"text": "Exhibit PW- 1/Q2 shows that the accused on 13th January initially ejected 16 capsules and later a further 5 capsules."
}
},
{
"from_name": null,
"id": "1d934b8afc954a968bb1bd583263fedb",
"to_name": null,
"type": null,
"value": {
"end": 11189,
"labels": [
"ANALYSIS"
],
"start": 11081,
"text": "On 31 January 2000 he initially ejected one capsule and later on that date he ejected a further 29 capsules."
}
},
{
"from_name": null,
"id": "89aeda13dc6b4b9a8696167df1eb73bd",
"to_name": null,
"type": null,
"value": {
"end": 11260,
"labels": [
"ANALYSIS"
],
"start": 11190,
"text": "These slips have been signed by different Doctors of the RML Hospital."
}
},
{
"from_name": null,
"id": "da5a7934e6204ce989147f89ba063ff8",
"to_name": null,
"type": null,
"value": {
"end": 11361,
"labels": [
"ANALYSIS"
],
"start": 11261,
"text": "The discharge summary issued by the RML Hospital also confirms that the accused ejected 51 capsules."
}
},
{
"from_name": null,
"id": "d4bcbb7c3e614b18bbcd818a5af5de40",
"to_name": null,
"type": null,
"value": {
"end": 11418,
"labels": [
"ANALYSIS"
],
"start": 11362,
"text": " All these documents were contemporaneously recorded."
}
},
{
"from_name": null,
"id": "79dc653ffae14b3e9bf617a3a8ca426c",
"to_name": null,
"type": null,
"value": {
"end": 11492,
"labels": [
"ANALYSIS"
],
"start": 11419,
"text": "They fully establish the case of the prosecution beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "358fc7aeaa1b4eb984e1bf60963cd1d4",
"to_name": null,
"type": null,
"value": {
"end": 11599,
"labels": [
"ANALYSIS"
],
"start": 11492,
"text": "\n 14. It was sought to be contended that the purity percentage was not indicated in the report of the CRCL."
}
},
{
"from_name": null,
"id": "5f149a59a882424e9cc799d17f225312",
"to_name": null,
"type": null,
"value": {
"end": 11689,
"labels": [
"ANALYSIS"
],
"start": 11600,
"text": "However, the CRCL reports marked as PW-1/U-1 and PW-1/V-2 indicate the purity percentage."
}
},
{
"from_name": null,
"id": "d9fc6cd90f9f4756b9048593d1518432",
"to_name": null,
"type": null,
"value": {
"end": 11772,
"labels": [
"ANALYSIS"
],
"start": 11690,
"text": "Further, in para 25 of the impugned judgment the learned ASJ adverts to this fact."
}
},
{
"from_name": null,
"id": "365ae3ed207b4c08b9415a3e1eb423dc",
"to_name": null,
"type": null,
"value": {
"end": 11871,
"labels": [
"ANALYSIS"
],
"start": 11773,
"text": "It is clear, therefore, what the accused was carrying was in fact a commercial quantity of heroin."
}
},
{
"from_name": null,
"id": "e4bb8ce25d814d559540f900b1992892",
"to_name": null,
"type": null,
"value": {
"end": 12067,
"labels": [
"ANALYSIS"
],
"start": 11871,
"text": "\n 15. Having examined the entire record as well as the impugned judgment of the learned ASJ this Court finds no reason to differ from the reasoning or the conclusion arrived at by the learned ASJ."
}
},
{
"from_name": null,
"id": "c8c076f72a98425b9239a2e5d4cd22a9",
"to_name": null,
"type": null,
"value": {
"end": 12294,
"labels": [
"RATIO"
],
"start": 12068,
"text": "The prosecution has indeed been able to prove beyond reasonable doubt that the accused was carrying a fairly large quantity of heroin in his body when he was apprehended at the IGI Airport waiting to board a flight to Bangkok."
}
},
{
"from_name": null,
"id": "cde419921d4e446faf9d4cd83f0922c7",
"to_name": null,
"type": null,
"value": {
"end": 12382,
"labels": [
"RPC"
],
"start": 12295,
"text": "The conviction of the petitioner for the offences aforementioned is accordingly upheld."
}
},
{
"from_name": null,
"id": "4eb798799f3e4957a11e101c661619c2",
"to_name": null,
"type": null,
"value": {
"end": 12456,
"labels": [
"NONE"
],
"start": 12384,
"text": "The right to representation at expense of state by competent counsel 16."
}
},
{
"from_name": null,
"id": "de0ea86c68664cac87ae24e649282782",
"to_name": null,
"type": null,
"value": {
"end": 12622,
"labels": [
"ANALYSIS"
],
"start": 12457,
"text": "Before concluding, this Court would like to reflect on the aspect of the right of the accused to representation by a competent counsel at state expense at the trial."
}
},
{
"from_name": null,
"id": "ea49d14cf8dd4e4ca8d4b2fb1b38843e",
"to_name": null,
"type": null,
"value": {
"end": 12720,
"labels": [
"ANALYSIS"
],
"start": 12623,
"text": "The case record shows that the accused was initially represented by a counsel engaged on his own."
}
},
{
"from_name": null,
"id": "0e0fcf5579464758b0be23feb4e25a10",
"to_name": null,
"type": null,
"value": {
"end": 12791,
"labels": [
"ANALYSIS"
],
"start": 12721,
"text": "Shri Gogna, PW-1, was examined in chief from 9th October 2000 onwards."
}
},
{
"from_name": null,
"id": "0a5d7c204b6a48a088b726c1617c18a8",
"to_name": null,
"type": null,
"value": {
"end": 12839,
"labels": [
"ANALYSIS"
],
"start": 12792,
"text": "This appears to have continued for a long time."
}
},
{
"from_name": null,
"id": "e696ca76538749ae97bc8b5007311bd1",
"to_name": null,
"type": null,
"value": {
"end": 12882,
"labels": [
"ANALYSIS"
],
"start": 12840,
"text": "Meanwhile, PW-2 was also examined in part."
}
},
{
"from_name": null,
"id": "db5a2083d8fe4c08aac927eb5712ba9b",
"to_name": null,
"type": null,
"value": {
"end": 13044,
"labels": [
"ANALYSIS"
],
"start": 12884,
"text": "The counsel for the accused wanted to however first examine the two recovery witnesses and, therefore, the case kept getting adjourned to secure their presence."
}
},
{
"from_name": null,
"id": "15ba7647150047e9862883a904b93bef",
"to_name": null,
"type": null,
"value": {
"end": 13183,
"labels": [
"ANALYSIS"
],
"start": 13045,
"text": "One of them Lachman was present on 29th April 2003 but the other witness Satish Kumar was not present and so the case was again adjourned."
}
},
{
"from_name": null,
"id": "d825269466364934a500ed6a88cedaeb",
"to_name": null,
"type": null,
"value": {
"end": 13282,
"labels": [
"ANALYSIS"
],
"start": 13184,
"text": "On 2nd December 2003 PW-1 was present but again the counsel for the accused sought an adjournment."
}
},
{
"from_name": null,
"id": "3a5ef16a99b14281aa9f97f7638c4d87",
"to_name": null,
"type": null,
"value": {
"end": 13381,
"labels": [
"ANALYSIS"
],
"start": 13283,
"text": "The learned ASJ expressed his displeasure and observed that no further opportunity would be given."
}
},
{
"from_name": null,
"id": "3898bd69cd8e452e842872bbdd5e5368",
"to_name": null,
"type": null,
"value": {
"end": 13505,
"labels": [
"ANALYSIS"
],
"start": 13382,
"text": "On 8th March 2004 Shri Gogna was again present but the defence counsel did not turn up despite the court waiting till 3 pm."
}
},
{
"from_name": null,
"id": "5ded1fcc68674638badd28c154bc5a7e",
"to_name": null,
"type": null,
"value": {
"end": 13664,
"labels": [
"ANALYSIS"
],
"start": 13506,
"text": "The record of the case shows that several opportunities were given to the accused to cross- examine PW-1 but his counsel declined for one reason or the other."
}
},
{
"from_name": null,
"id": "1b97f0089ed7497db2cf550bca1a21af",
"to_name": null,
"type": null,
"value": {
"end": 13753,
"labels": [
"ANALYSIS"
],
"start": 13666,
"text": "17. The case was thereafter listed for further prosecution evidence on 26th April 2004."
}
},
{
"from_name": null,
"id": "d0468b05c3bf401088d1d1adc3f080de",
"to_name": null,
"type": null,
"value": {
"end": 13919,
"labels": [
"ANALYSIS"
],
"start": 13754,
"text": "The record shows that on 15th April 2004, the accused was produced from judicial custody and filed an application for being represented by a lawyer at State expense."
}
},
{
"from_name": null,
"id": "02919da7ff4e490f99842cf70816d964",
"to_name": null,
"type": null,
"value": {
"end": 14017,
"labels": [
"ANALYSIS"
],
"start": 13920,
"text": "The Special Judge appointed Shri Abhimanyu Kumar, who was present in the Court, as Amicus Curiae."
}
},
{
"from_name": null,
"id": "499c6c02926046a5be02ce9845878283",
"to_name": null,
"type": null,
"value": {
"end": 14103,
"labels": [
"ANALYSIS"
],
"start": 14017,
"text": "\n Meanwhile, the other PWs were examined but sporadically amidst several adjournments."
}
},
{
"from_name": null,
"id": "7bceb0dfdece49bdb1f1966f2358ef51",
"to_name": null,
"type": null,
"value": {
"end": 14251,
"labels": [
"ANALYSIS"
],
"start": 14104,
"text": "At one stage, on 11th August 2008, the learned Special Judge noticed that till that date only 15 of the 24 prosecution witnesses had been examined."
}
},
{
"from_name": null,
"id": "416d353abd1840559fcb326ab672d002",
"to_name": null,
"type": null,
"value": {
"end": 14366,
"labels": [
"ANALYSIS"
],
"start": 14252,
"text": "On the previous date i.e. 5th August 2008, the prosecution had been given a last opportunity to lead its evidence."
}
},
{
"from_name": null,
"id": "906ab03a6e3b43238987b56540615598",
"to_name": null,
"type": null,
"value": {
"end": 14419,
"labels": [
"ANALYSIS"
],
"start": 14367,
"text": "However, no witness was present on 11th August 2008."
}
},
{
"from_name": null,
"id": "8173e571c537444bbed11b6aa5fa3980",
"to_name": null,
"type": null,
"value": {
"end": 14579,
"labels": [
"ANALYSIS"
],
"start": 14420,
"text": "Consequently, the prosecution evidence was closed and the case adjourned to 18th August 2008 for recording the statement of the accused under Section 313 CrPC."
}
},
{
"from_name": null,
"id": "ad2742574c7c43c1acde4f02c1856c50",
"to_name": null,
"type": null,
"value": {
"end": 14715,
"labels": [
"ANALYSIS"
],
"start": 14580,
"text": "On 19 th August 2008, the statement of the accused was recorded and on his request Shri T.K.\n Mahapatra was appointed as Amicus Curiae."
}
},
{
"from_name": null,
"id": "c02117b3fe7a43a78ebdb5f094c30e1e",
"to_name": null,
"type": null,
"value": {
"end": 14852,
"labels": [
"ANALYSIS"
],
"start": 14716,
"text": "On 21 st August.2008 after noting that no defence evidence was being led it was closed, another advocate was appointed as Amicus Curiae."
}
},
{
"from_name": null,
"id": "edcc753a4f614543a836a552d475dda7",
"to_name": null,
"type": null,
"value": {
"end": 15162,
"labels": [
"ANALYSIS"
],
"start": 14852,
"text": "\n 18. This Court has adverted to the aforementioned proceedings in some detail because one of the grievances made by Mr.Bharat Bhushan, learned counsel for the appellant who is himself a counsel on behalf of the DLSA is that the appellant did not receive the assistance of competent counsel in the trial court."
}
},
{
"from_name": null,
"id": "e2867203e68b4dbebf2b72e5f11ccda0",
"to_name": null,
"type": null,
"value": {
"end": 15210,
"labels": [
"ANALYSIS"
],
"start": 15163,
"text": "The above proceedings bear out this submission."
}
},
{
"from_name": null,
"id": "e91cff750a474956a8393f4019742409",
"to_name": null,
"type": null,
"value": {
"end": 15336,
"labels": [
"ANALYSIS"
],
"start": 15211,
"text": "The counsel who initially represented the appellant between 20th March 2001 and 15th April 2004 failed to cross-examine PW-1."
}
},
{
"from_name": null,
"id": "2e4d3a6d8d234fc89f50d98ad41f088d",
"to_name": null,
"type": null,
"value": {
"end": 15406,
"labels": [
"ANALYSIS"
],
"start": 15337,
"text": "The first time an Amicus Curiae was appointed was on 15th April 2004."
}
},
{
"from_name": null,
"id": "f7c2a263923244608b14396632a2723f",
"to_name": null,
"type": null,
"value": {
"end": 15474,
"labels": [
"ANALYSIS"
],
"start": 15407,
"text": "Thereafter, at least on three occasions Amicus Curiae were changed."
}
},
{
"from_name": null,
"id": "aa69eb0aa2ec401a895693648781959e",
"to_name": null,
"type": null,
"value": {
"end": 15561,
"labels": [
"ANALYSIS"
],
"start": 15475,
"text": "However, none of them appears to have sought the recall of PW-1 for cross-examination."
}
},
{
"from_name": null,
"id": "c3305cca2bd64dfa8758388bad177da7",
"to_name": null,
"type": null,
"value": {
"end": 15690,
"labels": [
"ANALYSIS"
],
"start": 15562,
"text": "This is indeed unfortunate as the lynch pin of the prosecution evidence in the form of the evidence of PW-1 remained unrebutted."
}
},
{
"from_name": null,
"id": "c56eebee710140f9b15d424394b6e1df",
"to_name": null,
"type": null,
"value": {
"end": 15873,
"labels": [
"ANALYSIS"
],
"start": 15690,
"text": "\n 19. The Supreme Court has had occasion to comment on the quality of legal aid counsel appointed to defend accused in cases involving grave offences punishable with severe sentences."
}
},
{
"from_name": null,
"id": "aa4f38c272cd48e9a7254d8c186f71db",
"to_name": null,
"type": null,
"value": {
"end": 16359,
"labels": [
"PRE_RELIED"
],
"start": 15874,
"text": "In Kishore Chand v. State of H.P., (1991) 1 SCC 286 it was observed (SCC, p.297): “Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for a ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under Section 302, IPC by freely fabricating evidence against the innocent."
}
},
{
"from_name": null,
"id": "fd830d9c66fa49019677afad1ebd0465",
"to_name": null,
"type": null,
"value": {
"end": 16488,
"labels": [
"PRE_RELIED"
],
"start": 16360,
"text": "Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task."
}
},
{
"from_name": null,
"id": "34160b32554b4107bb2267064907d454",
"to_name": null,
"type": null,
"value": {
"end": 16724,
"labels": [
"PRE_RELIED"
],
"start": 16489,
"text": "At the same time the liberty of a citizen is a precious one guaranteed by Article 3 of Universal Declaration of Human Rights and also Article 21 of the Constitution of India and its deprivation shall be only in accordance with law."
}
},
{
"from_name": null,
"id": "15b97234b25d4a06adcf59594c847654",
"to_name": null,
"type": null,
"value": {
"end": 16839,
"labels": [
"PRE_RELIED"
],
"start": 16725,
"text": "The accused has the fundamental right to defend himself under Article 10 of Universal Declaration of Human Rights."
}
},
{
"from_name": null,
"id": "c9d1a89c7bea41819072d241e6c6be3b",
"to_name": null,
"type": null,
"value": {
"end": 16925,
"labels": [
"PRE_RELIED"
],
"start": 16840,
"text": "The right to defence includes right to effective and meaningful defence at the trial."
}
},
{
"from_name": null,
"id": "0d4e4b0c54b547e29b3198cd760e3a51",
"to_name": null,
"type": null,
"value": {
"end": 16984,
"labels": [
"PRE_RELIED"
],
"start": 16926,
"text": "The poor accused cannot defend effectively and adequately."
}
},
{
"from_name": null,
"id": "c750156892af4e16a36508989e1c18ab",
"to_name": null,
"type": null,
"value": {
"end": 17187,
"labels": [
"PRE_RELIED"
],
"start": 16985,
"text": "Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under Articles 14, 19 and 21 of the Constitution. …..\n 13."
}
},
{
"from_name": null,
"id": "089db47b5cc74b7bbab0e4fb8dd26ebd",
"to_name": null,
"type": null,
"value": {
"end": 17543,
"labels": [
"PRE_RELIED"
],
"start": 17188,
"text": "Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him."
}
},
{
"from_name": null,
"id": "712c3deef9a8447e80165a0bcf73a98a",
"to_name": null,
"type": null,
"value": {
"end": 17694,
"labels": [
"PRE_RELIED"
],
"start": 17544,
"text": "It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty."
}
},
{
"from_name": null,
"id": "848d6ebdba984991b6c0d3320e5f58de",
"to_name": null,
"type": null,
"value": {
"end": 17865,
"labels": [
"PRE_RELIED"
],
"start": 17695,
"text": "If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.” 20."
}
},
{
"from_name": null,
"id": "8fca7190fe844fe5a63c9b5893eb0419",
"to_name": null,
"type": null,
"value": {
"end": 18089,
"labels": [
"ANALYSIS"
],
"start": 17866,
"text": "It is plain that in cases involving serious offences attracting severe penalties, the purpose of providing a fundamental right to free legal aid would be defeated if competent counsel are not assigned to defend the accused."
}
},
{
"from_name": null,
"id": "dfaf4c459de64e348013af131ccdf121",
"to_name": null,
"type": null,
"value": {
"end": 18278,
"labels": [
"ANALYSIS"
],
"start": 18090,
"text": "In the instant case, the accused is a Nepali national, who was possibly unable, because of his poverty, to engage a competent lawyer and also unable to instruct the lawyer assigned to him."
}
},
{
"from_name": null,
"id": "4672341063e34e5e81b33cd71fc87460",
"to_name": null,
"type": null,
"value": {
"end": 18441,
"labels": [
"ANALYSIS"
],
"start": 18279,
"text": "It is possible that the lawyer requested to assist the trial court as amicus curiae met him only when he was produced in Court at the hearing and not in the jail."
}
},
{
"from_name": null,
"id": "0884febb1ddf4a3b8ece4af5105d5420",
"to_name": null,
"type": null,
"value": {
"end": 18789,
"labels": [
"RPC"
],
"start": 18441,
"text": "\n 21. This Court would suggest to the DLSA that it should prepare a separate panel of trial court lawyers comprising senior lawyers of not less than 10 years or more experience and associate lawyers of not less than five years’ to defend the indigent accused facing trial for commission of offences punishable with sentence of seven years and more."
}
},
{
"from_name": null,
"id": "85a7a8478517441f9859cf474dd3690f",
"to_name": null,
"type": null,
"value": {
"end": 18861,
"labels": [
"RPC"
],
"start": 18790,
"text": "Care may be taken to ensure their competence in handling serious cases."
}
},
{
"from_name": null,
"id": "dfc110f1e9e54a0788d8a52082634da4",
"to_name": null,
"type": null,
"value": {
"end": 19114,
"labels": [
"RPC"
],
"start": 18862,
"text": "It is desirable that a team of two lawyers- one having more than 10 years’ standing and the other having more than 5 years’ experience- be assigned to each such accused in the trial court who has to defend himself in a case involving a severe sentence."
}
},
{
"from_name": null,
"id": "ca082f0bea4d420f9e99f7341b452229",
"to_name": null,
"type": null,
"value": {
"end": 19206,
"labels": [
"RPC"
],
"start": 19115,
"text": "A special set of fees may also be paid to such lawyers so that they can give of their best."
}
},
{
"from_name": null,
"id": "6520b56de8c940e2bc2ed29f7ea59414",
"to_name": null,
"type": null,
"value": {
"end": 19315,
"labels": [
"RPC"
],
"start": 19207,
"text": "This is essential if the promise of providing free legal aid to indigent accused should be a meaningful one."
}
},
{
"from_name": null,
"id": "4547a5581858406998ccf8910beb752d",
"to_name": null,
"type": null,
"value": {
"end": 19560,
"labels": [
"ANALYSIS"
],
"start": 19316,
"text": "The constitutional requirement, as enshrined in Article 21, of ensuring a fair trial in accordance with the procedure established by law requires that every accused facing trial for a grave offence is represented by competent legal aid counsel."
}
},
{
"from_name": null,
"id": "e2c3ed771ddc4f4899dd0794023f11b5",
"to_name": null,
"type": null,
"value": {
"end": 19888,
"labels": [
"ANALYSIS"
],
"start": 19560,
"text": "\n 22. As far as the present case is concerned, for the detailed reasons discussed hereinbefore this Court is satisfied that the absence of competent counsel to defend the appellant did not make a difference to the ultimate result since there is overwhelming evidence to prove the case of the prosecution beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "014942b5152248caa3f26879f881c6de",
"to_name": null,
"type": null,
"value": {
"end": 19980,
"labels": [
"ANALYSIS"
],
"start": 19889,
"text": "Also in this Court, the appellant was ably defended by the lawyer on the panel of the DLSA."
}
},
{
"from_name": null,
"id": "54d9ee10d1de4763803a9ef05bf269a8",
"to_name": null,
"type": null,
"value": {
"end": 20003,
"labels": [
"NONE"
],
"start": 19982,
"text": "Sentence and fine 23."
}
},
{
"from_name": null,
"id": "9a32d851ba7c4bfe92d93f421345cd06",
"to_name": null,
"type": null,
"value": {
"end": 20068,
"labels": [
"RATIO"
],
"start": 20004,
"text": "The appellant has been awarded the minimum sentence of 10 years."
}
},
{
"from_name": null,
"id": "b597b55a0838421aa0311ffaa01093e2",
"to_name": null,
"type": null,
"value": {
"end": 20219,
"labels": [
"RATIO"
],
"start": 20068,
"text": "\n However, learned counsel for the appellant made an earnest plea that the default sentence should be reduced considering the poverty of the appellant."
}
},
{
"from_name": null,
"id": "4b09e235998b49779510c49dd7ecfa04",
"to_name": null,
"type": null,
"value": {
"end": 20322,
"labels": [
"RATIO"
],
"start": 20220,
"text": "It is pointed out that in several cases the default sentence had been to the extent of one month only."
}
},
{
"from_name": null,
"id": "fd15ec412ad3443680e6e9a6553d7a82",
"to_name": null,
"type": null,
"value": {
"end": 20398,
"labels": [
"RATIO"
],
"start": 20323,
"text": "This plea of the learned counsel for the appellant appears to be justified."
}
},
{
"from_name": null,
"id": "1d642fba62c143b9815118ddeac3772f",
"to_name": null,
"type": null,
"value": {
"end": 20677,
"labels": [
"RPC"
],
"start": 20399,
"text": "Accordingly, the impugned order dated 29th August 2008 sentencing the appellant to 10 years’ RI and fine of Rs. 1 lakh and in default a further RI for one year is modified only to the extent that in default of payment of fine of Rs. 1 lakh appellant will undergo one month’s RI."
}
},
{
"from_name": null,
"id": "8fe78333d5294dc491623d0c5f562aae",
"to_name": null,
"type": null,
"value": {
"end": 20883,
"labels": [
"RPC"
],
"start": 20678,
"text": "This modification will apply to the sentences both for the offences under Section 21(c) NDPS Act as well as Section 23(c) read with Section 28 NDPS Act both of which have been directed to run concurrently."
}
},
{
"from_name": null,
"id": "30cf6966079147b484a7df1fd7003846",
"to_name": null,
"type": null,
"value": {
"end": 20989,
"labels": [
"RPC"
],
"start": 20883,
"text": "\n 24. Subject to the modification in the default sentence as directed in para 23, the appeal is dismissed."
}
},
{
"from_name": null,
"id": "778d526e9dcb4ec9a6d33f203fb2a11a",
"to_name": null,
"type": null,
"value": {
"end": 21029,
"labels": [
"RPC"
],
"start": 20990,
"text": "The bail application is also dismissed."
}
},
{
"from_name": null,
"id": "d092a98fbb6343ad82417e70cbdcff54",
"to_name": null,
"type": null,
"value": {
"end": 21194,
"labels": [
"NONE"
],
"start": 21029,
"text": "\n 25. The Court records its appreciation of the excellent assistance provided by Mr. Bharat Bushan, appearing for the appellant as a lawyer on the panel of the DLSA."
}
},
{
"from_name": null,
"id": "2cf46781f3154ccaa1dbb791b95a8703",
"to_name": null,
"type": null,
"value": {
"end": 21353,
"labels": [
"NONE"
],
"start": 21194,
"text": "\n 26. A certified copy of this order be delivered to the Secretary, DLSA as well as to the appellant through the Superintendent, Central Jail, Tihar forthwith."
}
},
{
"from_name": null,
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"labels": [
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"start": 21353,
"text": "\n S. MURALIDHAR, J.\nAPRIL 8, 2009 “dg"
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] | 4,184 | {
"text": " IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n CRL.A. 12/2009 & CRL.M (B) No. 23/2009\n\n Reserved on: 24th March 2009\n Decision on: April 8, 2009\n\n BAL BAHADUR ..... Appellant\n Through Mr. Bharat Bhushan &\n Mr. R.S. Bhoria, Advocates\n versus\n\n CUSTOMS AIR CUSTOMS OFFICER\n IGI AIRPORT, NEW DELHI ..... Respondents\n Through Mr.Satish Aggarwal, Mr. Shirish\n Aggarwal, and Mr. Sushil Kaushik, Advocates\n\n CORAM:\n HON'BLE DR. JUSTICE S. MURALIDHAR\n\n 1. Whether Reporters of local papers may be\n allowed to see the judgment? Yes\n 2. To be referred to the Reporter or not? Yes\n 3. Whether the judgment should be reported in Digest? Yes\n\n\n JUDGMENT\nDr. S. MURALIDHAR, J.\n 1. This appeal is directed against the judgment dated 27 th August 2008, passed by the learned Special Judge, NDPS, New Delhi in SC No. 75/04 holding the appellant guilty of committing offences punishable under Section 21(c) as well as Section 23 (c) read with Section 28 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). It is also directed against the order dated 29th August 2008, passed by the learned Special Judge, NDPS sentencing the appellant to undergo rigorous imprisonment (RI) for 10 years with fine of Rs. 1 lakh and in default of payment of fine imprisonment for a further period of one year for the offence under Section 21(c) NDPS Act and an identical sentence for the offence under Section 23(c) read with Section 28 NDPS Act. Both sentences were directed to run concurrently.\n Case of the prosecution 2. The case of the prosecution is that on 28th January 2000 the appellant, a Nepalese passport holder, was asked by the Customs Officer in the departure area of the IGI Airport, New Delhi where he was waiting after immigration check up to board a flight to Bangkok, whether he was carrying any narcotic drugs or other contraband. When he replied in the negative, the appellant was escorted to the departure hall where two witnesses were called. These were PW-5 Lachman and one Satish Kumar.\n The appellant was served a notice under Section 50 NDPS Act informing him in vernacular that his search could be conducted in the presence of either a Magistrate or a Gazetted Officer of the Customs. His search was conducted but nothing incriminating was found. However, since appellant was looking uneasy he was subjected to a sustained enquiry. He then admitted to have concealed capsules filled with heroin inside his stomach.\n He volunteered to eject them but stated that he could not do so without medical aid.\n 3. The appellant was arrested in the intervening night of 28th and 29th January, 2000. A panchanama was prepared of the seizure of the appellant’s air ticket and boarding pass. The appellant made a statement on 29.1.2000 under Section 67 NDPS Act stating that he had come to Delhi on 14.1.2000 from Nepal and stayed at a hotel in Majnu Ka Teela, Delhi where a foreigner met him and offered to pay him 500 US dollar for carrying capsules filled with heroin to Bangkok. The said person visited him on the evening of 28.1.2000 and delivered 80 capsules filled with heroin along with a Thai Airways ticket. On 29th January 2000 the appellant informed the Customs Officials that he was ready to eject the capsules. In the toilet he ejected 48 cylindrical capsules wrapped with white colour plastic surface of similar size in the presence of witnesses as well as Shri B.C. Gogna, Air Custom Officer (who was examined as PW- 1). A pinch of powder was taken from each of the 48 recovered capsules.\n When tested with the field drug test kit it gave a positive result for the presence of heroin.\n 4. Since the appellant admitted that he had more heroin filled capsules in his abdomen and required medical help, he was produced before the Additional Chief Metropolitan Magistrate who ordered his admission to the Ram Manohar Lohia Hospital (RML Hospital). The appellant remained in RML Hospital till 4th February 2000. During this period, he evacuated 51 more capsules which were again sealed in four different packets. He was discharged on 4th February 2000, brought to the IGI Airport where in the presence of two witnesses he was shown the four sealed packets and the witnesses signed them certifying that they were not tampered. The four packets were cut, opened and examined, counted and tallied with the details in the recovery memos. The capsules were opened and a pinch of the substance from each capsule tested positive for heroin.\n 5. The case of the prosecution is that the heroin recovered from the 48 capsules ejected by the appellant in the Airport on 29 th January 2000 weighed 437 grams. The heroin recovered from the 51 capsules ejected in the RML Hospital between 29th January 2000 and 4th February 2000 weighed 458 grams. These were therefore commercial quantity in terms of Section 21 (c) NDPS Act. The samples sent to the Central Revenue Control Laboratory (CRCL) were tested and found to contain Diacetylmorphine (DAM) of percentage 76.16 (vide report dated 10th March 2000) and 72.24% (vide report dated 24th March 2000).\n 6. On 4th May 2000, Shri B.C. Gogna (PW 1) filed a complaint under Sections 21, 23 and 28 NDPS Act in the Special Court for NDPS cases, Delhi. Thereafter 15 prosecution witnesses (PWs) out of the 24 listed were examined by the complainant (the Respondent herein) and the prosecution evidence was closed. The trial ultimately concluded after eight years and the impugned judgment and order as noted in para 1 were passed by the learned Special judge.\n 7. The present appeal was sent by the appellant from the jail and listed on 19th January 2009. Mr.Bharat Bhushan, learned counsel on the panel of the Delhi Legal Services Authority (DLSA) appeared for the appellant. Since as on 29th January 2009, the appellant had completed 8 years, 11 months and 25 days of the sentence, the hearing of the appeal was expedited.\n Effect of public witness to the recovery turning hostile 8. It is first submitted that the case itself was a planted one as no public witness was able to support the case of the prosecution. The case hinged on the recoveries of the capsules containing heroin from the appellant. The sole public witness Lachman Dass PW-5 turned hostile and refused to support the prosecution. Reliance is place on the judgment of the Supreme Court in Narcotics Control Bureau, Mumbai v. Abdullah Hussain Juma & Anr., 2003 (2) C.C. Cases (SC) 155. Also the Doctor (PW 15) in whose presence the capsules were recovered at the RML Hospital did not support the case of the prosecution. Reliance is also placed on the judgment of this Court in Prithvi Pal Singh @ Munna v. State, 2000 (2) C.C. Cases HC 174 in this regard.\n 9. This Court has considered the said submission. The evidence of PW-5 Lachman indeed did not support the prosecution. PW-5 nevertheless states that he and Satish Chander were called in the departure hall of IGI Airport; that the officers asked the appellant whether he was carrying any contraband to which he replied in negative. PW 5 also confirms that the officers served notice under Section 50 on the appellant. He states that on search of the bag of the accused nothing incriminating was found.\n Therefore, these facts in fact stand corroborated. What the witness denied was that the accused had admitted to concealing capsules in his body and that he offered to eject them with medical aid. The record shows that the prosecution dropped the other public witnesses Om Kumar and Satish Kumar since they could not be served with summons for several dates.\n 10. There may be practical problems faced by the Customs officials in getting independent witnesses for the searches and recoveries made at the international airport, particularly when passengers are waiting to board flights. Still, if the prosecution has named an independent witness it will have to take the consequence of his subsequently turning hostile. However, in the instant case the proof of the recoveries made does not hinge on the evidence of PW 5 alone. The case of the prosecution stands fortified by the detailed evidence of PW-1 Shri Gogna. The criticism that he is not an independent witness is to no avail since this witness was not cross- examined by counsel for the appellant. The case record shows that despite several opportunities being given over an extended period of nearly three years, counsel for the appellant did not cross examine PW 1 Shri Gogna for one or the other reason. The opportunity to do so was closed by the trial court on 8th March 2004. Having perused the orders passed by the Special Court from time to time, this Court finds that the trial court cannot be held to have acted unfairly in doing so. Also, no request was made to the trial court for recalling PW 1 thereafter. The facts in Abdullah Hussain Juma and Prithvi Pal Singh (supra) reveal that those decisions are distinguishable in their application to the present case. The case of the prosecution hinges on the evidence of PW 1 which has remained un- rebutted.\n 11. What is also against the appellant is the confessional statements made by him to the Custom Officials under Section 67 of the Customs Act, 1962.\n It was sought to be urged that the statements were dictated by the Custom Officials themselves since the appellant could not have possibly known Hindi. Learned SPP has pointed out that the accused although a Nepali did know Hindi and in fact the statements were written out by him in Hindi.\n On a perusal of the record, this submission of the learned APP appears to be correct.\n 12. The law on this aspect is also against the appellant. In Kanhaiyalal v.\n Union of India 2008 (1) JCC(Narcotics) 23, the Supreme Court has held that the statement made under Section 67 can be used as a confession against the person making it and is not affected by Sections 24 to 27 of the Evidence Act. This has been followed by this Court in Rehmatullah v.\n Narcotics Control Bureau 2008 (3) JCC (Narcotics) 174.\n Other evidence 13. In light of the above evidence, the criticism of the learned counsel for the appellant of the evidence of PW-15 (Dr. S.K. Sharma, Head of the Department (Emergency) R.M.L. Hospital) that it does not support the case of the prosecution loses force. While it is correct that Dr. Sharma has stated that he had no personal knowledge as to what happened during the period 29th to 4th February 2000, the case record contains several documents of the OPD record of RML Hospital which show that the accused ejected different quantities of capsules on different dates. All these documents have been proved by PW-1 B.C. Gogna. Exhibit PW- 1/Q2 shows that the accused on 13th January initially ejected 16 capsules and later a further 5 capsules. On 31 January 2000 he initially ejected one capsule and later on that date he ejected a further 29 capsules. These slips have been signed by different Doctors of the RML Hospital. The discharge summary issued by the RML Hospital also confirms that the accused ejected 51 capsules. All these documents were contemporaneously recorded. They fully establish the case of the prosecution beyond reasonable doubt.\n 14. It was sought to be contended that the purity percentage was not indicated in the report of the CRCL. However, the CRCL reports marked as PW-1/U-1 and PW-1/V-2 indicate the purity percentage. Further, in para 25 of the impugned judgment the learned ASJ adverts to this fact. It is clear, therefore, what the accused was carrying was in fact a commercial quantity of heroin.\n 15. Having examined the entire record as well as the impugned judgment of the learned ASJ this Court finds no reason to differ from the reasoning or the conclusion arrived at by the learned ASJ. The prosecution has indeed been able to prove beyond reasonable doubt that the accused was carrying a fairly large quantity of heroin in his body when he was apprehended at the IGI Airport waiting to board a flight to Bangkok. The conviction of the petitioner for the offences aforementioned is accordingly upheld.\n The right to representation at expense of state by competent counsel 16. Before concluding, this Court would like to reflect on the aspect of the right of the accused to representation by a competent counsel at state expense at the trial. The case record shows that the accused was initially represented by a counsel engaged on his own. Shri Gogna, PW-1, was examined in chief from 9th October 2000 onwards. This appears to have continued for a long time. Meanwhile, PW-2 was also examined in part.\n The counsel for the accused wanted to however first examine the two recovery witnesses and, therefore, the case kept getting adjourned to secure their presence. One of them Lachman was present on 29th April 2003 but the other witness Satish Kumar was not present and so the case was again adjourned. On 2nd December 2003 PW-1 was present but again the counsel for the accused sought an adjournment. The learned ASJ expressed his displeasure and observed that no further opportunity would be given. On 8th March 2004 Shri Gogna was again present but the defence counsel did not turn up despite the court waiting till 3 pm. The record of the case shows that several opportunities were given to the accused to cross- examine PW-1 but his counsel declined for one reason or the other.\n 17. The case was thereafter listed for further prosecution evidence on 26th April 2004. The record shows that on 15th April 2004, the accused was produced from judicial custody and filed an application for being represented by a lawyer at State expense. The Special Judge appointed Shri Abhimanyu Kumar, who was present in the Court, as Amicus Curiae.\n Meanwhile, the other PWs were examined but sporadically amidst several adjournments. At one stage, on 11th August 2008, the learned Special Judge noticed that till that date only 15 of the 24 prosecution witnesses had been examined. On the previous date i.e. 5th August 2008, the prosecution had been given a last opportunity to lead its evidence. However, no witness was present on 11th August 2008. Consequently, the prosecution evidence was closed and the case adjourned to 18th August 2008 for recording the statement of the accused under Section 313 CrPC. On 19 th August 2008, the statement of the accused was recorded and on his request Shri T.K.\n Mahapatra was appointed as Amicus Curiae. On 21 st August.2008 after noting that no defence evidence was being led it was closed, another advocate was appointed as Amicus Curiae.\n 18. This Court has adverted to the aforementioned proceedings in some detail because one of the grievances made by Mr.Bharat Bhushan, learned counsel for the appellant who is himself a counsel on behalf of the DLSA is that the appellant did not receive the assistance of competent counsel in the trial court. The above proceedings bear out this submission. The counsel who initially represented the appellant between 20th March 2001 and 15th April 2004 failed to cross-examine PW-1. The first time an Amicus Curiae was appointed was on 15th April 2004. Thereafter, at least on three occasions Amicus Curiae were changed. However, none of them appears to have sought the recall of PW-1 for cross-examination. This is indeed unfortunate as the lynch pin of the prosecution evidence in the form of the evidence of PW-1 remained unrebutted.\n 19. The Supreme Court has had occasion to comment on the quality of legal aid counsel appointed to defend accused in cases involving grave offences punishable with severe sentences. In Kishore Chand v. State of H.P., (1991) 1 SCC 286 it was observed (SCC, p.297): “Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for a ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under Section 302, IPC by freely fabricating evidence against the innocent. Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Article 3 of Universal Declaration of Human Rights and also Article 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Article 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under Articles 14, 19 and 21 of the Constitution. …..\n 13. Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.” 20. It is plain that in cases involving serious offences attracting severe penalties, the purpose of providing a fundamental right to free legal aid would be defeated if competent counsel are not assigned to defend the accused. In the instant case, the accused is a Nepali national, who was possibly unable, because of his poverty, to engage a competent lawyer and also unable to instruct the lawyer assigned to him. It is possible that the lawyer requested to assist the trial court as amicus curiae met him only when he was produced in Court at the hearing and not in the jail.\n 21. This Court would suggest to the DLSA that it should prepare a separate panel of trial court lawyers comprising senior lawyers of not less than 10 years or more experience and associate lawyers of not less than five years’ to defend the indigent accused facing trial for commission of offences punishable with sentence of seven years and more. Care may be taken to ensure their competence in handling serious cases. It is desirable that a team of two lawyers- one having more than 10 years’ standing and the other having more than 5 years’ experience- be assigned to each such accused in the trial court who has to defend himself in a case involving a severe sentence. A special set of fees may also be paid to such lawyers so that they can give of their best. This is essential if the promise of providing free legal aid to indigent accused should be a meaningful one. The constitutional requirement, as enshrined in Article 21, of ensuring a fair trial in accordance with the procedure established by law requires that every accused facing trial for a grave offence is represented by competent legal aid counsel.\n 22. As far as the present case is concerned, for the detailed reasons discussed hereinbefore this Court is satisfied that the absence of competent counsel to defend the appellant did not make a difference to the ultimate result since there is overwhelming evidence to prove the case of the prosecution beyond reasonable doubt. Also in this Court, the appellant was ably defended by the lawyer on the panel of the DLSA.\n Sentence and fine 23. The appellant has been awarded the minimum sentence of 10 years.\n However, learned counsel for the appellant made an earnest plea that the default sentence should be reduced considering the poverty of the appellant. It is pointed out that in several cases the default sentence had been to the extent of one month only. This plea of the learned counsel for the appellant appears to be justified. Accordingly, the impugned order dated 29th August 2008 sentencing the appellant to 10 years’ RI and fine of Rs. 1 lakh and in default a further RI for one year is modified only to the extent that in default of payment of fine of Rs. 1 lakh appellant will undergo one month’s RI. This modification will apply to the sentences both for the offences under Section 21(c) NDPS Act as well as Section 23(c) read with Section 28 NDPS Act both of which have been directed to run concurrently.\n 24. Subject to the modification in the default sentence as directed in para 23, the appeal is dismissed. The bail application is also dismissed.\n 25. The Court records its appreciation of the excellent assistance provided by Mr. Bharat Bushan, appearing for the appellant as a lawyer on the panel of the DLSA.\n 26. A certified copy of this order be delivered to the Secretary, DLSA as well as to the appellant through the Superintendent, Central Jail, Tihar forthwith.\n S. MURALIDHAR, J.\nAPRIL 8, 2009 “dg” "
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"end": 563,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nBAKULBHAI AND ANR.\n\nVs.\n\nRESPONDENT:\nGANGARAM & ANR.\n\nDATE OF JUDGMENT27/01/1988\n\nBENCH:\nSHARMA, L.M. (J)\nBENCH:\nSHARMA, L.M. (J)\nMISRA RANGNATH\n\nCITATION: 1988 SCC (1) 537\n 1988 SCR (2) 787 1988 SCALE (1)188\n JT 1988 (1) 197\n\nACT:\n Code of Criminal Procedure, 1973: Sections 125 &\n\n397(3)-Maintenance for wife and child-Entitlement-\nMaintainability of Revision application-Enhancement of\nmaintenance to allowance to child-Due to inflation and\ngrowing age-Permissibility of.\n\n Hindu Marriage Act, 1955: Sections 11 and 16"
}
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{
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"value": {
"end": 760,
"labels": [
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],
"start": 564,
"text": "Hindu\nwoman marrying a Hindu male already married and his wife\nliving-Validity of-Legitimacy of the child born out of such\nwedlock-Entitlement of maintenance for such woman and child.\n\nHEADNOTE:\n%"
}
},
{
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"to_name": "text",
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"value": {
"end": 991,
"labels": [
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],
"start": 761,
"text": "The appellant filed an application under Section 125\nCr.P.C. before the Judicial Magistrate, claiming maintenance\nfor herself and her son, alleging lawful marriage with the\nrespondent, and that the son was born out of the wedlock."
}
},
{
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"end": 1058,
"labels": [
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],
"start": 991,
"text": "\nRespondent, however, denied the marriage and paternity of\nher son."
}
},
{
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"id": "a40f0ab880c940bba4fb7878f2d1bbea",
"to_name": "text",
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"value": {
"end": 1145,
"labels": [
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],
"start": 1059,
"text": "He claimed that he was already married twice and\nboth his wives were alive.\n\n "
}
},
{
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"id": "24afc30242db4c6b8cb958d70f2a9342",
"to_name": "text",
"type": "labels",
"value": {
"end": 1304,
"labels": [
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],
"start": 1145,
"text": "The Judicial Magistrate accepted the appellant's case\nand granted maintenance at the rate of 100 per month in her\nfavour and Rs.50 per month for her minor son."
}
},
{
"from_name": "label",
"id": "d5ae5800b6254cdab7ab9dc639da2b8e",
"to_name": "text",
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"labels": [
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],
"start": 1305,
"text": "The Judicial\n"
}
},
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"to_name": "text",
"type": "labels",
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"end": 1497,
"labels": [
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],
"start": 1318,
"text": "Magistrate held that appellant No. t and respondent lived\ntogether in the same house as husband and wife for a\nconsiderable period, and appellant No. 2 was born out of\nthis union."
}
},
{
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"id": "625b624372154be988cf8d45536840e0",
"to_name": "text",
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"end": 1680,
"labels": [
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],
"start": 1498,
"text": "He did not record a categorical finding as to\nwhether the respondent was already married and his wife or\nwives were alive on the date of his marriage with appellant\nNo. t.\n\n "
}
},
{
"from_name": "label",
"id": "190f1edc85bb419cbbab1a1278539aa7",
"to_name": "text",
"type": "labels",
"value": {
"end": 1773,
"labels": [
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],
"start": 1680,
"text": "A revision application was filed by the appellant for\nenhancement of the rate of maintenance."
}
},
{
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"id": "43cd8d4d51474b2096197fa9ae8a5afb",
"to_name": "text",
"type": "labels",
"value": {
"end": 1831,
"labels": [
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],
"start": 1774,
"text": "The respondent also\nmoved the Sessions Judge in revision."
}
},
{
"from_name": "label",
"id": "445522580c8542b38a017975b65b7f3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 1900,
"labels": [
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],
"start": 1832,
"text": "The Sessions Judge\nreversed the findings of the judicial Magistrate."
}
},
{
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"id": "1ace27032ad7433e9820747a8608820a",
"to_name": "text",
"type": "labels",
"value": {
"end": 2158,
"labels": [
"PREAMBLE"
],
"start": 1901,
"text": "The\nappellant challenged the order by way of a revision\napplication before the Bombay High Court which rejected the\nsame holding that since it was the second revision\napplication, it was not maintainable, being barred by the\nprovisions of S. 397(3) Cr. P.C."
}
},
{
"from_name": "label",
"id": "14477925426d495eb9878570bfdc38f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2261,
"labels": [
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],
"start": 2159,
"text": "The High Court also\nexamined the merits of the case and concurred with the view\nof the Sessions Judge."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 2294,
"labels": [
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],
"start": 2262,
"text": "This appeal is by Special Leave."
}
},
{
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"id": "42f0dad37fe141afb2204796122a4226",
"to_name": "text",
"type": "labels",
"value": {
"end": 2363,
"labels": [
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],
"start": 2294,
"text": "\n788\n\n Allowing the appeal, this Court,\n\n\n^\n HELD: t."
}
},
{
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"id": "e094be46e8394a53946816c8a31fc1b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2653,
"labels": [
"PREAMBLE"
],
"start": 2364,
"text": "The plea that respondent could not have\n\nlawfully married a third time in view of the provisions of\nthe Hindu Marriage Act, 1955 was rejected by the Judicial\nMagistrate by saying that even according to the respondent,\nhis second marriage was null and void as his first wife was\nthen alive."
}
},
{
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"id": "705c0fbf1b0c43409daba1ee5998b68b",
"to_name": "text",
"type": "labels",
"value": {
"end": 2725,
"labels": [
"PREAMBLE"
],
"start": 2654,
"text": "As regards the first marriage he held that it\nwas not as a fact proved."
}
},
{
"from_name": "label",
"id": "fe242eea08354cf3856161dfa382218f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2799,
"labels": [
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],
"start": 2726,
"text": "He got rid of the effect of both\nthe marriages by adopting a queer logic."
}
},
{
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"id": "2c646462791646b0809c83a1d5b44ef7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2834,
"labels": [
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],
"start": 2800,
"text": "If the story of the\nfirst marriage"
}
},
{
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"id": "198113e2e3f547d6bbd89a3b6accff9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 2926,
"labels": [
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],
"start": 2835,
"text": "was to be rejected, the second marriage could\nnot have been held to be void on that ground."
}
},
{
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"id": "3fefbe4aff9f47c89af7b9a98259ddbe",
"to_name": "text",
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"value": {
"end": 3052,
"labels": [
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],
"start": 2927,
"text": "It appears\nthat the respondent has satisfactorily provide his case\nabout his earlier marriage by production of good evidence."
}
},
{
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"id": "3919739c3ec34f6fae1ebe152b60b1ea",
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"end": 3440,
"labels": [
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],
"start": 3053,
"text": "Either the respondent's first marriage was subsisting so as\nto nullify his second marriage, in which case the\nappellant's marriage also was rendered null and void on that\nground; or if the respondent's case of his first marriage is\ndisbelieved the second marriage will have to be held to be\nlegal and effective so as to lead to the same conclusion of\nthe appellant's marriage being void."
}
},
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"value": {
"end": 3604,
"labels": [
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],
"start": 3441,
"text": "On either hypothesis\nthe appellant's claim is not covered by Section 125 Cr.P.C.\nThe appellant cannot, therefore, be granted any relief in\nthe present proceedings."
}
},
{
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"id": "d8501ef172c84508ba6c34b21ddb970b",
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"labels": [
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],
"start": 3605,
"text": "[791D-H; 792A-B]\n\n Smt. Yamunabhai v Anantrao Shivram Adhav and another,\n[1988] 2 S.C.R. 809 followed.\n\n 2."
}
},
{
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"value": {
"end": 3962,
"labels": [
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],
"start": 3729,
"text": "Besides holding that the respondent had married the\nappellant, the Magistrate categorically said that the\nappellant and the respondent lived together as husband and\nwife for a number of years and that appellant No. 2 was\ntheir child."
}
},
{
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"end": 4219,
"labels": [
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],
"start": 3963,
"text": "If, as a matter of fact, a marriage, although\nineffective in the eye of law, took place between the\nappellant and the respondent, the status of the boy must be\nheld to be that of a legitimate son on account of Section\n16(1) of the Hindu Marriage Act, 1955."
}
},
{
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"id": "cd577bce050b40fe83fe6fbed515ab30",
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"labels": [
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],
"start": 4220,
"text": "Even if the factum of\nmarriage of his mother is ignored, he must be treated as an\nillegitimate child of the respondent on the basis of the\nfindings of the Judicial Magistrate and is entitled to\nrelief by reason of clauses (b) and (c) of Section 125(t)\nCr. P.C. specifically referring to an illegitimate child."
}
},
{
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"id": "783d9b875f8442e9b78d6ffe08cc5ed3",
"to_name": "text",
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"value": {
"end": 4632,
"labels": [
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],
"start": 4529,
"text": "\nThe order of the Judicial Magistrate allowing the\nmaintenance to appellant No. 2 was correctly passed."
}
},
{
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"value": {
"end": 4727,
"labels": [
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],
"start": 4633,
"text": "But the\namount of Rs.50 per month was allowed as the maintenance of\nthe child four years back."
}
},
{
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"id": "a6b64d67c2ce42a5a38eab514b2377ab",
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"value": {
"end": 4902,
"labels": [
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],
"start": 4728,
"text": "In view of the fact that money\nvalue has gone down due to inflation and the child has grown\nin age, the rate of maintenance is increased to\nRs.150.[791B-C: 793B]\n\n 3."
}
},
{
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"end": 5057,
"labels": [
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],
"start": 4903,
"text": "Since the claim for maintenance was granted in\nfavour of the\n789\nappellant, by the Judicial Magistrate, there was no question\nof her challenging the same."
}
},
{
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"value": {
"end": 5173,
"labels": [
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],
"start": 5058,
"text": "Her challenge before the\nSessions Judge was confined to that part of the order\nassessing the amount of maintenance."
}
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{
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"value": {
"end": 5229,
"labels": [
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],
"start": 5174,
"text": "and this issue could\nnot have been raised again by her."
}
},
{
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"id": "2cd4cbcfe75d4e2e973030c2060e0271",
"to_name": "text",
"type": "labels",
"value": {
"end": 5341,
"labels": [
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],
"start": 5230,
"text": "Subject to this\nlimitation, she was certainly entitled to invoke the\nrevisional jurisdiction of the High Court."
}
},
{
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"id": "102d4fe05ccd496db27c92bd77a1ddec",
"to_name": "text",
"type": "labels",
"value": {
"end": 5515,
"labels": [
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],
"start": 5342,
"text": "The decision on\nthe merits of her claim went against her for the first time\nbefore the Sessions Judge, and this was the subject matter\nof her revision before the High Court."
}
},
{
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"id": "176bc53d1fc1495bb28e592fc18c399b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5632,
"labels": [
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],
"start": 5516,
"text": "She could not,\ntherefore, be said to be making a second attempt when she\nchallenged the order before the High Court."
}
},
{
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"id": "42c201feb3fa4bbfa7234527d4a2f1cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 5816,
"labels": [
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],
"start": 5633,
"text": "The fact that\nshe had moved the Sessions Court against the quantum of\nmaintenance could not be used against her in respect of her\nright of revision against the Sessions Judge's order."
}
},
{
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"id": "395de8fea9834740b791755700568f57",
"to_name": "text",
"type": "labels",
"value": {
"end": 5844,
"labels": [
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],
"start": 5817,
"text": "[790F-\nH;791A]\n\n 4."
}
},
{
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"id": "4e15b42acfc94efe8da5275fb4e5a84b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6075,
"labels": [
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],
"start": 5845,
"text": "No error of law appears to have been discovered in\nthe judgment of the Magistrate and so the revisional courts\nwere not justified in making a reassessment of the evidence\nand substitute their own views for those of the Magistrate."
}
},
{
"from_name": "label",
"id": "3091218b4054499390c7c5926c77be68",
"to_name": "text",
"type": "labels",
"value": {
"end": 6142,
"labels": [
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],
"start": 6075,
"text": "\n[792C]\n\n Pathumma v. Mohammad, [1986] 2 SCC 585, followed."
}
},
{
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"id": "9e810f5288d14afcb15e3d7d7e60e91e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6228,
"labels": [
"NONE"
],
"start": 6144,
"text": "JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .\n 579 of 1986"
}
},
{
"from_name": "label",
"id": "180b4e702a204c46a8f9b55c1da18ab8",
"to_name": "text",
"type": "labels",
"value": {
"end": 6332,
"labels": [
"NONE"
],
"start": 6229,
"text": "From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl. R. Appln. No. 160 of 1985."
}
},
{
"from_name": "label",
"id": "e57532e34292403c9681683ce73bf16f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6494,
"labels": [
"NONE"
],
"start": 6332,
"text": "\n Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.\n V.N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents.\n "
}
},
{
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"id": "802fa26e91874320b555dee30992efc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 6547,
"labels": [
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],
"start": 6494,
"text": "The Judgment of the Court was delivered by SHARMA, J."
}
},
{
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"id": "5f5a2f318bd44fadb616c84ef594d51a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6869,
"labels": [
"FAC"
],
"start": 6548,
"text": "The appellant No. 1 Bakulabai filed an application under s. 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock."
}
},
{
"from_name": "label",
"id": "29bfdd4ea01346af9a6228e114a0ad93",
"to_name": "text",
"type": "labels",
"value": {
"end": 6927,
"labels": [
"FAC"
],
"start": 6870,
"text": "She claimed maintenance both for herself and for her son."
}
},
{
"from_name": "label",
"id": "8243a543423642d384d501af3b233459",
"to_name": "text",
"type": "labels",
"value": {
"end": 7006,
"labels": [
"FAC"
],
"start": 6928,
"text": "Ganga Ram denied the marriage as well as the paternity of the appellant No. 2."
}
},
{
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"id": "e00cb2d7deee4cf9b0cc29d2b8733723",
"to_name": "text",
"type": "labels",
"value": {
"end": 7137,
"labels": [
"FAC"
],
"start": 7007,
"text": "He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living."
}
},
{
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"id": "82b892b5bab64c68b79f44b9639cb825",
"to_name": "text",
"type": "labels",
"value": {
"end": 7316,
"labels": [
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],
"start": 7139,
"text": "2. The Judicial Magistrate accepted Bakulabai's case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy.\n 3."
}
},
{
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"id": "a9954f40f73a41819bb2d5754ce4fa5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7364,
"labels": [
"FAC"
],
"start": 7317,
"text": "Ganga Ram moved the Sessions Judge in revision."
}
},
{
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"id": "79b94e06f3c548f78158a0bb23cf1976",
"to_name": "text",
"type": "labels",
"value": {
"end": 7452,
"labels": [
"FAC"
],
"start": 7364,
"text": "\nBakulabai also filed a revision application for enhancement of the rate of maintenance."
}
},
{
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"id": "c241ea92a4704e1286b3027361ef32a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7602,
"labels": [
"FAC"
],
"start": 7453,
"text": "The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together."
}
},
{
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"id": "fd4af3df92974d63909e61352386d61b",
"to_name": "text",
"type": "labels",
"value": {
"end": 7744,
"labels": [
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],
"start": 7603,
"text": "The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance."
}
},
{
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"id": "c8d491c57d4f4f2bb47e95e1a95c8e91",
"to_name": "text",
"type": "labels",
"value": {
"end": 7832,
"labels": [
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],
"start": 7745,
"text": "Revision case No.\n83 of 1984 was thus allowed and the wife's application was dismissed."
}
},
{
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"id": "0a714025ab4942efb3cc142ff1d69e06",
"to_name": "text",
"type": "labels",
"value": {
"end": 7919,
"labels": [
"FAC"
],
"start": 7833,
"text": "Bakulabai challenged the order before the Bombay High Court by a revision application."
}
},
{
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"id": "9a4df636d16f4843949a937fd3b302b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 8129,
"labels": [
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],
"start": 7920,
"text": "By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of s.\n397(3) of the Code."
}
},
{
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"id": "a68b27c47f2a4eeaaad4ccaee6186b7b",
"to_name": "text",
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"value": {
"end": 8242,
"labels": [
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],
"start": 8130,
"text": "The Court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge."
}
},
{
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"id": "3e89295ffa07421d9a854fdb00994ebf",
"to_name": "text",
"type": "labels",
"value": {
"end": 8303,
"labels": [
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],
"start": 8243,
"text": "The appellants have now come to this Court by special leave."
}
},
{
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"id": "d40873a08727487e8673deb10dc2f0aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 8408,
"labels": [
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],
"start": 8303,
"text": "\n 4. On the maintainability of the revision application before it, the High Court took an erroneous view."
}
},
{
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"id": "13f14c86caee4020918564a962bd223d",
"to_name": "text",
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"value": {
"end": 8700,
"labels": [
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],
"start": 8409,
"text": "The provisions of sub-section (3) of s. 397 relied upon, are in the following terms: \"(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.\""
}
},
{
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"id": "e93e42b6ab2a4ffa81a9a116e3010263",
"to_name": "text",
"type": "labels",
"value": {
"end": 8866,
"labels": [
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],
"start": 8701,
"text": "The main judgment of the Judicial Magistrate upholding the appellants' claim for maintenance was in her favour and there was no question of her challenging the same."
}
},
{
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"id": "f384c2e6d923415db576b78c8c99a825",
"to_name": "text",
"type": "labels",
"value": {
"end": 9037,
"labels": [
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],
"start": 8867,
"text": "Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her."
}
},
{
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"id": "87248c48ad9547db97fcdbcad082e79b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9149,
"labels": [
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],
"start": 9038,
"text": "Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court."
}
},
{
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"id": "ba758d4b312b47caa10e4992bedb650f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9323,
"labels": [
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],
"start": 9150,
"text": "The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court."
}
},
{
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"id": "1efa95410f4f42bf8597160a8ebf1f32",
"to_name": "text",
"type": "labels",
"value": {
"end": 9441,
"labels": [
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],
"start": 9324,
"text": "She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court."
}
},
{
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"id": "f4d8504867a5460f94959e2fb438dfe1",
"to_name": "text",
"type": "labels",
"value": {
"end": 9636,
"labels": [
"ANALYSIS"
],
"start": 9442,
"text": "The fact that she had moved before the Sessions Judge against the quantum of maintenance 791 could not be used against her in respect of her right of revision against the Sessions Judge's order."
}
},
{
"from_name": "label",
"id": "8fa50cf58a824f9990a4f4dac86fc72b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9853,
"labels": [
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],
"start": 9637,
"text": "Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable."
}
},
{
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"id": "f83b605e94374cc18489eb8a7ec334aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 10009,
"labels": [
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],
"start": 9853,
"text": "\n 5. Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants' case."
}
},
{
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"id": "848cc84d85754c0a951ec0a6b526f50e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10173,
"labels": [
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],
"start": 10010,
"text": "He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union."
}
},
{
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"id": "51e24dbfc29e4c5c9244279b0a296b3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10386,
"labels": [
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],
"start": 10174,
"text": "On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding."
}
},
{
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"id": "88eb9cf109674193bda02ac716825ae0",
"to_name": "text",
"type": "labels",
"value": {
"end": 10490,
"labels": [
"ANALYSIS"
],
"start": 10387,
"text": "According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969."
}
},
{
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"id": "06895c3a7adb45f48ec404d54efd57d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10680,
"labels": [
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],
"start": 10491,
"text": "It was, therefore, argued on his behalf that as he had two living spouses in 1972, he could not have lawfully-married a third time in view of the provisions of the Hindu Marriage Act, 1955."
}
},
{
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"id": "157c003338074d0b99fd9ba80c65c81a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10860,
"labels": [
"RLC"
],
"start": 10681,
"text": "The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive."
}
},
{
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"id": "a9696f2a88924be988f4cc8c38ef75e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10946,
"labels": [
"ANALYSIS"
],
"start": 10861,
"text": "Dealing with the effect of the first marriage he held that it was not as fact proved."
}
},
{
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"id": "a1d7c46d43394e7da08bbd518accd9f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11025,
"labels": [
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],
"start": 10947,
"text": "Thus he got rid of the effect of both the marriages by adopting a queer logic."
}
},
{
"from_name": "label",
"id": "ee8196401135437aafa6b7d1e494484e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11152,
"labels": [
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],
"start": 11026,
"text": "If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground."
}
},
{
"from_name": "label",
"id": "b8feed454ddc4296959d6be63984e830",
"to_name": "text",
"type": "labels",
"value": {
"end": 11265,
"labels": [
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],
"start": 11153,
"text": "The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal."
}
},
{
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"id": "e4a1773615d9415989eee5f5948d82f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11635,
"labels": [
"PRE_RELIED"
],
"start": 11265,
"text": "\n 6. We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt. Yamunabai v. Anantrao Shivram Adhav and another) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the Hindu Marriage Act, 1955, is null and void and the woman is not entitled to maintenance under s. 125 of the Code."
}
},
{
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"id": "cf76dff7baab4b04bbc2867dae0cf8fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11879,
"labels": [
"ANALYSIS"
],
"start": 11636,
"text": "Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard."
}
},
{
"from_name": "label",
"id": "638e579f00954e8db48fa578341d8a5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12011,
"labels": [
"ANALYSIS"
],
"start": 11880,
"text": "It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant's marriage took place."
}
},
{
"from_name": "label",
"id": "320e8653f5344e50b79b9eb2b03e7f0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12596,
"labels": [
"ANALYSIS"
],
"start": 12012,
"text": "The position which emerges, therefore, is that either the respondent's first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellant's marriage also was rendered null and void on that very ground; or if, on the other 792 hand, the respondent's case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant's marriage being void on either hypothesis the appellant's claim is not covered by s. 125 of the Code."
}
},
{
"from_name": "label",
"id": "e08952a0d93e496fa5503aed5ac1a65e",
"to_name": "text",
"type": "labels",
"value": {
"end": 12669,
"labels": [
"ANALYSIS"
],
"start": 12597,
"text": "She cannot, therefore, be granted any relief in the present preceedings."
}
},
{
"from_name": "label",
"id": "0a76bc12373c4ead94f43c40fd79b694",
"to_name": "text",
"type": "labels",
"value": {
"end": 12743,
"labels": [
"ANALYSIS"
],
"start": 12670,
"text": "The decision to that effect of the High Court is, R therefore, confirmed."
}
},
{
"from_name": "label",
"id": "4558803281ac4654946276c44c972712",
"to_name": "text",
"type": "labels",
"value": {
"end": 12924,
"labels": [
"ANALYSIS"
],
"start": 12743,
"text": "\n 7. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision."
}
},
{
"from_name": "label",
"id": "8fa6165eb2ab4e2c95aaa3642708adab",
"to_name": "text",
"type": "labels",
"value": {
"end": 13137,
"labels": [
"ANALYSIS"
],
"start": 12925,
"text": "No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate."
}
},
{
"from_name": "label",
"id": "9bc7537b485d42cfb6c8a1596ee64ff5",
"to_name": "text",
"type": "labels",
"value": {
"end": 13195,
"labels": [
"ANALYSIS"
],
"start": 13138,
"text": "(See Pathumma and another v. Mahammad, [1986] 2 SCC 585)."
}
},
{
"from_name": "label",
"id": "8a74a9235f7d4d808054583381edba39",
"to_name": "text",
"type": "labels",
"value": {
"end": 13435,
"labels": [
"ANALYSIS"
],
"start": 13196,
"text": "Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child."
}
},
{
"from_name": "label",
"id": "7c9c05cc64434e0d9518ddc99aae91e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 14212,
"labels": [
"STA"
],
"start": 13436,
"text": "If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows: \"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.\"\n "
}
},
{
"from_name": "label",
"id": "ec4bc9b1d28849d594fc10bdb20734cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 14519,
"labels": [
"ANALYSIS"
],
"start": 14212,
"text": "Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of s.\n 125(1) of the Code specifically referring to an illegitimate child."
}
},
{
"from_name": "label",
"id": "a609bd760ad3475cada57d52a0fbf7d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14651,
"labels": [
"ANALYSIS"
],
"start": 14520,
"text": "We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed."
}
},
{
"from_name": "label",
"id": "d796bcc23d0844dd8127d76ea335d97b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14744,
"labels": [
"ANALYSIS"
],
"start": 14653,
"text": "8. The amount of Rs.50 per month was allowed as the mainte- 793 nance of the child in 1984."
}
},
{
"from_name": "label",
"id": "b4653e8c322546c988ec44fddef783d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14815,
"labels": [
"ANALYSIS"
],
"start": 14745,
"text": "The revision application filed before the Sessions Judge was rejected."
}
},
{
"from_name": "label",
"id": "c207258b38fb4989a78b3b64308f7b7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14892,
"labels": [
"ANALYSIS"
],
"start": 14816,
"text": "A second application before the High Court was, therefore, not maintainable."
}
},
{
"from_name": "label",
"id": "732f3bdbb18e496ebc69d3db972d7389",
"to_name": "text",
"type": "labels",
"value": {
"end": 15014,
"labels": [
"ANALYSIS"
],
"start": 14893,
"text": "We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final."
}
},
{
"from_name": "label",
"id": "752f06e116d444188c865ee0c5fb95be",
"to_name": "text",
"type": "labels",
"value": {
"end": 15111,
"labels": [
"RATIO"
],
"start": 15015,
"text": "However, on account of change of circumstances, this amount can be revised after efflux of time."
}
},
{
"from_name": "label",
"id": "711ff5e5662b4d598c4335f9293f0003",
"to_name": "text",
"type": "labels",
"value": {
"end": 15189,
"labels": [
"RATIO"
],
"start": 15112,
"text": "During the last four years the value of money has gone down due to inflation."
}
},
{
"from_name": "label",
"id": "ca338a0f9ffb4af09ed8c994b4d80e22",
"to_name": "text",
"type": "labels",
"value": {
"end": 15222,
"labels": [
"RATIO"
],
"start": 15190,
"text": "The child has also grown in age."
}
},
{
"from_name": "label",
"id": "15e7133b656e49cb82c11663e33d1f0c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15414,
"labels": [
"RPC"
],
"start": 15223,
"text": "In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988."
}
},
{
"from_name": "label",
"id": "d0b0d27f92584b66b8a2c943473936ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 15490,
"labels": [
"RPC"
],
"start": 15415,
"text": "The arrears up to January, 1988, if not paid, should also be paid promptly."
}
},
{
"from_name": "label",
"id": "66847093935446bca5137c0b198d6ebe",
"to_name": "text",
"type": "labels",
"value": {
"end": 15542,
"labels": [
"RPC"
],
"start": 15491,
"text": "The appeal is allowed in the terms mentioned above."
}
},
{
"from_name": "label",
"id": "e202170641cb4ac181efbb68f66fe454",
"to_name": "text",
"type": "labels",
"value": {
"end": 15563,
"labels": [
"NONE"
],
"start": 15543,
"text": "G.N. Appeal allowed."
}
},
{
"from_name": "label",
"id": "d175d5342faf4ca4a063daf9feafe199",
"to_name": "text",
"type": "labels",
"value": {
"end": 15625,
"labels": [
"NONE"
],
"start": 15563,
"text": "\n G.N. Appeal allowed."
}
}
]
}
] | 1,720 | {
"text": "PETITIONER:\nBAKULBHAI AND ANR.\n\nVs.\n\nRESPONDENT:\nGANGARAM & ANR.\n\nDATE OF JUDGMENT27/01/1988\n\nBENCH:\nSHARMA, L.M. (J)\nBENCH:\nSHARMA, L.M. (J)\nMISRA RANGNATH\n\nCITATION: 1988 SCC (1) 537\n 1988 SCR (2) 787 1988 SCALE (1)188\n JT 1988 (1) 197\n\nACT:\n Code of Criminal Procedure, 1973: Sections 125 &\n\n397(3)-Maintenance for wife and child-Entitlement-\nMaintainability of Revision application-Enhancement of\nmaintenance to allowance to child-Due to inflation and\ngrowing age-Permissibility of.\n\n Hindu Marriage Act, 1955: Sections 11 and 16 Hindu\nwoman marrying a Hindu male already married and his wife\nliving-Validity of-Legitimacy of the child born out of such\nwedlock-Entitlement of maintenance for such woman and child.\n\nHEADNOTE:\n% The appellant filed an application under Section 125\nCr.P.C. before the Judicial Magistrate, claiming maintenance\nfor herself and her son, alleging lawful marriage with the\nrespondent, and that the son was born out of the wedlock.\nRespondent, however, denied the marriage and paternity of\nher son. He claimed that he was already married twice and\nboth his wives were alive.\n\n The Judicial Magistrate accepted the appellant's case\nand granted maintenance at the rate of 100 per month in her\nfavour and Rs.50 per month for her minor son. The Judicial\nMagistrate held that appellant No. t and respondent lived\ntogether in the same house as husband and wife for a\nconsiderable period, and appellant No. 2 was born out of\nthis union. He did not record a categorical finding as to\nwhether the respondent was already married and his wife or\nwives were alive on the date of his marriage with appellant\nNo. t.\n\n A revision application was filed by the appellant for\nenhancement of the rate of maintenance. The respondent also\nmoved the Sessions Judge in revision. The Sessions Judge\nreversed the findings of the judicial Magistrate. The\nappellant challenged the order by way of a revision\napplication before the Bombay High Court which rejected the\nsame holding that since it was the second revision\napplication, it was not maintainable, being barred by the\nprovisions of S. 397(3) Cr. P.C. The High Court also\nexamined the merits of the case and concurred with the view\nof the Sessions Judge. This appeal is by Special Leave.\n788\n\n Allowing the appeal, this Court,\n\n\n^\n HELD: t. The plea that respondent could not have\n\nlawfully married a third time in view of the provisions of\nthe Hindu Marriage Act, 1955 was rejected by the Judicial\nMagistrate by saying that even according to the respondent,\nhis second marriage was null and void as his first wife was\nthen alive. As regards the first marriage he held that it\nwas not as a fact proved. He got rid of the effect of both\nthe marriages by adopting a queer logic. If the story of the\nfirst marriage was to be rejected, the second marriage could\nnot have been held to be void on that ground. It appears\nthat the respondent has satisfactorily provide his case\nabout his earlier marriage by production of good evidence.\nEither the respondent's first marriage was subsisting so as\nto nullify his second marriage, in which case the\nappellant's marriage also was rendered null and void on that\nground; or if the respondent's case of his first marriage is\ndisbelieved the second marriage will have to be held to be\nlegal and effective so as to lead to the same conclusion of\nthe appellant's marriage being void. On either hypothesis\nthe appellant's claim is not covered by Section 125 Cr.P.C.\nThe appellant cannot, therefore, be granted any relief in\nthe present proceedings. [791D-H; 792A-B]\n\n Smt. Yamunabhai v Anantrao Shivram Adhav and another,\n[1988] 2 S.C.R. 809 followed.\n\n 2. Besides holding that the respondent had married the\nappellant, the Magistrate categorically said that the\nappellant and the respondent lived together as husband and\nwife for a number of years and that appellant No. 2 was\ntheir child. If, as a matter of fact, a marriage, although\nineffective in the eye of law, took place between the\nappellant and the respondent, the status of the boy must be\nheld to be that of a legitimate son on account of Section\n16(1) of the Hindu Marriage Act, 1955. Even if the factum of\nmarriage of his mother is ignored, he must be treated as an\nillegitimate child of the respondent on the basis of the\nfindings of the Judicial Magistrate and is entitled to\nrelief by reason of clauses (b) and (c) of Section 125(t)\nCr. P.C. specifically referring to an illegitimate child.\nThe order of the Judicial Magistrate allowing the\nmaintenance to appellant No. 2 was correctly passed. But the\namount of Rs.50 per month was allowed as the maintenance of\nthe child four years back. In view of the fact that money\nvalue has gone down due to inflation and the child has grown\nin age, the rate of maintenance is increased to\nRs.150.[791B-C: 793B]\n\n 3. Since the claim for maintenance was granted in\nfavour of the\n789\nappellant, by the Judicial Magistrate, there was no question\nof her challenging the same. Her challenge before the\nSessions Judge was confined to that part of the order\nassessing the amount of maintenance. and this issue could\nnot have been raised again by her. Subject to this\nlimitation, she was certainly entitled to invoke the\nrevisional jurisdiction of the High Court. The decision on\nthe merits of her claim went against her for the first time\nbefore the Sessions Judge, and this was the subject matter\nof her revision before the High Court. She could not,\ntherefore, be said to be making a second attempt when she\nchallenged the order before the High Court. The fact that\nshe had moved the Sessions Court against the quantum of\nmaintenance could not be used against her in respect of her\nright of revision against the Sessions Judge's order. [790F-\nH;791A]\n\n 4. No error of law appears to have been discovered in\nthe judgment of the Magistrate and so the revisional courts\nwere not justified in making a reassessment of the evidence\nand substitute their own views for those of the Magistrate.\n[792C]\n\n Pathumma v. Mohammad, [1986] 2 SCC 585, followed.\n\nJUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .\n 579 of 1986 From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl. R. Appln. No. 160 of 1985.\n Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.\n V.N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents.\n The Judgment of the Court was delivered by SHARMA, J. The appellant No. 1 Bakulabai filed an application under s. 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock. She claimed maintenance both for herself and for her son. Ganga Ram denied the marriage as well as the paternity of the appellant No. 2. He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living.\n 2. The Judicial Magistrate accepted Bakulabai's case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy.\n 3. Ganga Ram moved the Sessions Judge in revision.\nBakulabai also filed a revision application for enhancement of the rate of maintenance. The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together. The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance. Revision case No.\n83 of 1984 was thus allowed and the wife's application was dismissed. Bakulabai challenged the order before the Bombay High Court by a revision application. By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of s.\n397(3) of the Code. The Court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge. The appellants have now come to this Court by special leave.\n 4. On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub-section (3) of s. 397 relied upon, are in the following terms: \"(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.\"\nThe main judgment of the Judicial Magistrate upholding the appellants' claim for maintenance was in her favour and there was no question of her challenging the same. Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance 791 could not be used against her in respect of her right of revision against the Sessions Judge's order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable.\n 5. Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants' case. He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union. On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding. According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969. It was, therefore, argued on his behalf that as he had two living spouses in 1972, he could not have lawfully-married a third time in view of the provisions of the Hindu Marriage Act, 1955. The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive. Dealing with the effect of the first marriage he held that it was not as fact proved. Thus he got rid of the effect of both the marriages by adopting a queer logic. If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground. The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal.\n 6. We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt. Yamunabai v. Anantrao Shivram Adhav and another) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the Hindu Marriage Act, 1955, is null and void and the woman is not entitled to maintenance under s. 125 of the Code. Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard. It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant's marriage took place. The position which emerges, therefore, is that either the respondent's first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellant's marriage also was rendered null and void on that very ground; or if, on the other 792 hand, the respondent's case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant's marriage being void on either hypothesis the appellant's claim is not covered by s. 125 of the Code. She cannot, therefore, be granted any relief in the present preceedings. The decision to that effect of the High Court is, R therefore, confirmed.\n 7. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows: \"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.\"\n Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of s.\n 125(1) of the Code specifically referring to an illegitimate child. We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed.\n 8. The amount of Rs.50 per month was allowed as the mainte- 793 nance of the child in 1984. The revision application filed before the Sessions Judge was rejected. A second application before the High Court was, therefore, not maintainable. We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final. However, on account of change of circumstances, this amount can be revised after efflux of time. During the last four years the value of money has gone down due to inflation. The child has also grown in age. In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988. The arrears up to January, 1988, if not paid, should also be paid promptly. The appeal is allowed in the terms mentioned above. G.N. Appeal allowed.\n G.N. Appeal allowed.\n 794 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "531b0eaea8db4ed5bec89872d2e1d228",
"to_name": null,
"type": null,
"value": {
"end": 45,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSHAH GUMMAN MAL\n\nVs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "5bc6d0ba6edd4e19a0c0593b6e67481c",
"to_name": null,
"type": null,
"value": {
"end": 101,
"labels": [
"PREAMBLE"
],
"start": 45,
"text": "\nTHE STATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT06/02/1980"
}
},
{
"from_name": null,
"id": "30d616ddee07447092fb8627b79a943e",
"to_name": null,
"type": null,
"value": {
"end": 549,
"labels": [
"PREAMBLE"
],
"start": 101,
"text": "\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nKOSHAL, A.D.\n\nCITATION: 1980 SCR (2)1005\n 1980 AIR 793\n 1980 SCC (2) 262\n\nACT:\n Customs Act 1962, Section 135(1)(b) & Evidence Act,\n\n1872, Section 106 and 114-Premises searched-Gold biscuits\nwith foreign markings recovered-Accused not disclosing\nidentity of person who gave the gold-Whether court can\npresume that the gold was smuggled and imported without\npermit."
}
},
{
"from_name": null,
"id": "e4aaecca352947d9b14fa3772abfd47b",
"to_name": null,
"type": null,
"value": {
"end": 1323,
"labels": [
"PREAMBLE"
],
"start": 549,
"text": "\n\nHEADNOTE:\n An offence under section 135(1)(b) of the Customs Act,\n\n1962 is punishable if the offender, acquires possession of\nor is in any way concerned in carrying removing, depositing,\nharbouring, keeping, concealing, selling or purchasing or in\nany other manner dealing with any goods which he knows or\nhas reason to believe are liable to confiscation under\nsection 111.\n\n Section 111 enumerates the categories of goods which\nare imported into India and are liable to confiscation.\n\n The Central Excise officials searched the house of the\nappellant and found in a secret chamber of an iron safe,\nwhich was opened by him with the keys in his possession, a\nbundle containing 28 gold biscuits and a half biscuit, all\nof which bore foreign markings."
}
},
{
"from_name": null,
"id": "e47f5d47d6a04ce296aa92bf402c5d98",
"to_name": null,
"type": null,
"value": {
"end": 1423,
"labels": [
"PREAMBLE"
],
"start": 1324,
"text": "In another secret chamber\nwere found gold earnings in plastic boxes and a bundle of\ncurrency notes."
}
},
{
"from_name": null,
"id": "acefd7c886f9434aaf2a98f38d730b43",
"to_name": null,
"type": null,
"value": {
"end": 1620,
"labels": [
"PREAMBLE"
],
"start": 1424,
"text": "When questioned in the presence of the\nwitnesses he stated that he had been receiving gold biscuits\nfrom some unknown person from Bombay and that the other\narticles belonged to him and his mother."
}
},
{
"from_name": null,
"id": "9a87eab69e0e4be3b55ff7af71f054ad",
"to_name": null,
"type": null,
"value": {
"end": 1777,
"labels": [
"PREAMBLE"
],
"start": 1621,
"text": "He admitted that he\nhad no general or special permit from either the Reserve\nBank of India or the Gold Control Administrator to import or\nkeep foreign gold."
}
},
{
"from_name": null,
"id": "e1bedca9c8cd4dd5819a5cdce95e9f1c",
"to_name": null,
"type": null,
"value": {
"end": 1822,
"labels": [
"PREAMBLE"
],
"start": 1778,
"text": "The statement of the appellant was\nrecorded."
}
},
{
"from_name": null,
"id": "e8a668f336824aa58a1f34a89c73ab82",
"to_name": null,
"type": null,
"value": {
"end": 2001,
"labels": [
"PREAMBLE"
],
"start": 1823,
"text": "Thereafter the appellant was prosecuted for\noffences under Section 135(1)(b)(ii) of the Customs Act,\n1962 and Section 85(ii) read with Section 8(i) of the Gold\nControl Act, 1968."
}
},
{
"from_name": null,
"id": "048b638531f14e35bdfb2b22d6f2eb50",
"to_name": null,
"type": null,
"value": {
"end": 2123,
"labels": [
"PREAMBLE"
],
"start": 2012,
"text": "The Magistrate convicted and sentenced the appellant to\nrigorous imprisonment for nine months under each count."
}
},
{
"from_name": null,
"id": "fcb7e9d82acf41b786d093c017d6ab43",
"to_name": null,
"type": null,
"value": {
"end": 2439,
"labels": [
"PREAMBLE"
],
"start": 2124,
"text": "On\nappeal, the Sessions Judge set aside the conviction and\nsentence under the Gold Control Act as the requisite\nsanction for prosecution was not accorded, but maintained\nthe conviction and sentence under Section 135(i) (b) (ii) of\nthe Customs Act, which order was confirmed by the High Court\n\nin revision.\n "
}
},
{
"from_name": null,
"id": "e1fc3ed7794944c288673c867d2ec66e",
"to_name": null,
"type": null,
"value": {
"end": 3299,
"labels": [
"PREAMBLE"
],
"start": 2439,
"text": "In appeal to this Court it was contended on behalf of\n\nthe appellant : (1) that if the presumption under Section\n123 of the Customs Act is not available to the prosecution,\nthen there is no legal evidence to show that the appellant\nhad any knowledge or had any reason to believe that the\ngoods were imported or were smuggled without a lawful permit\nand (2) as the case had been going on for eight years, a\nlenient view on the question of sentence may be taken; while\non behalf of the respondent-State it was submitted that the\nfact that the gold bore foreign markings and was recovered\nfrom the possession of the appellant who had admitted in his\nstatement before the Customs Officers that some unknown\nperson had given it to him,would itself raise a sufficient presumption to attribute\nknowledge to the appellant that the gold was smuggled\nwithout any permit."
}
},
{
"from_name": null,
"id": "9fe783d606354a8daa160677895a644e",
"to_name": null,
"type": null,
"value": {
"end": 3333,
"labels": [
"PREAMBLE"
],
"start": 3299,
"text": "\n\n Dismissing the appeal,\n"
}
},
{
"from_name": null,
"id": "74f64b5537ec4b63ac1b4ad3d1fa522f",
"to_name": null,
"type": null,
"value": {
"end": 3585,
"labels": [
"PREAMBLE"
],
"start": 3333,
"text": "^\n\n HELD : (1) The prosecution has clearly proved the\ncharge under Section 135(1)(b)(ii) of the Customs Act.\n[1014D]\n\n (2) The sentence being one only of rigorous\nimprisonment for nine months, there is no room for any\nreduction thereof."
}
},
{
"from_name": null,
"id": "5f815463dae04667aefe23496e0607ab",
"to_name": null,
"type": null,
"value": {
"end": 3592,
"labels": [
"PREAMBLE"
],
"start": 3586,
"text": "[1014E"
}
},
{
"from_name": null,
"id": "7ca608b637e24f6e8813c65076490b5c",
"to_name": null,
"type": null,
"value": {
"end": 4019,
"labels": [
"PREAMBLE"
],
"start": 3592,
"text": "]\n\n (3) The fact as to how the appellant came into\npossession of the gold and whether it was imported or not\nbeing within the special knowledge of the appellant, if he\nfailed to disclose the identity of the person who gave him\nthe gold, it was open to the Court to presume under sections\n106 and 114 of the Evidence Act that the appellant knew that\nthe gold in his possession was smuggled and imported without\na permit."
}
},
{
"from_name": null,
"id": "78a8e82bba9447f69dd415bbf235117f",
"to_name": null,
"type": null,
"value": {
"end": 4103,
"labels": [
"PREAMBLE"
],
"start": 4020,
"text": "[1010E-F]\n\n (4) The broad effect of the application of the basic\nprinciples"
}
},
{
"from_name": null,
"id": "3fa324a3b2e6408291dcab3dad7e5e04",
"to_name": null,
"type": null,
"value": {
"end": 4146,
"labels": [
"PREAMBLE"
],
"start": 4104,
"text": "underlying section 106 of the Evidence Act"
}
},
{
"from_name": null,
"id": "f87f2de6dd9d4ac88ad683531281bea8",
"to_name": null,
"type": null,
"value": {
"end": 4372,
"labels": [
"PREAMBLE"
],
"start": 4147,
"text": "would\nbe that the onus is discharged if the prosecution adduces\nonly so much evidence, circumstantial or direct, as is\nsufficient to raise a presumption in its favour with regard\nto the existence of facts sought to be proved."
}
},
{
"from_name": null,
"id": "b14094f267f343988bdbd32f81bccd66",
"to_name": null,
"type": null,
"value": {
"end": 4446,
"labels": [
"PREAMBLE"
],
"start": 4373,
"text": "[1012F]\n\n Issardas Daulat Ram & Ors. v. The Union of India & Ors."
}
},
{
"from_name": null,
"id": "91800109dcf840498ed91c41edda6555",
"to_name": null,
"type": null,
"value": {
"end": 4678,
"labels": [
"PREAMBLE"
],
"start": 4447,
"text": "[1962] Supp. 1 S.C.R. 358; Commissioner of Income Tax,\nMadras v. Messrs Best & Co. [1966] 2 S.C.R. 480; Collector\nof Customs, Madras & Ors. v. D. Bhoormul [1974] 3 S.C.R.\n833; Labchand Dhanpat Singh Jain v. The State of Maharashtra"
}
},
{
"from_name": null,
"id": "9b67c2a42d3843cfa6074acedb199e12",
"to_name": null,
"type": null,
"value": {
"end": 4942,
"labels": [
"PREAMBLE"
],
"start": 4678,
"text": "\n[1975] 2 S.C.R. 907; Balumal Jamnadas Batra v. State of\nMaharashtra [1976] 1 S.C.R. 539 referred to; Berham Khurshed\nPesikaka v. State of Bombay [1955] 1 S.C.R. 613; State of\nPunjab v. gian Chand & others Crl. A. 195/62 disposed of on\nApril 2, 1968 distinguished."
}
},
{
"from_name": null,
"id": "0b156f08c942422899ceddfc1df68737",
"to_name": null,
"type": null,
"value": {
"end": 5150,
"labels": [
"PREAMBLE"
],
"start": 4953,
"text": "In the instant case though the seizure was not made\nunder Section 111 of the Customs Act and the prosection\ncould not press into service the presumption arising from\nsection 123 of the Customs Act."
}
},
{
"from_name": null,
"id": "0bd3bf4f39934c05841044a83908657f",
"to_name": null,
"type": null,
"value": {
"end": 5437,
"labels": [
"PREAMBLE"
],
"start": 5151,
"text": "It is proved that the\nappellant was in the possession of gold biscuits with\nforeign markings which were kept in a secret chamber of the\nsafe, and he admitted that the gold was brought from outside\nthe country and given to him by somebody, whose identity he\nwas not prepared to disclose."
}
},
{
"from_name": null,
"id": "2256980875af4833b90f6e6d7d93e999",
"to_name": null,
"type": null,
"value": {
"end": 5607,
"labels": [
"PREAMBLE"
],
"start": 5438,
"text": "These circumstances are\nsufficient to raise a presumption under Section 106 of the\nEvidence Act so as to attribute knowledge to the appellant\nthat the gold was smuggled."
}
},
{
"from_name": null,
"id": "ae8168a676c14958b60e029d3f6e431f",
"to_name": null,
"type": null,
"value": {
"end": 5628,
"labels": [
"PREAMBLE"
],
"start": 5608,
"text": "[1014B-D]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "e64dc482e1d84a79bdc9e733d87246a3",
"to_name": null,
"type": null,
"value": {
"end": 5704,
"labels": [
"NONE"
],
"start": 5628,
"text": "\n CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n 47 of 1974."
}
},
{
"from_name": null,
"id": "a9e6c68d42394f71b9d6b03433d386fe",
"to_name": null,
"type": null,
"value": {
"end": 5894,
"labels": [
"NONE"
],
"start": 5704,
"text": "\n Appeal by Special Leave from the Judgment and Order dated 10-8-1973 of the Andhra Pradesh High Court in Criminal Revision Case No. 648/72 and Criminal Revision Petition No.\n992/72."
}
},
{
"from_name": null,
"id": "93d29d2ccf9f477ab34554d047a63d86",
"to_name": null,
"type": null,
"value": {
"end": 5949,
"labels": [
"NONE"
],
"start": 5894,
"text": "\n Dr. Y. S. Chitale and Vineet Kumar for the Appellant."
}
},
{
"from_name": null,
"id": "2c41976e4a4344d4945dcd2929ec61f7",
"to_name": null,
"type": null,
"value": {
"end": 6018,
"labels": [
"NONE"
],
"start": 5949,
"text": "\n M. A. Khader and Venkatarao & G. N. Rao for the Respondent."
}
},
{
"from_name": null,
"id": "932295255a1e4233a301694a80551981",
"to_name": null,
"type": null,
"value": {
"end": 6081,
"labels": [
"NONE"
],
"start": 6018,
"text": "\n The Judgment of the Court was delivered by FAZAL ALI,"
}
},
{
"from_name": null,
"id": "9739a4903f9e4c389629ad4b6dcbceb9",
"to_name": null,
"type": null,
"value": {
"end": 6200,
"labels": [
"FAC"
],
"start": 6082,
"text": "J.-This appeal by special leave is directed against a judgment dated August 18, 1973 of the Andhra Pradesh High Court."
}
},
{
"from_name": null,
"id": "9b0a3989c5dd4747a48600f66d89a037",
"to_name": null,
"type": null,
"value": {
"end": 6329,
"labels": [
"NONE"
],
"start": 6200,
"text": "The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat them all over again."
}
},
{
"from_name": null,
"id": "950dd329c0d5411c9ff3c92f31fdb7b8",
"to_name": null,
"type": null,
"value": {
"end": 6563,
"labels": [
"RLC"
],
"start": 6330,
"text": "The appellant was tried by the Magistrate for offences under s. 135(1) (b) (ii) of the Customs Act, 1962 and s.85(ii) read with s. 8(i) of the Gold Control Act, and sentenced to rigorous imprisonment for nine months under each count."
}
},
{
"from_name": null,
"id": "8fa3686a44dc4e87b0bd8377cfe82cce",
"to_name": null,
"type": null,
"value": {
"end": 6617,
"labels": [
"RLC"
],
"start": 6564,
"text": "Both the sentences were directed to run concurrently."
}
},
{
"from_name": null,
"id": "2ae7db87bf584ebf9a2dcb4f2b94a599",
"to_name": null,
"type": null,
"value": {
"end": 6654,
"labels": [
"RLC"
],
"start": 6618,
"text": "Sentences of fine were also imposed."
}
},
{
"from_name": null,
"id": "d32cdb050fb54a7d9d24a603dc2d6801",
"to_name": null,
"type": null,
"value": {
"end": 6979,
"labels": [
"RLC"
],
"start": 6655,
"text": "The Sessions Judge, on appeal, set aside the conviction and sentence under the Gold Control Act and acquitted the appellant of that charge for the reason that the requisite sanction for his prosecution was not accorded, but maintained the conviction and sentence of the appellant under s. 135 (1)(b) (ii) of the Customs Act."
}
},
{
"from_name": null,
"id": "b05eaa715ded4e889dd59739fb801ce9",
"to_name": null,
"type": null,
"value": {
"end": 7117,
"labels": [
"FAC"
],
"start": 6980,
"text": "Thereafter, the appellant went up in revision to the High Court which confirmed the conviction and sentence upheld by the Sessions Judge."
}
},
{
"from_name": null,
"id": "039f06294d09486dac8e8811f2ecc5a2",
"to_name": null,
"type": null,
"value": {
"end": 7190,
"labels": [
"FAC"
],
"start": 7118,
"text": "Then the appellant moved this Court and this appeal is by special leave."
}
},
{
"from_name": null,
"id": "010e490515494c38a60d9f9f76243bca",
"to_name": null,
"type": null,
"value": {
"end": 7264,
"labels": [
"NONE"
],
"start": 7190,
"text": "\n The allegations made against the appellant may be briefly stated"
}
},
{
"from_name": null,
"id": "55d4d2d977c34e4eae6dee4e59b3454f",
"to_name": null,
"type": null,
"value": {
"end": 7636,
"labels": [
"FAC"
],
"start": 7264,
"text": ". On 16-4-1971 P.W. 4, Superintendent of Central Excise issued a warrant (Ext. P-3) authorising P.W.\n3 and another Inspector to proceed to the house of the appellant at 6.30 a.m. P. W. 3 called P.W. 1 and one Nihalchand as mediators and informed them that the accused had concealed gold biscuits of foreign origin in his house and hence it was decided to search his house."
}
},
{
"from_name": null,
"id": "ce55c61cd080412ea57685444741f76d",
"to_name": null,
"type": null,
"value": {
"end": 7758,
"labels": [
"FAC"
],
"start": 7637,
"text": "When the search was conducted, the accused was directed to produce the gold biscuits of foreign origin in his possession."
}
},
{
"from_name": null,
"id": "0865c67f44f149febf161265c88443ff",
"to_name": null,
"type": null,
"value": {
"end": 8034,
"labels": [
"FAC"
],
"start": 7759,
"text": "The accused denied that he possessed any but the Excise officials searched the house and found in a secret chamber of an iron safe, which was opened by the accused with the keys in his possession, a bundle containing 28 gold biscuits and a half biscuit marked as M. Os. 1-29."
}
},
{
"from_name": null,
"id": "5a9c76b11ec84ceabd1747a65cfb2cf7",
"to_name": null,
"type": null,
"value": {
"end": 8076,
"labels": [
"FAC"
],
"start": 8035,
"text": "All these biscuits bore foreign markings."
}
},
{
"from_name": null,
"id": "bd8aa8c1754a407984227ba2011f674d",
"to_name": null,
"type": null,
"value": {
"end": 8176,
"labels": [
"FAC"
],
"start": 8077,
"text": "In another secret chamber were found gold earrings in plastic boxes and a bundle of currency notes."
}
},
{
"from_name": null,
"id": "8d9d7968682c4fb3825562573b0304c4",
"to_name": null,
"type": null,
"value": {
"end": 8393,
"labels": [
"FAC"
],
"start": 8177,
"text": "The accused was then questioned in the presence of the witnesses and he stated that he had been receiving gold biscuits from some unknown person from Bombay and that the other articles belonged to him and his mother."
}
},
{
"from_name": null,
"id": "20b6f8f580d040d882f63b077a301941",
"to_name": null,
"type": null,
"value": {
"end": 8581,
"labels": [
"FAC"
],
"start": 8394,
"text": "On being questioned further, the accused admitted that he had no general or special permit from the Reserve Bank of India or the Gold Control Administrator to import or keep foreign gold."
}
},
{
"from_name": null,
"id": "856fa26604ca4e9481566bf89c0c4001",
"to_name": null,
"type": null,
"value": {
"end": 8646,
"labels": [
"FAC"
],
"start": 8582,
"text": "The statement of the accused was recorded and is marked Ext. P4."
}
},
{
"from_name": null,
"id": "8dd56815fbbf4301a74f925f641c7119",
"to_name": null,
"type": null,
"value": {
"end": 8825,
"labels": [
"FAC"
],
"start": 8647,
"text": "Before launching a prosecution, the Collector of Central Excise issued a notice calling upon the appellant to show cause why M. Os. 1 to 51 be not confiscated and penalty levied."
}
},
{
"from_name": null,
"id": "81653b24909f4679a3df4b5957b1b54d",
"to_name": null,
"type": null,
"value": {
"end": 8869,
"labels": [
"FAC"
],
"start": 8826,
"text": "The accused gave his explanation, Ext. P-7."
}
},
{
"from_name": null,
"id": "a3cf28fdb3d94c1a8a4104b36a5d4c7a",
"to_name": null,
"type": null,
"value": {
"end": 8988,
"labels": [
"FAC"
],
"start": 8870,
"text": "Thereafter, the Collector passed orders of adjudication confiscating the articles and imposed a penalty of Rs. 5,000/."
}
},
{
"from_name": null,
"id": "7d6219e0bc7142c5bca985d1b2fc9525",
"to_name": null,
"type": null,
"value": {
"end": 9053,
"labels": [
"FAC"
],
"start": 8989,
"text": "On appeal, the confiscation of jewellery and cash was set aside."
}
},
{
"from_name": null,
"id": "e5668b6e6308461d9afae8024e926c10",
"to_name": null,
"type": null,
"value": {
"end": 9186,
"labels": [
"FAC"
],
"start": 9053,
"text": "\nSubsequently, PW 5, the Assistant Collector of Customs filed a complaint for the prosecution of the appellant under the Customs Act."
}
},
{
"from_name": null,
"id": "d5a844395f544cba91d98192ff17c4ce",
"to_name": null,
"type": null,
"value": {
"end": 9318,
"labels": [
"FAC"
],
"start": 9187,
"text": "We have already mentioned that the prosecution and conviction under the Gold Control Act was set aside for lack of proper sanction."
}
},
{
"from_name": null,
"id": "ec6df68363d24667bbce34cbf8777811",
"to_name": null,
"type": null,
"value": {
"end": 9534,
"labels": [
"FAC"
],
"start": 9319,
"text": "It is also admitted by the prosecution in the instant case that as no seizure was made in accordance with the provisions of the Customs Act, the presumption under s. 123 thereof was not available to the prosecution."
}
},
{
"from_name": null,
"id": "7dcb018ca2134255834494ebbf068098",
"to_name": null,
"type": null,
"value": {
"end": 10325,
"labels": [
"STA"
],
"start": 9534,
"text": "\n Section 135(1) (b), under which the appellant has been convicted, runs thus :- \"135(1) Without prejudice to any action that may be taken under this Act, if any person- (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111.\"\n Analysing the essential ingredients of clause (b), it is manifest that before a conviction can be recorded under it, the prosecution must prove that the accused has acquired possession of or is in any way concerned in depositing, keeping, etc., any goods which he knows or has reason to believe are liable to confiscation under s. 111."
}
},
{
"from_name": null,
"id": "ccf2df2651ce4aca96f7e17a1bfe2bed",
"to_name": null,
"type": null,
"value": {
"end": 10607,
"labels": [
"ANALYSIS"
],
"start": 10326,
"text": "Thus in the instant case, as no presumption under s. 123 was available, it was for the prosecution to prove affirmatively that the appellant was in possession of smuggled gold knowing full well that it was imported from outside the country so as to fall within the ambit of s. 111."
}
},
{
"from_name": null,
"id": "81aea8a880cf49c4b5e61011862fa62e",
"to_name": null,
"type": null,
"value": {
"end": 10910,
"labels": [
"ARG_PETITIONER"
],
"start": 10608,
"text": "Dr. Chitale, appearing for the appellant, contended that if the presumption under s.\n123 is not available to the prosecution, then there is no legal evidence to show that the appellant had any knowledge or had any reason to believe that the goods were imported or were smuggled without a lawful permit."
}
},
{
"from_name": null,
"id": "06f3bc48a0504fdcb9b56d0dd88b4c51",
"to_name": null,
"type": null,
"value": {
"end": 11310,
"labels": [
"ARG_RESPONDENT"
],
"start": 10911,
"text": "The counsel appearing for the State, however, submitted that the fact that the gold bore foreign markings and was recovered from the possession of the appellant who had admitted in his statement before the Customs officers that some unknown person had given it to him, would itself raise a sufficient presumption to attribute knowledge to the appellant that the gold was smuggled without any permit."
}
},
{
"from_name": null,
"id": "1721b012fee24ff1bb1cf4b067e528e3",
"to_name": null,
"type": null,
"value": {
"end": 11751,
"labels": [
"ANALYSIS"
],
"start": 11311,
"text": "Although the question raised by the counsel for the parties is not free from difficulty, an overall consideration of the special facts of the present case would show that there could no difficulty in holding that having regard to the admissionsmade by the appellant and his subsequent conduct, the onus would shift to the appellant to show that the gold found from him with foreign markings was imported without any permit to his knowledge."
}
},
{
"from_name": null,
"id": "8031f791f30444a395302f03573ba60c",
"to_name": null,
"type": null,
"value": {
"end": 11842,
"labels": [
"ANALYSIS"
],
"start": 11752,
"text": "This will be the combined effect of the provisions of ss. 106 and 114 of the Evidence Act."
}
},
{
"from_name": null,
"id": "2da67051686b4fd780b10627f643643b",
"to_name": null,
"type": null,
"value": {
"end": 12073,
"labels": [
"PRE_NOT_RELIED"
],
"start": 11843,
"text": "The matter was considered at great length in the case of Berham Khurshed Pesikaka v. The State of Bombay(1) where this Court holding that s. 106 could not be construed to place the onus on the accused to prove the prosecution case"
}
},
{
"from_name": null,
"id": "113d4f2757b241e1b96d15410bd08dce",
"to_name": null,
"type": null,
"value": {
"end": 12312,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12073,
"text": ", observed as follows :- \"Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence."
}
},
{
"from_name": null,
"id": "3fcca508d5394695becabf9dc42fdaa0",
"to_name": null,
"type": null,
"value": {
"end": 12426,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12313,
"text": "(See Attygalle v. The King-A.I.R. 1936 P.C.\n 169, also In re: Kanakasabai Pillai-A. I. R. 1940 Madras 1)."
}
},
{
"from_name": null,
"id": "7b93a067df824c14872055d44b66feaa",
"to_name": null,
"type": null,
"value": {
"end": 12590,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12427,
"text": "It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by section 106 of the Evidence Act.\""
}
},
{
"from_name": null,
"id": "5b5c8ac587424ae3afb81627099925f5",
"to_name": null,
"type": null,
"value": {
"end": 12668,
"labels": [
"ANALYSIS"
],
"start": 12590,
"text": "\nThese observations were made with respect to the peculiar facts of that case."
}
},
{
"from_name": null,
"id": "42c959a1923e489685d60ca670f9bb5b",
"to_name": null,
"type": null,
"value": {
"end": 12879,
"labels": [
"ANALYSIS"
],
"start": 12669,
"text": "It appears that what had happened in that case was that the appellant was found to be guilty of an offence under the Prohibition Act and the only evidence to prove his guilt was that he was smelling of alcohol."
}
},
{
"from_name": null,
"id": "1eb9d934261a4dff9e0289fdebe22a02",
"to_name": null,
"type": null,
"value": {
"end": 13331,
"labels": [
"ANALYSIS"
],
"start": 12880,
"text": "This Court held that it was for the prosecution to prove the contravention of the provisions of the Prohibition Act and to prove further that a particular intoxicant which was a liquor under the Act, was consumed by the accused and merely because the accused knew what he had taken (which was a matter within his knowledge) could not relieve the prosecution of the burden of proving that the liquor consumed was an intoxicant as defined under the Act."
}
},
{
"from_name": null,
"id": "00b4eb6ae432407db7350f64a53cc01a",
"to_name": null,
"type": null,
"value": {
"end": 13505,
"labels": [
"ANALYSIS"
],
"start": 13332,
"text": "It is, therefore, clear that the observations made by this Court regarding the interpretation of s. 106 of the Evidence Act would not apply to the facts of the present case."
}
},
{
"from_name": null,
"id": "a1b0a62c17a34d31a8fc74d7badb8de1",
"to_name": null,
"type": null,
"value": {
"end": 13740,
"labels": [
"PRE_RELIED"
],
"start": 13506,
"text": "In the case of Issardas Daulat Ram & Ors. v. The Union of India & Ors.(2) this Court, after discussing the admitted circumstances of the case, found that the relevant pieces of evidence would prove the guilty knowledge of the accused."
}
},
{
"from_name": null,
"id": "95181ae0d2a1422d8ab58b7df077ea40",
"to_name": null,
"type": null,
"value": {
"end": 14081,
"labels": [
"PRE_RELIED"
],
"start": 13740,
"text": "\nThat was a case which arose under s. 178 (A) of the Sea Customs Act and this Court observed as follows :- \"If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time."
}
},
{
"from_name": null,
"id": "9a911cd937af4a59b3c7b414b2101f27",
"to_name": null,
"type": null,
"value": {
"end": 14431,
"labels": [
"PRE_RELIED"
],
"start": 14082,
"text": "It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question."
}
},
{
"from_name": null,
"id": "085493a380ec4f588738bdf671ad01f7",
"to_name": null,
"type": null,
"value": {
"end": 14559,
"labels": [
"PRE_RELIED"
],
"start": 14432,
"text": "In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants ......"
}
},
{
"from_name": null,
"id": "23addc270c1746ca82358c95ab6fe391",
"to_name": null,
"type": null,
"value": {
"end": 14716,
"labels": [
"PRE_RELIED"
],
"start": 14559,
"text": "\n These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit."
}
},
{
"from_name": null,
"id": "542d64c4b15146c1999c367a7361be41",
"to_name": null,
"type": null,
"value": {
"end": 14903,
"labels": [
"PRE_RELIED"
],
"start": 14717,
"text": "Learned counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in paragraph 6 we have set out earlier.\""
}
},
{
"from_name": null,
"id": "df08eaa06b6d4a7b95b5807cc1e16429",
"to_name": null,
"type": null,
"value": {
"end": 15025,
"labels": [
"ANALYSIS"
],
"start": 14913,
"text": "The facts of the present case appear to us to be almost on all fours with the facts of the case mentioned above."
}
},
{
"from_name": null,
"id": "5acb24bead844d98ba1047a33f8d6e6c",
"to_name": null,
"type": null,
"value": {
"end": 15189,
"labels": [
"ANALYSIS"
],
"start": 15025,
"text": "\nHere, also, the facts are that gold with foreign marking in the shape of biscuits without indicating any change was recovered from the possession of the appellant."
}
},
{
"from_name": null,
"id": "06f90b97db6740fb8e735e9ed598547c",
"to_name": null,
"type": null,
"value": {
"end": 15274,
"labels": [
"ANALYSIS"
],
"start": 15190,
"text": "Secondly, the appellant admitted that the gold was brought from outside the country."
}
},
{
"from_name": null,
"id": "0b55e0ed5d06494f846be34cb113f544",
"to_name": null,
"type": null,
"value": {
"end": 15446,
"labels": [
"ANALYSIS"
],
"start": 15275,
"text": "The appellant further admitted that he did not hold any permit for importing the gold and the plea taken by him was that some unknown person had delivered the gold to him."
}
},
{
"from_name": null,
"id": "be82543f13b3424590ef42f1bc8f52d0",
"to_name": null,
"type": null,
"value": {
"end": 15887,
"labels": [
"ANALYSIS"
],
"start": 15447,
"text": "In view of these circumstances and the fact as to how the accused came into possession of the gold and whether it was imported or not being within the special knowledge of the accused, if he failed to disclose the identity of the person who gave him the gold, then it was open to the Court to presume under ss. 106 and 114 of the Evidence Act that the appellant knew that the gold in his possession was smuggled and imported without permit."
}
},
{
"from_name": null,
"id": "012d433c733d4e848c335f5b5048739d",
"to_name": null,
"type": null,
"value": {
"end": 16341,
"labels": [
"PRE_RELIED"
],
"start": 15889,
"text": "In The State of Punjab v. Gian Chand & Ors. (Criminal Appeal No. 195 of 1962 disposed of on 2-4-1968), while examining the validity of conviction and sentence under s.\n167(81) of the Sea Customs Act, 1878, this Court held that as the accused did not claim any ownership over the gold and was a bullion merchant, the mere fact that the gold had foreign markings would not be sufficient to prove that the accused had knowledge that the gold was smuggled."
}
},
{
"from_name": null,
"id": "0391cdd3b1fb43fd807df2fa1923feb5",
"to_name": null,
"type": null,
"value": {
"end": 16695,
"labels": [
"PRE_RELIED"
],
"start": 16342,
"text": "In this connection, this Court observed as follows :- \"In our view, the High Court was right in its conclusion because the fact that none of the respondents claimed ownership over the said gold could not necessarily mean either that the gold was smuggled gold or that the respondents were in possession thereof with the knowledge that it was so."
}
},
{
"from_name": null,
"id": "4ced8d26bbe64679a3344d79cf62f82e",
"to_name": null,
"type": null,
"value": {
"end": 16791,
"labels": [
"PRE_RELIED"
],
"start": 16696,
"text": "The fact that the gold has foreign marks stamped on it can only mean that the gold was foreign."
}
},
{
"from_name": null,
"id": "adde36f3b4f540eaa11817d3c6ca3654",
"to_name": null,
"type": null,
"value": {
"end": 16962,
"labels": [
"PRE_RELIED"
],
"start": 16792,
"text": "But since such foreign gold used to be imported before the present restrictions were imposed on its importation, it could have been imported without any violation of law."
}
},
{
"from_name": null,
"id": "ba43070bb0c441d299a3215244c55ea0",
"to_name": null,
"type": null,
"value": {
"end": 17058,
"labels": [
"PRE_RELIED"
],
"start": 16963,
"text": "Consequently, that fact alone would not establish either of the two ingredients of s. 167(81).\""
}
},
{
"from_name": null,
"id": "87b9b311006c45ca9fa1269057ccd035",
"to_name": null,
"type": null,
"value": {
"end": 17160,
"labels": [
"ANALYSIS"
],
"start": 17068,
"text": "The facts of this case are, however, clearly distinguishable from those of the present case."
}
},
{
"from_name": null,
"id": "8ff1f884ca354087871fb4aea0881ee8",
"to_name": null,
"type": null,
"value": {
"end": 17369,
"labels": [
"ANALYSIS"
],
"start": 17161,
"text": "In the first place, in the case mentioned above, the accused was a bullion merchant and it was in the very nature of circumstances and as a part of his profession, natural for him to be in possession of gold."
}
},
{
"from_name": null,
"id": "7acb696b3bdd40209d18c8e739a3acf1",
"to_name": null,
"type": null,
"value": {
"end": 17684,
"labels": [
"ANALYSIS"
],
"start": 17370,
"text": "Secondly, the Court clearly held that during those days foreign gold used to be freely imported in our country and therefore the mere presence of foreign markings would not be sufficient to raise a presumption under s. 106 of the Evidence Act so as to attribute knowledge to the accused that the gold was smuggled."
}
},
{
"from_name": null,
"id": "05498a0da9cb4fdbb89025100c287d93",
"to_name": null,
"type": null,
"value": {
"end": 17796,
"labels": [
"ANALYSIS"
],
"start": 17685,
"text": "In the instant case, the facts are quite different and so is the nature of the admission made by the appellant."
}
},
{
"from_name": null,
"id": "3777707a7fce4b9fbe2bddddafd0d308",
"to_name": null,
"type": null,
"value": {
"end": 18210,
"labels": [
"PRE_RELIED"
],
"start": 17806,
"text": "In a later decision of this Court in the case of Commissioner of Income Tax, Madras v. Messrs Best & Co.(1) this Court observed as follows |- \"When sufficient evidence, either direct or circumstantial, in respect of its contention was disclosed by the Revenue, adverse inference could be drawn against the assessee if he failed to put before the Department material which was in his exclusive possession."
}
},
{
"from_name": null,
"id": "fc1a859551474209a28c24b169bfffa6",
"to_name": null,
"type": null,
"value": {
"end": 18342,
"labels": [
"PRE_RELIED"
],
"start": 18211,
"text": "The process is described in the law of evidence as shifting of the onus in the course of a proceeding from one party to the other.\""
}
},
{
"from_name": null,
"id": "9dd0c23ffda44b27afe3b6a8200e2d64",
"to_name": null,
"type": null,
"value": {
"end": 18509,
"labels": [
"ANALYSIS"
],
"start": 18342,
"text": "\nIt is true that case arose under the provisions of the income Tax Act but the principles laid down by this Court would apply equally to the facts of the present case."
}
},
{
"from_name": null,
"id": "1e51895b4a0a4e0b9aabfa636f51468b",
"to_name": null,
"type": null,
"value": {
"end": 18929,
"labels": [
"PRE_RELIED"
],
"start": 18510,
"text": "In the case of Collector of Customs, Madras & Ors. v.\nD.Bhoormull(2) a case under the Customs Act, while dwelling on the nature and purport of the onus which lay on the prosecution, this Court observed as follows:- \"It cannot be disputed that in proceeding for imposing penalties under clause (8) of s. 167 to which s. 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department."
}
},
{
"from_name": null,
"id": "aa5a215fbe7744a7a92b2cb004291c49",
"to_name": null,
"type": null,
"value": {
"end": 19085,
"labels": [
"PRE_RELIED"
],
"start": 18930,
"text": "This is a fundamental rule relating to proof in all criminal or quasi- criminal proceedings, where there is no statutory provision to the contrary."
}
},
{
"from_name": null,
"id": "b4cfbce752e9456ea28a2388d4f9cdcd",
"to_name": null,
"type": null,
"value": {
"end": 19253,
"labels": [
"PRE_RELIED"
],
"start": 19086,
"text": "But in appreciating its scope and the nature of the onus cost by it, we must pay due regard to other kindred principles, no less fundamental, of universal application."
}
},
{
"from_name": null,
"id": "7121893681bf41e9ae3b49a953092bbf",
"to_name": null,
"type": null,
"value": {
"end": 19402,
"labels": [
"PRE_RELIED"
],
"start": 19254,
"text": "One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree........"
}
},
{
"from_name": null,
"id": "0ceca4d971f84d7da5e5be4de36bb9e5",
"to_name": null,
"type": null,
"value": {
"end": 19562,
"labels": [
"PRE_RELIED"
],
"start": 19403,
"text": "-All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue,"
}
},
{
"from_name": null,
"id": "cc6a56e19d6e4fa0812df041b04af182",
"to_name": null,
"type": null,
"value": {
"end": 19707,
"labels": [
"PRE_RELIED"
],
"start": 19563,
"text": "Thus, legal proof is not necessarily perfect proof, often it is nothing more than a prudent man's estimate as to the probabilities of the case.\""
}
},
{
"from_name": null,
"id": "478f50eaeb514087aef94d0f2beed798",
"to_name": null,
"type": null,
"value": {
"end": 20026,
"labels": [
"PRE_RELIED"
],
"start": 19707,
"text": "\nSimilarly, while dealing with the merits of the case, this Court made the following observations :- \"In the case before us, the circumstantial evidence suggesting the inference that the goods were illicitly imported into India, was similar and reasonably pointed towards the conclusion drawn by the Collector.........."
}
},
{
"from_name": null,
"id": "16a3fe8546e04f5b896ba628077fca06",
"to_name": null,
"type": null,
"value": {
"end": 20171,
"labels": [
"PRE_RELIED"
],
"start": 20027,
"text": "The Collector had given the fullest opportunity to Bhoormull to establish the alleged acquisition of the goods in the normal course of business."
}
},
{
"from_name": null,
"id": "b110ee13bbcf4a6280b3b5751d4eb261",
"to_name": null,
"type": null,
"value": {
"end": 20278,
"labels": [
"PRE_RELIED"
],
"start": 20172,
"text": "In doing so, he was not throwing the burden of proving what the Department had to establish, on Bhoormull."
}
},
{
"from_name": null,
"id": "9c61b33d4fd8425ebc694617a8b91836",
"to_name": null,
"type": null,
"value": {
"end": 20539,
"labels": [
"PRE_RELIED"
],
"start": 20279,
"text": "He was simply giving him a fair opportunity of rebutting the first and the foremost presumption that arose out of the tell-tale circumstances in which the goods were found, regarding their being smuggled goods by disclosing facts within his special knowledge.\""
}
},
{
"from_name": null,
"id": "7f7649250f42488b8cde83d28cdffdf7",
"to_name": null,
"type": null,
"value": {
"end": 20892,
"labels": [
"ANALYSIS"
],
"start": 20539,
"text": "\nIt was also pointed out that the broad effect of the application of the basic principles underlying s. 106 of the Evidence Act would be that onus is discharged if the prosecution adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved."
}
},
{
"from_name": null,
"id": "e72e3ad481cf48749f8bb60da233eb06",
"to_name": null,
"type": null,
"value": {
"end": 21345,
"labels": [
"PRE_RELIED"
],
"start": 20893,
"text": "In the case of Labchand Dhanpat Singh Jain v. The State of Maharashtra, while this Court was again considering the extent and application of ss. 106 and 114 of the Evidence Act and in this connection, observed as follows:- \"Even if we were to apply the ratio decidendi of Gian Chand's case (supra) in the case before us, we find that the result would only be that no presumption under section 123 of the Act could be used against the appellant."
}
},
{
"from_name": null,
"id": "5ea11d85f631445f85e1518f2dddc41b",
"to_name": null,
"type": null,
"value": {
"end": 21426,
"labels": [
"PRE_RELIED"
],
"start": 21346,
"text": "We do not think that the High Court or the Magistrate had used this presumption."
}
},
{
"from_name": null,
"id": "c79fc0502ea0432581ef465c964db072",
"to_name": null,
"type": null,
"value": {
"end": 21586,
"labels": [
"PRE_RELIED"
],
"start": 21427,
"text": "We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accused's guilty knowledge.........."
}
},
{
"from_name": null,
"id": "6a1929291f6947b4adc41e6d7c50b4ef",
"to_name": null,
"type": null,
"value": {
"end": 21653,
"labels": [
"ANALYSIS"
],
"start": 21587,
"text": "A reference to Issardas Daulat Ram & Ors. v. Union of India & Ors."
}
},
{
"from_name": null,
"id": "f6fff795f9e847afb91ae2a9a0f1d37a",
"to_name": null,
"type": null,
"value": {
"end": 21683,
"labels": [
"ANALYSIS"
],
"start": 21654,
"text": "[(1962) Supp. (1) S.C.R. 358]"
}
},
{
"from_name": null,
"id": "96e0d2c30e834de19276a0f03c7a85fc",
"to_name": null,
"type": null,
"value": {
"end": 21892,
"labels": [
"ANALYSIS"
],
"start": 21684,
"text": "is enough to show that the conduct of the accused and the incredible version set up by him were enough to saddle the accused with the necessary knowledge of the character of the goods found in his possession."
}
},
{
"from_name": null,
"id": "1ca3507218be41928a73ba7f4ecad0f2",
"to_name": null,
"type": null,
"value": {
"end": 21949,
"labels": [
"ANALYSIS"
],
"start": 21892,
"text": "\n .... .... ....... .... .... .... .... .... ...."
}
},
{
"from_name": null,
"id": "85c4e0fdeb484957b8b242aa9f4de24e",
"to_name": null,
"type": null,
"value": {
"end": 22072,
"labels": [
"ANALYSIS"
],
"start": 21949,
"text": "\n Atleast, the burden of proving an innocent receipt of gold lay upon the appellant under section 106 Evidence Act."
}
},
{
"from_name": null,
"id": "c507a97d957b4b9fb373fa167d681ea0",
"to_name": null,
"type": null,
"value": {
"end": 22294,
"labels": [
"ANALYSIS"
],
"start": 22073,
"text": "The totality of facts proved was enough, in our opinion, to raise a presumption under section 114 Evidence Act that the gold had been illegally imported into the country so as to (be) covered by section 111(d) of the Act."
}
},
{
"from_name": null,
"id": "b9d10c434ffe445080ac7cfb71d0ed7a",
"to_name": null,
"type": null,
"value": {
"end": 22403,
"labels": [
"ANALYSIS"
],
"start": 22295,
"text": "The appellant had not offered any other reasonable explanation of the manner in which it was being carried.\""
}
},
{
"from_name": null,
"id": "f2d51f46c9ad4ed7a0b1866d3850c88f",
"to_name": null,
"type": null,
"value": {
"end": 22486,
"labels": [
"ANALYSIS"
],
"start": 22403,
"text": "\nThe facts in this case appear to be very similar to the facts in the present case."
}
},
{
"from_name": null,
"id": "179a0322684a4ae091891fcf85760ab9",
"to_name": null,
"type": null,
"value": {
"end": 22668,
"labels": [
"PRE_RELIED"
],
"start": 22487,
"text": "Furthermore, the case of Balumal Jamnadas Batra v. State of Maharashtra(1) was also a case under the Customs Act and there also the presumption under section 123 was not applicable."
}
},
{
"from_name": null,
"id": "820f9b27766b4fc88bea7355a8a9bbbc",
"to_name": null,
"type": null,
"value": {
"end": 22790,
"labels": [
"PRE_RELIED"
],
"start": 22669,
"text": "It was held therein that having regard to the conduct of the accused and nature of the articles mens rea was established."
}
},
{
"from_name": null,
"id": "297a14f59393471f8ab507d634ce0966",
"to_name": null,
"type": null,
"value": {
"end": 23029,
"labels": [
"PRE_RELIED"
],
"start": 22791,
"text": "In this connection, this Court observed as follows :- \"The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country."
}
},
{
"from_name": null,
"id": "c03264e629f54b1a89dbf434fe9463ba",
"to_name": null,
"type": null,
"value": {
"end": 23223,
"labels": [
"PRE_RELIED"
],
"start": 23030,
"text": "The inscriptions on them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise."
}
},
{
"from_name": null,
"id": "591e661946d1446aa39b5e01894395fc",
"to_name": null,
"type": null,
"value": {
"end": 23367,
"labels": [
"PRE_RELIED"
],
"start": 23224,
"text": "The appellant's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or mens rea.\""
}
},
{
"from_name": null,
"id": "b50237c334374dd0ad7a5fbfca66563b",
"to_name": null,
"type": null,
"value": {
"end": 23666,
"labels": [
"ANALYSIS"
],
"start": 23369,
"text": "From the aforesaid case also it would appear that this Court was prepared to draw a presumption against the accused from the fact that the articles concerned were concealed and had particular markings and special features and from the nature of the unsatisfactory explanation given by the accused."
}
},
{
"from_name": null,
"id": "ea06e72298524cffb6ca06fab266418f",
"to_name": null,
"type": null,
"value": {
"end": 23915,
"labels": [
"ANALYSIS"
],
"start": 23666,
"text": "\n While it is, therefore, true that in the instant case the seizure was not made under s. 111 of the Customs Act and the prosecution could not press into service the presumption arising from s. 123 of the Customs Act, that does not clinch the issue."
}
},
{
"from_name": null,
"id": "5a6ec060b7414c5c8a8f38030eb8c7a5",
"to_name": null,
"type": null,
"value": {
"end": 24252,
"labels": [
"RATIO"
],
"start": 23916,
"text": "It is proved that the appellant was in possession of gold with foreign markings which was found to be in the shape of biscuits or bars kept in a secret chamber of the safe, and that the accused admitted that the gold was brought from outside the country and was given to him by somebody whose identity he was not prepared to disclose.\n "
}
},
{
"from_name": null,
"id": "042127ab2ad143eeb54c7b8324a11e45",
"to_name": null,
"type": null,
"value": {
"end": 24612,
"labels": [
"RATIO"
],
"start": 24252,
"text": "Thus, the appellant knew as to who was the person who had given him the gold and if he also knew, as he says, that the gold was smuggled, he must have known whether the person who delivered the gold to him brought it under a permit or without any permit because at the time of the occurrence the import of gold was banned excepting under special circumstances."
}
},
{
"from_name": null,
"id": "8dbbd7b9495048f8bfcc544f8e05129a",
"to_name": null,
"type": null,
"value": {
"end": 24821,
"labels": [
"RATIO"
],
"start": 24613,
"text": "Having regard to the totality of the situation, there is no reason why the prosecution would not be entitled to call into aid the combined effect of the presumptions under ss. 106 and 114 of the Evidence Act."
}
},
{
"from_name": null,
"id": "59fb58ba34d645ee918b60784ae19cd9",
"to_name": null,
"type": null,
"value": {
"end": 24946,
"labels": [
"RATIO"
],
"start": 24822,
"text": "We are, therefore, satisfied that the prosecution has clearly proved the charge under s. 135(1) (b) (ii) of the Customs Act."
}
},
{
"from_name": null,
"id": "33b1789b2ccf46e6a55d7f6217bc66f1",
"to_name": null,
"type": null,
"value": {
"end": 25093,
"labels": [
"RATIO"
],
"start": 24946,
"text": "\n It was also contended by Dr. Chitale that as the case had been going on for eight years, a lenient view on the question of sentence may be taken."
}
},
{
"from_name": null,
"id": "19f22717f820432fb9ae1c6590984c2b",
"to_name": null,
"type": null,
"value": {
"end": 25216,
"labels": [
"RATIO"
],
"start": 25094,
"text": "The sentence being one only of rigorous imprisonment for nine months, we think there is no room for any reduction thereof."
}
},
{
"from_name": null,
"id": "580b576a89c14e6e8b707f7bde263264",
"to_name": null,
"type": null,
"value": {
"end": 25293,
"labels": [
"RPC"
],
"start": 25216,
"text": "\n For the reasons given above, the appeal fails and is accordingly dismissed."
}
},
{
"from_name": null,
"id": "09d774352b6e4f12881ccc32edb4425a",
"to_name": null,
"type": null,
"value": {
"end": 25301,
"labels": [
"RPC"
],
"start": 25293,
"text": "\n N.V.K."
}
},
{
"from_name": null,
"id": "9ecb4d08482c4daaa014c2be408594a2",
"to_name": null,
"type": null,
"value": {
"end": 25347,
"labels": [
"RPC"
],
"start": 25302,
"text": " Appeal dismissed."
}
}
]
}
] | 4,252 | {
"text": "PETITIONER:\nSHAH GUMMAN MAL\n\nVs.\n\nRESPONDENT:\nTHE STATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT06/02/1980\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nKOSHAL, A.D.\n\nCITATION: 1980 SCR (2)1005\n 1980 AIR 793\n 1980 SCC (2) 262\n\nACT:\n Customs Act 1962, Section 135(1)(b) & Evidence Act,\n\n1872, Section 106 and 114-Premises searched-Gold biscuits\nwith foreign markings recovered-Accused not disclosing\nidentity of person who gave the gold-Whether court can\npresume that the gold was smuggled and imported without\npermit.\n\nHEADNOTE:\n An offence under section 135(1)(b) of the Customs Act,\n\n1962 is punishable if the offender, acquires possession of\nor is in any way concerned in carrying removing, depositing,\nharbouring, keeping, concealing, selling or purchasing or in\nany other manner dealing with any goods which he knows or\nhas reason to believe are liable to confiscation under\nsection 111.\n\n Section 111 enumerates the categories of goods which\nare imported into India and are liable to confiscation.\n\n The Central Excise officials searched the house of the\nappellant and found in a secret chamber of an iron safe,\nwhich was opened by him with the keys in his possession, a\nbundle containing 28 gold biscuits and a half biscuit, all\nof which bore foreign markings. In another secret chamber\nwere found gold earnings in plastic boxes and a bundle of\ncurrency notes. When questioned in the presence of the\nwitnesses he stated that he had been receiving gold biscuits\nfrom some unknown person from Bombay and that the other\narticles belonged to him and his mother. He admitted that he\nhad no general or special permit from either the Reserve\nBank of India or the Gold Control Administrator to import or\nkeep foreign gold. The statement of the appellant was\nrecorded. Thereafter the appellant was prosecuted for\noffences under Section 135(1)(b)(ii) of the Customs Act,\n1962 and Section 85(ii) read with Section 8(i) of the Gold\nControl Act, 1968.\n\n The Magistrate convicted and sentenced the appellant to\nrigorous imprisonment for nine months under each count. On\nappeal, the Sessions Judge set aside the conviction and\nsentence under the Gold Control Act as the requisite\nsanction for prosecution was not accorded, but maintained\nthe conviction and sentence under Section 135(i) (b) (ii) of\nthe Customs Act, which order was confirmed by the High Court\n\nin revision.\n In appeal to this Court it was contended on behalf of\n\nthe appellant : (1) that if the presumption under Section\n123 of the Customs Act is not available to the prosecution,\nthen there is no legal evidence to show that the appellant\nhad any knowledge or had any reason to believe that the\ngoods were imported or were smuggled without a lawful permit\nand (2) as the case had been going on for eight years, a\nlenient view on the question of sentence may be taken; while\non behalf of the respondent-State it was submitted that the\nfact that the gold bore foreign markings and was recovered\nfrom the possession of the appellant who had admitted in his\nstatement before the Customs Officers that some unknown\nperson had given it to him,would itself raise a sufficient presumption to attribute\nknowledge to the appellant that the gold was smuggled\nwithout any permit.\n\n Dismissing the appeal,\n^\n\n HELD : (1) The prosecution has clearly proved the\ncharge under Section 135(1)(b)(ii) of the Customs Act.\n[1014D]\n\n (2) The sentence being one only of rigorous\nimprisonment for nine months, there is no room for any\nreduction thereof. [1014E]\n\n (3) The fact as to how the appellant came into\npossession of the gold and whether it was imported or not\nbeing within the special knowledge of the appellant, if he\nfailed to disclose the identity of the person who gave him\nthe gold, it was open to the Court to presume under sections\n106 and 114 of the Evidence Act that the appellant knew that\nthe gold in his possession was smuggled and imported without\na permit. [1010E-F]\n\n (4) The broad effect of the application of the basic\nprinciples underlying section 106 of the Evidence Act would\nbe that the onus is discharged if the prosecution adduces\nonly so much evidence, circumstantial or direct, as is\nsufficient to raise a presumption in its favour with regard\nto the existence of facts sought to be proved. [1012F]\n\n Issardas Daulat Ram & Ors. v. The Union of India & Ors.\n[1962] Supp. 1 S.C.R. 358; Commissioner of Income Tax,\nMadras v. Messrs Best & Co. [1966] 2 S.C.R. 480; Collector\nof Customs, Madras & Ors. v. D. Bhoormul [1974] 3 S.C.R.\n833; Labchand Dhanpat Singh Jain v. The State of Maharashtra\n[1975] 2 S.C.R. 907; Balumal Jamnadas Batra v. State of\nMaharashtra [1976] 1 S.C.R. 539 referred to; Berham Khurshed\nPesikaka v. State of Bombay [1955] 1 S.C.R. 613; State of\nPunjab v. gian Chand & others Crl. A. 195/62 disposed of on\nApril 2, 1968 distinguished.\n\n In the instant case though the seizure was not made\nunder Section 111 of the Customs Act and the prosection\ncould not press into service the presumption arising from\nsection 123 of the Customs Act. It is proved that the\nappellant was in the possession of gold biscuits with\nforeign markings which were kept in a secret chamber of the\nsafe, and he admitted that the gold was brought from outside\nthe country and given to him by somebody, whose identity he\nwas not prepared to disclose. These circumstances are\nsufficient to raise a presumption under Section 106 of the\nEvidence Act so as to attribute knowledge to the appellant\nthat the gold was smuggled. [1014B-D]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n 47 of 1974.\n Appeal by Special Leave from the Judgment and Order dated 10-8-1973 of the Andhra Pradesh High Court in Criminal Revision Case No. 648/72 and Criminal Revision Petition No.\n992/72.\n Dr. Y. S. Chitale and Vineet Kumar for the Appellant.\n M. A. Khader and Venkatarao & G. N. Rao for the Respondent.\n The Judgment of the Court was delivered by FAZAL ALI, J.-This appeal by special leave is directed against a judgment dated August 18, 1973 of the Andhra Pradesh High Court.The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat them all over again. The appellant was tried by the Magistrate for offences under s. 135(1) (b) (ii) of the Customs Act, 1962 and s.85(ii) read with s. 8(i) of the Gold Control Act, and sentenced to rigorous imprisonment for nine months under each count. Both the sentences were directed to run concurrently. Sentences of fine were also imposed. The Sessions Judge, on appeal, set aside the conviction and sentence under the Gold Control Act and acquitted the appellant of that charge for the reason that the requisite sanction for his prosecution was not accorded, but maintained the conviction and sentence of the appellant under s. 135 (1)(b) (ii) of the Customs Act. Thereafter, the appellant went up in revision to the High Court which confirmed the conviction and sentence upheld by the Sessions Judge. Then the appellant moved this Court and this appeal is by special leave.\n The allegations made against the appellant may be briefly stated. On 16-4-1971 P.W. 4, Superintendent of Central Excise issued a warrant (Ext. P-3) authorising P.W.\n3 and another Inspector to proceed to the house of the appellant at 6.30 a.m. P. W. 3 called P.W. 1 and one Nihalchand as mediators and informed them that the accused had concealed gold biscuits of foreign origin in his house and hence it was decided to search his house. When the search was conducted, the accused was directed to produce the gold biscuits of foreign origin in his possession. The accused denied that he possessed any but the Excise officials searched the house and found in a secret chamber of an iron safe, which was opened by the accused with the keys in his possession, a bundle containing 28 gold biscuits and a half biscuit marked as M. Os. 1-29. All these biscuits bore foreign markings. In another secret chamber were found gold earrings in plastic boxes and a bundle of currency notes. The accused was then questioned in the presence of the witnesses and he stated that he had been receiving gold biscuits from some unknown person from Bombay and that the other articles belonged to him and his mother. On being questioned further, the accused admitted that he had no general or special permit from the Reserve Bank of India or the Gold Control Administrator to import or keep foreign gold. The statement of the accused was recorded and is marked Ext. P4. Before launching a prosecution, the Collector of Central Excise issued a notice calling upon the appellant to show cause why M. Os. 1 to 51 be not confiscated and penalty levied. The accused gave his explanation, Ext. P-7. Thereafter, the Collector passed orders of adjudication confiscating the articles and imposed a penalty of Rs. 5,000/. On appeal, the confiscation of jewellery and cash was set aside.\nSubsequently, PW 5, the Assistant Collector of Customs filed a complaint for the prosecution of the appellant under the Customs Act. We have already mentioned that the prosecution and conviction under the Gold Control Act was set aside for lack of proper sanction. It is also admitted by the prosecution in the instant case that as no seizure was made in accordance with the provisions of the Customs Act, the presumption under s. 123 thereof was not available to the prosecution.\n Section 135(1) (b), under which the appellant has been convicted, runs thus :- \"135(1) Without prejudice to any action that may be taken under this Act, if any person- (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111.\"\n Analysing the essential ingredients of clause (b), it is manifest that before a conviction can be recorded under it, the prosecution must prove that the accused has acquired possession of or is in any way concerned in depositing, keeping, etc., any goods which he knows or has reason to believe are liable to confiscation under s. 111. Thus in the instant case, as no presumption under s. 123 was available, it was for the prosecution to prove affirmatively that the appellant was in possession of smuggled gold knowing full well that it was imported from outside the country so as to fall within the ambit of s. 111. Dr. Chitale, appearing for the appellant, contended that if the presumption under s.\n123 is not available to the prosecution, then there is no legal evidence to show that the appellant had any knowledge or had any reason to believe that the goods were imported or were smuggled without a lawful permit. The counsel appearing for the State, however, submitted that the fact that the gold bore foreign markings and was recovered from the possession of the appellant who had admitted in his statement before the Customs officers that some unknown person had given it to him, would itself raise a sufficient presumption to attribute knowledge to the appellant that the gold was smuggled without any permit. Although the question raised by the counsel for the parties is not free from difficulty, an overall consideration of the special facts of the present case would show that there could no difficulty in holding that having regard to the admissionsmade by the appellant and his subsequent conduct, the onus would shift to the appellant to show that the gold found from him with foreign markings was imported without any permit to his knowledge. This will be the combined effect of the provisions of ss. 106 and 114 of the Evidence Act. The matter was considered at great length in the case of Berham Khurshed Pesikaka v. The State of Bombay(1) where this Court holding that s. 106 could not be construed to place the onus on the accused to prove the prosecution case, observed as follows :- \"Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See Attygalle v. The King-A.I.R. 1936 P.C.\n 169, also In re: Kanakasabai Pillai-A. I. R. 1940 Madras 1). It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by section 106 of the Evidence Act.\"\nThese observations were made with respect to the peculiar facts of that case. It appears that what had happened in that case was that the appellant was found to be guilty of an offence under the Prohibition Act and the only evidence to prove his guilt was that he was smelling of alcohol. This Court held that it was for the prosecution to prove the contravention of the provisions of the Prohibition Act and to prove further that a particular intoxicant which was a liquor under the Act, was consumed by the accused and merely because the accused knew what he had taken (which was a matter within his knowledge) could not relieve the prosecution of the burden of proving that the liquor consumed was an intoxicant as defined under the Act. It is, therefore, clear that the observations made by this Court regarding the interpretation of s. 106 of the Evidence Act would not apply to the facts of the present case. In the case of Issardas Daulat Ram & Ors. v. The Union of India & Ors.(2) this Court, after discussing the admitted circumstances of the case, found that the relevant pieces of evidence would prove the guilty knowledge of the accused.\nThat was a case which arose under s. 178 (A) of the Sea Customs Act and this Court observed as follows :- \"If the gold now in question had been imported earlier it would be extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time. It was precisely for this reason that at the stage of the enquiry before the Collector the principal point which was urged on behalf of the appellants was to deny that the seized gold was of foreign origin and it is the nature of the defence that accounts for the order of the Collector dealing almost wholly with the consideration of that question. In order to reach his finding about the gold being smuggled, the Collector has referred to the conduct of the appellants ......\n These were undoubtedly relevant pieces of evidence which bore on the question regarding the character of the gold, whether it was licit or illicit. Learned counsel is, therefore, not right in his submission regarding the absence of material before the Collector to justify the finding recorded in paragraph 6 we have set out earlier.\"\n The facts of the present case appear to us to be almost on all fours with the facts of the case mentioned above.\nHere, also, the facts are that gold with foreign marking in the shape of biscuits without indicating any change was recovered from the possession of the appellant. Secondly, the appellant admitted that the gold was brought from outside the country. The appellant further admitted that he did not hold any permit for importing the gold and the plea taken by him was that some unknown person had delivered the gold to him. In view of these circumstances and the fact as to how the accused came into possession of the gold and whether it was imported or not being within the special knowledge of the accused, if he failed to disclose the identity of the person who gave him the gold, then it was open to the Court to presume under ss. 106 and 114 of the Evidence Act that the appellant knew that the gold in his possession was smuggled and imported without permit.\n In The State of Punjab v. Gian Chand & Ors. (Criminal Appeal No. 195 of 1962 disposed of on 2-4-1968), while examining the validity of conviction and sentence under s.\n167(81) of the Sea Customs Act, 1878, this Court held that as the accused did not claim any ownership over the gold and was a bullion merchant, the mere fact that the gold had foreign markings would not be sufficient to prove that the accused had knowledge that the gold was smuggled. In this connection, this Court observed as follows :- \"In our view, the High Court was right in its conclusion because the fact that none of the respondents claimed ownership over the said gold could not necessarily mean either that the gold was smuggled gold or that the respondents were in possession thereof with the knowledge that it was so. The fact that the gold has foreign marks stamped on it can only mean that the gold was foreign. But since such foreign gold used to be imported before the present restrictions were imposed on its importation, it could have been imported without any violation of law. Consequently, that fact alone would not establish either of the two ingredients of s. 167(81).\"\n The facts of this case are, however, clearly distinguishable from those of the present case. In the first place, in the case mentioned above, the accused was a bullion merchant and it was in the very nature of circumstances and as a part of his profession, natural for him to be in possession of gold. Secondly, the Court clearly held that during those days foreign gold used to be freely imported in our country and therefore the mere presence of foreign markings would not be sufficient to raise a presumption under s. 106 of the Evidence Act so as to attribute knowledge to the accused that the gold was smuggled. In the instant case, the facts are quite different and so is the nature of the admission made by the appellant.\n In a later decision of this Court in the case of Commissioner of Income Tax, Madras v. Messrs Best & Co.(1) this Court observed as follows |- \"When sufficient evidence, either direct or circumstantial, in respect of its contention was disclosed by the Revenue, adverse inference could be drawn against the assessee if he failed to put before the Department material which was in his exclusive possession. The process is described in the law of evidence as shifting of the onus in the course of a proceeding from one party to the other.\"\nIt is true that case arose under the provisions of the income Tax Act but the principles laid down by this Court would apply equally to the facts of the present case. In the case of Collector of Customs, Madras & Ors. v.\nD.Bhoormull(2) a case under the Customs Act, while dwelling on the nature and purport of the onus which lay on the prosecution, this Court observed as follows:- \"It cannot be disputed that in proceeding for imposing penalties under clause (8) of s. 167 to which s. 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi- criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cost by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree........ -All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue, Thus, legal proof is not necessarily perfect proof, often it is nothing more than a prudent man's estimate as to the probabilities of the case.\"\nSimilarly, while dealing with the merits of the case, this Court made the following observations :- \"In the case before us, the circumstantial evidence suggesting the inference that the goods were illicitly imported into India, was similar and reasonably pointed towards the conclusion drawn by the Collector.......... The Collector had given the fullest opportunity to Bhoormull to establish the alleged acquisition of the goods in the normal course of business. In doing so, he was not throwing the burden of proving what the Department had to establish, on Bhoormull. He was simply giving him a fair opportunity of rebutting the first and the foremost presumption that arose out of the tell-tale circumstances in which the goods were found, regarding their being smuggled goods by disclosing facts within his special knowledge.\"\nIt was also pointed out that the broad effect of the application of the basic principles underlying s. 106 of the Evidence Act would be that onus is discharged if the prosecution adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved. In the case of Labchand Dhanpat Singh Jain v. The State of Maharashtra, while this Court was again considering the extent and application of ss. 106 and 114 of the Evidence Act and in this connection, observed as follows:- \"Even if we were to apply the ratio decidendi of Gian Chand's case (supra) in the case before us, we find that the result would only be that no presumption under section 123 of the Act could be used against the appellant. We do not think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accused's guilty knowledge.......... A reference to Issardas Daulat Ram & Ors. v. Union of India & Ors. [(1962) Supp. (1) S.C.R. 358] is enough to show that the conduct of the accused and the incredible version set up by him were enough to saddle the accused with the necessary knowledge of the character of the goods found in his possession.\n .... .... ....... .... .... .... .... .... ....\n Atleast, the burden of proving an innocent receipt of gold lay upon the appellant under section 106 Evidence Act. The totality of facts proved was enough, in our opinion, to raise a presumption under section 114 Evidence Act that the gold had been illegally imported into the country so as to (be) covered by section 111(d) of the Act. The appellant had not offered any other reasonable explanation of the manner in which it was being carried.\"\nThe facts in this case appear to be very similar to the facts in the present case. Furthermore, the case of Balumal Jamnadas Batra v. State of Maharashtra(1) was also a case under the Customs Act and there also the presumption under section 123 was not applicable. It was held therein that having regard to the conduct of the accused and nature of the articles mens rea was established. In this connection, this Court observed as follows :- \"The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The appellant's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or mens rea.\"\n From the aforesaid case also it would appear that this Court was prepared to draw a presumption against the accused from the fact that the articles concerned were concealed and had particular markings and special features and from the nature of the unsatisfactory explanation given by the accused.\n While it is, therefore, true that in the instant case the seizure was not made under s. 111 of the Customs Act and the prosecution could not press into service the presumption arising from s. 123 of the Customs Act, that does not clinch the issue. It is proved that the appellant was in possession of gold with foreign markings which was found to be in the shape of biscuits or bars kept in a secret chamber of the safe, and that the accused admitted that the gold was brought from outside the country and was given to him by somebody whose identity he was not prepared to disclose.\n Thus, the appellant knew as to who was the person who had given him the gold and if he also knew, as he says, that the gold was smuggled, he must have known whether the person who delivered the gold to him brought it under a permit or without any permit because at the time of the occurrence the import of gold was banned excepting under special circumstances. Having regard to the totality of the situation, there is no reason why the prosecution would not be entitled to call into aid the combined effect of the presumptions under ss. 106 and 114 of the Evidence Act. We are, therefore, satisfied that the prosecution has clearly proved the charge under s. 135(1) (b) (ii) of the Customs Act.\n It was also contended by Dr. Chitale that as the case had been going on for eight years, a lenient view on the question of sentence may be taken. The sentence being one only of rigorous imprisonment for nine months, we think there is no room for any reduction thereof.\n For the reasons given above, the appeal fails and is accordingly dismissed.\n N.V.K. Appeal dismissed.\n "
} |
{
"group": "Criminal"
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{
"result": [
{
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"value": {
"end": 113,
"labels": [
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],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n DATED THIS THE 8th DAY OF FEBRUARY, 2017"
}
},
{
"from_name": null,
"id": "0b47920457fd4ea3b295349644462144",
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"labels": [
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],
"start": 113,
"text": "\n PRESENT\n\nTHE HONOURABLE MR.JUSTICE ANAND BYRAREDDY\n\n AND\n\n THE HONOURABLE MR.JUSTICE K.SOMASHEKAR\n\n CRIMINAL APPEAL No.2571/2013\n\n"
}
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{
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"labels": [
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],
"start": 311,
"text": "BETWEEN:\n\nState of Karnataka"
}
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{
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],
"start": 353,
"text": ".. APPELLANT\nThrough Kittur Police Station,\nRepresented by Additional\nState Public Prosecutor,\nAdvocate General's Office,\nHigh Court Circuit Bench Unit,\nDharwad.\n\n(BY Shri V.M.Banakar, Additional State Public\nProsecutor)\n\nAND:\n\n1. Rudrayya Chambayya Hosmath\nAge 25 years, Occupation: Agriculture,\nR/o Hunshikatte, Taluk: Bailhongal,\nDistrict Belgaum.\n\n2. Chambayya Ningayya Hosmath\nAge: 52 years, Occupation: Agriculture,\nR/o Hunshikatti, Taluk: Bailhongal,\nDistrict Belgaum.\n\n3. Gangawwa W/o Chambayya Hosmath\nAge: 49 years, Occupation: Household work,\nR/o Hunshikatte, Taluk: Bailhongal,\nDistrict Belgaum.\n\n4. Smt. Rudrawwa W/o Basayya Chikmath\n\nAge: 37 years, Occupation: Household,\n\nR/o Hunshikatti, Taluk: Bailhongal,\n\nDistrict Belgaum. .. RESPONDENTS\n\n(By Shri J.Basavaraj, Advocate)\n\n "
}
},
{
"from_name": null,
"id": "d28e8a5913444408b07593be88b77aec",
"to_name": null,
"type": null,
"value": {
"end": 1557,
"labels": [
"PREAMBLE"
],
"start": 1165,
"text": "This Criminal Appeal is filed under Section 378(1)\nand (3) of the Code of Criminal Procedure, 1973 seeking\nto grant leave to appeal against the order of acquittal\ndated 31.10.2012 passed by the P.O., Fast Track Court,\nBailhongal, in S.C.No.171/2011 and etc.\n\n This appeal coming on for hearing this day, ANAND\nBYRAREDDY .,J delivered the following :-\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "c32404e440934f44b9ebbc00bde48a9b",
"to_name": null,
"type": null,
"value": {
"end": 1698,
"labels": [
"NONE"
],
"start": 1557,
"text": "\n Heard the learned Additional State Public Prosecutor appearing for the appellant and the learned counsel for the respondent - accused."
}
},
{
"from_name": null,
"id": "b9d3cacbb9294bb6b9d972c00d447eb1",
"to_name": null,
"type": null,
"value": {
"end": 1798,
"labels": [
"FAC"
],
"start": 1700,
"text": "2. The State is in appeal questioning the acquittal of the accused in the following circumstances:"
}
},
{
"from_name": null,
"id": "700f7685feae40e4b94fc0d37fc53b74",
"to_name": null,
"type": null,
"value": {
"end": 2023,
"labels": [
"FAC"
],
"start": 1799,
"text": "It was the case of the prosecution that according to the complaint by one Rudravva Mahantesh Yattinamani, resident of Hunshikatti village, she had stated that there is the Rudraswami Matha at Hunshikatti in Bailhongal taluk."
}
},
{
"from_name": null,
"id": "2e7f3c10e816497da68f40a905f4a023",
"to_name": null,
"type": null,
"value": {
"end": 2169,
"labels": [
"FAC"
],
"start": 2024,
"text": "The Poojas at the said Matha are performed by the branches of the family of the accused, whereby they take annual turns in performing the Poojas."
}
},
{
"from_name": null,
"id": "2bdc8e31a5fa44e0b6ca1c8b84e5a00b",
"to_name": null,
"type": null,
"value": {
"end": 2278,
"labels": [
"FAC"
],
"start": 2170,
"text": "It was the turn of the complainant from the previous Mahanavami festival to perform the Poojas at the Matha."
}
},
{
"from_name": null,
"id": "9500bd2d09a24024a1b6f8f3b2766004",
"to_name": null,
"type": null,
"value": {
"end": 2444,
"labels": [
"FAC"
],
"start": 2279,
"text": "The complainant's aunt, Parvatewwa, was said to be an officer in the Social Welfare Department at Ranebennur and she had two sons, namely, Chanabasappa and Siddayya."
}
},
{
"from_name": null,
"id": "8d8b7c260eb549dd9fb5add31fd2686f",
"to_name": null,
"type": null,
"value": {
"end": 2602,
"labels": [
"FAC"
],
"start": 2444,
"text": "\n That on 17.06.2010, Parvatewwa Hosamath is said to have visited Hunshikatti to have her house painted and she had come there along with her nephew Siddayya."
}
},
{
"from_name": null,
"id": "625dda90f8b04a10a951f4dc6e8630eb",
"to_name": null,
"type": null,
"value": {
"end": 2985,
"labels": [
"FAC"
],
"start": 2603,
"text": "It was alleged that Siddayya was particularly brought to perform the Poojas at the Matha and that at about 11.00a.m., when Rudravva and Siddayya were collecting wood in the backyard of the complainant's home, the accused is said to have opened a window shutter and on seeing this, accused no.1 is said to have abused Siddayya and Siddayya, in turn, went to close the window shutter."
}
},
{
"from_name": null,
"id": "a2eefc49815f4b6d85ed096e3ccf46ed",
"to_name": null,
"type": null,
"value": {
"end": 3073,
"labels": [
"FAC"
],
"start": 2985,
"text": "\nInspite of which, accused no.1 is said to have started abusing and assaulting Siddayya."
}
},
{
"from_name": null,
"id": "306a87ccb66c48ed900687f382f13085",
"to_name": null,
"type": null,
"value": {
"end": 3231,
"labels": [
"FAC"
],
"start": 3074,
"text": "Following this, on the next day, namely, on 18.6.2010, at about 6.00 p.m., when the complainant was cleaning the Matha, Siddayya also was said to be present."
}
},
{
"from_name": null,
"id": "73acfb2813eb44c995633872d2c21d4f",
"to_name": null,
"type": null,
"value": {
"end": 3735,
"labels": [
"FAC"
],
"start": 3232,
"text": "At which time, accused no.1 came there holding a weapon namely, a Koita in his hand, accusing Siddayya of being the main cause for the quarrel and acrimony between the families, asked him to go back to his village and on seeing this altercation, the complainant Rudravva is said to have intervened and tried to pacify them, and when accused no.1 started to assault Siddayya, the complainant tried to prevent the blow and in the process, her left hand was hurt with the Koita and she sustained an injury."
}
},
{
"from_name": null,
"id": "2cab2f1c31044c14a7496d33f0303722",
"to_name": null,
"type": null,
"value": {
"end": 3931,
"labels": [
"FAC"
],
"start": 3736,
"text": "On hearing this commotion, Parvatevva is said to have arrived there and upon seeing her, accused nos.2 and 3 are said to have assaulted Parvatevva on her head and she also had sustained injuries."
}
},
{
"from_name": null,
"id": "0b22efbb97ad491aab8a01dc2fb43d67",
"to_name": null,
"type": null,
"value": {
"end": 4040,
"labels": [
"FAC"
],
"start": 3932,
"text": "The injured were then rushed to Hunshikatti Government Hospital and thereafter to the KLE Hospital, Belgaum."
}
},
{
"from_name": null,
"id": "5335fbeba4174f2189a646652c195ea4",
"to_name": null,
"type": null,
"value": {
"end": 4173,
"labels": [
"FAC"
],
"start": 4041,
"text": "In this background, a complaint was lodged by Rudrevva on 19.6.2010 at about 15 minutes past mid night at the KLE Hospital, Belgaum."
}
},
{
"from_name": null,
"id": "2128319db08247f98f5a22b18c6c446b",
"to_name": null,
"type": null,
"value": {
"end": 4509,
"labels": [
"FAC"
],
"start": 4174,
"text": "It was alleged that accused nos.3 and 4 had abetted accused nos.1 and 2 in assaulting and causing injuries to the victims and therefore it was alleged that the accused had committed offences punishable under Sections 323, 504, 109 and 307 read with 34 of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC', for brevity).\n 3."
}
},
{
"from_name": null,
"id": "882598cc6cbd41cb8fa97d3f98344b5f",
"to_name": null,
"type": null,
"value": {
"end": 4823,
"labels": [
"FAC"
],
"start": 4510,
"text": "On the basis of the said complaint, a case was registered and after further investigation, a charge sheet was filed and the Magistrate having taken cognizance of the offence and since the case was exclusively triable by the Sessions Court, the case was committed to the Sessions Court and numbered as SC 171/2011."
}
},
{
"from_name": null,
"id": "3de298397152435e953483fce33ab608",
"to_name": null,
"type": null,
"value": {
"end": 4883,
"labels": [
"FAC"
],
"start": 4824,
"text": "The accused had pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "1219247d154c4e24ab8cc90aacd66021",
"to_name": null,
"type": null,
"value": {
"end": 4996,
"labels": [
"FAC"
],
"start": 4883,
"text": "\nThereafter, the prosecution had examined 18 witnesses and had got marked 24 exhibits and other material objects."
}
},
{
"from_name": null,
"id": "8f515baa4b19485d97cc2d70dea6b5c5",
"to_name": null,
"type": null,
"value": {
"end": 5287,
"labels": [
"ISSUE"
],
"start": 4997,
"text": "Thereafter, the court below had framed the following points for consideration: \" 1. Whether the prosecution proves beyond all reasonable doubts that on 18.6.2010 at 6 p.m. at Varandha of Rudraswami Math at Hunshikatti village when the complainant and Siddayya were present cleaning the dust"
}
},
{
"from_name": null,
"id": "ef19936f443e48c1845994b8c5f67812",
"to_name": null,
"type": null,
"value": {
"end": 5740,
"labels": [
"ISSUE"
],
"start": 5287,
"text": ", at that time accused Nos.1 to 4 in prosecution of their common intention by keeping the grudge against the complainant and said Siddayya for the previous quarrel which took place in between them on 17.6.2010 abused the said Rudravva and Siddayya in filthy language and there by gave provocation to them knowing that such provocation would cause them to break the public peace and there by committed an offence punishable u/s 504 r/w sec 34 of IPC?\n 2."
}
},
{
"from_name": null,
"id": "fa454965e9d242b2b437f97de1c163e2",
"to_name": null,
"type": null,
"value": {
"end": 6462,
"labels": [
"ISSUE"
],
"start": 5741,
"text": "Whether the prosecution proves beyond all reasonable doubts that the accused on the above said date, time and place further in prosecution of their common intention, at the instigation of A3 and A4, A1 came holding Koyata in his hand abused Siddayya and at that time the complainant came to rescue the said Siddayya and in that process A1 gave blow on the fore arm above the elbow of left hand of the complainant and caused injuries to the complainant and on hearing this, Paravattewwa came to rescue the complainant and Siddayya at that time A1 also gave blow with Koyata on the head of said Paravatewwa and there by caused injuries to them and accused have committed an offence punishable u/s 323 r/w sec 34 of IPC?\n 3."
}
},
{
"from_name": null,
"id": "9bdd8bd8cd1941a69de57a063dcac954",
"to_name": null,
"type": null,
"value": {
"end": 6842,
"labels": [
"ISSUE"
],
"start": 6463,
"text": "Whether the prosecution proves beyond all reasonable doubts that the accused Nos.1 to 4 in prosecution of their common intention on the alleged date, time and place, at the time of incident A3 and 4 abated A1 and 2 by saying that don't leave them and finish off the complainant, Siddayya and Paravatewwa and there by committed an offence punishable u/s 109 r/w sec 34 of IPC?\n 4."
}
},
{
"from_name": null,
"id": "0ab363bdec8440c398d653442486f406",
"to_name": null,
"type": null,
"value": {
"end": 7219,
"labels": [
"ISSUE"
],
"start": 6843,
"text": "Whether the prosecution proves beyond all reasonable doubts that the accused persons on the alleged date time and place in prosecution of their common intention, assaulted the complainant and Paravatewwa and caused injuries with Koyata and there by attempted to murder said complainant and Paravatewwa and there by committed an offence punishable u/s 307 r/w sec 34 of IPC?\"\n "
}
},
{
"from_name": null,
"id": "9ac4902889034144a0734bd3c55ae726",
"to_name": null,
"type": null,
"value": {
"end": 7310,
"labels": [
"FAC"
],
"start": 7219,
"text": "The court below had answered all the points in the negative and the accused were acquitted."
}
},
{
"from_name": null,
"id": "7f35f2e6544f4a618674f3fa735f3bf0",
"to_name": null,
"type": null,
"value": {
"end": 7372,
"labels": [
"FAC"
],
"start": 7311,
"text": "It is that which is the subject matter of the present appeal."
}
},
{
"from_name": null,
"id": "eb42f58829014ea99214aa22f6950757",
"to_name": null,
"type": null,
"value": {
"end": 7622,
"labels": [
"ARG_PETITIONER"
],
"start": 7372,
"text": "\n 4. The learned Additional State Public Prosecutor in advancing the arguments in favour of the appellant - State, would contend that there is no proper appreciation of evidence by the court below and therefore, erroneous conclusions have been drawn."
}
},
{
"from_name": null,
"id": "8ebf21a74d674190b5eb6b4b1007074d",
"to_name": null,
"type": null,
"value": {
"end": 7731,
"labels": [
"ARG_PETITIONER"
],
"start": 7623,
"text": "It is urged that PWs.1 and 6 were injured witnesses and PW.8 was an independent eye witness to the incident."
}
},
{
"from_name": null,
"id": "5067e0b3db0d4721b86b882eb1cb2e77",
"to_name": null,
"type": null,
"value": {
"end": 8119,
"labels": [
"ARG_PETITIONER"
],
"start": 7732,
"text": "They have in their evidence specifically and categorically narrated the overt acts of each of the accused and the injuries sustained by the victims as being serious in nature, all of which have been glossed over by the trial court in seeking to point out certain minor inconsistencies in the evidence of the said witnesses and therefore the same has resulted in a miscarriage of justice."
}
},
{
"from_name": null,
"id": "eb27aa6d4baf4d5490a5b9b01d51850e",
"to_name": null,
"type": null,
"value": {
"end": 8465,
"labels": [
"ARG_PETITIONER"
],
"start": 8119,
"text": "\n In this regard, the learned Additional State Public Prosecutor takes us through the record to emphasize and demonstrate that the prosecution had certainly proved its case beyond all reasonable doubt and the court below was in error in acquitting the accused in the face of cogent material evidence in support of the charges against the accused."
}
},
{
"from_name": null,
"id": "86c906684b5845609db8ff20acfe9fee",
"to_name": null,
"type": null,
"value": {
"end": 8683,
"labels": [
"ARG_RESPONDENT"
],
"start": 8467,
"text": "5. The learned Counsel for the respondent- accused, on the other hand, would point out that what has been referred to as minor infirmities and inconsistencies are actually fatal lacuna in the case of the prosecution."
}
},
{
"from_name": null,
"id": "1c80d4f9172f411695cd2b8533c3e4b3",
"to_name": null,
"type": null,
"value": {
"end": 9023,
"labels": [
"ARG_RESPONDENT"
],
"start": 8684,
"text": "In that, there is total contradiction between the evidence of PWs.1 and 6 and since both are injured witnesses, who were involved in the same incident at the same time and if there is complete contradiction in their testimony which is not supported by any witness for the prosecution, it cannot be said that they are minor inconsistencies,"
}
},
{
"from_name": null,
"id": "d8e6b2864aac43f592bf62eb07046304",
"to_name": null,
"type": null,
"value": {
"end": 9082,
"labels": [
"ARG_RESPONDENT"
],
"start": 9024,
"text": "on the basis of which the court has acquitted the accused."
}
},
{
"from_name": null,
"id": "af2634d631be4387b8397b26b7575e3f",
"to_name": null,
"type": null,
"value": {
"end": 9456,
"labels": [
"ARG_RESPONDENT"
],
"start": 9083,
"text": "The lack of consistent evidence would go to the root of the matter and since the burden was on the prosecution to establish its case beyond all reasonable doubt, it could not be said that the trial court was in error in acquitting the accused on the basis of the infirmities, which the trial court has painstakingly analysed in a detailed judgment, which cannot be faulted."
}
},
{
"from_name": null,
"id": "f05abd9271eb4fecbdac8964dd7b0a1e",
"to_name": null,
"type": null,
"value": {
"end": 9744,
"labels": [
"ANALYSIS"
],
"start": 9456,
"text": "\n 6. On a consideration of these rival contentions and on close examination of the record, it is indeed found that the court below has opined that the prosecution had not placed positive evidence on record, because first of all, PW.1 had not deposed in terms of the complaint Exhibit P.1."
}
},
{
"from_name": null,
"id": "69f953d3cd8d459ea631a9aec82000ca",
"to_name": null,
"type": null,
"value": {
"end": 9801,
"labels": [
"ANALYSIS"
],
"start": 9744,
"text": "\nHe had failed to indicate as to how the dispute started."
}
},
{
"from_name": null,
"id": "e2e28f22095e4d34bf43b87eaa4296e3",
"to_name": null,
"type": null,
"value": {
"end": 9973,
"labels": [
"ANALYSIS"
],
"start": 9802,
"text": "Further, the claim that it was the turn of PW.1 to perform the Pooja had not been demonstrated and the temple at which Pooja was to be performed has a very small entrance."
}
},
{
"from_name": null,
"id": "88ff6f41eb044de694e6cd0396ca14c8",
"to_name": null,
"type": null,
"value": {
"end": 10047,
"labels": [
"ANALYSIS"
],
"start": 9974,
"text": "According to PW.8, accused no.1 was not carrying any weapon in his hands."
}
},
{
"from_name": null,
"id": "6454628b93fd4d5f876a5e6c2a20eda1",
"to_name": null,
"type": null,
"value": {
"end": 10167,
"labels": [
"ANALYSIS"
],
"start": 10048,
"text": "It is these infirmities which has prompted the court to hold that the evidence was neither cogent nor was corroborated."
}
},
{
"from_name": null,
"id": "736dcb75676e46a7ac4d1b8fe28fe91a",
"to_name": null,
"type": null,
"value": {
"end": 10426,
"labels": [
"ANALYSIS"
],
"start": 10168,
"text": "When the evidence of PWs.1 and 8 are juxtaposed as regards the injuries sustained by PWs.1 and 6 and as regards the treatment that was obtained or about first aid that was given to the victims at the Hunshikatti Government Hospital, there are contradictions."
}
},
{
"from_name": null,
"id": "1c3415105ace4231ab9541fd7cc9d3a8",
"to_name": null,
"type": null,
"value": {
"end": 10660,
"labels": [
"ANALYSIS"
],
"start": 10427,
"text": "It is also found that the prosecution has failed to examine three crucial witnesses, namely, Thayamma, Shantavva and Mohan Uppin, who are said to have shifted the injured to KLE Hospital, Belgaum from Hunshikatti Government Hospital."
}
},
{
"from_name": null,
"id": "154b755e60c14b34afef0225ac57078c",
"to_name": null,
"type": null,
"value": {
"end": 10718,
"labels": [
"ANALYSIS"
],
"start": 10661,
"text": "The statements of those witnesses were also not recorded."
}
},
{
"from_name": null,
"id": "d1e2417b3adf41ffaec99873a811a6ba",
"to_name": null,
"type": null,
"value": {
"end": 11292,
"labels": [
"ANALYSIS"
],
"start": 10718,
"text": "\n 7. Yet another doubtful circumstance was the version of PWs.1 and 6, which are totally contradictory to each other, whereby PW.1 has stated about the first aid treatment provided at the Hunasikatti hospital, in that, it was Dr.Patil who had provided treatment and PW.6 has stated that their wounds were bandaged and they were on saline drips after they were referred to the KLE Hospital and that the first aid was provided at the KLE Hospital, Belgaum and this was totally contradictory to the evidence of PW.12, who was a doctor who had provided treatment to PWs.1 and 6."
}
},
{
"from_name": null,
"id": "75df32a63a05469dacc6f8fe544aa428",
"to_name": null,
"type": null,
"value": {
"end": 11502,
"labels": [
"ANALYSIS"
],
"start": 11293,
"text": "Further, the wound certificates Exhibits P.10 and P.11 did not mention the nature of the weapon that was used in causing the alleged injuries and Exhibits P.12 and P.13 referred to the weapon used as a sickle."
}
},
{
"from_name": null,
"id": "90cd65d6891643159ebccc82334ada4b",
"to_name": null,
"type": null,
"value": {
"end": 11602,
"labels": [
"ANALYSIS"
],
"start": 11503,
"text": "But the case of the prosecution itself was that accused no.1 had assaulted PW.1 and 6 with a koita."
}
},
{
"from_name": null,
"id": "9ad1508312834921ac61a74b2f9584db",
"to_name": null,
"type": null,
"value": {
"end": 11684,
"labels": [
"ANALYSIS"
],
"start": 11603,
"text": "The court has pointed out that there is vast difference between koita and sickle."
}
},
{
"from_name": null,
"id": "b817f09308fd451fa8a0a534856798e7",
"to_name": null,
"type": null,
"value": {
"end": 11846,
"labels": [
"ANALYSIS"
],
"start": 11685,
"text": "To fill up this gross contradiction, as to the definition or the nature of the weapon, PW.12 has sought to provide an explanation to reconcile the contradiction."
}
},
{
"from_name": null,
"id": "dfac9afba5ed4b3bb9ddff372d65d3db",
"to_name": null,
"type": null,
"value": {
"end": 11944,
"labels": [
"ANALYSIS"
],
"start": 11847,
"text": "But that would not clear the doubt that has created about the nature of the weapon that was used."
}
},
{
"from_name": null,
"id": "b06ee15f90d0459e9875e5bf703049e9",
"to_name": null,
"type": null,
"value": {
"end": 12253,
"labels": [
"ANALYSIS"
],
"start": 11945,
"text": "It is also pointed out by the court below that according to the Medical Practitioner who had tendered evidence, namely, PW.12, who was a private doctor and who has also stated in his evidence that insofar as the injuries mentioned in Exhibits P.10 and P.11 may be caused even if a person falls from a ladder."
}
},
{
"from_name": null,
"id": "da1766c2b4f8465ab7efd34201ac30dc",
"to_name": null,
"type": null,
"value": {
"end": 12409,
"labels": [
"ANALYSIS"
],
"start": 12254,
"text": "Whereas the case of the prosecution was that the injuries were caused with a koita by accused no.1 which is also a circumstance which cannot be reconciled."
}
},
{
"from_name": null,
"id": "c796b59b371e47feb52e9aaf0a12e298",
"to_name": null,
"type": null,
"value": {
"end": 12554,
"labels": [
"ANALYSIS"
],
"start": 12410,
"text": "As the injuries that may be caused in falling from a ladder would be completely of a different nature than those which may be caused by a koita."
}
},
{
"from_name": null,
"id": "4877395ca49846cdae1caf3ada3963e6",
"to_name": null,
"type": null,
"value": {
"end": 12605,
"labels": [
"ANALYSIS"
],
"start": 12555,
"text": "This again the court finds as an odd circumstance."
}
},
{
"from_name": null,
"id": "cbd1741d7cef44689300c9da6242855f",
"to_name": null,
"type": null,
"value": {
"end": 12802,
"labels": [
"ANALYSIS"
],
"start": 12606,
"text": "The medical evidence repeatedly referred to the weapon as a sickle throws a serious doubt about the weapon that was used and MO.1, the alleged koita which was seized and having been sent to PW.12."
}
},
{
"from_name": null,
"id": "916018ae42a84d148be4e34492428d4d",
"to_name": null,
"type": null,
"value": {
"end": 13284,
"labels": [
"ANALYSIS"
],
"start": 12803,
"text": "It is noticed that there was more than two months delay in submitting the same for such inspection by PW.12 and there is some confusion even as regards the same in view of PW.15 having said that MOs.1 and 2 were sent to the Forensic Science Laboratory, Belgaum through PWs.16 on 8.9.2010 and the authority of the Forensic Science Laboratory (FSL) having returned the same after examination and therefore the said weapons were in the custody of the FSL as per the charge sheet note."
}
},
{
"from_name": null,
"id": "7d0ad8fa4e57408c9664a0bfeaa8b3a3",
"to_name": null,
"type": null,
"value": {
"end": 13595,
"labels": [
"ANALYSIS"
],
"start": 13285,
"text": "In this circumstance, the trial court has pointed out that PW.12 having received MO.1 for examination on 8.9.2010, when the weapon was actually lying with the FSL, Belgaum was a remote possibility and this was a doubtful circumstance which again was not sought to be reconciled or explained by the prosecution."
}
},
{
"from_name": null,
"id": "75da75b0113e4243b23298b616ccedad",
"to_name": null,
"type": null,
"value": {
"end": 14028,
"labels": [
"ANALYSIS"
],
"start": 13596,
"text": "As regards the scene of occurrence, it is found by the court below that the prosecution has miserably failed to prove the same because the panch witness had all turned completely hostile and has not supported the case of the prosecution as to the place of the incident and the total contradiction of the testimony of PWs.1 and PW.6 regarding the incident is also a circumstance which has proved fatal to the case of the prosecution."
}
},
{
"from_name": null,
"id": "a0e7c4051b9546358705e45ae1f588e8",
"to_name": null,
"type": null,
"value": {
"end": 14268,
"labels": [
"RATIO"
],
"start": 14029,
"text": "In this manner, the trial court has pointed out other infirmities as regards the investigation, the spot sketch, the panchanama, the recovery of incriminating material, all of which was found to be irregular and not in accordance with law."
}
},
{
"from_name": null,
"id": "e79bbeb6919147af9d1f41d98fc4861c",
"to_name": null,
"type": null,
"value": {
"end": 14522,
"labels": [
"RATIO"
],
"start": 14269,
"text": "And particularly, the prosecution having failed to prove the mens rea on the part of the accused and in the absence of any criminal background of the accused, the court below has rightly negated the case of the prosecution and has acquitted the accused."
}
},
{
"from_name": null,
"id": "9f75106bab704b7ba8d38464a5054aed",
"to_name": null,
"type": null,
"value": {
"end": 14614,
"labels": [
"RPC"
],
"start": 14522,
"text": "\n 8. We do not find any fault committed by the trial court in its well considered judgement."
}
},
{
"from_name": null,
"id": "55c74ab7dc25418fa6254b83adfb79f6",
"to_name": null,
"type": null,
"value": {
"end": 14639,
"labels": [
"RPC"
],
"start": 14615,
"text": "The appeal is dismissed."
}
},
{
"from_name": null,
"id": "8fbd0542d4874f7eb37dc598b50b80c3",
"to_name": null,
"type": null,
"value": {
"end": 14665,
"labels": [
"NONE"
],
"start": 14639,
"text": "\n Sd/- JUDGE Sd/- JUDGE nv"
}
}
]
}
] | 4,095 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n DATED THIS THE 8th DAY OF FEBRUARY, 2017\n PRESENT\n\nTHE HONOURABLE MR.JUSTICE ANAND BYRAREDDY\n\n AND\n\n THE HONOURABLE MR.JUSTICE K.SOMASHEKAR\n\n CRIMINAL APPEAL No.2571/2013\n\nBETWEEN:\n\nState of Karnataka .. APPELLANT\nThrough Kittur Police Station,\nRepresented by Additional\nState Public Prosecutor,\nAdvocate General's Office,\nHigh Court Circuit Bench Unit,\nDharwad.\n\n(BY Shri V.M.Banakar, Additional State Public\nProsecutor)\n\nAND:\n\n1. Rudrayya Chambayya Hosmath\nAge 25 years, Occupation: Agriculture,\nR/o Hunshikatte, Taluk: Bailhongal,\nDistrict Belgaum.\n\n2. Chambayya Ningayya Hosmath\nAge: 52 years, Occupation: Agriculture,\nR/o Hunshikatti, Taluk: Bailhongal,\nDistrict Belgaum.\n\n3. Gangawwa W/o Chambayya Hosmath\nAge: 49 years, Occupation: Household work,\nR/o Hunshikatte, Taluk: Bailhongal,\nDistrict Belgaum.\n\n4. Smt. Rudrawwa W/o Basayya Chikmath\n\nAge: 37 years, Occupation: Household,\n\nR/o Hunshikatti, Taluk: Bailhongal,\n\nDistrict Belgaum. .. RESPONDENTS\n\n(By Shri J.Basavaraj, Advocate)\n\n This Criminal Appeal is filed under Section 378(1)\nand (3) of the Code of Criminal Procedure, 1973 seeking\nto grant leave to appeal against the order of acquittal\ndated 31.10.2012 passed by the P.O., Fast Track Court,\nBailhongal, in S.C.No.171/2011 and etc.\n\n This appeal coming on for hearing this day, ANAND\nBYRAREDDY .,J delivered the following :-\n\n JUDGMENT\n Heard the learned Additional State Public Prosecutor appearing for the appellant and the learned counsel for the respondent - accused.\n 2. The State is in appeal questioning the acquittal of the accused in the following circumstances: It was the case of the prosecution that according to the complaint by one Rudravva Mahantesh Yattinamani, resident of Hunshikatti village, she had stated that there is the Rudraswami Matha at Hunshikatti in Bailhongal taluk. The Poojas at the said Matha are performed by the branches of the family of the accused, whereby they take annual turns in performing the Poojas. It was the turn of the complainant from the previous Mahanavami festival to perform the Poojas at the Matha. The complainant's aunt, Parvatewwa, was said to be an officer in the Social Welfare Department at Ranebennur and she had two sons, namely, Chanabasappa and Siddayya.\n That on 17.06.2010, Parvatewwa Hosamath is said to have visited Hunshikatti to have her house painted and she had come there along with her nephew Siddayya. It was alleged that Siddayya was particularly brought to perform the Poojas at the Matha and that at about 11.00a.m., when Rudravva and Siddayya were collecting wood in the backyard of the complainant's home, the accused is said to have opened a window shutter and on seeing this, accused no.1 is said to have abused Siddayya and Siddayya, in turn, went to close the window shutter.\nInspite of which, accused no.1 is said to have started abusing and assaulting Siddayya. Following this, on the next day, namely, on 18.6.2010, at about 6.00 p.m., when the complainant was cleaning the Matha, Siddayya also was said to be present. At which time, accused no.1 came there holding a weapon namely, a Koita in his hand, accusing Siddayya of being the main cause for the quarrel and acrimony between the families, asked him to go back to his village and on seeing this altercation, the complainant Rudravva is said to have intervened and tried to pacify them, and when accused no.1 started to assault Siddayya, the complainant tried to prevent the blow and in the process, her left hand was hurt with the Koita and she sustained an injury. On hearing this commotion, Parvatevva is said to have arrived there and upon seeing her, accused nos.2 and 3 are said to have assaulted Parvatevva on her head and she also had sustained injuries. The injured were then rushed to Hunshikatti Government Hospital and thereafter to the KLE Hospital, Belgaum. In this background, a complaint was lodged by Rudrevva on 19.6.2010 at about 15 minutes past mid night at the KLE Hospital, Belgaum. It was alleged that accused nos.3 and 4 had abetted accused nos.1 and 2 in assaulting and causing injuries to the victims and therefore it was alleged that the accused had committed offences punishable under Sections 323, 504, 109 and 307 read with 34 of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC', for brevity).\n 3. On the basis of the said complaint, a case was registered and after further investigation, a charge sheet was filed and the Magistrate having taken cognizance of the offence and since the case was exclusively triable by the Sessions Court, the case was committed to the Sessions Court and numbered as SC 171/2011. The accused had pleaded not guilty and claimed to be tried.\nThereafter, the prosecution had examined 18 witnesses and had got marked 24 exhibits and other material objects. Thereafter, the court below had framed the following points for consideration: \" 1. Whether the prosecution proves beyond all reasonable doubts that on 18.6.2010 at 6 p.m. at Varandha of Rudraswami Math at Hunshikatti village when the complainant and Siddayya were present cleaning the dust, at that time accused Nos.1 to 4 in prosecution of their common intention by keeping the grudge against the complainant and said Siddayya for the previous quarrel which took place in between them on 17.6.2010 abused the said Rudravva and Siddayya in filthy language and there by gave provocation to them knowing that such provocation would cause them to break the public peace and there by committed an offence punishable u/s 504 r/w sec 34 of IPC?\n 2. Whether the prosecution proves beyond all reasonable doubts that the accused on the above said date, time and place further in prosecution of their common intention, at the instigation of A3 and A4, A1 came holding Koyata in his hand abused Siddayya and at that time the complainant came to rescue the said Siddayya and in that process A1 gave blow on the fore arm above the elbow of left hand of the complainant and caused injuries to the complainant and on hearing this, Paravattewwa came to rescue the complainant and Siddayya at that time A1 also gave blow with Koyata on the head of said Paravatewwa and there by caused injuries to them and accused have committed an offence punishable u/s 323 r/w sec 34 of IPC?\n 3. Whether the prosecution proves beyond all reasonable doubts that the accused Nos.1 to 4 in prosecution of their common intention on the alleged date, time and place, at the time of incident A3 and 4 abated A1 and 2 by saying that don't leave them and finish off the complainant, Siddayya and Paravatewwa and there by committed an offence punishable u/s 109 r/w sec 34 of IPC?\n 4. Whether the prosecution proves beyond all reasonable doubts that the accused persons on the alleged date time and place in prosecution of their common intention, assaulted the complainant and Paravatewwa and caused injuries with Koyata and there by attempted to murder said complainant and Paravatewwa and there by committed an offence punishable u/s 307 r/w sec 34 of IPC?\"\n The court below had answered all the points in the negative and the accused were acquitted. It is that which is the subject matter of the present appeal.\n 4. The learned Additional State Public Prosecutor in advancing the arguments in favour of the appellant - State, would contend that there is no proper appreciation of evidence by the court below and therefore, erroneous conclusions have been drawn. It is urged that PWs.1 and 6 were injured witnesses and PW.8 was an independent eye witness to the incident. They have in their evidence specifically and categorically narrated the overt acts of each of the accused and the injuries sustained by the victims as being serious in nature, all of which have been glossed over by the trial court in seeking to point out certain minor inconsistencies in the evidence of the said witnesses and therefore the same has resulted in a miscarriage of justice.\n In this regard, the learned Additional State Public Prosecutor takes us through the record to emphasize and demonstrate that the prosecution had certainly proved its case beyond all reasonable doubt and the court below was in error in acquitting the accused in the face of cogent material evidence in support of the charges against the accused.\n 5. The learned Counsel for the respondent- accused, on the other hand, would point out that what has been referred to as minor infirmities and inconsistencies are actually fatal lacuna in the case of the prosecution. In that, there is total contradiction between the evidence of PWs.1 and 6 and since both are injured witnesses, who were involved in the same incident at the same time and if there is complete contradiction in their testimony which is not supported by any witness for the prosecution, it cannot be said that they are minor inconsistencies, on the basis of which the court has acquitted the accused. The lack of consistent evidence would go to the root of the matter and since the burden was on the prosecution to establish its case beyond all reasonable doubt, it could not be said that the trial court was in error in acquitting the accused on the basis of the infirmities, which the trial court has painstakingly analysed in a detailed judgment, which cannot be faulted.\n 6. On a consideration of these rival contentions and on close examination of the record, it is indeed found that the court below has opined that the prosecution had not placed positive evidence on record, because first of all, PW.1 had not deposed in terms of the complaint Exhibit P.1.\nHe had failed to indicate as to how the dispute started. Further, the claim that it was the turn of PW.1 to perform the Pooja had not been demonstrated and the temple at which Pooja was to be performed has a very small entrance. According to PW.8, accused no.1 was not carrying any weapon in his hands. It is these infirmities which has prompted the court to hold that the evidence was neither cogent nor was corroborated. When the evidence of PWs.1 and 8 are juxtaposed as regards the injuries sustained by PWs.1 and 6 and as regards the treatment that was obtained or about first aid that was given to the victims at the Hunshikatti Government Hospital, there are contradictions. It is also found that the prosecution has failed to examine three crucial witnesses, namely, Thayamma, Shantavva and Mohan Uppin, who are said to have shifted the injured to KLE Hospital, Belgaum from Hunshikatti Government Hospital. The statements of those witnesses were also not recorded.\n 7. Yet another doubtful circumstance was the version of PWs.1 and 6, which are totally contradictory to each other, whereby PW.1 has stated about the first aid treatment provided at the Hunasikatti hospital, in that, it was Dr.Patil who had provided treatment and PW.6 has stated that their wounds were bandaged and they were on saline drips after they were referred to the KLE Hospital and that the first aid was provided at the KLE Hospital, Belgaum and this was totally contradictory to the evidence of PW.12, who was a doctor who had provided treatment to PWs.1 and 6. Further, the wound certificates Exhibits P.10 and P.11 did not mention the nature of the weapon that was used in causing the alleged injuries and Exhibits P.12 and P.13 referred to the weapon used as a sickle. But the case of the prosecution itself was that accused no.1 had assaulted PW.1 and 6 with a koita. The court has pointed out that there is vast difference between koita and sickle. To fill up this gross contradiction, as to the definition or the nature of the weapon, PW.12 has sought to provide an explanation to reconcile the contradiction. But that would not clear the doubt that has created about the nature of the weapon that was used. It is also pointed out by the court below that according to the Medical Practitioner who had tendered evidence, namely, PW.12, who was a private doctor and who has also stated in his evidence that insofar as the injuries mentioned in Exhibits P.10 and P.11 may be caused even if a person falls from a ladder. Whereas the case of the prosecution was that the injuries were caused with a koita by accused no.1 which is also a circumstance which cannot be reconciled. As the injuries that may be caused in falling from a ladder would be completely of a different nature than those which may be caused by a koita. This again the court finds as an odd circumstance. The medical evidence repeatedly referred to the weapon as a sickle throws a serious doubt about the weapon that was used and MO.1, the alleged koita which was seized and having been sent to PW.12. It is noticed that there was more than two months delay in submitting the same for such inspection by PW.12 and there is some confusion even as regards the same in view of PW.15 having said that MOs.1 and 2 were sent to the Forensic Science Laboratory, Belgaum through PWs.16 on 8.9.2010 and the authority of the Forensic Science Laboratory (FSL) having returned the same after examination and therefore the said weapons were in the custody of the FSL as per the charge sheet note. In this circumstance, the trial court has pointed out that PW.12 having received MO.1 for examination on 8.9.2010, when the weapon was actually lying with the FSL, Belgaum was a remote possibility and this was a doubtful circumstance which again was not sought to be reconciled or explained by the prosecution. As regards the scene of occurrence, it is found by the court below that the prosecution has miserably failed to prove the same because the panch witness had all turned completely hostile and has not supported the case of the prosecution as to the place of the incident and the total contradiction of the testimony of PWs.1 and PW.6 regarding the incident is also a circumstance which has proved fatal to the case of the prosecution. In this manner, the trial court has pointed out other infirmities as regards the investigation, the spot sketch, the panchanama, the recovery of incriminating material, all of which was found to be irregular and not in accordance with law. And particularly, the prosecution having failed to prove the mens rea on the part of the accused and in the absence of any criminal background of the accused, the court below has rightly negated the case of the prosecution and has acquitted the accused.\n 8. We do not find any fault committed by the trial court in its well considered judgement. The appeal is dismissed.\n Sd/- JUDGE Sd/- JUDGE nv "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "5a76da41a181474fbc679f83128a01cd",
"to_name": null,
"type": null,
"value": {
"end": 77,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA"
}
},
{
"from_name": null,
"id": "18bb763177184de38f1efb97cff4303e",
"to_name": null,
"type": null,
"value": {
"end": 162,
"labels": [
"PREAMBLE"
],
"start": 85,
"text": "CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 1175 OF 2014\n\nRAJU"
}
},
{
"from_name": null,
"id": "eccdb9057eec4c598692e9872616c3f3",
"to_name": null,
"type": null,
"value": {
"end": 232,
"labels": [
"PREAMBLE"
],
"start": 188,
"text": "...APPELLANT\n\n VERSUS\n\n"
}
},
{
"from_name": null,
"id": "13727db606a74333a9aaf2af62a0dbd0",
"to_name": null,
"type": null,
"value": {
"end": 252,
"labels": [
"PREAMBLE"
],
"start": 232,
"text": "THE STATE OF HARYANA"
}
},
{
"from_name": null,
"id": "aabf8c5b2ff2427daa53ce5d991d1869",
"to_name": null,
"type": null,
"value": {
"end": 330,
"labels": [
"PREAMBLE"
],
"start": 262,
"text": "...RESPONDENT\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "d70b679e520c4791b7361b2c252efd05",
"to_name": null,
"type": null,
"value": {
"end": 359,
"labels": [
"NONE"
],
"start": 330,
"text": "\n MOHAN M. SHANTANAGOUDAR, J."
}
},
{
"from_name": null,
"id": "0715d40960f44a788458f506d23671fe",
"to_name": null,
"type": null,
"value": {
"end": 850,
"labels": [
"RLC"
],
"start": 367,
"text": "This appeal is directed against the final judgment and order dated 24.08.2011 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 1830SB of 2003, by which the High Court dismissed the appeal filed by the Appellant herein challenging the judgment of conviction under Section 376(2)(g) of the Indian Penal Code (IPC) dated 08.11.2002 and order of sentence dated 11.11.2002 rendered by the Additional Sessions Judge, Gurgaon, in Sessions Case No.\n5/2001."
}
},
{
"from_name": null,
"id": "3d9823c2912c4bd78721b37394489c11",
"to_name": null,
"type": null,
"value": {
"end": 1365,
"labels": [
"FAC"
],
"start": 850,
"text": "\n 2. The brief facts leading to the instant appeal are that an FIR was lodged against the Appellant Raju s/o Rajendar Singh, and two other persons, viz. Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi, alleging that the three persons had intercepted the prosecutrix when she was passing by some fields along with her oneyearold brother and had taken her to a field nearby, whereupon Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi engaged in the gangrape of the prosecutrix, while the Appellant stood outside the field."
}
},
{
"from_name": null,
"id": "a4b495446fd946d1acaacaf67e7927b0",
"to_name": null,
"type": null,
"value": {
"end": 1463,
"labels": [
"FAC"
],
"start": 1366,
"text": "The prosecutrix was aged fifteen years at the time of the incident, which occurred on 14.09.2000."
}
},
{
"from_name": null,
"id": "6f23bd8f75f04684a039a34a425875c8",
"to_name": null,
"type": null,
"value": {
"end": 1709,
"labels": [
"RLC"
],
"start": 1464,
"text": "The three accused were convicted for the offence punishable under Section 376(2)(g) of the IPC, and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 500/, and further two months' rigorous imprisonment in default of payment of fine."
}
},
{
"from_name": null,
"id": "265b2579ce1b47089d5ba6afb26466e9",
"to_name": null,
"type": null,
"value": {
"end": 1778,
"labels": [
"FAC"
],
"start": 1710,
"text": "Aggrieved by the same, the three accused appealed to the High Court."
}
},
{
"from_name": null,
"id": "0f6696b322ca4020a482c244ec3ffce9",
"to_name": null,
"type": null,
"value": {
"end": 2096,
"labels": [
"FAC"
],
"start": 1779,
"text": "3. The Appellant, inter alia, raised the defence before the High Court that he was aged less than 18 years at the time of commission of the offence, i.e. 14.09.2000, and hence was entitled to the benefit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, \"the 2000 Act\")."
}
},
{
"from_name": null,
"id": "5006b33dec52452e8ee2f0f0c12a965d",
"to_name": null,
"type": null,
"value": {
"end": 2221,
"labels": [
"RLC"
],
"start": 2097,
"text": "The High Court, however, rejected such contention and affirmed the conviction of the three accused, including the Appellant."
}
},
{
"from_name": null,
"id": "a93dbb3cefef45c790dd543005af9168",
"to_name": null,
"type": null,
"value": {
"end": 2346,
"labels": [
"FAC"
],
"start": 2222,
"text": "4. Aggrieved by the above judgment, the Appellant filed the instant appeal, inter alia raising the plea of juvenility again."
}
},
{
"from_name": null,
"id": "df7f5e4a2b244a0ba16bc856e1c4e534",
"to_name": null,
"type": null,
"value": {
"end": 2511,
"labels": [
"FAC"
],
"start": 2347,
"text": "The Appellant relied upon a transfer certificate issued in his favour by the Dayanand Middle School, Sohna, Gurgaon which showed his date of birth to be 12.07.1984."
}
},
{
"from_name": null,
"id": "f2632548e99d469e9b001df41131bdd6",
"to_name": null,
"type": null,
"value": {
"end": 2655,
"labels": [
"FAC"
],
"start": 2512,
"text": "He also relied upon a certificate issued by the Government Senior Secondary School (Boys), Sohna which showed his date of birth to be the same."
}
},
{
"from_name": null,
"id": "c9e6bae0539d48ffa04b618be862d1ec",
"to_name": null,
"type": null,
"value": {
"end": 2841,
"labels": [
"FAC"
],
"start": 2656,
"text": "It was submitted by the Appellant before this Court that the certificates in question prima facie entitled him to claim the conduct of an inquiry in terms of Section 7A of the 2000 Act."
}
},
{
"from_name": null,
"id": "e4c8d7fc396548469af65483dc41f428",
"to_name": null,
"type": null,
"value": {
"end": 3077,
"labels": [
"FAC"
],
"start": 2842,
"text": "The Appellant referred to the decisions of this Court in Murari Thakur v.\nState of Bihar, (2009) 16 SCC 256, Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344, and Jitendra Singh @ Babboo Singh v. State of U.P., (2010) 13 SCC 523.\n5."
}
},
{
"from_name": null,
"id": "daaba440211b49368611c1b5ff77c638",
"to_name": null,
"type": null,
"value": {
"end": 3444,
"labels": [
"FAC"
],
"start": 3078,
"text": "Keeping in mind such circumstances and the certificates relied upon, this Court vide order dated 09.08.2012 directed the Registrar (Judicial) of this Court to conduct an inquiry in respect of the age of the Appellant in terms of Section 7A of the 2000 Act read with the rules framed thereunder, and to submit a report to this Court within four months from the order."
}
},
{
"from_name": null,
"id": "7b27c8d2bad9471a8ea2cd999842aaa0",
"to_name": null,
"type": null,
"value": {
"end": 3662,
"labels": [
"FAC"
],
"start": 3445,
"text": "6. This Court received such report on 07.01.2013, which determined that the age of the Appellant was 16 years, 2 months and 2 days at the time of commission of the offence and that he was thus a juvenile at that time."
}
},
{
"from_name": null,
"id": "c021ed28fa544f7f96073adcdc5245cc",
"to_name": null,
"type": null,
"value": {
"end": 3719,
"labels": [
"FAC"
],
"start": 3663,
"text": "Thereafter, arguments were heard and judgement reserved."
}
},
{
"from_name": null,
"id": "7d9d5a93f78e435b951adc23c99aedf7",
"to_name": null,
"type": null,
"value": {
"end": 3955,
"labels": [
"FAC"
],
"start": 3720,
"text": "However, subsequently, the State raised the argument that the Court had not looked into the question of whether the plea of juvenility as decided by the Registry of this Court should be given precedence over the view of the High Court."
}
},
{
"from_name": null,
"id": "024684628f0643e49de796462a33e315",
"to_name": null,
"type": null,
"value": {
"end": 4039,
"labels": [
"FAC"
],
"start": 3956,
"text": "By an order dated 25.04.2014, this Court directed that the appeal be heard further."
}
},
{
"from_name": null,
"id": "8e2ca0a96ab540b9a94af4aa019c8977",
"to_name": null,
"type": null,
"value": {
"end": 4125,
"labels": [
"FAC"
],
"start": 4040,
"text": "Shri Siddhartha Dave was subsequently appointed as amicus curiae to assist the Court."
}
},
{
"from_name": null,
"id": "d13de053836d4b278d9f96772bc23aa4",
"to_name": null,
"type": null,
"value": {
"end": 4475,
"labels": [
"FAC"
],
"start": 4126,
"text": "7. It was submitted by the learned amicus curiae that the learned Registrar (Judicial) of this Court had, after duly calling for records and appreciating the material adduced, reached the conclusion that the Appellant was a juvenile at the time of commission of the offence, and there was no reason to deny the Appellant the benefit of such finding."
}
},
{
"from_name": null,
"id": "7201c8c9ae7f434b9fb641a802c4a2bc",
"to_name": null,
"type": null,
"value": {
"end": 4839,
"labels": [
"FAC"
],
"start": 4476,
"text": "Moreover, he submitted that seeing that it was upon the direction of this Court that the learned Registrar had conducted the inquiry under Section 7A of the 2000 Act and the rules framed thereunder, and had submitted his report to this Court after conducting such inquiry in accordance with law, the report may be treated as having been made by this Court itself."
}
},
{
"from_name": null,
"id": "77944895f95645f99d0b5b7cec94675d",
"to_name": null,
"type": null,
"value": {
"end": 4937,
"labels": [
"NONE"
],
"start": 4840,
"text": "8. Heard the learned amicus curiae and advocate for the State, and perused the material on record"
}
},
{
"from_name": null,
"id": "028316a26db346269c7891fb435adb3e",
"to_name": null,
"type": null,
"value": {
"end": 5499,
"labels": [
"PRE_RELIED"
],
"start": 4937,
"text": ".\n9. It is by now wellsettled, as was held in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, that in light of Sections 2(k), 2(l), 7A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act (also see Mohan Mali v. State of Madhya Pradesh, (2010) 6 SCC 669; Daya Nand v. State of Haryana, (2011) 2 SCC 224; Dharambir v. State (NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v. State of Uttar Pradesh, (2013) 11 SCC 193)."
}
},
{
"from_name": null,
"id": "9fd73e838d66435dbf7d25db7c1cffc8",
"to_name": null,
"type": null,
"value": {
"end": 5938,
"labels": [
"PRE_RELIED"
],
"start": 5500,
"text": "It is equally wellsettled that the claim of juvenility can be raised at any stage before any Court by an accused, including this Court, even after the final disposal of a case, in terms of Section 7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi, (supra), Abuzar Hossain v. State of West Bengal, (2012) 10 SCC 489; Jitendra Singh @ Babboo Singh v. State of UP, (supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15 SCC 637)."
}
},
{
"from_name": null,
"id": "bd334654cb5b41f9a448ed95e5fc3b66",
"to_name": null,
"type": null,
"value": {
"end": 6150,
"labels": [
"ANALYSIS"
],
"start": 5939,
"text": "10. In light of the above legal position, it is evident that the Appellant would be entitled to the benefit of the 2000 Act if his age is determined to be below 18 years on the date of commission of the offence."
}
},
{
"from_name": null,
"id": "0b0fed673bce4d99886a5bae32e21080",
"to_name": null,
"type": null,
"value": {
"end": 6274,
"labels": [
"ANALYSIS"
],
"start": 6151,
"text": "Moreover, it would be irrelevant that the plea of juvenility was not raised before the Trial Court, in light of Section 7A."
}
},
{
"from_name": null,
"id": "b8ea351f8e614efda6c6b0617e861dbb",
"to_name": null,
"type": null,
"value": {
"end": 6456,
"labels": [
"ANALYSIS"
],
"start": 6275,
"text": "As per the report of the inquiry conducted by the Registrar (Judicial) of this Court, in this case, the Appellant was below 18 years of age on the date of commission of the offence."
}
},
{
"from_name": null,
"id": "83911f288a974462899b1debd1723032",
"to_name": null,
"type": null,
"value": {
"end": 6674,
"labels": [
"ISSUE"
],
"start": 6457,
"text": "The only question before us that needs to be determined is whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant."
}
},
{
"from_name": null,
"id": "c7f0dc67f6e446c5bb9449d0c87acf53",
"to_name": null,
"type": null,
"value": {
"end": 6963,
"labels": [
"ANALYSIS"
],
"start": 6675,
"text": "11. Before proceeding further, it would be useful to refer to Section 7A of the 2000 Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, \"the 2007 Rules\"), which deal with the making of an inquiry by the Court in case of a claim of juvenility."
}
},
{
"from_name": null,
"id": "303e6d55187d41ccaeb2331333ea148d",
"to_name": null,
"type": null,
"value": {
"end": 8135,
"labels": [
"STA"
],
"start": 6964,
"text": "Section 7A of the 2000 Act is as follows: \"7A. Procedure to be followed when claim of juvenility is raised before any court-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.\n (2) If the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.\""
}
},
{
"from_name": null,
"id": "1e53b98f09ea422ea25d3b8d0989d0c1",
"to_name": null,
"type": null,
"value": {
"end": 8161,
"labels": [
"ANALYSIS"
],
"start": 8135,
"text": "\n (emphasis supplied) 12. "
}
},
{
"from_name": null,
"id": "f12d746808814b34bdd0984a4721a1ee",
"to_name": null,
"type": null,
"value": {
"end": 9014,
"labels": [
"STA"
],
"start": 8161,
"text": "Subrule (3) of Rule 12 of the 2007 Rules states the following regarding the procedure to be followed for age determination: \"In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child."
}
},
{
"from_name": null,
"id": "e3d40cfc931c45069534d22dba5b0c75",
"to_name": null,
"type": null,
"value": {
"end": 9722,
"labels": [
"STA"
],
"start": 9015,
"text": "In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.\""
}
},
{
"from_name": null,
"id": "3553b16c0a3f4b6ab3e56e024c5d2773",
"to_name": null,
"type": null,
"value": {
"end": 9747,
"labels": [
"NONE"
],
"start": 9722,
"text": "\n (emphasis supplied) 13."
}
},
{
"from_name": null,
"id": "ad859a4c6697429c8cef6e01d09755fa",
"to_name": null,
"type": null,
"value": {
"end": 10066,
"labels": [
"ANALYSIS"
],
"start": 9748,
"text": "It is evident from a perusal of the above that if any Court, including this Court, is of the opinion that an accused person was a juvenile on the date of commission of the offence, or if a claim of juvenility is raised before it, the Court must conduct an inquiry regarding the determination of the age of the accused."
}
},
{
"from_name": null,
"id": "802e79fe5c74485885e62427432b3b18",
"to_name": null,
"type": null,
"value": {
"end": 10288,
"labels": [
"ANALYSIS"
],
"start": 10067,
"text": "The evidence collected by way of such inquiry, as is specified in clauses (a)(i), (ii), and (iii) of Rule 12(3), or in the absence whereof, clause (b) of the same, is treated as conclusive proof of the age of the accused."
}
},
{
"from_name": null,
"id": "3821c6850cc947bdbe45b83182d76de6",
"to_name": null,
"type": null,
"value": {
"end": 10461,
"labels": [
"ANALYSIS"
],
"start": 10289,
"text": "In such a situation, it would be clear that such an inquiry conducted by this Court would be given precedence over a view of the age of the accused taken by the High Court."
}
},
{
"from_name": null,
"id": "5a17fb74272f44c28bd400212246cff2",
"to_name": null,
"type": null,
"value": {
"end": 10757,
"labels": [
"ANALYSIS"
],
"start": 10462,
"text": "It is relevant to note here itself that in this case, the High Court decided the issue merely upon an assessment of the material on record without resorting to the procedure governing inquiries for the determination of age as laid out in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules."
}
},
{
"from_name": null,
"id": "99a3fe0597564a74a381a3c1e2bc724b",
"to_name": null,
"type": null,
"value": {
"end": 10994,
"labels": [
"ANALYSIS"
],
"start": 10757,
"text": "\n14. At this point, it is necessary to briefly discuss the findings of the High Court in the impugned judgment regarding the age of the accused to underscore that it has not conducted the inquiry stipulated as per Section 7A and Rule 12."
}
},
{
"from_name": null,
"id": "7dfe0ef845214a4baeb9d8083d29c868",
"to_name": null,
"type": null,
"value": {
"end": 11207,
"labels": [
"ANALYSIS"
],
"start": 10995,
"text": "Before the High Court, the Appellant submitted a report of the Assistant Commissioner of Police, Bhondsi, Gurgaon to the effect that his date of birth was 12.07.1984, thereby claiming the benefit of the 2000 Act."
}
},
{
"from_name": null,
"id": "f573de8efcaa49638a3c7ab9b86dee11",
"to_name": null,
"type": null,
"value": {
"end": 11925,
"labels": [
"ANALYSIS"
],
"start": 11208,
"text": "This plea was rejected on the grounds of failure to raise the plea of juvenility before the Trial court; nonproduction of birth certificate in spite of an opportunity being granted to do so; absence of the Appellant's name in the birth register dated 12.07.1984 and for the years 198384 and 198485; noncorroboration of the date of birth certificates issued by schools attended by the Appellant through other documentary evidence; nonmatching of the name on such certificates (Raj Kumar) with the name of the Appellant as brought on record (Raju); and noncorroboration of the address of the Appellant through such certificates, which simply stated that the date of birth of the student named Raj Kumar was 12.07.1984."
}
},
{
"from_name": null,
"id": "415813298018406ab96ab4fb3b2bbce6",
"to_name": null,
"type": null,
"value": {
"end": 12161,
"labels": [
"ANALYSIS"
],
"start": 11925,
"text": "\n 15. The High Court evidently did not even frame its discussion in terms of whether the evidence brought on record was sufficient to conduct an inquiry under the 2000 Act and the 2007 Rules, let alone order and conduct such an inquiry."
}
},
{
"from_name": null,
"id": "7ee539872ffe45b286c698a68ac93484",
"to_name": null,
"type": null,
"value": {
"end": 12381,
"labels": [
"ANALYSIS"
],
"start": 12162,
"text": "On the contrary, it simply recorded that the evidence did not go to show that the Appellant was a juvenile at the time of the commission of the offence, and proceeded to affirm the conviction of the Appellant on merits."
}
},
{
"from_name": null,
"id": "97a928da4b644c77be73fc95c04b3eab",
"to_name": null,
"type": null,
"value": {
"end": 12760,
"labels": [
"ANALYSIS"
],
"start": 12381,
"text": "\n 16. Therefore, it is evident that the only inquiry as stipulated under the 2000 Act and the 2007 Rules was conducted by the Registrar (Judicial) upon the directions of this Court, after the Court was satisfied upon going through the school certificates adduced by the Appellant that the certificates in question prima facie entitled him to claim the conduct of such an inquiry."
}
},
{
"from_name": null,
"id": "dd0de97ac1fe4193a6641503187ea6f5",
"to_name": null,
"type": null,
"value": {
"end": 13167,
"labels": [
"ANALYSIS"
],
"start": 12761,
"text": "In such a situation, the question regarding whether precedence may be given to the inquiry of a Registrar (Judicial) of this Court over the opinion of the High Court regarding the age of an accused can be restated as whether such inquiry conducted by the Registrar (Judicial) upon the direction of this Court, if thereafter affirmed by this Court, would amount to an inquiry conducted by this Court itself."
}
},
{
"from_name": null,
"id": "4f4c86d7a8874c30a81a4abb1416e943",
"to_name": null,
"type": null,
"value": {
"end": 13315,
"labels": [
"ANALYSIS"
],
"start": 13168,
"text": "If this be the case, the findings of such inquiry would prevail over the view taken by the High Court, as is evident from the preceding discussion."
}
},
{
"from_name": null,
"id": "2444d1afc8a24cdcadd28f79d8b9ffba",
"to_name": null,
"type": null,
"value": {
"end": 13402,
"labels": [
"ANALYSIS"
],
"start": 13316,
"text": "17. We are of the opinion that the above question must be answered in the affirmative."
}
},
{
"from_name": null,
"id": "da78e5e903424156a09555eda39ae6b7",
"to_name": null,
"type": null,
"value": {
"end": 13682,
"labels": [
"ANALYSIS"
],
"start": 13403,
"text": "This Court, on previous occasions as well, has adopted the practice of directing the Registrar (Judicial) to conduct the inquiry in terms of Rule 12 of the 2007 Rules on behalf of this Court, and accepted the findings made therein (see Dharambir v. State (NCT) of Delhi, (supra)."
}
},
{
"from_name": null,
"id": "78c8707ae2a143b19d6e1c318f4f7f35",
"to_name": null,
"type": null,
"value": {
"end": 14004,
"labels": [
"ANALYSIS"
],
"start": 13683,
"text": "Seeing that the Registrar (Judicial) is a District Judge serving on deputation at the Supreme Court, recourse to his or her assistance in the form of collecting evidence and arriving at a finding regarding the claim of juvenility of the person concerned may be undertaken by this Court in order to save its judicial time."
}
},
{
"from_name": null,
"id": "c0d4e5a249144a17b48c167baa4207e0",
"to_name": null,
"type": null,
"value": {
"end": 14174,
"labels": [
"ANALYSIS"
],
"start": 14005,
"text": "However, it must be stressed that the findings in an inquiry conducted by the Registrar (Judicial) would not per se prevail upon a contrary view taken by the High Court."
}
},
{
"from_name": null,
"id": "7fb15c49e2274ffd8d7872c9d5891bc7",
"to_name": null,
"type": null,
"value": {
"end": 14531,
"labels": [
"ANALYSIS"
],
"start": 14175,
"text": "Only after this Court applies its judicial mind to such report with due regard to the confines of the procedure stipulated in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules, and only if it thereafter confirms the findings in such report would the same prevail upon a contrary view taken by the High Court which is not based upon any such inquiry."
}
},
{
"from_name": null,
"id": "3c5f2868f66242058b6775e39565717f",
"to_name": null,
"type": null,
"value": {
"end": 14634,
"labels": [
"ANALYSIS"
],
"start": 14532,
"text": "18. We may now undertake to consider the findings in the report submitted by the Registrar (Judicial)."
}
},
{
"from_name": null,
"id": "9ae2081b48ab4c8e9632d3a8d24c292e",
"to_name": null,
"type": null,
"value": {
"end": 14812,
"labels": [
"ANALYSIS"
],
"start": 14635,
"text": "As already noted, as per the report, the age of the Appellant was 16 years, 2 months and 2 days at the time of commission of the offence and he was thus a juvenile at that time."
}
},
{
"from_name": null,
"id": "6b46c80e363b493a96314058f11f778e",
"to_name": null,
"type": null,
"value": {
"end": 15108,
"labels": [
"ANALYSIS"
],
"start": 14813,
"text": "In the said report, the learned Registrar referred to the original Transfer Certificate in Hindi issued by the Headmaster, Dayanand Arya Middle School, Sohna dated 24.03.2012 and the Transfer Certificate issued by the Principal, Government Senior Secondary School (Boys), Sohna dated 12.12.2000."
}
},
{
"from_name": null,
"id": "e2eb939d581b4051ac67c621a9fa7aa7",
"to_name": null,
"type": null,
"value": {
"end": 15344,
"labels": [
"ANALYSIS"
],
"start": 15109,
"text": "These certificates contain the official seal of the respective schools and the signatures of the respective authorities, and state the name of the student as Raj Kumar, son of Rajendar Singh, and record his date of birth as 12.07.1984."
}
},
{
"from_name": null,
"id": "ebf8901256384624931a10e72831914c",
"to_name": null,
"type": null,
"value": {
"end": 15678,
"labels": [
"ANALYSIS"
],
"start": 15345,
"text": "A certificate dated 07.12.2010 was also issued by the Principal of the Government Senior Secondary School (Boys), Sohna, verifying that the student named Raj Kumar, son of Rajendar Singh, used to study at the school, and that the school records reflected his date of birth as 12.07.1984 and the name of his mother as Smt.\nSarla Devi."
}
},
{
"from_name": null,
"id": "a2683318ec27457d8f840bede80ded78",
"to_name": null,
"type": null,
"value": {
"end": 15828,
"labels": [
"ANALYSIS"
],
"start": 15679,
"text": "19. The learned Registrar also duly corroborated the contents of these certificates by referring to other school records and also examined witnesses."
}
},
{
"from_name": null,
"id": "649a2974bea64186aef66f1dfd182aa2",
"to_name": null,
"type": null,
"value": {
"end": 16128,
"labels": [
"ANALYSIS"
],
"start": 15829,
"text": "With respect to the Dayanand Arya Middle School, Sohna, the learned Registrar examined Mr. Suresh Chand, Teacher, appearing under the directions of the School Headmaster, who confirmed that the Transfer Certificate dated 24.03.2012 was bona fide and issued under the signature of the then Principal."
}
},
{
"from_name": null,
"id": "2da8234e1f814472bc3bab345cb82722",
"to_name": null,
"type": null,
"value": {
"end": 16285,
"labels": [
"ANALYSIS"
],
"start": 16129,
"text": "The Registrar also verified the certificate by comparing it with the office copy of the same in the School Leaving Certificate Register produced before him."
}
},
{
"from_name": null,
"id": "2857f42d3c7a456fb22c0584cb7f4fce",
"to_name": null,
"type": null,
"value": {
"end": 16545,
"labels": [
"ANALYSIS"
],
"start": 16286,
"text": "The original Admission and Withdrawal Register of the school was also examined, which also recorded the Appellant's date of birth as 12.07.1984, and stated that he was admitted in the school on 23.07.1992 and withdrew on 310.3.1996 after passing Class V.\n 20."
}
},
{
"from_name": null,
"id": "ca262f2a976f418db35a216439ee7322",
"to_name": null,
"type": null,
"value": {
"end": 16784,
"labels": [
"ANALYSIS"
],
"start": 16546,
"text": "With respect to the Government Senior Secondary School (Boys), Sohna, the learned Registrar also called for the school records, which were produced through Mrs. Nirmal Kalra, Teacher, under the instructions of the Principal of the school."
}
},
{
"from_name": null,
"id": "71a01ed75a28454eafcda8a2fbf494ed",
"to_name": null,
"type": null,
"value": {
"end": 16918,
"labels": [
"ANALYSIS"
],
"start": 16784,
"text": "\n She too affirmed that the Transfer Certificate dated 12.12.2000 was bona fide, and issued under the signature of the then Principal."
}
},
{
"from_name": null,
"id": "52f3238555e944c8805e77dd2affa789",
"to_name": null,
"type": null,
"value": {
"end": 17110,
"labels": [
"ANALYSIS"
],
"start": 16919,
"text": "She affirmed having compared the entries in the certificate with the corresponding entries in the relevant register of the school, copies of which had been submitted to the learned Registrar."
}
},
{
"from_name": null,
"id": "58a966f1649d43dd844e2150f413badc",
"to_name": null,
"type": null,
"value": {
"end": 17471,
"labels": [
"ANALYSIS"
],
"start": 17111,
"text": "The following details with respect to the Appellant's period of study in the school were also affirmed by Mrs. Kalra on affidavit: S. Admissio Date of Date of Reasons for No n . No. Admission Striking Off Striking Off the 1. 14163 Name 2. 14678 7.5.1996 (in 19.4.1997 Nonpayment of 3. 15546 Class VI) (in Class School Funds VII) 17.5.1997"
}
},
{
"from_name": null,
"id": "ec5bff1451f549fea69bda88efa04fe8",
"to_name": null,
"type": null,
"value": {
"end": 17482,
"labels": [
"ANALYSIS"
],
"start": 17472,
"text": "March 1999"
}
},
{
"from_name": null,
"id": "0686c47a336541bcb3754bb78b75b16a",
"to_name": null,
"type": null,
"value": {
"end": 17645,
"labels": [
"ANALYSIS"
],
"start": 17483,
"text": "Failed in Class (in Class (in Class VIII Board VII) VIII) Examination 7.7.1999 (in 7.8.1999 (in Continued Class VIII) Class VIII) absence 21."
}
},
{
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"id": "fd8fbf949c0f42648d40e8b91d99a42e",
"to_name": null,
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"value": {
"end": 18126,
"labels": [
"ANALYSIS"
],
"start": 17646,
"text": "The learned Registrar concluded that the school transfer certificates dated 24.03.2012 and 12.12.2000, read along with the relevant entries of school registers of the respective schools, were admissible as evidence under Rule 12(3)(a)(ii) of the 2007 Rules, i.e., they were found to be in the nature of the \"date of birth certificate from the school (other than a play school) first attended\" as specified in the said clause, and thus accepted the Appellant's claim of juvenility."
}
},
{
"from_name": null,
"id": "7fd04644ae784f1cbe901c37df6692d7",
"to_name": null,
"type": null,
"value": {
"end": 18259,
"labels": [
"ANALYSIS"
],
"start": 18127,
"text": "It was also found that the certificates contained the name of the Appellant as Raj Kumar, son of Rajendar Singh, born on 12.07.1984."
}
},
{
"from_name": null,
"id": "fbb1805e7f304142b7c8f06c041d3944",
"to_name": null,
"type": null,
"value": {
"end": 18447,
"labels": [
"ANALYSIS"
],
"start": 18260,
"text": "This name was found to be the full name of the Appellant and the name Raju appearing on the SLP record taken to be an alias, as affirmed by both his parents by way of separate affidavits."
}
},
{
"from_name": null,
"id": "6954cce3409d476b857204439e7db5a9",
"to_name": null,
"type": null,
"value": {
"end": 18611,
"labels": [
"ANALYSIS"
],
"start": 18448,
"text": "22. In our opinion, the learned Registrar has duly affirmed the veracity and bona fide nature of the certificates adduced by the schools attended by the Appellant."
}
},
{
"from_name": null,
"id": "a240a41b3c2246c2b3dffaf146f45eea",
"to_name": null,
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"end": 19116,
"labels": [
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],
"start": 18612,
"text": "At the same time, since Rule 12(3)(a)(ii) specifically mentions that the certificate showing the date of birth of the person shall be from the school first attended (other than a play school), we find that the certificate issued and school records maintained by the Dayanand Arya Middle School, Sohna, where the Appellant studied for four years till class V, as duly affirmed through the examination of a witness from such school, is sufficient to satisfy the requirement of clause (a)(ii) of Rule 12(3)."
}
},
{
"from_name": null,
"id": "6eabad0b047c43128f76239cbb0ceec1",
"to_name": null,
"type": null,
"value": {
"end": 19351,
"labels": [
"ANALYSIS"
],
"start": 19117,
"text": "Of course, it goes without saying that the certificate issued by the Government Senior Secondary School (Boys), Sohna and the accompanying school records serve to corroborate the veracity of the records furnished by the former school."
}
},
{
"from_name": null,
"id": "2aef0ba8b57d472a83bfa8445070aaea",
"to_name": null,
"type": null,
"value": {
"end": 19484,
"labels": [
"ANALYSIS"
],
"start": 19352,
"text": "It would not be out of place to highlight here that the findings in the inquiry report have also not been controverted by the State."
}
},
{
"from_name": null,
"id": "cb35d44a9f294bc3b3102ff80f7aa0d5",
"to_name": null,
"type": null,
"value": {
"end": 19678,
"labels": [
"ANALYSIS"
],
"start": 19485,
"text": "23. We are also conscious of the limitation envisaged under Section 7A of the 2000 Act that the evidence adduced with respect to the age of the accused cannot be in the form of mere affidavits."
}
},
{
"from_name": null,
"id": "b8e021417810404596774edc2d204aec",
"to_name": null,
"type": null,
"value": {
"end": 19936,
"labels": [
"ANALYSIS"
],
"start": 19679,
"text": "Due to this reason, the reliance of the learned Registrar upon affidavits to conclude that the name used in the certificates placed on record (i.e. Raj Kumar) is the full name of the Appellant and the name Raju is merely an alias is not tenable in our view."
}
},
{
"from_name": null,
"id": "a5350d71aaa840a38323b3cd54d64a69",
"to_name": null,
"type": null,
"value": {
"end": 20258,
"labels": [
"ANALYSIS"
],
"start": 19937,
"text": "However, we find that there is sufficient evidence on record in the form of the appearance of the name of the father of the Appellant on the certificate dated 24.03.2012 issued by the Dayanand Arya Middle School, Sohna, to indicate that the name Raj Kumar appearing on such certificate was the full name of the Appellant."
}
},
{
"from_name": null,
"id": "8f04a2ebbbed40ccb2864d4e9f31c348",
"to_name": null,
"type": null,
"value": {
"end": 20529,
"labels": [
"RATIO"
],
"start": 20258,
"text": "\n 24. In light of the above discussion, we are of the opinion that it has been conclusively established that the date of birth of the Appellant was 12.07.1984 and as such he was aged 16 years, 2 months and 2 days at the time of commission of the offence dated 14.09.2000."
}
},
{
"from_name": null,
"id": "0ea048d6aa244b8fa507f368474d1026",
"to_name": null,
"type": null,
"value": {
"end": 20838,
"labels": [
"RATIO"
],
"start": 20530,
"text": "In such circumstances, we do not have any doubt that the inquiry conducted by the Registrar (Judicial) upon the direction of this Court in the instant matter amounts to an inquiry conducted by this Court itself, and is conclusive proof of the age of the Appellant as provided in Rule 12(3) of the 2007 Rules."
}
},
{
"from_name": null,
"id": "8c6fd603c2074ebf850b9e618cbecc87",
"to_name": null,
"type": null,
"value": {
"end": 21011,
"labels": [
"RATIO"
],
"start": 20839,
"text": "As the Appellant satisfies the requirement of Sections 2(k) and 2(l) of the 2000 Act, the said Act is applicable to him in full force in light of Section 7A and Section 20."
}
},
{
"from_name": null,
"id": "82a7fb5389554076b8c06c35033c67be",
"to_name": null,
"type": null,
"value": {
"end": 21189,
"labels": [
"RPC"
],
"start": 21011,
"text": "\n25. Criminal Appeal hereby stands allowed and the order of the High Court affirming the conviction and sentence of the Appellant under Section 376(2)(g) of the IPC is set aside."
}
},
{
"from_name": null,
"id": "4c4bcd466d874a2b976a4ee3e391876c",
"to_name": null,
"type": null,
"value": {
"end": 21540,
"labels": [
"RPC"
],
"start": 21190,
"text": "Seeing that the Appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, and since the Appellant has already been enlarged on bail by virtue of the order of the Court dated 09.05.2014, he need not be taken into custody."
}
},
{
"from_name": null,
"id": "8c1de657a638479fb4c951dddf6df62b",
"to_name": null,
"type": null,
"value": {
"end": 21666,
"labels": [
"RPC"
],
"start": 21541,
"text": "His bail bonds stand discharged and all proceedings against him, so far as they relate to the present case, stand terminated."
}
},
{
"from_name": null,
"id": "1bf9f184493446ffb93ce54c8324bfed",
"to_name": null,
"type": null,
"value": {
"end": 21871,
"labels": [
"NONE"
],
"start": 21666,
"text": "\n26. Before we part with this matter, we would like to place on record our appreciation for the valuable assistance rendered to this Court by Shri Siddhartha Dave, the learned amicus curiae in this matter."
}
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{
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"end": 21961,
"labels": [
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],
"start": 21915,
"text": "J.\n "
}
},
{
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"type": null,
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"end": 21974,
"labels": [
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],
"start": 21961,
"text": "[N.V. Ramana]"
}
},
{
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"end": 22041,
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"text": "J.\n "
}
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"text": "[Mohan M. Shantanagoudar"
}
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{
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"text": "[Indira Banerjee]"
}
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{
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"text": "New Delhi; February 22, 2019."
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]
}
] | 4,264 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 1175 OF 2014\n\nRAJU ...APPELLANT\n\n VERSUS\n\nTHE STATE OF HARYANA ...RESPONDENT\n\n J U D G M E N T\n MOHAN M. SHANTANAGOUDAR, J.\n This appeal is directed against the final judgment and order dated 24.08.2011 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 1830SB of 2003, by which the High Court dismissed the appeal filed by the Appellant herein challenging the judgment of conviction under Section 376(2)(g) of the Indian Penal Code (IPC) dated 08.11.2002 and order of sentence dated 11.11.2002 rendered by the Additional Sessions Judge, Gurgaon, in Sessions Case No.\n5/2001.\n 2. The brief facts leading to the instant appeal are that an FIR was lodged against the Appellant Raju s/o Rajendar Singh, and two other persons, viz. Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi, alleging that the three persons had intercepted the prosecutrix when she was passing by some fields along with her oneyearold brother and had taken her to a field nearby, whereupon Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi engaged in the gangrape of the prosecutrix, while the Appellant stood outside the field. The prosecutrix was aged fifteen years at the time of the incident, which occurred on 14.09.2000. The three accused were convicted for the offence punishable under Section 376(2)(g) of the IPC, and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 500/, and further two months' rigorous imprisonment in default of payment of fine. Aggrieved by the same, the three accused appealed to the High Court.\n3. The Appellant, inter alia, raised the defence before the High Court that he was aged less than 18 years at the time of commission of the offence, i.e. 14.09.2000, and hence was entitled to the benefit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, \"the 2000 Act\"). The High Court, however, rejected such contention and affirmed the conviction of the three accused, including the Appellant.\n4. Aggrieved by the above judgment, the Appellant filed the instant appeal, inter alia raising the plea of juvenility again. The Appellant relied upon a transfer certificate issued in his favour by the Dayanand Middle School, Sohna, Gurgaon which showed his date of birth to be 12.07.1984. He also relied upon a certificate issued by the Government Senior Secondary School (Boys), Sohna which showed his date of birth to be the same. It was submitted by the Appellant before this Court that the certificates in question prima facie entitled him to claim the conduct of an inquiry in terms of Section 7A of the 2000 Act. The Appellant referred to the decisions of this Court in Murari Thakur v.\nState of Bihar, (2009) 16 SCC 256, Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344, and Jitendra Singh @ Babboo Singh v. State of U.P., (2010) 13 SCC 523.\n5. Keeping in mind such circumstances and the certificates relied upon, this Court vide order dated 09.08.2012 directed the Registrar (Judicial) of this Court to conduct an inquiry in respect of the age of the Appellant in terms of Section 7A of the 2000 Act read with the rules framed thereunder, and to submit a report to this Court within four months from the order.\n6. This Court received such report on 07.01.2013, which determined that the age of the Appellant was 16 years, 2 months and 2 days at the time of commission of the offence and that he was thus a juvenile at that time. Thereafter, arguments were heard and judgement reserved. However, subsequently, the State raised the argument that the Court had not looked into the question of whether the plea of juvenility as decided by the Registry of this Court should be given precedence over the view of the High Court. By an order dated 25.04.2014, this Court directed that the appeal be heard further. Shri Siddhartha Dave was subsequently appointed as amicus curiae to assist the Court.\n7. It was submitted by the learned amicus curiae that the learned Registrar (Judicial) of this Court had, after duly calling for records and appreciating the material adduced, reached the conclusion that the Appellant was a juvenile at the time of commission of the offence, and there was no reason to deny the Appellant the benefit of such finding. Moreover, he submitted that seeing that it was upon the direction of this Court that the learned Registrar had conducted the inquiry under Section 7A of the 2000 Act and the rules framed thereunder, and had submitted his report to this Court after conducting such inquiry in accordance with law, the report may be treated as having been made by this Court itself.\n8. Heard the learned amicus curiae and advocate for the State, and perused the material on record.\n9. It is by now wellsettled, as was held in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, that in light of Sections 2(k), 2(l), 7A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act (also see Mohan Mali v. State of Madhya Pradesh, (2010) 6 SCC 669; Daya Nand v. State of Haryana, (2011) 2 SCC 224; Dharambir v. State (NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v. State of Uttar Pradesh, (2013) 11 SCC 193). It is equally wellsettled that the claim of juvenility can be raised at any stage before any Court by an accused, including this Court, even after the final disposal of a case, in terms of Section 7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi, (supra), Abuzar Hossain v. State of West Bengal, (2012) 10 SCC 489; Jitendra Singh @ Babboo Singh v. State of UP, (supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15 SCC 637).\n10. In light of the above legal position, it is evident that the Appellant would be entitled to the benefit of the 2000 Act if his age is determined to be below 18 years on the date of commission of the offence. Moreover, it would be irrelevant that the plea of juvenility was not raised before the Trial Court, in light of Section 7A. As per the report of the inquiry conducted by the Registrar (Judicial) of this Court, in this case, the Appellant was below 18 years of age on the date of commission of the offence. The only question before us that needs to be determined is whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant.\n11. Before proceeding further, it would be useful to refer to Section 7A of the 2000 Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, \"the 2007 Rules\"), which deal with the making of an inquiry by the Court in case of a claim of juvenility. Section 7A of the 2000 Act is as follows: \"7A. Procedure to be followed when claim of juvenility is raised before any court-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.\n (2) If the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.\"\n (emphasis supplied) 12. Subrule (3) of Rule 12 of the 2007 Rules states the following regarding the procedure to be followed for age determination: \"In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.\"\n (emphasis supplied) 13. It is evident from a perusal of the above that if any Court, including this Court, is of the opinion that an accused person was a juvenile on the date of commission of the offence, or if a claim of juvenility is raised before it, the Court must conduct an inquiry regarding the determination of the age of the accused.\nThe evidence collected by way of such inquiry, as is specified in clauses (a)(i), (ii), and (iii) of Rule 12(3), or in the absence whereof, clause (b) of the same, is treated as conclusive proof of the age of the accused. In such a situation, it would be clear that such an inquiry conducted by this Court would be given precedence over a view of the age of the accused taken by the High Court. It is relevant to note here itself that in this case, the High Court decided the issue merely upon an assessment of the material on record without resorting to the procedure governing inquiries for the determination of age as laid out in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules.\n14. At this point, it is necessary to briefly discuss the findings of the High Court in the impugned judgment regarding the age of the accused to underscore that it has not conducted the inquiry stipulated as per Section 7A and Rule 12. Before the High Court, the Appellant submitted a report of the Assistant Commissioner of Police, Bhondsi, Gurgaon to the effect that his date of birth was 12.07.1984, thereby claiming the benefit of the 2000 Act.\nThis plea was rejected on the grounds of failure to raise the plea of juvenility before the Trial court; nonproduction of birth certificate in spite of an opportunity being granted to do so; absence of the Appellant's name in the birth register dated 12.07.1984 and for the years 198384 and 198485; noncorroboration of the date of birth certificates issued by schools attended by the Appellant through other documentary evidence; nonmatching of the name on such certificates (Raj Kumar) with the name of the Appellant as brought on record (Raju); and noncorroboration of the address of the Appellant through such certificates, which simply stated that the date of birth of the student named Raj Kumar was 12.07.1984.\n 15. The High Court evidently did not even frame its discussion in terms of whether the evidence brought on record was sufficient to conduct an inquiry under the 2000 Act and the 2007 Rules, let alone order and conduct such an inquiry. On the contrary, it simply recorded that the evidence did not go to show that the Appellant was a juvenile at the time of the commission of the offence, and proceeded to affirm the conviction of the Appellant on merits.\n 16. Therefore, it is evident that the only inquiry as stipulated under the 2000 Act and the 2007 Rules was conducted by the Registrar (Judicial) upon the directions of this Court, after the Court was satisfied upon going through the school certificates adduced by the Appellant that the certificates in question prima facie entitled him to claim the conduct of such an inquiry. In such a situation, the question regarding whether precedence may be given to the inquiry of a Registrar (Judicial) of this Court over the opinion of the High Court regarding the age of an accused can be restated as whether such inquiry conducted by the Registrar (Judicial) upon the direction of this Court, if thereafter affirmed by this Court, would amount to an inquiry conducted by this Court itself. If this be the case, the findings of such inquiry would prevail over the view taken by the High Court, as is evident from the preceding discussion.\n17. We are of the opinion that the above question must be answered in the affirmative. This Court, on previous occasions as well, has adopted the practice of directing the Registrar (Judicial) to conduct the inquiry in terms of Rule 12 of the 2007 Rules on behalf of this Court, and accepted the findings made therein (see Dharambir v. State (NCT) of Delhi, (supra). Seeing that the Registrar (Judicial) is a District Judge serving on deputation at the Supreme Court, recourse to his or her assistance in the form of collecting evidence and arriving at a finding regarding the claim of juvenility of the person concerned may be undertaken by this Court in order to save its judicial time. However, it must be stressed that the findings in an inquiry conducted by the Registrar (Judicial) would not per se prevail upon a contrary view taken by the High Court. Only after this Court applies its judicial mind to such report with due regard to the confines of the procedure stipulated in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules, and only if it thereafter confirms the findings in such report would the same prevail upon a contrary view taken by the High Court which is not based upon any such inquiry.\n18. We may now undertake to consider the findings in the report submitted by the Registrar (Judicial). As already noted, as per the report, the age of the Appellant was 16 years, 2 months and 2 days at the time of commission of the offence and he was thus a juvenile at that time. In the said report, the learned Registrar referred to the original Transfer Certificate in Hindi issued by the Headmaster, Dayanand Arya Middle School, Sohna dated 24.03.2012 and the Transfer Certificate issued by the Principal, Government Senior Secondary School (Boys), Sohna dated 12.12.2000. These certificates contain the official seal of the respective schools and the signatures of the respective authorities, and state the name of the student as Raj Kumar, son of Rajendar Singh, and record his date of birth as 12.07.1984. A certificate dated 07.12.2010 was also issued by the Principal of the Government Senior Secondary School (Boys), Sohna, verifying that the student named Raj Kumar, son of Rajendar Singh, used to study at the school, and that the school records reflected his date of birth as 12.07.1984 and the name of his mother as Smt.\nSarla Devi.\n19. The learned Registrar also duly corroborated the contents of these certificates by referring to other school records and also examined witnesses. With respect to the Dayanand Arya Middle School, Sohna, the learned Registrar examined Mr. Suresh Chand, Teacher, appearing under the directions of the School Headmaster, who confirmed that the Transfer Certificate dated 24.03.2012 was bona fide and issued under the signature of the then Principal. The Registrar also verified the certificate by comparing it with the office copy of the same in the School Leaving Certificate Register produced before him. The original Admission and Withdrawal Register of the school was also examined, which also recorded the Appellant's date of birth as 12.07.1984, and stated that he was admitted in the school on 23.07.1992 and withdrew on 310.3.1996 after passing Class V.\n 20. With respect to the Government Senior Secondary School (Boys), Sohna, the learned Registrar also called for the school records, which were produced through Mrs. Nirmal Kalra, Teacher, under the instructions of the Principal of the school.\n She too affirmed that the Transfer Certificate dated 12.12.2000 was bona fide, and issued under the signature of the then Principal. She affirmed having compared the entries in the certificate with the corresponding entries in the relevant register of the school, copies of which had been submitted to the learned Registrar. The following details with respect to the Appellant's period of study in the school were also affirmed by Mrs. Kalra on affidavit: S. Admissio Date of Date of Reasons for No n . No. Admission Striking Off Striking Off the 1. 14163 Name 2. 14678 7.5.1996 (in 19.4.1997 Nonpayment of 3. 15546 Class VI) (in Class School Funds VII) 17.5.1997 March 1999 Failed in Class (in Class (in Class VIII Board VII) VIII) Examination 7.7.1999 (in 7.8.1999 (in Continued Class VIII) Class VIII) absence 21. The learned Registrar concluded that the school transfer certificates dated 24.03.2012 and 12.12.2000, read along with the relevant entries of school registers of the respective schools, were admissible as evidence under Rule 12(3)(a)(ii) of the 2007 Rules, i.e., they were found to be in the nature of the \"date of birth certificate from the school (other than a play school) first attended\" as specified in the said clause, and thus accepted the Appellant's claim of juvenility. It was also found that the certificates contained the name of the Appellant as Raj Kumar, son of Rajendar Singh, born on 12.07.1984. This name was found to be the full name of the Appellant and the name Raju appearing on the SLP record taken to be an alias, as affirmed by both his parents by way of separate affidavits.\n22. In our opinion, the learned Registrar has duly affirmed the veracity and bona fide nature of the certificates adduced by the schools attended by the Appellant. At the same time, since Rule 12(3)(a)(ii) specifically mentions that the certificate showing the date of birth of the person shall be from the school first attended (other than a play school), we find that the certificate issued and school records maintained by the Dayanand Arya Middle School, Sohna, where the Appellant studied for four years till class V, as duly affirmed through the examination of a witness from such school, is sufficient to satisfy the requirement of clause (a)(ii) of Rule 12(3). Of course, it goes without saying that the certificate issued by the Government Senior Secondary School (Boys), Sohna and the accompanying school records serve to corroborate the veracity of the records furnished by the former school. It would not be out of place to highlight here that the findings in the inquiry report have also not been controverted by the State.\n23. We are also conscious of the limitation envisaged under Section 7A of the 2000 Act that the evidence adduced with respect to the age of the accused cannot be in the form of mere affidavits. Due to this reason, the reliance of the learned Registrar upon affidavits to conclude that the name used in the certificates placed on record (i.e. Raj Kumar) is the full name of the Appellant and the name Raju is merely an alias is not tenable in our view. However, we find that there is sufficient evidence on record in the form of the appearance of the name of the father of the Appellant on the certificate dated 24.03.2012 issued by the Dayanand Arya Middle School, Sohna, to indicate that the name Raj Kumar appearing on such certificate was the full name of the Appellant.\n 24. In light of the above discussion, we are of the opinion that it has been conclusively established that the date of birth of the Appellant was 12.07.1984 and as such he was aged 16 years, 2 months and 2 days at the time of commission of the offence dated 14.09.2000. In such circumstances, we do not have any doubt that the inquiry conducted by the Registrar (Judicial) upon the direction of this Court in the instant matter amounts to an inquiry conducted by this Court itself, and is conclusive proof of the age of the Appellant as provided in Rule 12(3) of the 2007 Rules. As the Appellant satisfies the requirement of Sections 2(k) and 2(l) of the 2000 Act, the said Act is applicable to him in full force in light of Section 7A and Section 20.\n25. Criminal Appeal hereby stands allowed and the order of the High Court affirming the conviction and sentence of the Appellant under Section 376(2)(g) of the IPC is set aside. Seeing that the Appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, and since the Appellant has already been enlarged on bail by virtue of the order of the Court dated 09.05.2014, he need not be taken into custody. His bail bonds stand discharged and all proceedings against him, so far as they relate to the present case, stand terminated.\n26. Before we part with this matter, we would like to place on record our appreciation for the valuable assistance rendered to this Court by Shri Siddhartha Dave, the learned amicus curiae in this matter.\n ..........................................J.\n [N.V. Ramana] ..........................................J.\n [Mohan M. Shantanagoudar] .........................................J.\n [Indira Banerjee] New Delhi; February 22, 2019.\n "
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"text": " IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD"
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"text": "\n\n WRIT PETITION NO.13064 OF 2017\n\nJ.B.Amin & Brothers (HUF), Petitioner"
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"text": "\n\"Nimisha\", Near MSEB Office,\n"
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"text": "Versus\n\nUnion of India, Respondent\nthrough Assistant Commissioner\nof Income Tax, Circle II,\nAurangabad\n\nMr.P.M.Shah, Senior Counsel i/by Mr.S.P.Shah, advocate for the\npetitioner.\nMr."
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"text": "Alok Sharma, Standing Counsel for the Respondent."
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"text": "CORAM : R.M.BORDE &\n\n SMT."
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"text": "VIBHA KANKANWADI, JJ."
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"text": "\n\n Reserved on : 06th December, 2017\n\n Pronounced on : 22nd December, 2017."
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"text": "1 Heard."
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"text": "Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties."
}
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"labels": [
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"text": "2 The petitioner assessee is praying for issuance of writ of certiorari or any other appropriate writ, order or direction in the nature of writ of certiorari to quash and set aside order dated 04.08.2017, passed by the Assistant Commissioner of Income Tax II, Aurangabad, whereby objection tendered by the assessee for issuance of notice under Section 148 of the Income Tax Act, 1961, is rejected."
}
},
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"end": 1513,
"labels": [
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],
"start": 1300,
"text": "The petitioner is also praying to uphold the objection raised by him vide communication dated 11.11.2016 and to drop the proceedings initiated vide notice dated 14.09.2016, under Section 148 of the Income Tax Act."
}
},
{
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"end": 1656,
"labels": [
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],
"start": 1515,
"text": "3 According to the petitioner, land CTS No.4619, admeasuring 3994.06 square meters was purchased by late Shri Balubhai Amin at Rs.1,80,000/."
}
},
{
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"end": 1703,
"labels": [
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],
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"text": "The land is situate at Aurangpura, Aurangabad."
}
},
{
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"end": 1831,
"labels": [
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],
"start": 1704,
"text": "After demise of Balubhai Amin in 1968, the property is inherited and belong to the petitioner i.e. J.B.Amin and Brothers (HUF)."
}
},
{
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"id": "21f7e579a883482f83c7314d23d14a41",
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"value": {
"end": 1943,
"labels": [
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],
"start": 1832,
"text": "The value of the property has been shown in the Books of Accounts maintained by the petitioner as Rs.1,80,000/."
}
},
{
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"id": "4a64273a88a0427396935f7943198813",
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"value": {
"end": 2069,
"labels": [
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],
"start": 1944,
"text": "The petitioner alienated the land along with superstructure standing thereon for consideration of Rs.18 crores on 27.04.2009."
}
},
{
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"id": "4f883a77fb044155b1ae61f1f6fcb260",
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"value": {
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"labels": [
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"text": "The consideration, in respect of the land, is stated to be Rs.16 crores."
}
},
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"value": {
"end": 2274,
"labels": [
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],
"start": 2143,
"text": "The petitioner filed return of Income for the year 20092010 (Assessment year 20102011) wherein this transaction was duly disclosed."
}
},
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"labels": [
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],
"start": 2274,
"text": "\n 4 According to the petitioner, it is permissible under Section 55(2)(b)(ii) of the Income Tax Act to compute market value of the property, which was assessed at Rs.2,00,63,643/ as on 01.04.1981, to be cost of acquisition."
}
},
{
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"labels": [
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"text": "The computation of long term gain and indexation was made considering the aforesaid market value as on 01.04.1981."
}
},
{
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"value": {
"end": 2830,
"labels": [
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],
"start": 2614,
"text": "The Respondent Income Tax Department proposed to reassess income of the petitioner and as such, notice came to be issued on 14.09.2016, under Section 148 of the Act, requiring the petitioner to file return of income."
}
},
{
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"id": "30e16680fbdf4e3eb1eb4dcacb46266b",
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"value": {
"end": 2982,
"labels": [
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],
"start": 2830,
"text": "\n 5 Section 149 of the Income Tax Act provides limitation of six years from the end of assessment year for issuing notice under Section 148 of the Act."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 3071,
"labels": [
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],
"start": 2983,
"text": "In response to the notice, petitioner assessee presented return of income on 03.11.2016."
}
},
{
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"id": "466cd1637a624b588c078661f13d312f",
"to_name": "text",
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"value": {
"end": 3294,
"labels": [
"FAC"
],
"start": 3072,
"text": "The petitioner thereafter requested Respondent Income Tax Department to provide reasons recorded by them, as required under Section 148(2) of the Act believing that income of the present petitioner has escaped assessment."
}
},
{
"from_name": "label",
"id": "3a78840192424259bd5834fdd9068b17",
"to_name": "text",
"type": "labels",
"value": {
"end": 3429,
"labels": [
"FAC"
],
"start": 3295,
"text": "On 03.11.2016, the Respondent department informed reasons for believing that the income of present petitioner has escaped assessment."
}
},
{
"from_name": "label",
"id": "bf0744fc97c649c0be1c0959cd5a0dc0",
"to_name": "text",
"type": "labels",
"value": {
"end": 3619,
"labels": [
"FAC"
],
"start": 3430,
"text": "The petitioner tendered an objection to the proposed action since, according to the petitioner, the reason informed by the Respondent for taking proposed action, was not sustainable in law."
}
},
{
"from_name": "label",
"id": "08571bdee8bb4b9e9d8a386c919457e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 3866,
"labels": [
"FAC"
],
"start": 3619,
"text": "\n 6 According to the petitioner, Section 55(2)(b)(ii) of the Act provides that it is the option of the assessee to take into account market value as on 01.04.1981 for computing long term gain or the actual price paid for purchase of the property."
}
},
{
"from_name": "label",
"id": "d3c8e4da84ab44d38f83f4d95e79d4b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 4157,
"labels": [
"FAC"
],
"start": 3867,
"text": "The Respondent, however, was pleased to reject the objection raised by petitioner assessee by an order dated 04.08.2017 on the ground that the market value estimated by the present petitioner as on 01.04.1981 is incorrect and that only cost of acquisition can be computed for capital gain."
}
},
{
"from_name": "label",
"id": "a979a61316c54d8bb5e3fb16ee0250f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4540,
"labels": [
"FAC"
],
"start": 4158,
"text": "Since the Respondent department proposed to proceed further with the action on new and distinct ground than the reason originally recorded by the Respondent department, the petitioner has approached this Court with a prayer to quash and set aside the order passed by the Respondent rejecting the objection as well as for setting aside the notice issued under Section 148 of the Act."
}
},
{
"from_name": "label",
"id": "1a3c1933951c4a8fb3c83c3795932a26",
"to_name": "text",
"type": "labels",
"value": {
"end": 4825,
"labels": [
"FAC"
],
"start": 4540,
"text": "\n 7 The notice issued by the Assistant Commissioner of Income Tax, CircleII, Aurangabad, on 03.11.2016, records that the assessee is a Hindu United Family (HUF) and has presented return of income for the year 20102011 on 31.07.2010 declaring total income amounting to Rs.3,48,67,770/."
}
},
{
"from_name": "label",
"id": "864cdc80b7b145ac9c0a846e5f40175e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5021,
"labels": [
"FAC"
],
"start": 4826,
"text": "On perusal of the return of income, it is noticed that the assessee offered long term capital gain to the tune of Rs.3,31,97,795/ on the land sold for consideration of Rs.16 crores on 27.04.2009."
}
},
{
"from_name": "label",
"id": "c6567217a1b948c396256a125473fc1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5226,
"labels": [
"FAC"
],
"start": 5022,
"text": "It is noted that on perusal of the books of accounts/balance sheet as on 31.03.2010, it is seen that the opening WDV of the land as on 01.04.2009 is shown at Rs.1,80,000/ in the statement of fixed assets."
}
},
{
"from_name": "label",
"id": "b367114b829e4486ad26836d8720dd75",
"to_name": "text",
"type": "labels",
"value": {
"end": 5368,
"labels": [
"FAC"
],
"start": 5227,
"text": "The Assessee, while filing return of income, shown cost of the land as Rs.2,00,63,640/ as on 01.04.1981 instead of Rs.1,80,000/ (book value)."
}
},
{
"from_name": "label",
"id": "98c67b1519cd4038bb259ba159d9d210",
"to_name": "text",
"type": "labels",
"value": {
"end": 5722,
"labels": [
"FAC"
],
"start": 5369,
"text": "According to the Respondent department, in view of Section 49(1)(iii)(a) of the Income Tax Act, cost of acquisition of the said land shall be deemed to be the cost for which previous owner of the property acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be."
}
},
{
"from_name": "label",
"id": "a52492cc1c034e59b163aea0c536491d",
"to_name": "text",
"type": "labels",
"value": {
"end": 6075,
"labels": [
"FAC"
],
"start": 5723,
"text": "It is also recorded in the notice that the assessee has wrongly taken cost of acquisition of the said land at Rs.2,00,63,640/, being the market value based on valuation report prepared by M/s S.B.Shuttari, Chartered Engineer and Government Registered Valuer and after indexation, the effective cost reduced from sale consideration was Rs.12,68,02,205/."
}
},
{
"from_name": "label",
"id": "1b39eb41756e4a7a99c95ec239f7fa55",
"to_name": "text",
"type": "labels",
"value": {
"end": 6246,
"labels": [
"FAC"
],
"start": 6076,
"text": "According to the department, the assessee has wrongly taken market value as on 01.04.1981 instead of considering cost of acquisition reflected from its books of accounts."
}
},
{
"from_name": "label",
"id": "36f9eef6c70a4e6a92545670e036c7fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 6390,
"labels": [
"FAC"
],
"start": 6246,
"text": "\n The department believed that the income to the extent of Rs.12,56,63,427/ has escaped within the meaning of Section 147 of the Income Tax Act."
}
},
{
"from_name": "label",
"id": "a035ee5daa864f279e575878fc8e76cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 6575,
"labels": [
"FAC"
],
"start": 6390,
"text": "\n 8 The petitioner tendered an objection to the notice containing reasons communicated by the respondent department; and called upon the Income Tax Department to withdraw the notice."
}
},
{
"from_name": "label",
"id": "cf4c30b4cd774e52857a38c9a238c4ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 6758,
"labels": [
"FAC"
],
"start": 6576,
"text": "Respondent Income Tax Department, however, under the order passed by the Assistant Commissioner of Income Tax, CircleII, Aurangabad, rejected the objection and confirmed the notice."
}
},
{
"from_name": "label",
"id": "7b3e2f1d76fc408e8a70907b52a2553f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6963,
"labels": [
"FAC"
],
"start": 6758,
"text": "\n 9 While rejecting the objection, it is recorded by the Respondent department that the valuation report submitted by the assessee, prepared by Registered Valuer S.B.Shuttari, is not correct and lawful."
}
},
{
"from_name": "label",
"id": "615a6d8b4eaf4518bb5a8df77ed530d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 7194,
"labels": [
"FAC"
],
"start": 6964,
"text": "According to the Department, there are guidelines for valuation of immovable properties, issued in the year 2009 by the Directorate of Income Tax, New Delhi, which must be followed by the approved valuer and Income Tax Department."
}
},
{
"from_name": "label",
"id": "a3ea5cafa75d4f87b8b54021152acfca",
"to_name": "text",
"type": "labels",
"value": {
"end": 7321,
"labels": [
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],
"start": 7195,
"text": "Even the basis for showing higher valuation, being the report of the approved valuer, is also not free from flaws and lacunae."
}
},
{
"from_name": "label",
"id": "ed39fd0851fb4db39059f84b21017590",
"to_name": "text",
"type": "labels",
"value": {
"end": 7436,
"labels": [
"FAC"
],
"start": 7321,
"text": "\n Respondent department, therefore, held that the assessee cannot take umbrage of Section 55(2)(b)(ii) of the Act."
}
},
{
"from_name": "label",
"id": "539d0cdcea7546e582532bf998a36896",
"to_name": "text",
"type": "labels",
"value": {
"end": 7658,
"labels": [
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],
"start": 7437,
"text": "According to Respondent, fair market value shown by the petitioner assessee, on the basis of report of the valuer, cannot be accepted and the valuation arrived at by the valuer is 100% higher than the actual market rate."
}
},
{
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"end": 7664,
"labels": [
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],
"start": 7658,
"text": "\n 10 "
}
},
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"end": 8486,
"labels": [
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"start": 7664,
"text": "Relying upon Section 49 (1) of the Income Tax Act, it is contended by the petitioner that the cost of acquisition of the asset shall be deemed to be the cost for which previous owner of the property has acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be.\n 11 Clause (ii) of sub section (2)(b) of Section 55 provides that: Section 55 (2) (b) (ii): where the capital asset became property of the assessee by any of the modes specified in subsection (1) of section 49, and the capital asset became the property of the previous owner before the 1st day of April 1981, means the cost of the capital asset to the previous owner or the fair market value of the asset on the 1st day of April, 1981, at the option of the assessee."
}
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"text": "12 "
}
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],
"start": 8496,
"text": "It is contended by learned Counsel appearing for the petitioner that it is the option of the assessee either to compute capital gain based upon market value of the asset as on 01.04.1981 and it may not be essential for the assessee to consider the capital cost incurred by the previous owner or fair market value of the asset."
}
},
{
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],
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"text": "\n 13 The petitioner contends that recording of reasons is the basic thing and no notice can be entertained founded upon extraneous ground not communicated to the petitioner under the notice or in the disclosure made by the department after receiving notice by the assessee calling upon the department to supply reasons for arriving at the conclusion and before directing the petitioner to file return of income."
}
},
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],
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"text": "\n 14 The petitioner, placing reliance on the judgment of Division Bench of this Court in the matter of Hindustan Lever Ltd. Vs. R.B. Wadkar & others, reported in 2004 (3) Mh.L.J. 517, contends that it is necessary for the Assessing Officer to form his opinion and put it on record in black and white."
}
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],
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"text": "The reasons recorded should be clear and unambiguous and should not suffer from any vagueness."
}
},
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"labels": [
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],
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"text": "The reasons recorded must disclose his mind."
}
},
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],
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"text": "Reasons are the manifestation of mind of the Assessing Officer."
}
},
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],
"start": 9744,
"text": "In paragraph 20 of the judgment, it is observed by the Division Bench of this Court, thus: \"20"
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},
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],
"start": 9839,
"text": "The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year."
}
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"text": "It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer."
}
},
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"text": "No substitution or deletion is permissible."
}
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"text": "No additions can be made to those reasons."
}
},
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"text": "No inference can be allowed to be drawn based on reasons not recorded."
}
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"text": "It is for the Assessing Officer to disclose and open his mind through reasons recorded by him."
}
},
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"start": 10419,
"text": "He has to speak through his reasons."
}
},
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"end": 10685,
"labels": [
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],
"start": 10456,
"text": "It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year."
}
},
{
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"end": 10738,
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"text": "It is for the Assessing Officer to form his opinion."
}
},
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"end": 10801,
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"text": "It is for him to put his opinion on record in black and white."
}
},
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"end": 10896,
"labels": [
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"start": 10802,
"text": "The reasons recorded should be clear and unambiguous and should not suffer from any vagueness."
}
},
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"end": 10941,
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],
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"text": "The reasons recorded must disclose his mind."
}
},
{
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"end": 11009,
"labels": [
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],
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"text": "\n Reasons are the manifestation of mind of the Assessing Officer."
}
},
{
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"end": 11115,
"labels": [
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],
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"text": "The reasons recorded should be selfexplanatory and should not keep the assessee guessing for the reasons."
}
},
{
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"id": "bab7f323c56f48eeaf6b55c6fa3baf1c",
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"value": {
"end": 11169,
"labels": [
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],
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"text": "Reasons provide link between conclusion and evidence."
}
},
{
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"value": {
"end": 11221,
"labels": [
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],
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"text": "\n The reasons recorded must be based on evidence."
}
},
{
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"id": "ff9c3fbbfa904030a0dc3b06ba870f7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11358,
"labels": [
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],
"start": 11222,
"text": "The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record."
}
},
{
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"id": "af2b161b795a45b18801f6ee8ba1e70c",
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"value": {
"end": 11587,
"labels": [
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],
"start": 11358,
"text": "\n He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence."
}
},
{
"from_name": "label",
"id": "46878ad216594cbaae03fe9d733debdf",
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"type": "labels",
"value": {
"end": 11677,
"labels": [
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],
"start": 11588,
"text": "That vital link is the safeguard against arbitrary reopening of the concluded assessment."
}
},
{
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"id": "ad1a823d8525458ebf4aadfc7fbbd114",
"to_name": "text",
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"value": {
"end": 11991,
"labels": [
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],
"start": 11678,
"text": "The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced."
}
},
{
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"id": "941096e0fdc949a3943ba9f507f4511a",
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"end": 12310,
"labels": [
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],
"start": 11991,
"text": "\n 15 Similarly, in the matter of Sabharwal Properties Industries Pvt. Ltd. & others Vs. Income Tax Officer, reported in [2016] 382 ITR 547 Delhi, the Delhi High Court has quashed the notice and order passed by the Income Tax Officer on the ground that the notice issued under Section 148 does not disclose the grounds."
}
},
{
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"id": "9cbb903686d44bc3aa2dd7ebb3eac003",
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"type": "labels",
"value": {
"end": 12455,
"labels": [
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],
"start": 12311,
"text": "It is recorded in the judgment that disclosure of reasons provide a live link to the formation of the belief that income had escaped assessment."
}
},
{
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"id": "3c6b0976d25143db905221338af867a9",
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"type": "labels",
"value": {
"end": 12520,
"labels": [
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],
"start": 12456,
"text": "Similar is the view taken in the matter of Indivest Pte.Ltd. Vs."
}
},
{
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"id": "e1b0a24e38234ed8b1f7adfb4cc23f76",
"to_name": "text",
"type": "labels",
"value": {
"end": 12531,
"labels": [
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],
"start": 12521,
"text": "Additional"
}
},
{
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"id": "e8597923b614439f8144d3e0a2a30251",
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"type": "labels",
"value": {
"end": 12540,
"labels": [
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],
"start": 12532,
"text": "Director"
}
},
{
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"id": "79010e64f94a4404b51b2368c9513ed2",
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"type": "labels",
"value": {
"end": 12562,
"labels": [
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],
"start": 12541,
"text": "of Income Tax, Mumbai"
}
},
{
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"id": "4589fa34d2c74215acccf9bb280bf2c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12604,
"labels": [
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],
"start": 12562,
"text": ", reported in (2012) 250 CTR (Bom) 15.\n 16"
}
},
{
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"id": "6b0fccdfa6ee41118f89494b2c90fb67",
"to_name": "text",
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"value": {
"end": 12821,
"labels": [
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],
"start": 12606,
"text": "In yet another decision rendered by the Division Bench of this Court in the matter of M/s Pransukhlal Brothers Vs.\n Income Tax Officer 16(3)(1) (Writ Petition Lodging No.2124 of 2014, decided on 20th August, 2014)."
}
},
{
"from_name": "label",
"id": "8a145a34d1eb489a95033d41777efb5f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12986,
"labels": [
"ARG_PETITIONER"
],
"start": 12822,
"text": "It is observed that validity of reopening of an assessment can only be tested by the reasons recorded at the time of issuing the notice for reopening an assessment."
}
},
{
"from_name": "label",
"id": "06e94abfff6b463a9e50b5b8151c8e1f",
"to_name": "text",
"type": "labels",
"value": {
"end": 13076,
"labels": [
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],
"start": 12987,
"text": "These grounds for reopening of assessment can neither be substituted and/or supplemented."
}
},
{
"from_name": "label",
"id": "5f298e24e7fa49d8aea50643a47fac70",
"to_name": "text",
"type": "labels",
"value": {
"end": 13197,
"labels": [
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],
"start": 13077,
"text": "The reopening of assessment will either stand or fall only upon the reasons recorded before issuing the impugned notice."
}
},
{
"from_name": "label",
"id": "7a1e465cc04e4419ad6791f6f83db731",
"to_name": "text",
"type": "labels",
"value": {
"end": 13720,
"labels": [
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],
"start": 13197,
"text": "\n 17 It appears to be the contention of the department that since the petitioner has demonstrated book value of the property at Rs.1,80,000/ and has assessed income for several years by showing book value of the property, as specified above, the conduct of the petitioner, according to Respondentdepartment, amounts to estoppel and it would not be open for the petitioner to contend that he has a choice either to make computation on the basis of market value or on the basis of cost of the property to the previous owner."
}
},
{
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"id": "06ea9c76c9dd4090bfe1198ef46b4eb2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13863,
"labels": [
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],
"start": 13721,
"text": "Reliance is placed on the judgment in the matter of Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai, reported in AIR 1982 SC 121.\n 18 "
}
},
{
"from_name": "label",
"id": "7f859cc3aafb4f1eb2734ac83824a779",
"to_name": "text",
"type": "labels",
"value": {
"end": 14257,
"labels": [
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],
"start": 13863,
"text": "Relying upon the judgment in the matter of The Commissioner of Income Tax, West Bengal II, Calcutta Vs. M/s Naga Hills Tea Co.Ltd., reported in (1973) 4 SCC 200, it is contended by the petitioner, that if a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee has got to be accepted and is a well accepted view of law."
}
},
{
"from_name": "label",
"id": "38a3f7280d7d4b258b542c0c6bef6b4a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14604,
"labels": [
"ARG_PETITIONER"
],
"start": 14257,
"text": "\n 19 The petitioner, placing reliance upon the judgment in the matter of Commissioner of Income Tax Delhi Vs. Kelvinator of India Limited, reported in (2010) 2 SCC 723, contends that with a view to prevent abuse, the expression, \"reason to believe\"\n has been introduced and the word \"opinion\" has been deleted by Circular No.549 dated 31.10.1989."
}
},
{
"from_name": "label",
"id": "43554ae306c1411d9b1402653dab622a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14857,
"labels": [
"ARG_PETITIONER"
],
"start": 14605,
"text": "The Assessing Officer must have reason to believe that there is escape of income and the conclusion, so reached and the formation of opinion, must be recorded in the order proposing to reopen the assessment in view of Section 147 of the Income Tax Act."
}
},
{
"from_name": "label",
"id": "331991a315044c109c6b030c2db0ef13",
"to_name": "text",
"type": "labels",
"value": {
"end": 14863,
"labels": [
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],
"start": 14857,
"text": "\n 20 "
}
},
{
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"id": "b80a7e78e45d4b1c9bbc087aeff2916d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15177,
"labels": [
"ARG_PETITIONER"
],
"start": 14863,
"text": "The petitioner, pointing out judgment in the matter of Godrej Industries Ltd. Vs. B.S.Singh, Deputy Commissioner of IncomeTax and others, reported in (2015) 377 ITR 1, contends that the sustainability of the reopening notice would be tested only on the basis of reason recorded at the time of issuing the notice.\n "
}
},
{
"from_name": "label",
"id": "f4eca6a2639b47faac937048a3fd5ab8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15238,
"labels": [
"ARG_PETITIONER"
],
"start": 15177,
"text": "The reasons cannot be added to, deleted from or supplemented."
}
},
{
"from_name": "label",
"id": "e7b63e6bc9e34ef998499767be9ebf8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15390,
"labels": [
"ARG_PETITIONER"
],
"start": 15238,
"text": "\n Besides, when a notice for reassessment is challenged, the burden is on the Revenue to establish that the jurisdictional requirement stands satisfied."
}
},
{
"from_name": "label",
"id": "2d880fb12f7d49a095950dc6108874f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 15673,
"labels": [
"ANALYSIS"
],
"start": 15390,
"text": "\n 21 In the instant matter, according to the petitioner, a new ground has been excavated by the department for supporting notice under Section 148 and in fact no such disclosure was made by the Assessing Officer while reason for his belief was supplied by the Income Tax Department."
}
},
{
"from_name": "label",
"id": "fd31f6d47d204643abc1a899e699a672",
"to_name": "text",
"type": "labels",
"value": {
"end": 15915,
"labels": [
"ANALYSIS"
],
"start": 15679,
"text": "Learned Counsel appearing for Respondent Department has invited our attention to communication dated 03.11.2016 where under reasons for reopening of assessment under Section 148 of the Income Tax Act were communicated to the petitioner."
}
},
{
"from_name": "label",
"id": "ea56df7bb06e48fc8521c45cb4c10b13",
"to_name": "text",
"type": "labels",
"value": {
"end": 16285,
"labels": [
"ARG_RESPONDENT"
],
"start": 15916,
"text": "It is the contention of the Respondent department that the objection to the valuation report prepared by S.B.Shuttari, Chartered Engineer and Government Valuer, for the said land @ Rs.2,00,63,640/ has been recorded in the communication setting out reasons for reopening of assessment under Section 148 of the Income Tax Act by the Assistant Commissioner of Income Tax."
}
},
{
"from_name": "label",
"id": "871cddb42be844ddb555cb21299f2696",
"to_name": "text",
"type": "labels",
"value": {
"end": 16593,
"labels": [
"ARG_RESPONDENT"
],
"start": 16285,
"text": "\nSince there is already a disclosure in respect of disagreement of the department to the valuation report prepared by S.B.Shuttari, Chartered Engineer & Government Valuer, it is the reason supporting issuance of notice under Section 147 of the Act and there is no question of any new reason being introduced."
}
},
{
"from_name": "label",
"id": "676f0973280d4756a54037edb4160c59",
"to_name": "text",
"type": "labels",
"value": {
"end": 16751,
"labels": [
"ARG_RESPONDENT"
],
"start": 16594,
"text": "The reason is already recorded in the order disclosing the reasons and as such, objection of the petitioner to the notice, does not deserve to be considered."
}
},
{
"from_name": "label",
"id": "0ae2b88fc52d4f97bd91d8d9703e707d",
"to_name": "text",
"type": "labels",
"value": {
"end": 17257,
"labels": [
"ANALYSIS"
],
"start": 16751,
"text": "\n 23 Learned Counsel appearing for the Respondent Department is justified in referring to the provisions of Section 55(2)(b)(ii) of the Act that, where the capital asset became the property of the assessee by any of the modes specified in sub section (1) of Section 49, and the capital asset became the property of the previous owner before 01.04.1981, it would be at the option of the assessee to compute the cost of capital asset to previous owner or the fair market value of the asset as on 01.04.1981."
}
},
{
"from_name": "label",
"id": "01da2240cdd948539f17bf5199832953",
"to_name": "text",
"type": "labels",
"value": {
"end": 17459,
"labels": [
"ANALYSIS"
],
"start": 17259,
"text": "24 According to the petitioner, the option has been exercised by the assessee and the market value of the property has been taken as a basis for computing capital gain by applying indexation formula."
}
},
{
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"id": "55e8f5ff7d9749c9bb9bc48c1b0f6275",
"to_name": "text",
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"value": {
"end": 17683,
"labels": [
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],
"start": 17460,
"text": "The view adopted by the Respondent, that the petitioner shall have to compute capital gain on consideration of book value of the property i.e. cost to the previous owner at Rs.1,80,000/, is opposed to the provisions of law."
}
},
{
"from_name": "label",
"id": "2478ad9bdb74469094b4f85881689988",
"to_name": "text",
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"value": {
"end": 17902,
"labels": [
"ANALYSIS"
],
"start": 17684,
"text": "The petitioner has objected to the reasons for reopening assessment under Section 148 of the Income Tax Act supplied by the Assistant Commissioner of Income Tax by pointing out the legal position, as referred to above."
}
},
{
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"id": "a8da80ac7a82406a89070e60dbb3946c",
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"end": 18103,
"labels": [
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],
"start": 17902,
"text": "\n 25 While turning down the objection, the Assistant Commissioner of Income Tax has also declined to accept the valuation made by the assessee on the basis of report of the Government approved valuer."
}
},
{
"from_name": "label",
"id": "309cdf7551fb4d6b8244a639507df056",
"to_name": "text",
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"value": {
"end": 18259,
"labels": [
"ANALYSIS"
],
"start": 18104,
"text": "It is recorded in the order that even the basis for showing higher valuation, being the report of approved valuer, is also not free from flaws and lacunae."
}
},
{
"from_name": "label",
"id": "d5ca43176b80426b93b56c77d3ff8fcb",
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"type": "labels",
"value": {
"end": 18481,
"labels": [
"ANALYSIS"
],
"start": 18260,
"text": "It is recorded in the order that there are guidelines issued by the Directorate of Income Tax, New Delhi, for valuation of immovable properties, which must be followed by the approved valuer and the Income Tax Department."
}
},
{
"from_name": "label",
"id": "9db73bc727ec4507ae50e6534c8de4ee",
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"value": {
"end": 18649,
"labels": [
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],
"start": 18482,
"text": "It is further recorded that guidelines of the year 2009 have not been adhered to while arriving at the conclusion regarding valuation of the property as on 01.04.1981."
}
},
{
"from_name": "label",
"id": "a98b500cfef84a52b36a0701d85fb90d",
"to_name": "text",
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"value": {
"end": 18865,
"labels": [
"ANALYSIS"
],
"start": 18649,
"text": "\n Since the valuation made by the approved valuer is not acceptable to the Respondent, the capital gain assessed by the assessee, on the basis of valuation of the property in the year 1981, also becomes unacceptable."
}
},
{
"from_name": "label",
"id": "fd2355c554724fd982128a63c35348af",
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"value": {
"end": 18871,
"labels": [
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],
"start": 18865,
"text": "\n 26 "
}
},
{
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"id": "a5133765994148e3a50f13170179311a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19038,
"labels": [
"ANALYSIS"
],
"start": 18871,
"text": "The petitioner contends that ground of erroneous valuation has been introduced for the first time in the order and there is no notice to the petitioner in that regard."
}
},
{
"from_name": "label",
"id": "da9514e329ce4c478bd50752e0803e50",
"to_name": "text",
"type": "labels",
"value": {
"end": 19242,
"labels": [
"ANALYSIS"
],
"start": 19039,
"text": "It is basically the contention of the petitioner that there is no reference to erroneous valuation by the approved valuer in the Statement of Reasons for reopening assessment, provided by the department."
}
},
{
"from_name": "label",
"id": "6dd324b3a3ff493481de62f925e86b1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19288,
"labels": [
"ANALYSIS"
],
"start": 19243,
"text": "The contention does not appear to be correct."
}
},
{
"from_name": "label",
"id": "6f6d3ed0f24a44a585b798e871a51a97",
"to_name": "text",
"type": "labels",
"value": {
"end": 19806,
"labels": [
"ANALYSIS"
],
"start": 19289,
"text": "In the penultimate paragraph of the reasons for reopening of assessment supplied by the Respondent on 03.11.2016, it is recorded thus: \"In view of the above, the assessee has wrongly taken the cost of acquisition of the said land at Rs.2,00,63,640/, being the market value based on valuation report prepared by the S.B.Shuttari, Chartered Engineer Govt.\n registered valuer and after indexation the effective cost reduced from sale consideration was Rs.12,68,02,205/ giving rise to LTCG of Rs.3,31,97,795/."
}
},
{
"from_name": "label",
"id": "e7722e4a909d45d6beeaafd91c534279",
"to_name": "text",
"type": "labels",
"value": {
"end": 20038,
"labels": [
"ANALYSIS"
],
"start": 19807,
"text": "\"\n 27 There is a clearcut mention in the reasons that the assessee has wrongly taken cost of the land, being the market value based on the valuation report of S.B.Shuttari, Chartered Engineer & Government approved valuer."
}
},
{
"from_name": "label",
"id": "46bbc34586d74386a7480bf77ee561a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 20283,
"labels": [
"ANALYSIS"
],
"start": 20039,
"text": "It is, thus, not open for the petitioner to contend that the assessee/petitioner was taken by surprise and that the notice has been confirmed or that the order rejecting the objection, raised by the petitioner, records extraneous consideration."
}
},
{
"from_name": "label",
"id": "36fd1e964df248b88f950bbca0e5eef0",
"to_name": "text",
"type": "labels",
"value": {
"end": 20540,
"labels": [
"ANALYSIS"
],
"start": 20284,
"text": "In fact, the reasons recorded in the order while rejecting the objection raised by the petitioner cannot be said to be extraneous since the reference in respect of the grounds does appear in the reasons for reopening assessment, communicated on 03.11.2016."
}
},
{
"from_name": "label",
"id": "ee6aac56757a491d92f4cca75ae52f9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 21161,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20540,
"text": "\n 28 Learned Counsel appearing for the Respondent, placing reliance on the judgment in the matter of Majinder Singh Kang Vs. Commissioner of Incometax, reported in (2012) 344 ITR 358 (Punjab & Haryana), contends that a plain reading of Explanation 3 to Section 147 clearly depicts that the Assessing Officer has power to make additions even on the ground on which reassessment notice might not have been issued during reassessment proceedings, but he arrives at a conclusion that such other income has escaped assessment which comes to his notice during course of proceedings for reassessment under section 148."
}
},
{
"from_name": "label",
"id": "cf400975d92645ccb493581cf0ea5adf",
"to_name": "text",
"type": "labels",
"value": {
"end": 21435,
"labels": [
"PRE_NOT_RELIED"
],
"start": 21162,
"text": "The provision no where postulates or contemplates that it is only when there is some addition on the ground on which reassessment had been initiated, that the Assessing Officer can make additions on any other ground on the basis of which income may have escaped assessment."
}
},
{
"from_name": "label",
"id": "342035d2a4ed45fe995c47eebb34a28c",
"to_name": "text",
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"value": {
"end": 21650,
"labels": [
"ANALYSIS"
],
"start": 21435,
"text": "\n 29 In the instant matter, such contingency has not arisen and no such conclusion in respect of some other escaped income has been noticed by the Assessing Officer during the course of proceeding for reassessment."
}
},
{
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"id": "0eb7bd68d8a441c99737681d8b9e6fba",
"to_name": "text",
"type": "labels",
"value": {
"end": 21698,
"labels": [
"ANALYSIS"
],
"start": 21651,
"text": "The proposition laid down is besides the point."
}
},
{
"from_name": "label",
"id": "765990ab79664ecab1da7a6afbb3ee0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21908,
"labels": [
"PRE_NOT_RELIED"
],
"start": 21699,
"text": "The judgment of the Hon'ble Supreme Court in the matter of Assistant Commissioner of Income Tax Vs. Rajesh Zaveri Stock Brokers Pvt.Ltd., (Appeal (civil) No.2830 of 2007, decided on 23.05.2007, is relied upon."
}
},
{
"from_name": "label",
"id": "10461525810446e0b1c092d095700d01",
"to_name": "text",
"type": "labels",
"value": {
"end": 22161,
"labels": [
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],
"start": 21909,
"text": "In paragraph no.16 of the judgment, it is recorded thus: \"16 Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment."
}
},
{
"from_name": "label",
"id": "c8c88fbf27284ad6828853692cd62791",
"to_name": "text",
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"value": {
"end": 22248,
"labels": [
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],
"start": 22162,
"text": "The word \"reason\" in the phrase \"reason to believe\" would mean cause or justification."
}
},
{
"from_name": "label",
"id": "18bf5118a0e0412385a9544d67bd5be4",
"to_name": "text",
"type": "labels",
"value": {
"end": 22435,
"labels": [
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],
"start": 22249,
"text": "If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment."
}
},
{
"from_name": "label",
"id": "737c048df4ac4f4d89301ee871cb23c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 22574,
"labels": [
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],
"start": 22436,
"text": "The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion."
}
},
{
"from_name": "label",
"id": "b58468fd9bbe4c389e6184e32b12396f",
"to_name": "text",
"type": "labels",
"value": {
"end": 22729,
"labels": [
"ANALYSIS"
],
"start": 22575,
"text": "The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers."
}
},
{
"from_name": "label",
"id": "318bdc11c3a14defa9d0bf5e24d46a5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 23004,
"labels": [
"ANALYSIS"
],
"start": 22730,
"text": "As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. Vs. ITO [1991 (191) ITR 662], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential."
}
},
{
"from_name": "label",
"id": "e5fff45347d142ffb66caffa1d41d46c",
"to_name": "text",
"type": "labels",
"value": {
"end": 23077,
"labels": [
"ANALYSIS"
],
"start": 23004,
"text": "\n At that stage, the final outcome of the proceedings is not relevant."
}
},
{
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"id": "4d6a00ced4bf413a9267e67622b6f2b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 23213,
"labels": [
"ANALYSIS"
],
"start": 23078,
"text": "In other words, at the initiation stage, what is required is \"reason to believe\", but not the established fact of escapement of income."
}
},
{
"from_name": "label",
"id": "f8d66d3984394546b457290a95a4c4a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 23370,
"labels": [
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],
"start": 23214,
"text": "At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief."
}
},
{
"from_name": "label",
"id": "f52e563f861f450d9fb8b40a1ae70fe0",
"to_name": "text",
"type": "labels",
"value": {
"end": 23466,
"labels": [
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],
"start": 23371,
"text": "Whether the materials would conclusively prove the escapement is not the concern at that stage."
}
},
{
"from_name": "label",
"id": "c6273a1aa6704d8cae60672f6cf44c29",
"to_name": "text",
"type": "labels",
"value": {
"end": 23723,
"labels": [
"ANALYSIS"
],
"start": 23466,
"text": "\n This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)]; Raymond Woollen Mills Ltd. v. ITO [1999 (236) ITR 34 (SC)].\""
}
},
{
"from_name": "label",
"id": "6b87d5bc997a43cfb139041490f02b75",
"to_name": "text",
"type": "labels",
"value": {
"end": 24066,
"labels": [
"ANALYSIS"
],
"start": 23725,
"text": "30 Learned Counsel appearing for the Respondent also contends that it would not be permissible for the petitioner to raise challenge to the order passed by the Assessing Officer under Section 148 of the Act in exercise of jurisdiction under Article 226 of the Constitution when efficacious remedy is available to the assessee under the Act."
}
},
{
"from_name": "label",
"id": "1fe8b33cd1c44e7db6fec0b1ad0de5c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 24293,
"labels": [
"ANALYSIS"
],
"start": 24067,
"text": "In the matter of Commissioner of Income Tax & others Vs. Chhabil Dass Agrawal (Civil Appeal No.6704 of 2013, decided by the Hon'ble Supreme Court on 08.08.2013, it is observed in paragraphs 20 and 21 of the judgment, thus: \"20"
}
},
{
"from_name": "label",
"id": "bc86237cc3874bf386b2979e90681a2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 24758,
"labels": [
"ANALYSIS"
],
"start": 24294,
"text": "In the instant case, the Act provides complete machinery for the assessment/re assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals)."
}
},
{
"from_name": "label",
"id": "a4cd07cff2574bb7ae30589b93b19baf",
"to_name": "text",
"type": "labels",
"value": {
"end": 24868,
"labels": [
"ANALYSIS"
],
"start": 24759,
"text": "The remedy under the statute, however, must be effective and not a mere formality with no substantial relief."
}
},
{
"from_name": "label",
"id": "1e9b09eaeec3422383bc3b9c832f0d68",
"to_name": "text",
"type": "labels",
"value": {
"end": 25087,
"labels": [
"ANALYSIS"
],
"start": 24869,
"text": "In Ram and Shyam Co. Vs. State of Haryana, (1985) 3 SCC 267, this Court has noticed that if an appeal is from \"Caesar to Caesar's wife\" the existence of alternative remedy would be a mirage and an exercise in futility."
}
},
{
"from_name": "label",
"id": "c23d3279904443e893cca26619e057b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 25426,
"labels": [
"ANALYSIS"
],
"start": 25088,
"text": "In the instant case, neither has the assesseewrit petitioner described the available alternate remedy under the Act as ineffectual and non efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.\n 21"
}
},
{
"from_name": "label",
"id": "eeef20984383499cb1128a7ecfb0aff0",
"to_name": "text",
"type": "labels",
"value": {
"end": 25774,
"labels": [
"ANALYSIS"
],
"start": 25427,
"text": "In the light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re assessment orders passed and the consequential demand notices issued thereon.\""
}
},
{
"from_name": "label",
"id": "0388b41c48614e62b3a54a668148020e",
"to_name": "text",
"type": "labels",
"value": {
"end": 25780,
"labels": [
"ANALYSIS"
],
"start": 25774,
"text": "\n 31 "
}
},
{
"from_name": "label",
"id": "26086c6b1e7b4197a7905697b35de736",
"to_name": "text",
"type": "labels",
"value": {
"end": 25931,
"labels": [
"ANALYSIS"
],
"start": 25780,
"text": "Similar proposition has been laid down in the matter of Income Tax Officer, Calcutta Vs. M/s Selected Darulband Coal Co., reported in AIR 1995 SC 1934."
}
},
{
"from_name": "label",
"id": "1ee5715d43e54aa8905f8dd6ace1fe1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 26118,
"labels": [
"ANALYSIS"
],
"start": 25932,
"text": "Our attention is also invited to the judgment of the Hon'ble Supreme Court in the matter of Raymond Woollen Mills Ltd. Vs. IncomeTax Officer and others, reported in (1999) 236 CTR SC 34."
}
},
{
"from_name": "label",
"id": "c577aa19d57846e78d6f38b7988ac241",
"to_name": "text",
"type": "labels",
"value": {
"end": 26305,
"labels": [
"ANALYSIS"
],
"start": 26119,
"text": "In paragraph 3 of the judgment, it is recorded thus: \"3 In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not."
}
},
{
"from_name": "label",
"id": "b8fde165931d4700b0cec09579d62cc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 26429,
"labels": [
"ANALYSIS"
],
"start": 26306,
"text": "We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case."
}
},
{
"from_name": "label",
"id": "5669c8b8cdb14294840d887047fc6ff6",
"to_name": "text",
"type": "labels",
"value": {
"end": 26523,
"labels": [
"ANALYSIS"
],
"start": 26430,
"text": "The sufficiency or correctness of the material is not a thing to be considered at this stage."
}
},
{
"from_name": "label",
"id": "bc78c3685185456a87e6b42f5c409b58",
"to_name": "text",
"type": "labels",
"value": {
"end": 26629,
"labels": [
"ANALYSIS"
],
"start": 26524,
"text": "We are of the view that the court cannot strike down the reopening of the case in the facts of this case."
}
},
{
"from_name": "label",
"id": "99049bf1cf7e4adbb1286f95d6f9aa6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 26737,
"labels": [
"ANALYSIS"
],
"start": 26629,
"text": "\n It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous."
}
},
{
"from_name": "label",
"id": "c10ac7e46afa436d9bfd50c391840848",
"to_name": "text",
"type": "labels",
"value": {
"end": 26877,
"labels": [
"ANALYSIS"
],
"start": 26738,
"text": "The assessee may also prove that no new facts came to the knowledge of the IncomeTax Officer after completion of the assessment proceeding."
}
},
{
"from_name": "label",
"id": "0fe438e2a8e44628913b4314eb6259dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 26938,
"labels": [
"ANALYSIS"
],
"start": 26878,
"text": "We are not expressing any opinion on the merits of the case."
}
},
{
"from_name": "label",
"id": "e06f7d1b75994caabd7ba51007159cc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 27041,
"labels": [
"ANALYSIS"
],
"start": 26939,
"text": "The questions of fact and law are left open to be investigated and decided by the assessing authority."
}
},
{
"from_name": "label",
"id": "7585c8650a3841788a309b67d4bcdae0",
"to_name": "text",
"type": "labels",
"value": {
"end": 27127,
"labels": [
"ANALYSIS"
],
"start": 27042,
"text": "The appellant will be entitled to take all the points before the assessing authority."
}
},
{
"from_name": "label",
"id": "4ba11075e8bf459d880ba1671ee3e993",
"to_name": "text",
"type": "labels",
"value": {
"end": 27158,
"labels": [
"ANALYSIS"
],
"start": 27127,
"text": "\n The appeals are dismissed."
}
},
{
"from_name": "label",
"id": "19f5915cac0e4e368f377a4d3eb57243",
"to_name": "text",
"type": "labels",
"value": {
"end": 27195,
"labels": [
"ANALYSIS"
],
"start": 27159,
"text": "There will be no order as to costs.\""
}
},
{
"from_name": "label",
"id": "be0d7828c1234fea81c32afa65137377",
"to_name": "text",
"type": "labels",
"value": {
"end": 28067,
"labels": [
"RATIO"
],
"start": 27195,
"text": "\n 32 On the question of maintainability of the petition, the petitioner has relied upon the judgment in the matter of Jeans Knit Pvt. Ltd., Bangalore Vs. The Deputy Commissioner of Income Tax, Bangalore & others, reported in (2017) 390 ITR 10 (2016 SCC OnLine SC 1536) and Ajanta Pharma Ltd., Mumbai Vs. Assistant Commissioner of Income Tax, reported in [2003(5) Mh.L.J. 352].\n 33 Even holding the challenge to be maintainable, since it is observed by us that the objection raised by the petitioner is devoid of substance and that there is very much reference to the objection in the communication indicating \"reasons for belief\", issued by RespondentDepartment and that no new material or ground has been introduced in the final order and that the petitioner has not been taken to surprise, we do not find any reason to cause interference in the instant matter."
}
},
{
"from_name": "label",
"id": "51d0533a4ed04e7e8f9f987a17a24f2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28142,
"labels": [
"RPC"
],
"start": 28067,
"text": "\n 34 Writ Petition is devoid of substance, hence stands dismissed."
}
},
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"text": " IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD\n\n WRIT PETITION NO.13064 OF 2017\n\nJ.B.Amin & Brothers (HUF), Petitioner\n\"Nimisha\", Near MSEB Office,\nOpp. Pendkar Hospital,\nJubilee Park,\nAurangabad.\n\n Versus\n\nUnion of India, Respondent\nthrough Assistant Commissioner\nof Income Tax, Circle II,\nAurangabad\n\nMr.P.M.Shah, Senior Counsel i/by Mr.S.P.Shah, advocate for the\npetitioner.\nMr.Alok Sharma, Standing Counsel for the Respondent.\n\n CORAM : R.M.BORDE &\n\n SMT. VIBHA KANKANWADI, JJ.\n\n Reserved on : 06th December, 2017\n\n Pronounced on : 22nd December, 2017.\n\nJUDGMENT (Per R.M.Borde, J.): 1 Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.\n 2 The petitioner assessee is praying for issuance of writ of certiorari or any other appropriate writ, order or direction in the nature of writ of certiorari to quash and set aside order dated 04.08.2017, passed by the Assistant Commissioner of Income Tax II, Aurangabad, whereby objection tendered by the assessee for issuance of notice under Section 148 of the Income Tax Act, 1961, is rejected. The petitioner is also praying to uphold the objection raised by him vide communication dated 11.11.2016 and to drop the proceedings initiated vide notice dated 14.09.2016, under Section 148 of the Income Tax Act.\n 3 According to the petitioner, land CTS No.4619, admeasuring 3994.06 square meters was purchased by late Shri Balubhai Amin at Rs.1,80,000/. The land is situate at Aurangpura, Aurangabad. After demise of Balubhai Amin in 1968, the property is inherited and belong to the petitioner i.e. J.B.Amin and Brothers (HUF). The value of the property has been shown in the Books of Accounts maintained by the petitioner as Rs.1,80,000/. The petitioner alienated the land along with superstructure standing thereon for consideration of Rs.18 crores on 27.04.2009. The consideration, in respect of the land, is stated to be Rs.16 crores. The petitioner filed return of Income for the year 20092010 (Assessment year 20102011) wherein this transaction was duly disclosed.\n 4 According to the petitioner, it is permissible under Section 55(2)(b)(ii) of the Income Tax Act to compute market value of the property, which was assessed at Rs.2,00,63,643/ as on 01.04.1981, to be cost of acquisition. The computation of long term gain and indexation was made considering the aforesaid market value as on 01.04.1981. The Respondent Income Tax Department proposed to reassess income of the petitioner and as such, notice came to be issued on 14.09.2016, under Section 148 of the Act, requiring the petitioner to file return of income.\n 5 Section 149 of the Income Tax Act provides limitation of six years from the end of assessment year for issuing notice under Section 148 of the Act. In response to the notice, petitioner assessee presented return of income on 03.11.2016. The petitioner thereafter requested Respondent Income Tax Department to provide reasons recorded by them, as required under Section 148(2) of the Act believing that income of the present petitioner has escaped assessment. On 03.11.2016, the Respondent department informed reasons for believing that the income of present petitioner has escaped assessment. The petitioner tendered an objection to the proposed action since, according to the petitioner, the reason informed by the Respondent for taking proposed action, was not sustainable in law.\n 6 According to the petitioner, Section 55(2)(b)(ii) of the Act provides that it is the option of the assessee to take into account market value as on 01.04.1981 for computing long term gain or the actual price paid for purchase of the property. The Respondent, however, was pleased to reject the objection raised by petitioner assessee by an order dated 04.08.2017 on the ground that the market value estimated by the present petitioner as on 01.04.1981 is incorrect and that only cost of acquisition can be computed for capital gain. Since the Respondent department proposed to proceed further with the action on new and distinct ground than the reason originally recorded by the Respondent department, the petitioner has approached this Court with a prayer to quash and set aside the order passed by the Respondent rejecting the objection as well as for setting aside the notice issued under Section 148 of the Act.\n 7 The notice issued by the Assistant Commissioner of Income Tax, CircleII, Aurangabad, on 03.11.2016, records that the assessee is a Hindu United Family (HUF) and has presented return of income for the year 20102011 on 31.07.2010 declaring total income amounting to Rs.3,48,67,770/. On perusal of the return of income, it is noticed that the assessee offered long term capital gain to the tune of Rs.3,31,97,795/ on the land sold for consideration of Rs.16 crores on 27.04.2009. It is noted that on perusal of the books of accounts/balance sheet as on 31.03.2010, it is seen that the opening WDV of the land as on 01.04.2009 is shown at Rs.1,80,000/ in the statement of fixed assets. The Assessee, while filing return of income, shown cost of the land as Rs.2,00,63,640/ as on 01.04.1981 instead of Rs.1,80,000/ (book value). According to the Respondent department, in view of Section 49(1)(iii)(a) of the Income Tax Act, cost of acquisition of the said land shall be deemed to be the cost for which previous owner of the property acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be. It is also recorded in the notice that the assessee has wrongly taken cost of acquisition of the said land at Rs.2,00,63,640/, being the market value based on valuation report prepared by M/s S.B.Shuttari, Chartered Engineer and Government Registered Valuer and after indexation, the effective cost reduced from sale consideration was Rs.12,68,02,205/. According to the department, the assessee has wrongly taken market value as on 01.04.1981 instead of considering cost of acquisition reflected from its books of accounts.\n The department believed that the income to the extent of Rs.12,56,63,427/ has escaped within the meaning of Section 147 of the Income Tax Act.\n 8 The petitioner tendered an objection to the notice containing reasons communicated by the respondent department; and called upon the Income Tax Department to withdraw the notice. Respondent Income Tax Department, however, under the order passed by the Assistant Commissioner of Income Tax, CircleII, Aurangabad, rejected the objection and confirmed the notice.\n 9 While rejecting the objection, it is recorded by the Respondent department that the valuation report submitted by the assessee, prepared by Registered Valuer S.B.Shuttari, is not correct and lawful. According to the Department, there are guidelines for valuation of immovable properties, issued in the year 2009 by the Directorate of Income Tax, New Delhi, which must be followed by the approved valuer and Income Tax Department. Even the basis for showing higher valuation, being the report of the approved valuer, is also not free from flaws and lacunae.\n Respondent department, therefore, held that the assessee cannot take umbrage of Section 55(2)(b)(ii) of the Act. According to Respondent, fair market value shown by the petitioner assessee, on the basis of report of the valuer, cannot be accepted and the valuation arrived at by the valuer is 100% higher than the actual market rate.\n 10 Relying upon Section 49 (1) of the Income Tax Act, it is contended by the petitioner that the cost of acquisition of the asset shall be deemed to be the cost for which previous owner of the property has acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be.\n 11 Clause (ii) of sub section (2)(b) of Section 55 provides that: Section 55 (2) (b) (ii): where the capital asset became property of the assessee by any of the modes specified in subsection (1) of section 49, and the capital asset became the property of the previous owner before the 1st day of April 1981, means the cost of the capital asset to the previous owner or the fair market value of the asset on the 1st day of April, 1981, at the option of the assessee.\n 12 It is contended by learned Counsel appearing for the petitioner that it is the option of the assessee either to compute capital gain based upon market value of the asset as on 01.04.1981 and it may not be essential for the assessee to consider the capital cost incurred by the previous owner or fair market value of the asset.\n 13 The petitioner contends that recording of reasons is the basic thing and no notice can be entertained founded upon extraneous ground not communicated to the petitioner under the notice or in the disclosure made by the department after receiving notice by the assessee calling upon the department to supply reasons for arriving at the conclusion and before directing the petitioner to file return of income.\n 14 The petitioner, placing reliance on the judgment of Division Bench of this Court in the matter of Hindustan Lever Ltd. Vs. R.B. Wadkar & others, reported in 2004 (3) Mh.L.J. 517, contends that it is necessary for the Assessing Officer to form his opinion and put it on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of mind of the Assessing Officer. In paragraph 20 of the judgment, it is observed by the Division Bench of this Court, thus: \"20 The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind.\n Reasons are the manifestation of mind of the Assessing Officer. The reasons recorded should be selfexplanatory and should not keep the assessee guessing for the reasons. Reasons provide link between conclusion and evidence.\n The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record.\n He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced.\n 15 Similarly, in the matter of Sabharwal Properties Industries Pvt. Ltd. & others Vs. Income Tax Officer, reported in [2016] 382 ITR 547 Delhi, the Delhi High Court has quashed the notice and order passed by the Income Tax Officer on the ground that the notice issued under Section 148 does not disclose the grounds. It is recorded in the judgment that disclosure of reasons provide a live link to the formation of the belief that income had escaped assessment. Similar is the view taken in the matter of Indivest Pte.Ltd. Vs. Additional Director of Income Tax, Mumbai, reported in (2012) 250 CTR (Bom) 15.\n 16 In yet another decision rendered by the Division Bench of this Court in the matter of M/s Pransukhlal Brothers Vs.\n Income Tax Officer 16(3)(1) (Writ Petition Lodging No.2124 of 2014, decided on 20th August, 2014). It is observed that validity of reopening of an assessment can only be tested by the reasons recorded at the time of issuing the notice for reopening an assessment. These grounds for reopening of assessment can neither be substituted and/or supplemented. The reopening of assessment will either stand or fall only upon the reasons recorded before issuing the impugned notice.\n 17 It appears to be the contention of the department that since the petitioner has demonstrated book value of the property at Rs.1,80,000/ and has assessed income for several years by showing book value of the property, as specified above, the conduct of the petitioner, according to Respondentdepartment, amounts to estoppel and it would not be open for the petitioner to contend that he has a choice either to make computation on the basis of market value or on the basis of cost of the property to the previous owner. Reliance is placed on the judgment in the matter of Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai, reported in AIR 1982 SC 121.\n 18 Relying upon the judgment in the matter of The Commissioner of Income Tax, West Bengal II, Calcutta Vs. M/s Naga Hills Tea Co.Ltd., reported in (1973) 4 SCC 200, it is contended by the petitioner, that if a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee has got to be accepted and is a well accepted view of law.\n 19 The petitioner, placing reliance upon the judgment in the matter of Commissioner of Income Tax Delhi Vs. Kelvinator of India Limited, reported in (2010) 2 SCC 723, contends that with a view to prevent abuse, the expression, \"reason to believe\"\n has been introduced and the word \"opinion\" has been deleted by Circular No.549 dated 31.10.1989. The Assessing Officer must have reason to believe that there is escape of income and the conclusion, so reached and the formation of opinion, must be recorded in the order proposing to reopen the assessment in view of Section 147 of the Income Tax Act.\n 20 The petitioner, pointing out judgment in the matter of Godrej Industries Ltd. Vs. B.S.Singh, Deputy Commissioner of IncomeTax and others, reported in (2015) 377 ITR 1, contends that the sustainability of the reopening notice would be tested only on the basis of reason recorded at the time of issuing the notice.\n The reasons cannot be added to, deleted from or supplemented.\n Besides, when a notice for reassessment is challenged, the burden is on the Revenue to establish that the jurisdictional requirement stands satisfied.\n 21 In the instant matter, according to the petitioner, a new ground has been excavated by the department for supporting notice under Section 148 and in fact no such disclosure was made by the Assessing Officer while reason for his belief was supplied by the Income Tax Department.\n 22 Learned Counsel appearing for Respondent Department has invited our attention to communication dated 03.11.2016 where under reasons for reopening of assessment under Section 148 of the Income Tax Act were communicated to the petitioner. It is the contention of the Respondent department that the objection to the valuation report prepared by S.B.Shuttari, Chartered Engineer and Government Valuer, for the said land @ Rs.2,00,63,640/ has been recorded in the communication setting out reasons for reopening of assessment under Section 148 of the Income Tax Act by the Assistant Commissioner of Income Tax.\nSince there is already a disclosure in respect of disagreement of the department to the valuation report prepared by S.B.Shuttari, Chartered Engineer & Government Valuer, it is the reason supporting issuance of notice under Section 147 of the Act and there is no question of any new reason being introduced. The reason is already recorded in the order disclosing the reasons and as such, objection of the petitioner to the notice, does not deserve to be considered.\n 23 Learned Counsel appearing for the Respondent Department is justified in referring to the provisions of Section 55(2)(b)(ii) of the Act that, where the capital asset became the property of the assessee by any of the modes specified in sub section (1) of Section 49, and the capital asset became the property of the previous owner before 01.04.1981, it would be at the option of the assessee to compute the cost of capital asset to previous owner or the fair market value of the asset as on 01.04.1981.\n 24 According to the petitioner, the option has been exercised by the assessee and the market value of the property has been taken as a basis for computing capital gain by applying indexation formula. The view adopted by the Respondent, that the petitioner shall have to compute capital gain on consideration of book value of the property i.e. cost to the previous owner at Rs.1,80,000/, is opposed to the provisions of law. The petitioner has objected to the reasons for reopening assessment under Section 148 of the Income Tax Act supplied by the Assistant Commissioner of Income Tax by pointing out the legal position, as referred to above.\n 25 While turning down the objection, the Assistant Commissioner of Income Tax has also declined to accept the valuation made by the assessee on the basis of report of the Government approved valuer. It is recorded in the order that even the basis for showing higher valuation, being the report of approved valuer, is also not free from flaws and lacunae. It is recorded in the order that there are guidelines issued by the Directorate of Income Tax, New Delhi, for valuation of immovable properties, which must be followed by the approved valuer and the Income Tax Department. It is further recorded that guidelines of the year 2009 have not been adhered to while arriving at the conclusion regarding valuation of the property as on 01.04.1981.\n Since the valuation made by the approved valuer is not acceptable to the Respondent, the capital gain assessed by the assessee, on the basis of valuation of the property in the year 1981, also becomes unacceptable.\n 26 The petitioner contends that ground of erroneous valuation has been introduced for the first time in the order and there is no notice to the petitioner in that regard. It is basically the contention of the petitioner that there is no reference to erroneous valuation by the approved valuer in the Statement of Reasons for reopening assessment, provided by the department. The contention does not appear to be correct. In the penultimate paragraph of the reasons for reopening of assessment supplied by the Respondent on 03.11.2016, it is recorded thus: \"In view of the above, the assessee has wrongly taken the cost of acquisition of the said land at Rs.2,00,63,640/, being the market value based on valuation report prepared by the S.B.Shuttari, Chartered Engineer Govt.\n registered valuer and after indexation the effective cost reduced from sale consideration was Rs.12,68,02,205/ giving rise to LTCG of Rs.3,31,97,795/. \"\n 27 There is a clearcut mention in the reasons that the assessee has wrongly taken cost of the land, being the market value based on the valuation report of S.B.Shuttari, Chartered Engineer & Government approved valuer. It is, thus, not open for the petitioner to contend that the assessee/petitioner was taken by surprise and that the notice has been confirmed or that the order rejecting the objection, raised by the petitioner, records extraneous consideration. In fact, the reasons recorded in the order while rejecting the objection raised by the petitioner cannot be said to be extraneous since the reference in respect of the grounds does appear in the reasons for reopening assessment, communicated on 03.11.2016.\n 28 Learned Counsel appearing for the Respondent, placing reliance on the judgment in the matter of Majinder Singh Kang Vs. Commissioner of Incometax, reported in (2012) 344 ITR 358 (Punjab & Haryana), contends that a plain reading of Explanation 3 to Section 147 clearly depicts that the Assessing Officer has power to make additions even on the ground on which reassessment notice might not have been issued during reassessment proceedings, but he arrives at a conclusion that such other income has escaped assessment which comes to his notice during course of proceedings for reassessment under section 148. The provision no where postulates or contemplates that it is only when there is some addition on the ground on which reassessment had been initiated, that the Assessing Officer can make additions on any other ground on the basis of which income may have escaped assessment.\n 29 In the instant matter, such contingency has not arisen and no such conclusion in respect of some other escaped income has been noticed by the Assessing Officer during the course of proceeding for reassessment. The proposition laid down is besides the point. The judgment of the Hon'ble Supreme Court in the matter of Assistant Commissioner of Income Tax Vs. Rajesh Zaveri Stock Brokers Pvt.Ltd., (Appeal (civil) No.2830 of 2007, decided on 23.05.2007, is relied upon. In paragraph no.16 of the judgment, it is recorded thus: \"16 Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word \"reason\" in the phrase \"reason to believe\" would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. Vs. ITO [1991 (191) ITR 662], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential.\n At that stage, the final outcome of the proceedings is not relevant. In other words, at the initiation stage, what is required is \"reason to believe\", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage.\n This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)]; Raymond Woollen Mills Ltd. v. ITO [1999 (236) ITR 34 (SC)].\"\n 30 Learned Counsel appearing for the Respondent also contends that it would not be permissible for the petitioner to raise challenge to the order passed by the Assessing Officer under Section 148 of the Act in exercise of jurisdiction under Article 226 of the Constitution when efficacious remedy is available to the assessee under the Act. In the matter of Commissioner of Income Tax & others Vs. Chhabil Dass Agrawal (Civil Appeal No.6704 of 2013, decided by the Hon'ble Supreme Court on 08.08.2013, it is observed in paragraphs 20 and 21 of the judgment, thus: \"20 In the instant case, the Act provides complete machinery for the assessment/re assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. Vs. State of Haryana, (1985) 3 SCC 267, this Court has noticed that if an appeal is from \"Caesar to Caesar's wife\" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assesseewrit petitioner described the available alternate remedy under the Act as ineffectual and non efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.\n 21 In the light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re assessment orders passed and the consequential demand notices issued thereon.\"\n 31 Similar proposition has been laid down in the matter of Income Tax Officer, Calcutta Vs. M/s Selected Darulband Coal Co., reported in AIR 1995 SC 1934. Our attention is also invited to the judgment of the Hon'ble Supreme Court in the matter of Raymond Woollen Mills Ltd. Vs. IncomeTax Officer and others, reported in (1999) 236 CTR SC 34. In paragraph 3 of the judgment, it is recorded thus: \"3 In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case.\n It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the IncomeTax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority.\n The appeals are dismissed. There will be no order as to costs.\"\n 32 On the question of maintainability of the petition, the petitioner has relied upon the judgment in the matter of Jeans Knit Pvt. Ltd., Bangalore Vs. The Deputy Commissioner of Income Tax, Bangalore & others, reported in (2017) 390 ITR 10 (2016 SCC OnLine SC 1536) and Ajanta Pharma Ltd., Mumbai Vs. Assistant Commissioner of Income Tax, reported in [2003(5) Mh.L.J. 352].\n 33 Even holding the challenge to be maintainable, since it is observed by us that the objection raised by the petitioner is devoid of substance and that there is very much reference to the objection in the communication indicating \"reasons for belief\", issued by RespondentDepartment and that no new material or ground has been introduced in the final order and that the petitioner has not been taken to surprise, we do not find any reason to cause interference in the instant matter.\n 34 Writ Petition is devoid of substance, hence stands dismissed.\n Rule discharged. There shall be no order as to costs.\n SMT.VIBHA KANKANWADI R.M.BORDE JUDGE JUDGE adb/wp1306417 "
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"to_name": null,
"type": null,
"value": {
"end": 1062,
"labels": [
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],
"start": 1027,
"text": "Mr. P. Roy Chaudhuri with Mr. Rohit"
}
},
{
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"id": "acb8201d46f846228ceac55ea8d6592c",
"to_name": null,
"type": null,
"value": {
"end": 1166,
"labels": [
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],
"start": 1062,
"text": "\n Madan, Advocates.\n\n versus\n\n ANIL BATRA & ANR"
}
},
{
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"id": "0cb139d0b8eb4452b3f934e5ad6262a0",
"to_name": null,
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"value": {
"end": 1241,
"labels": [
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],
"start": 1194,
"text": "..... Respondents\n Through:"
}
},
{
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"id": "f0a37efbcafc499e8c49e83170ef0af5",
"to_name": null,
"type": null,
"value": {
"end": 1274,
"labels": [
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],
"start": 1242,
"text": "Mr. Jeevesh Mehta with Mr. Kapil"
}
},
{
"from_name": null,
"id": "4b74d43da69a497ca099455ee3b76e94",
"to_name": null,
"type": null,
"value": {
"end": 1416,
"labels": [
"PREAMBLE"
],
"start": 1296,
"text": "Gulati, Advocates for R-2.\n Proxy counsel for Mr. P.K. Sharma, Advocate\n for R-1"
}
},
{
"from_name": null,
"id": "cf119bb8e74c4b069edbe51e51047d76",
"to_name": null,
"type": null,
"value": {
"end": 1455,
"labels": [
"PREAMBLE"
],
"start": 1416,
"text": ".\n\n and"
}
},
{
"from_name": null,
"id": "5563a1dc966a40f1b96fab99a49a2fcc",
"to_name": null,
"type": null,
"value": {
"end": 1519,
"labels": [
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],
"start": 1455,
"text": "\n CRL.L.P. 243 of 2012\n "
}
},
{
"from_name": null,
"id": "208e233ef15249d7a8c1463b15d30ca6",
"to_name": null,
"type": null,
"value": {
"end": 1602,
"labels": [
"PREAMBLE"
],
"start": 1519,
"text": "[Now converted into Criminal Appeal_______ of 2014 (to\n "
}
},
{
"from_name": null,
"id": "a881989b733b49f89bd49068bfc848a3",
"to_name": null,
"type": null,
"value": {
"end": 1631,
"labels": [
"PREAMBLE"
],
"start": 1602,
"text": "be numbered by the Registry)]"
}
},
{
"from_name": null,
"id": "91165402e3e14379bd3f0bb246a3a2d8",
"to_name": null,
"type": null,
"value": {
"end": 1689,
"labels": [
"PREAMBLE"
],
"start": 1631,
"text": "\n\n INCOME TAX OFFICER ....."
}
},
{
"from_name": null,
"id": "ba3d8ce677e94d279b896197680efcda",
"to_name": null,
"type": null,
"value": {
"end": 1946,
"labels": [
"PREAMBLE"
],
"start": 1690,
"text": "Petitioner\n Through: Mr. P. Roy Chaudhuri with Mr. Rohit\n Madan, Advocates.\n\n\n\n versus\n\n ANIL BATRA & ANR ..... Respondents\n Through:"
}
},
{
"from_name": null,
"id": "14bb7d6619794029bd3b0218aff90a59",
"to_name": null,
"type": null,
"value": {
"end": 1979,
"labels": [
"PREAMBLE"
],
"start": 1947,
"text": "Mr. Jeevesh Mehta with Mr. Kapil"
}
},
{
"from_name": null,
"id": "c6f397eb845c411493e349c26080f6a5",
"to_name": null,
"type": null,
"value": {
"end": 2145,
"labels": [
"PREAMBLE"
],
"start": 2001,
"text": "Gulati, Advocates for R-2.\n Proxy counsel for Mr. P.K. Sharma, Advocate\n counsel for R-1.\n\n CORAM:"
}
},
{
"from_name": null,
"id": "34b48fdf38ad43e0ae671cc48958ff41",
"to_name": null,
"type": null,
"value": {
"end": 2153,
"labels": [
"PREAMBLE"
],
"start": 2146,
"text": "JUSTICE"
}
},
{
"from_name": null,
"id": "d62a34a7a00345c4ade9479eae803908",
"to_name": null,
"type": null,
"value": {
"end": 2207,
"labels": [
"PREAMBLE"
],
"start": 2154,
"text": "S. MURALIDHAR\n\n ORDER"
}
},
{
"from_name": null,
"id": "68fa0734bb9842c980f4a0ec173b9bed",
"to_name": null,
"type": null,
"value": {
"end": 2254,
"labels": [
"NONE"
],
"start": 2207,
"text": "\n 23.09.2014 1."
}
},
{
"from_name": null,
"id": "e423d3708a90484884ffd7020c8858c1",
"to_name": null,
"type": null,
"value": {
"end": 2489,
"labels": [
"FAC"
],
"start": 2255,
"text": "These petitions raise an important question of law concerning the liability of the Director of a company which has been proceeded against by the Income Tax Department („ITD‟) under Section 276-B of the Income Tax Act, 1961 („IT Act‟)."
}
},
{
"from_name": null,
"id": "163bdeaac6724bd0980070b7024b7c41",
"to_name": null,
"type": null,
"value": {
"end": 2578,
"labels": [
"FAC"
],
"start": 2490,
"text": "The Court is of the view that there are sufficient grounds for grant of leave to appeal."
}
},
{
"from_name": null,
"id": "25d0fbb831594712aba1247081127297",
"to_name": null,
"type": null,
"value": {
"end": 2727,
"labels": [
"FAC"
],
"start": 2579,
"text": "Accordingly, these three petitions are allowed and the cases are directed to be registered as criminal appeals and numbered as such by the Registry."
}
},
{
"from_name": null,
"id": "cac63710db6c41cc9111a383c74941ce",
"to_name": null,
"type": null,
"value": {
"end": 2956,
"labels": [
"FAC"
],
"start": 2727,
"text": "\n Criminal Appeal No. of 2014 (to be numbered by the Registry) Criminal Appeal No. of 2014 (to be numbered by the Registry) Criminal Appeal No. of 2014 (to be numbered by the Registry)"
}
},
{
"from_name": null,
"id": "fbe8eea229a841dfba9eeff09733eae8",
"to_name": null,
"type": null,
"value": {
"end": 3056,
"labels": [
"NONE"
],
"start": 2957,
"text": "2. With the consent of learned counsel for the parties, the appeals are taken up for final hearing."
}
},
{
"from_name": null,
"id": "1bccac669575407e901867f68a28bd11",
"to_name": null,
"type": null,
"value": {
"end": 3155,
"labels": [
"FAC"
],
"start": 3058,
"text": "3. The issue pertains to the assessment years („AYs‟), i.e., AY 1982-83, 1983-84, and AY 1984-85."
}
},
{
"from_name": null,
"id": "89bcc444b1414b609040032dedc32c07",
"to_name": null,
"type": null,
"value": {
"end": 3587,
"labels": [
"FAC"
],
"start": 3156,
"text": "With respect to the three AYs, show cause notices („SCNs‟) under Section 276-B read with Sections 194 A and 200 of the IT Act were issued by the Inspecting Assistant Commissioner, Income Tax (Assistant), Range XV, New Delhi addressed to “The Principal Officer, M/s. Anil Batra & Associates (P) Limited, Batra Cinema, Dr. Mukherjee Nagar, Delhi” regarding failure to pay the tax deducted at source under Section 276 B of the IT Act."
}
},
{
"from_name": null,
"id": "9513add50cbc49bc8d0e951c66b48225",
"to_name": null,
"type": null,
"value": {
"end": 3816,
"labels": [
"RLC"
],
"start": 3587,
"text": "\n 4. As regards AYs 1983-84 and 1984-85 the trial Court by its judgment dated 9th August 1995 convicted the company and its two directors, i.e., Mr. Anil Batra and Mr. C.L. Batra, Accused Nos. 2 and 3 („A-2 and A-3) respectively."
}
},
{
"from_name": null,
"id": "c3cf32f55c3a4059a0515d072091b262",
"to_name": null,
"type": null,
"value": {
"end": 4132,
"labels": [
"RLC"
],
"start": 3817,
"text": "While all the three accused were directed to pay Rs. 7,000 each as fine, A-2 and A-3 were sentenced to undergo simple imprisonment („SI‟) for three months each and in default of payment of fine, A-2 and A-3 were to undergo SI for a further period of three months each by an order on sentence dated 11th August 1995."
}
},
{
"from_name": null,
"id": "bdca12ac22ae4d64935ef715b81b5fc1",
"to_name": null,
"type": null,
"value": {
"end": 4346,
"labels": [
"FAC"
],
"start": 4132,
"text": "\n 5. Aggrieved by the above orders dated 9th and 11th August 1995, the three accused filed Criminal Appeal Nos. 31-34 of 2007 and the ITD filed Revision Petitions Nos. 55 and 56 of 2007 for enhancement of sentence."
}
},
{
"from_name": null,
"id": "4f29801df049465cba35840f2fed68b8",
"to_name": null,
"type": null,
"value": {
"end": 4675,
"labels": [
"RLC"
],
"start": 4347,
"text": "The aforementioned appeals and revision petitions were disposed of by the judgment dated 24th September 2011 by the learned District Judge and Additional Sessions Judge (Incharge) (West)/ARCT, Delhi [„DJ&ASJ‟] maintaining the conviction of the company (A-1) but enhancing the fine to Rs. 50,000 for each of the assessment years."
}
},
{
"from_name": null,
"id": "be7177df7c924357b228dd0f239a10de",
"to_name": null,
"type": null,
"value": {
"end": 4753,
"labels": [
"RLC"
],
"start": 4676,
"text": "The appeals by A-2 and A-3 were allowed and their convictions were set aside."
}
},
{
"from_name": null,
"id": "ee02b9b3539c427c94031fcf6c9f0ce9",
"to_name": null,
"type": null,
"value": {
"end": 5103,
"labels": [
"RLC"
],
"start": 4753,
"text": "\n 6. As regards the AY 1982-83 the learned Additional Chief Metropolitan Magistrate („ACMM‟) has by an order dated 3rd December 2011 in CC No. 7/4/09 acquitted A-2 and A-3 while convicting the company (A-1) for the offence under Section 276-B of the IT Act and by an order of the same date the company (A-1) was sentenced to pay a fine of Rs. 50,000."
}
},
{
"from_name": null,
"id": "9fd675494d9f4fc2ad38ca48cd4163bb",
"to_name": null,
"type": null,
"value": {
"end": 5276,
"labels": [
"FAC"
],
"start": 5103,
"text": "\n Aggrieved by the aforementioned orders dated 24th September 2011 of the learned ASJ and order 3rd December 2011 of the learned ACMM, the ITD has filed the present appeals."
}
},
{
"from_name": null,
"id": "da904950dfbc4596928ab29e13445145",
"to_name": null,
"type": null,
"value": {
"end": 5475,
"labels": [
"RLC"
],
"start": 5276,
"text": "\n 7. The main ground on which A-2 and A-3 were acquitted is that the SCNs issued by the ITD were only to the „principal officer‟ of the company and not to the individual directors, i.e., A-2 and A-3."
}
},
{
"from_name": null,
"id": "ff50be6416a34de097922122c2d4ad80",
"to_name": null,
"type": null,
"value": {
"end": 5633,
"labels": [
"PRE_RELIED"
],
"start": 5476,
"text": "In both the impugned judgments, reliance has been placed on the decision of this Court in Income Tax Officer v. Delhi Iron Works (P) Ltd. 2010 (175) DLT 495."
}
},
{
"from_name": null,
"id": "97e056c5af034c9ebfed7d398cda5387",
"to_name": null,
"type": null,
"value": {
"end": 5817,
"labels": [
"PRE_RELIED"
],
"start": 5634,
"text": "Before the learned DJ-ASJ the ITD had also placed reliance on the decision of the Division Bench of the Madras High Court in Income Tax Officer v. Dinesh Kumar Shah (1997) 223 ITR 68."
}
},
{
"from_name": null,
"id": "6f226e1401434415ac2028207469977f",
"to_name": null,
"type": null,
"value": {
"end": 6045,
"labels": [
"PRE_RELIED"
],
"start": 5817,
"text": "\nHowever, following the decision in Premwati v. Raghubans 1992 RLR 223 the learned ASJ held that it was the decision of the Delhi High Court in Income Tax Officer v. Delhi Iron Works (P) Limited (supra) which had to be followed."
}
},
{
"from_name": null,
"id": "8314ed1d6c92425581a02e8d4b246c55",
"to_name": null,
"type": null,
"value": {
"end": 6156,
"labels": [
"ANALYSIS"
],
"start": 6046,
"text": "It is seen that even the learned ACMM in the impugned order dated 3rd December 2011 adopted the same approach."
}
},
{
"from_name": null,
"id": "6c5a2a86c5fc4639bbf9b242b847a9d1",
"to_name": null,
"type": null,
"value": {
"end": 6380,
"labels": [
"PRE_RELIED"
],
"start": 6158,
"text": "8. This Court has perused the judgment in Income Tax Officer v. Delhi Iron Works (P) Ltd. (supra) which in turn referred to the decision of the Supreme Court in Madhumilan Syntex Limited v. Union of India IV (2007) SLT 14."
}
},
{
"from_name": null,
"id": "e15bd8ceff8a4e2c9ec3dcfa4dbc2f99",
"to_name": null,
"type": null,
"value": {
"end": 6671,
"labels": [
"ANALYSIS"
],
"start": 6381,
"text": "The Supreme Court has in the said decision held that before launching a prosecution under Section 276 B IT Act against the directors of a company, the Assessing Officer has to issue notice under Section 2 (35) of the IT Act expressing his intention to treat such directors of a company as „"
}
},
{
"from_name": null,
"id": "da53b46bc6404c18b196ddefcc4f57aa",
"to_name": null,
"type": null,
"value": {
"end": 6691,
"labels": [
"ANALYSIS"
],
"start": 6671,
"text": "principal officers‟."
}
},
{
"from_name": null,
"id": "3717dc86477d41398cb37db272e26cf9",
"to_name": null,
"type": null,
"value": {
"end": 6907,
"labels": [
"ANALYSIS"
],
"start": 6692,
"text": "It was held that it would be sufficient compliance if in the SCN issued to the company it is mentioned that the Assessing Officer intends to treat the directors as principal officers of the company under the IT Act."
}
},
{
"from_name": null,
"id": "c390a06dcd9f4b46b0d84c9bf79814a3",
"to_name": null,
"type": null,
"value": {
"end": 7148,
"labels": [
"ANALYSIS"
],
"start": 6907,
"text": "\n 9. A careful reading of the decision of the Supreme Court in Madhumilan Syntex Limited (supra) reveals that it had arisen in identical circumstances where the ITD had prosecuted a company under Section 276 B read with Section 278 B IT Act."
}
},
{
"from_name": null,
"id": "a22369875e014e00b09b36ed607c629e",
"to_name": null,
"type": null,
"value": {
"end": 7371,
"labels": [
"ANALYSIS"
],
"start": 7149,
"text": "The only distinction between the case of Madhumilan Syntex Limited (supra) and the case on hand is that in that case the SCN issued expressly stated that the directors were considered to be treated as „principal officers‟."
}
},
{
"from_name": null,
"id": "96c9388287e143e98f0f0bc734fcc10c",
"to_name": null,
"type": null,
"value": {
"end": 7539,
"labels": [
"ANALYSIS"
],
"start": 7372,
"text": "However, it appears that the Supreme Court also perused the complaint filed by the ITD in which it was stated that the directors were considered as principal officers."
}
},
{
"from_name": null,
"id": "ea6d23e638ed4e55a50280d5cd26ce1e",
"to_name": null,
"type": null,
"value": {
"end": 7636,
"labels": [
"PRE_RELIED"
],
"start": 7540,
"text": "The relevant paragraphs of the decision in Madhumilan Syntex Limited (supra) read as under: “44."
}
},
{
"from_name": null,
"id": "d462523bb42943d8af5c5c0b0df1b747",
"to_name": null,
"type": null,
"value": {
"end": 7920,
"labels": [
"PRE_RELIED"
],
"start": 7637,
"text": "In the case on hand, in the show cause notice dated March 11, 1991 issued under Section 276B read with Section 278B of the Act, it was expressly stated by the Income Tax Officer, TDS, Bhopal that the Directors were considered to be Principal Officers under Section 2 (35) of the Act."
}
},
{
"from_name": null,
"id": "64315938cb3541d7bdc435725b5a6afc",
"to_name": null,
"type": null,
"value": {
"end": 8075,
"labels": [
"PRE_RELIED"
],
"start": 7921,
"text": "In the complaint dated February 26, 1992 filed by Respondent No. 2-Commissioner also, it was stated that Appellants were considered as Principal Officers."
}
},
{
"from_name": null,
"id": "d9ddc1a8c6f24481b3983ad201e174cb",
"to_name": null,
"type": null,
"value": {
"end": 8376,
"labels": [
"PRE_RELIED"
],
"start": 8076,
"text": "In the above view of the matter, in our opinion, contention of the learned counsel for the Appellants cannot be accepted that the complaint filed against the Appellants, particularly against Appellant Nos. 2-4 is ill-founded or not maintainable.\n 45. It was argued"
}
},
{
"from_name": null,
"id": "c7115a22f1c74f9c89ed0115752b87cb",
"to_name": null,
"type": null,
"value": {
"end": 8621,
"labels": [
"PRE_RELIED"
],
"start": 8377,
"text": " that a separate notice and/or communication ought to have been issued before issuance of show cause notice under Section 276B read with Section 278B of the Act that the Directors were to be treated as Principal Officers under the Act."
}
},
{
"from_name": null,
"id": "70686c6510de4c1aaf35a882fb46ffbf",
"to_name": null,
"type": null,
"value": {
"end": 8933,
"labels": [
"PRE_RELIED"
],
"start": 8622,
"text": "In our opinion, however, no such independent and separate notice is necessary and when in the show cause notice it was stated that the Directors were to be considered as Principal Officers under the Act and a complaint was filed, such complaint is entertainable by a Court provided it is otherwise maintainable."
}
},
{
"from_name": null,
"id": "5a9f1f59c335463994edf6156115752e",
"to_name": null,
"type": null,
"value": {
"end": 9518,
"labels": [
"PRE_RELIED"
],
"start": 8933,
"text": "” 10. As far as the present case is concerned, in the complaint filed before the learned ACMM it is stated by the ITD as under: “1. That the Complainant is an Inspecting Assistant Commissioner of Income Tax (Assessment) In Charge of the assessment of Accused No. 1 which is a private limited company. Accused Nos. 2, 3 and 4 are the Directors/Principal Officer of the said company and were in charge and responsible to Accused No. 1 for the conduct of its business at the time when the offence, which is the subject matter of this complaint, was committed."
}
},
{
"from_name": null,
"id": "5bf21bd97982474da0280bfd9b4c5661",
"to_name": null,
"type": null,
"value": {
"end": 9798,
"labels": [
"ANALYSIS"
],
"start": 9519,
"text": "The Complainant has been authorized and directed by the Commissioner of Income Tax, Delhi-III, New Delhi, Shri R.S. Aggarwal, under Section 279 (1) of the Income Tax Act (hereinafter to be referred to as the Act) to file the present complaint at his instance against the Accused."
}
},
{
"from_name": null,
"id": "b9a11eda7cdb4c71a81db9c1ce0a83dc",
"to_name": null,
"type": null,
"value": {
"end": 9928,
"labels": [
"ANALYSIS"
],
"start": 9799,
"text": "The authorization of the Commissioner of Income Tax, Delhi-III, New Delhi, is attached herewith and marked as Annexure-A.\n "
}
},
{
"from_name": null,
"id": "9d0cc0fea913467392690f823181102c",
"to_name": null,
"type": null,
"value": {
"end": 10054,
"labels": [
"ANALYSIS"
],
"start": 9928,
"text": "In instituting this complaint, the Complainant is also acting in the discharge of her official duties being a public servant.”"
}
},
{
"from_name": null,
"id": "a08750b6992b4b0593fa1335f123a496",
"to_name": null,
"type": null,
"value": {
"end": 10792,
"labels": [
"STA"
],
"start": 10055,
"text": "11. For the purpose of Section 278 B of the IT Act, the company can be proceeded against by issuing a notice to the „principal officer‟ of the company as defined under Section 2 (35) of the IT Act, which reads as under: 'Section 2 (35) “principal officer”, used with reference to a local authority or a company or any other public body or any association of persons or anybody of individuals, means (a) the secretary, treasurer, manager, or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof;' 12."
}
},
{
"from_name": null,
"id": "6d36da46292d430b9dfbba34df24b7b1",
"to_name": null,
"type": null,
"value": {
"end": 10983,
"labels": [
"ANALYSIS"
],
"start": 10793,
"text": "The term „principal officer‟ is also mentioned under Section 305 of the Code of Criminal Procedure 1973 („Cr PC‟) which prescribes the procedure to be followed where a company is an accused."
}
},
{
"from_name": null,
"id": "5ad236a94566464abc9004974c9d4c61",
"to_name": null,
"type": null,
"value": {
"end": 11113,
"labels": [
"ANALYSIS"
],
"start": 10984,
"text": "It is possible that at that stage of issuance of the SCN the ITD may not be aware who are the directors in-charge of the company."
}
},
{
"from_name": null,
"id": "dc5aeffb47b846c5b7eba70247aafb3a",
"to_name": null,
"type": null,
"value": {
"end": 11259,
"labels": [
"ANALYSIS"
],
"start": 11114,
"text": "That requirement flows from Section 278 B of the IT Act which is a deeming provision and is attracted when the offence is committed by a company."
}
},
{
"from_name": null,
"id": "c08443beed874814b6b8aea7d892cd3c",
"to_name": null,
"type": null,
"value": {
"end": 11940,
"labels": [
"STA"
],
"start": 11260,
"text": "Section 278 B reads as under: \"278B. Offences by companies (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence."
}
},
{
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"id": "1e6a5824c2dc43609e80b03f1a44911f",
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"type": null,
"value": {
"end": 12440,
"labels": [
"STA"
],
"start": 11940,
"text": "\n (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
}
},
{
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"id": "16ea18e8ed9043c3bda11521bf686fce",
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"type": null,
"value": {
"end": 12831,
"labels": [
"STA"
],
"start": 12441,
"text": "Explanation.- For the purposes of this section,- (a) “company\" means a body corporate, and includes- (i) a firm; and (ii) an association of persons or a body of individuals whether incorporated or not; and (b) \" director', in relation to- (i) a firm, means a partner in the firm; (ii) any association of persons or a body of individuals, means any member controlling the affairs thereof 13."
}
},
{
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"to_name": null,
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"value": {
"end": 13018,
"labels": [
"ANALYSIS"
],
"start": 12832,
"text": "Section 278 B of IT Act makes the directors of the company in charge of its affairs liable for the offence committed by it unless the presumption is able to be rebutted by such director."
}
},
{
"from_name": null,
"id": "9b91e9eb77f14e58a9da9c5398d20ebf",
"to_name": null,
"type": null,
"value": {
"end": 13270,
"labels": [
"ANALYSIS"
],
"start": 13019,
"text": "This explains why the Supreme Court in Madhumilan Syntex Limited (supra) expressly rejected the arguments advanced on behalf of the directors in that case that the complaint filed against the company was not maintainable against the directors as well."
}
},
{
"from_name": null,
"id": "d7aea47c16d642f895b7d93614cfd3b2",
"to_name": null,
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"value": {
"end": 13533,
"labels": [
"ANALYSIS"
],
"start": 13271,
"text": "It was further explained that “when in the show cause notice it was stated that the directors were to be considered as Principal Officers under the Act, and a complaint was filed, such complaint is entertainable by a Court provided it is otherwise maintainable.”"
}
},
{
"from_name": null,
"id": "8d8790d5da9f4f3fbe4f19b2439e4446",
"to_name": null,
"type": null,
"value": {
"end": 13666,
"labels": [
"ANALYSIS"
],
"start": 13534,
"text": "What was considered by the Supreme Court was not only the wording of the SCN but also the wording of the complaint filed by the ITD."
}
},
{
"from_name": null,
"id": "d2300487c8bb4c6795605205c239b376",
"to_name": null,
"type": null,
"value": {
"end": 13887,
"labels": [
"ANALYSIS"
],
"start": 13667,
"text": "The purpose of making explicit either in the SCN or in the complaint, the intention of the ITD that it was proceeding against the directors was to enable the directors to explain why they should not be proceeded against."
}
},
{
"from_name": null,
"id": "da8998173c044e9a9191100263a7d4ba",
"to_name": null,
"type": null,
"value": {
"end": 14223,
"labels": [
"ANALYSIS"
],
"start": 13888,
"text": "Even if in the SCN there was no express mention that the directors were considered as „principal officers‟, in the complaint filed by the ITD it was clearly stated that “Accused Nos. 2, 3 and 4 are the directors/principal officer of the said company and were in charge and responsible to Accused No. 1 for the conduct of .........” 14."
}
},
{
"from_name": null,
"id": "b8f35436e62b44d6a12ac20fb1936b8c",
"to_name": null,
"type": null,
"value": {
"end": 14444,
"labels": [
"PRE_RELIED"
],
"start": 14224,
"text": "In Madhumilan Syntex Limited (supra) it was held that the proceedings against the Directors would be maintainable as long as the complaint clearly stated that they were being treated as principal officers of the company."
}
},
{
"from_name": null,
"id": "e91eb2743b7a42048f3b88209b254efa",
"to_name": null,
"type": null,
"value": {
"end": 14647,
"labels": [
"ANALYSIS"
],
"start": 14445,
"text": "Even otherwise for the purpose of Section 278 B of the IT Act, once the offence is shown to have been committed by the company, then the liability of the directors in charge of its affairs is attracted."
}
},
{
"from_name": null,
"id": "d6825fccada7450c87174abd1679890a",
"to_name": null,
"type": null,
"value": {
"end": 14834,
"labels": [
"ANALYSIS"
],
"start": 14648,
"text": "The burden then shifts to such directors to show that the offence occurred without their knowledge or that they had exercised all due diligence to prevent the commission of such offence."
}
},
{
"from_name": null,
"id": "86dc126f182f40b6850a5a4804008afc",
"to_name": null,
"type": null,
"value": {
"end": 15103,
"labels": [
"ANALYSIS"
],
"start": 14835,
"text": "The law as explained by the Supreme Court in Madhumilan Syntex Limited (supra) has not been noticed by the DJ&ASJ or the ACMM in the present case even while reference was made to the decision of this Court in Income Tax Officer v. Delhi Iron Works (P) Limited (supra)."
}
},
{
"from_name": null,
"id": "b348de9c9c5744c78d7fc6745959ecf8",
"to_name": null,
"type": null,
"value": {
"end": 15279,
"labels": [
"RATIO"
],
"start": 15103,
"text": "\n 15. Consequently, this Court is of the view that both Courts erred in acquitting A-2 and A-3, the directors of the company only because they were not issued separate notices."
}
},
{
"from_name": null,
"id": "e955d93a8d0e418d88143114b97bc1fb",
"to_name": null,
"type": null,
"value": {
"end": 15407,
"labels": [
"RATIO"
],
"start": 15279,
"text": "\n 16. As far as the merits of the matter are concerned, it is seen that both directors have signed the Company‟s balance sheets."
}
},
{
"from_name": null,
"id": "c3c4a43c6e92442eae31e1cd75374915",
"to_name": null,
"type": null,
"value": {
"end": 15506,
"labels": [
"RATIO"
],
"start": 15408,
"text": "Their defence that they were not in charge of the affairs of the company is, therefore, untenable."
}
},
{
"from_name": null,
"id": "80ff78a7f98e49c885fe4b5dc7597bfe",
"to_name": null,
"type": null,
"value": {
"end": 15832,
"labels": [
"RPC"
],
"start": 15506,
"text": "\n 17. Accordingly, this Court sets aside the impugned judgment dated 24 th September 2011 of the learned DJ&ASJ and the impugned judgment dated 3rd December 2011 of the learned ACMM and convicts the Respondents, i.e., A-2 and A-3 for the offence under Section 276 B of the IT Act for the aforementioned three assessment years."
}
},
{
"from_name": null,
"id": "5e568083c7bc40dca308ceecf679fb5d",
"to_name": null,
"type": null,
"value": {
"end": 15973,
"labels": [
"RPC"
],
"start": 15832,
"text": "\n 18. The punishment for the offence under Section 276 B of the IT Act is a minimum sentence of three months rigorous imprisonment with fine."
}
},
{
"from_name": null,
"id": "0bcc05b63444462793fc86b421695ca1",
"to_name": null,
"type": null,
"value": {
"end": 16162,
"labels": [
"RPC"
],
"start": 15973,
"text": "\nConsidering that these matters pertain to AYs 1982-83 to 1984-85 and given the long pendency of matters, the Court is of the view that A-2 and A-3 should be given the benefit of probation."
}
},
{
"from_name": null,
"id": "6ccaa51c21a2440fa1820a4f5b4ea528",
"to_name": null,
"type": null,
"value": {
"end": 16562,
"labels": [
"RPC"
],
"start": 16162,
"text": "\n 19. Accordingly, while sentencing A-2 and A-3 to pay a fine of Rs. 50,000 each for the offence under Section 276 B IT Act for each of the AYs, and in default to undergo simple imprisonment for seven days, the Court grants both A-2 and A-3 the benefit of probation and directs each of them to file bond of good behaviour in the trial Court in the sum of Rs. 10,000 each for the period of six months."
}
},
{
"from_name": null,
"id": "00c6fef0c1794dfca40456c902be2a5a",
"to_name": null,
"type": null,
"value": {
"end": 16615,
"labels": [
"RPC"
],
"start": 16564,
"text": "20. The appeals are disposed of in the above terms."
}
},
{
"from_name": null,
"id": "a36335de0370418d9d547b3eec812072",
"to_name": null,
"type": null,
"value": {
"end": 16752,
"labels": [
"RPC"
],
"start": 16616,
"text": "The trial Court record along with a certified copy of this order be delivered forthwith to the concerned learned ACMM for further steps."
}
},
{
"from_name": null,
"id": "7fc49cc64070493d8672e787201c83ca",
"to_name": null,
"type": null,
"value": {
"end": 16779,
"labels": [
"NONE"
],
"start": 16752,
"text": "\n 21. Order be given dasti."
}
},
{
"from_name": null,
"id": "f20508da2b394cc79a54a42cfc3c709d",
"to_name": null,
"type": null,
"value": {
"end": 16870,
"labels": [
"NONE"
],
"start": 16779,
"text": "\n S. MURALIDHAR, J.\nSEPTEMBER 23, 2014 Rk"
}
}
]
}
] | 4,087 | {
"text": " IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n CRL.L.P. 241 of 2012\n [Now converted into Criminal Appeal_______ of 2014 (to\n be numbered by the Registry)]\n\n INCOME TAX OFFICER ..... Petitioner\n Through: Mr. P. Roy Chaudhuri with Mr. Rohit\n Madan, Advocates.\n\n versus\n\n ANIL BATRA & ANR ..... Respondents\n Through: Mr. Jeevesh Mehta with Mr. Kapil\n Gulati, Advocates for R-2.\n Proxy counsel for Mr. P.K. Sharma, Advocate\n for R-1.\n\n With\n\n CRL.L.P. 242 of 2012\n [Now converted into Criminal Appeal_______ of 2014 (to\n be numbered by the Registry)]\n\n INCOME TAX OFFICER ..... Petitioner\n Through: Mr. P. Roy Chaudhuri with Mr. Rohit\n Madan, Advocates.\n\n versus\n\n ANIL BATRA & ANR ..... Respondents\n Through: Mr. Jeevesh Mehta with Mr. Kapil\n Gulati, Advocates for R-2.\n Proxy counsel for Mr. P.K. Sharma, Advocate\n for R-1.\n\n and\n CRL.L.P. 243 of 2012\n [Now converted into Criminal Appeal_______ of 2014 (to\n be numbered by the Registry)]\n\n INCOME TAX OFFICER ..... Petitioner\n Through: Mr. P. Roy Chaudhuri with Mr. Rohit\n Madan, Advocates.\n\n\n\n versus\n\n ANIL BATRA & ANR ..... Respondents\n Through: Mr. Jeevesh Mehta with Mr. Kapil\n Gulati, Advocates for R-2.\n Proxy counsel for Mr. P.K. Sharma, Advocate\n counsel for R-1.\n\n CORAM: JUSTICE S. MURALIDHAR\n\n ORDER\n 23.09.2014 1. These petitions raise an important question of law concerning the liability of the Director of a company which has been proceeded against by the Income Tax Department („ITD‟) under Section 276-B of the Income Tax Act, 1961 („IT Act‟). The Court is of the view that there are sufficient grounds for grant of leave to appeal. Accordingly, these three petitions are allowed and the cases are directed to be registered as criminal appeals and numbered as such by the Registry.\n Criminal Appeal No. of 2014 (to be numbered by the Registry) Criminal Appeal No. of 2014 (to be numbered by the Registry) Criminal Appeal No. of 2014 (to be numbered by the Registry) 2. With the consent of learned counsel for the parties, the appeals are taken up for final hearing.\n 3. The issue pertains to the assessment years („AYs‟), i.e., AY 1982-83, 1983-84, and AY 1984-85. With respect to the three AYs, show cause notices („SCNs‟) under Section 276-B read with Sections 194 A and 200 of the IT Act were issued by the Inspecting Assistant Commissioner, Income Tax (Assistant), Range XV, New Delhi addressed to “The Principal Officer, M/s. Anil Batra & Associates (P) Limited, Batra Cinema, Dr. Mukherjee Nagar, Delhi” regarding failure to pay the tax deducted at source under Section 276 B of the IT Act.\n 4. As regards AYs 1983-84 and 1984-85 the trial Court by its judgment dated 9th August 1995 convicted the company and its two directors, i.e., Mr. Anil Batra and Mr. C.L. Batra, Accused Nos. 2 and 3 („A-2 and A-3) respectively. While all the three accused were directed to pay Rs. 7,000 each as fine, A-2 and A-3 were sentenced to undergo simple imprisonment („SI‟) for three months each and in default of payment of fine, A-2 and A-3 were to undergo SI for a further period of three months each by an order on sentence dated 11th August 1995.\n 5. Aggrieved by the above orders dated 9th and 11th August 1995, the three accused filed Criminal Appeal Nos. 31-34 of 2007 and the ITD filed Revision Petitions Nos. 55 and 56 of 2007 for enhancement of sentence. The aforementioned appeals and revision petitions were disposed of by the judgment dated 24th September 2011 by the learned District Judge and Additional Sessions Judge (Incharge) (West)/ARCT, Delhi [„DJ&ASJ‟] maintaining the conviction of the company (A-1) but enhancing the fine to Rs. 50,000 for each of the assessment years. The appeals by A-2 and A-3 were allowed and their convictions were set aside.\n 6. As regards the AY 1982-83 the learned Additional Chief Metropolitan Magistrate („ACMM‟) has by an order dated 3rd December 2011 in CC No. 7/4/09 acquitted A-2 and A-3 while convicting the company (A-1) for the offence under Section 276-B of the IT Act and by an order of the same date the company (A-1) was sentenced to pay a fine of Rs. 50,000.\n Aggrieved by the aforementioned orders dated 24th September 2011 of the learned ASJ and order 3rd December 2011 of the learned ACMM, the ITD has filed the present appeals.\n 7. The main ground on which A-2 and A-3 were acquitted is that the SCNs issued by the ITD were only to the „principal officer‟ of the company and not to the individual directors, i.e., A-2 and A-3. In both the impugned judgments, reliance has been placed on the decision of this Court in Income Tax Officer v. Delhi Iron Works (P) Ltd. 2010 (175) DLT 495. Before the learned DJ-ASJ the ITD had also placed reliance on the decision of the Division Bench of the Madras High Court in Income Tax Officer v. Dinesh Kumar Shah (1997) 223 ITR 68.\nHowever, following the decision in Premwati v. Raghubans 1992 RLR 223 the learned ASJ held that it was the decision of the Delhi High Court in Income Tax Officer v. Delhi Iron Works (P) Limited (supra) which had to be followed. It is seen that even the learned ACMM in the impugned order dated 3rd December 2011 adopted the same approach.\n 8. This Court has perused the judgment in Income Tax Officer v. Delhi Iron Works (P) Ltd. (supra) which in turn referred to the decision of the Supreme Court in Madhumilan Syntex Limited v. Union of India IV (2007) SLT 14. The Supreme Court has in the said decision held that before launching a prosecution under Section 276 B IT Act against the directors of a company, the Assessing Officer has to issue notice under Section 2 (35) of the IT Act expressing his intention to treat such directors of a company as „principal officers‟. It was held that it would be sufficient compliance if in the SCN issued to the company it is mentioned that the Assessing Officer intends to treat the directors as principal officers of the company under the IT Act.\n 9. A careful reading of the decision of the Supreme Court in Madhumilan Syntex Limited (supra) reveals that it had arisen in identical circumstances where the ITD had prosecuted a company under Section 276 B read with Section 278 B IT Act. The only distinction between the case of Madhumilan Syntex Limited (supra) and the case on hand is that in that case the SCN issued expressly stated that the directors were considered to be treated as „principal officers‟. However, it appears that the Supreme Court also perused the complaint filed by the ITD in which it was stated that the directors were considered as principal officers. The relevant paragraphs of the decision in Madhumilan Syntex Limited (supra) read as under: “44. In the case on hand, in the show cause notice dated March 11, 1991 issued under Section 276B read with Section 278B of the Act, it was expressly stated by the Income Tax Officer, TDS, Bhopal that the Directors were considered to be Principal Officers under Section 2 (35) of the Act. In the complaint dated February 26, 1992 filed by Respondent No. 2-Commissioner also, it was stated that Appellants were considered as Principal Officers. In the above view of the matter, in our opinion, contention of the learned counsel for the Appellants cannot be accepted that the complaint filed against the Appellants, particularly against Appellant Nos. 2-4 is ill-founded or not maintainable.\n 45. It was argued that a separate notice and/or communication ought to have been issued before issuance of show cause notice under Section 276B read with Section 278B of the Act that the Directors were to be treated as Principal Officers under the Act. In our opinion, however, no such independent and separate notice is necessary and when in the show cause notice it was stated that the Directors were to be considered as Principal Officers under the Act and a complaint was filed, such complaint is entertainable by a Court provided it is otherwise maintainable.” 10. As far as the present case is concerned, in the complaint filed before the learned ACMM it is stated by the ITD as under: “1. That the Complainant is an Inspecting Assistant Commissioner of Income Tax (Assessment) In Charge of the assessment of Accused No. 1 which is a private limited company. Accused Nos. 2, 3 and 4 are the Directors/Principal Officer of the said company and were in charge and responsible to Accused No. 1 for the conduct of its business at the time when the offence, which is the subject matter of this complaint, was committed. The Complainant has been authorized and directed by the Commissioner of Income Tax, Delhi-III, New Delhi, Shri R.S. Aggarwal, under Section 279 (1) of the Income Tax Act (hereinafter to be referred to as the Act) to file the present complaint at his instance against the Accused. The authorization of the Commissioner of Income Tax, Delhi-III, New Delhi, is attached herewith and marked as Annexure-A.\n In instituting this complaint, the Complainant is also acting in the discharge of her official duties being a public servant.” 11. For the purpose of Section 278 B of the IT Act, the company can be proceeded against by issuing a notice to the „principal officer‟ of the company as defined under Section 2 (35) of the IT Act, which reads as under: 'Section 2 (35) “principal officer”, used with reference to a local authority or a company or any other public body or any association of persons or anybody of individuals, means (a) the secretary, treasurer, manager, or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof;' 12. The term „principal officer‟ is also mentioned under Section 305 of the Code of Criminal Procedure 1973 („Cr PC‟) which prescribes the procedure to be followed where a company is an accused. It is possible that at that stage of issuance of the SCN the ITD may not be aware who are the directors in-charge of the company. That requirement flows from Section 278 B of the IT Act which is a deeming provision and is attracted when the offence is committed by a company. Section 278 B reads as under: \"278B. Offences by companies (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.\n (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) “company\" means a body corporate, and includes- (i) a firm; and (ii) an association of persons or a body of individuals whether incorporated or not; and (b) \" director', in relation to- (i) a firm, means a partner in the firm; (ii) any association of persons or a body of individuals, means any member controlling the affairs thereof 13. Section 278 B of IT Act makes the directors of the company in charge of its affairs liable for the offence committed by it unless the presumption is able to be rebutted by such director. This explains why the Supreme Court in Madhumilan Syntex Limited (supra) expressly rejected the arguments advanced on behalf of the directors in that case that the complaint filed against the company was not maintainable against the directors as well. It was further explained that “when in the show cause notice it was stated that the directors were to be considered as Principal Officers under the Act, and a complaint was filed, such complaint is entertainable by a Court provided it is otherwise maintainable.” What was considered by the Supreme Court was not only the wording of the SCN but also the wording of the complaint filed by the ITD. The purpose of making explicit either in the SCN or in the complaint, the intention of the ITD that it was proceeding against the directors was to enable the directors to explain why they should not be proceeded against. Even if in the SCN there was no express mention that the directors were considered as „principal officers‟, in the complaint filed by the ITD it was clearly stated that “Accused Nos. 2, 3 and 4 are the directors/principal officer of the said company and were in charge and responsible to Accused No. 1 for the conduct of .........” 14. In Madhumilan Syntex Limited (supra) it was held that the proceedings against the Directors would be maintainable as long as the complaint clearly stated that they were being treated as principal officers of the company. Even otherwise for the purpose of Section 278 B of the IT Act, once the offence is shown to have been committed by the company, then the liability of the directors in charge of its affairs is attracted. The burden then shifts to such directors to show that the offence occurred without their knowledge or that they had exercised all due diligence to prevent the commission of such offence. The law as explained by the Supreme Court in Madhumilan Syntex Limited (supra) has not been noticed by the DJ&ASJ or the ACMM in the present case even while reference was made to the decision of this Court in Income Tax Officer v. Delhi Iron Works (P) Limited (supra).\n 15. Consequently, this Court is of the view that both Courts erred in acquitting A-2 and A-3, the directors of the company only because they were not issued separate notices.\n 16. As far as the merits of the matter are concerned, it is seen that both directors have signed the Company‟s balance sheets. Their defence that they were not in charge of the affairs of the company is, therefore, untenable.\n 17. Accordingly, this Court sets aside the impugned judgment dated 24 th September 2011 of the learned DJ&ASJ and the impugned judgment dated 3rd December 2011 of the learned ACMM and convicts the Respondents, i.e., A-2 and A-3 for the offence under Section 276 B of the IT Act for the aforementioned three assessment years.\n 18. The punishment for the offence under Section 276 B of the IT Act is a minimum sentence of three months rigorous imprisonment with fine.\nConsidering that these matters pertain to AYs 1982-83 to 1984-85 and given the long pendency of matters, the Court is of the view that A-2 and A-3 should be given the benefit of probation.\n 19. Accordingly, while sentencing A-2 and A-3 to pay a fine of Rs. 50,000 each for the offence under Section 276 B IT Act for each of the AYs, and in default to undergo simple imprisonment for seven days, the Court grants both A-2 and A-3 the benefit of probation and directs each of them to file bond of good behaviour in the trial Court in the sum of Rs. 10,000 each for the period of six months.\n 20. The appeals are disposed of in the above terms. The trial Court record along with a certified copy of this order be delivered forthwith to the concerned learned ACMM for further steps.\n 21. Order be given dasti.\n S. MURALIDHAR, J.\nSEPTEMBER 23, 2014 Rk "
} |
{
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} | [
{
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"labels": [
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"start": 4,
"text": "IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n Present:\n\n "
}
},
{
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],
"start": 141,
"text": "Miss Chinmayee Panda, B.A.LL.B.(Hons.)\n S.D.J.M.,Sundargarh."
}
},
{
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],
"start": 230,
"text": "Date of Argument: - 28.08.2018\n Date of Judgment: - 30.08.2018"
}
},
{
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],
"start": 305,
"text": "\n\n 2(a)cc Case No.186/2018\n Trial No. 436/2018\n\n State\n\n Vrs.\n\n "
}
},
{
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"id": "cfb0ecb7316540cd85613d27245ed44e",
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"PREAMBLE"
],
"start": 432,
"text": "Bilasini Sunani, aged about 48 years,\n W"
}
},
{
"from_name": null,
"id": "81a03e47c77d4c35b70e3f760369b6d5",
"to_name": null,
"type": null,
"value": {
"end": 566,
"labels": [
"PREAMBLE"
],
"start": 483,
"text": "/o- Alekha Sunani, resident of\n vill- Rabandihi, Ps-Dharuadihi, Dist-Sundargarh."
}
},
{
"from_name": null,
"id": "2cfc792538a744bbaeaeda2b7253bf5d",
"to_name": null,
"type": null,
"value": {
"end": 868,
"labels": [
"PREAMBLE"
],
"start": 623,
"text": "...Accused\n\nCounsel for the State....... Ld. A.P.P, Sundargarh.\nCounsel for the defence.....Sri G. Hati & associates.\n\n Status of the accused :On bail\n\n Offence U/s.52 (a)(i) Odisha Excise Act\n\n J U D G M E N T\n 1. "
}
},
{
"from_name": null,
"id": "b2cfcc3f36684175ab591cbe72234406",
"to_name": null,
"type": null,
"value": {
"end": 1006,
"labels": [
"FAC"
],
"start": 868,
"text": "The accused stands charged for allegedly committing offence u/s 52(a) (i) of Odisha Excise Act (hereinafter referred to as O Excise Act) ."
}
},
{
"from_name": null,
"id": "f469637dd5d247f0b779c013d57fdcb9",
"to_name": null,
"type": null,
"value": {
"end": 1308,
"labels": [
"FAC"
],
"start": 1006,
"text": "\n 2. The case of the prosecution as unfolded from the PR is that on 11.06.2018 at about 08.30 AM while the then SI of Excise, Sadar Charge, Sundargarh, Shri Hira Dalapati was performing patrolling duty along with his staff at Rabandihi area, on receipt of reliable information he detained the accused."
}
},
{
"from_name": null,
"id": "3daec1b0e08a4db69537abf48868c2da",
"to_name": null,
"type": null,
"value": {
"end": 1496,
"labels": [
"FAC"
],
"start": 1309,
"text": "After observing all legal formalities of search, he searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 12 liters ."
}
},
{
"from_name": null,
"id": "5e9d71aff24a4ee480557f054bde27f9",
"to_name": null,
"type": null,
"value": {
"end": 1600,
"labels": [
"FAC"
],
"start": 1497,
"text": "The SI of Excise tested the contents of the plastic jarkin by blue litmus paper and it turned into red."
}
},
{
"from_name": null,
"id": "f48c54cdf2fc430ebb26cbbeb56f3a62",
"to_name": null,
"type": null,
"value": {
"end": 1647,
"labels": [
"FAC"
],
"start": 1601,
"text": "He also conducted hydrometer test of the same."
}
},
{
"from_name": null,
"id": "4877b54e0d17436e89af8cf84961bb1a",
"to_name": null,
"type": null,
"value": {
"end": 1815,
"labels": [
"FAC"
],
"start": 1648,
"text": "From such tests, from the color and odor of the liquid and from his departmental experience and distillery training, he confirmed the same to be nothing but ID liquor."
}
},
{
"from_name": null,
"id": "e574c801eb5d4f4982367c3050fae2da",
"to_name": null,
"type": null,
"value": {
"end": 1893,
"labels": [
"FAC"
],
"start": 1816,
"text": "Hence, he seized the same in presence of witnesses and prepared seizure list."
}
},
{
"from_name": null,
"id": "963b51bdaa09419d9296fcb5fb6a4b23",
"to_name": null,
"type": null,
"value": {
"end": 2104,
"labels": [
"FAC"
],
"start": 1893,
"text": "\n On the basis of the P.R. submitted by the I.O., cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 52(a)(i) of Bihar and Orissa Excise Act."
}
},
{
"from_name": null,
"id": "8a7dea4aed9541c9ab87ef0a50f0c8c4",
"to_name": null,
"type": null,
"value": {
"end": 2122,
"labels": [
"FAC"
],
"start": 2104,
"text": "\nHence, this case."
}
},
{
"from_name": null,
"id": "86166f15c4354115b91ce3680a06da17",
"to_name": null,
"type": null,
"value": {
"end": 2187,
"labels": [
"FAC"
],
"start": 2124,
"text": "3. The plea of defence is one of denial and false implication ."
}
},
{
"from_name": null,
"id": "fb76c8aa240241f0ab50ef4527eb8677",
"to_name": null,
"type": null,
"value": {
"end": 2453,
"labels": [
"ISSUE"
],
"start": 2189,
"text": "4. Points for determination : (i) Whether on 11.06.2018 at about 08.30 AM at Rabandihi area the Excise officials seized 12 liters of ID liquor from exclusive and conscious possession of the accused ?\n (ii) Whether the seized articles was nothing but ID liquor ?"
}
},
{
"from_name": null,
"id": "4aca2f0ba5df4288b8fa7c5ea4db1d45",
"to_name": null,
"type": null,
"value": {
"end": 2718,
"labels": [
"FAC"
],
"start": 2453,
"text": "\n 5. In order to substantiate its case prosecution has examined as many as three witnesses out of whom P.W.2, is the SI of Excise and P.W.3 is the Excise staff who had accompanied P.W.2 during the alleged patrolling duty and PW 1 is an independent seizure witness ."
}
},
{
"from_name": null,
"id": "8264a4fb2f7245f29abc9b37f0bbcfc8",
"to_name": null,
"type": null,
"value": {
"end": 2816,
"labels": [
"FAC"
],
"start": 2719,
"text": "On the other hand the defence has preferred not to examine any witness on behalf of the accused ."
}
},
{
"from_name": null,
"id": "8b5e3b0e7704490eb9b020b16be8eef3",
"to_name": null,
"type": null,
"value": {
"end": 3047,
"labels": [
"FAC"
],
"start": 2816,
"text": "\n 6. In order to establish seizure, P.W.2 has deposed that on 11.06.2018 at about 08.30 AM while he was conducting patrolling duty along with his staff at Rabandihi area, on receipt of reliable information he detained the accused."
}
},
{
"from_name": null,
"id": "a60b414ae60b4bb1a4c35637366a6c03",
"to_name": null,
"type": null,
"value": {
"end": 3238,
"labels": [
"FAC"
],
"start": 3048,
"text": "And after observing all legal formalities of search, he searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 12 liters."
}
},
{
"from_name": null,
"id": "0ae500f85ceb441db57509e2f3bf183c",
"to_name": null,
"type": null,
"value": {
"end": 3554,
"labels": [
"FAC"
],
"start": 3239,
"text": "As per his evidence he conducted blue litmus paper test and hydrometer test of the liquid and after being confirmed about the nature of the liquid to be ID liquor, he seized the same from the possession of the accused and prepared seizure list vide Ext.1.\n P.W.3 has also deposed in the same light as that of P.W.2."
}
},
{
"from_name": null,
"id": "999841a7baa649419ae58ba8c4059027",
"to_name": null,
"type": null,
"value": {
"end": 3894,
"labels": [
"FAC"
],
"start": 3555,
"text": "So far as the independent seizure witness is concerned he has stated that on 11.06.2018 at about 08:00 AM Excise officials seized one plastic jarkin containing 12 liters of ID liquor from the accused but during course of cross examination he has stated that Excise officials called him and as per their direction he had put his signature ."
}
},
{
"from_name": null,
"id": "82a5bacbfc14493a911a5e3911ca5777",
"to_name": null,
"type": null,
"value": {
"end": 4102,
"labels": [
"FAC"
],
"start": 3895,
"text": "It is further revealed from his cross examination that at the relevant time he was in his own house and the house of the accused is about half kilometers from his house, which is not within visible distance."
}
},
{
"from_name": null,
"id": "888311ac33a04c35b1f9bf6ce55f92ca",
"to_name": null,
"type": null,
"value": {
"end": 4266,
"labels": [
"FAC"
],
"start": 4103,
"text": "It is further revealed from the cross examination of PW.1 that by the time he reached the spot, there were 2 to 3 other persons on the spot apart from the accused."
}
},
{
"from_name": null,
"id": "63812b4b78c84c029c519990241db7bb",
"to_name": null,
"type": null,
"value": {
"end": 4418,
"labels": [
"FAC"
],
"start": 4267,
"text": "In view of such statement of PW.1, his evidence regarding the seizure of contraband articles from the possession of the accused seems to be suspicious."
}
},
{
"from_name": null,
"id": "dc5055230ff34772af2adb5ad59de7f9",
"to_name": null,
"type": null,
"value": {
"end": 4551,
"labels": [
"FAC"
],
"start": 4418,
"text": "\n During course of cross-examination P.W.2 has admitted that the seized liquor has not been produced in court during course of trial."
}
},
{
"from_name": null,
"id": "efcc94321a584915b067a237709bb995",
"to_name": null,
"type": null,
"value": {
"end": 4720,
"labels": [
"FAC"
],
"start": 4552,
"text": "P.W.2 has further admitted that the spot was a busy place many people had gathered on the spot and he was not able to say the name of the witnesses present at the spot."
}
},
{
"from_name": null,
"id": "37bbe4e92e7a48258c90d448de4e4cac",
"to_name": null,
"type": null,
"value": {
"end": 4841,
"labels": [
"FAC"
],
"start": 4721,
"text": "In the absence of independent corroboration to the evidence of the Excise personnel, the prosecution case is suspicious."
}
},
{
"from_name": null,
"id": "d60cd7d6a33c48288b260af5903f5841",
"to_name": null,
"type": null,
"value": {
"end": 4927,
"labels": [
"FAC"
],
"start": 4842,
"text": "The seized article was also not produced before the Court during the course of trial."
}
},
{
"from_name": null,
"id": "4b943ef864f54276912d9b75bfa2546b",
"to_name": null,
"type": null,
"value": {
"end": 5039,
"labels": [
"FAC"
],
"start": 4928,
"text": "Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article."
}
},
{
"from_name": null,
"id": "30a055622ae6467dad15cb557996e068",
"to_name": null,
"type": null,
"value": {
"end": 5196,
"labels": [
"ANALYSIS"
],
"start": 5040,
"text": "In view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful."
}
},
{
"from_name": null,
"id": "c317215ecb734463a908aaf136ea1153",
"to_name": null,
"type": null,
"value": {
"end": 5371,
"labels": [
"ANALYSIS"
],
"start": 5197,
"text": "Hence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts."
}
},
{
"from_name": null,
"id": "e5305f80a9564fafa63af8b68a427730",
"to_name": null,
"type": null,
"value": {
"end": 5685,
"labels": [
"ANALYSIS"
],
"start": 5373,
"text": "7. So far as the nature of seized article is concerned P.W.2 has stated that he conducted blue litmus and hydrometer test of the liquid and from such test as well as from his Departmental experience and distillery training and the colour and odor of the liquid he confirmed the same to be nothing but ID liquor."
}
},
{
"from_name": null,
"id": "968cc65c3a054114b9ebdca71478d2d7",
"to_name": null,
"type": null,
"value": {
"end": 5711,
"labels": [
"ANALYSIS"
],
"start": 5686,
"text": "During course of argument"
}
},
{
"from_name": null,
"id": "e1350c3965534f8a858b5195b83c754f",
"to_name": null,
"type": null,
"value": {
"end": 6443,
"labels": [
"ANALYSIS"
],
"start": 5712,
"text": ", learned APP strenuously argued that as per Sec. 53 of Odisha Excise act, 2008 in case of an offence u/s 52 of the Act, if it is established by chemical analysis or by adducing evidence of trained Excise Officer or otherwise that the seized liquid , materials or other things are - (a) intoxicant or (b) still, utensils, implement or apparatus whatsoever for the manufacture of any intoxicant other than tari or (c) any material, which has undergone any process towards the manufacture of any intoxicant or from which an intoxicant has been manufactured, the Court shall presume that the seized liquid or materials or other things are recovered from the conscious possession of the accused unless and until the contrary is proved."
}
},
{
"from_name": null,
"id": "986e476d6dc84d548882381dd6f951bb",
"to_name": null,
"type": null,
"value": {
"end": 6922,
"labels": [
"ARG_PETITIONER"
],
"start": 6444,
"text": "The learned APP argued that as the SI of Excise has done the tests required to ascertain the nature of liquor and as from such tests and from his departmental experience and distillery training, he has opined the same to be nothing but ID liquor, as per the presumption provided u/s 53 of the Odisha Excise Act, it shall be presumed that the contraband was seized from the conscious possession of the accused and hence, the accused is liable to be held guilty.\n "
}
},
{
"from_name": null,
"id": "b78f84a85f124bf4ba14ebd86a2bf617",
"to_name": null,
"type": null,
"value": {
"end": 6994,
"labels": [
"ANALYSIS"
],
"start": 6922,
"text": "Law is well settled that chemical test is the surest test of I.D liquor."
}
},
{
"from_name": null,
"id": "ea6aa567f0d6418bb71f12a86f99eed9",
"to_name": null,
"type": null,
"value": {
"end": 7321,
"labels": [
"ANALYSIS"
],
"start": 6995,
"text": "Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test."
}
},
{
"from_name": null,
"id": "e17493357a844aba97e8030b593261bf",
"to_name": null,
"type": null,
"value": {
"end": 7633,
"labels": [
"STA"
],
"start": 7322,
"text": "In this context, it is pertinent to reflect the Explanation appended to Sec. 53 of the Odisha Excise Act, 2008 , which provides as follows: Explanation- \" Trained Excise Officer\" shall mean an officer who has under gone distillery training and obtained a certificate from the concerned Superintendent of Excise."
}
},
{
"from_name": null,
"id": "8428297192e442218301be1e26af88bf",
"to_name": null,
"type": null,
"value": {
"end": 7755,
"labels": [
"ANALYSIS"
],
"start": 7633,
"text": "\n But in the instant case, there is nothing in the evidence of P.W.2 to reveal that he had under gone distillery training."
}
},
{
"from_name": null,
"id": "6a7070487c3f4124a816a5432cf06c32",
"to_name": null,
"type": null,
"value": {
"end": 7888,
"labels": [
"ANALYSIS"
],
"start": 7756,
"text": "Further, there is also no specific experience and distillery training certificate granted by the Supt. Of Excise in favour of P.W.2."
}
},
{
"from_name": null,
"id": "acb1bbab4cf2420382017917934211df",
"to_name": null,
"type": null,
"value": {
"end": 8040,
"labels": [
"ANALYSIS"
],
"start": 7889,
"text": "In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W.2."
}
},
{
"from_name": null,
"id": "72992f57375a4aa9aff7666af0f001d8",
"to_name": null,
"type": null,
"value": {
"end": 8157,
"labels": [
"ANALYSIS"
],
"start": 8041,
"text": "In view of the above discussion, the allegation that the seized article is nothing but I.D liquor comes under cloud."
}
},
{
"from_name": null,
"id": "603d5c382aad4a009ab6e4efaa59885b",
"to_name": null,
"type": null,
"value": {
"end": 8296,
"labels": [
"RATIO"
],
"start": 8158,
"text": "Hence, it can be safely concluded that prosecution has failed to prove that the seized article is I.D liquor beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "83ee698b02ee47fdb3eaf57d103df5e7",
"to_name": null,
"type": null,
"value": {
"end": 8509,
"labels": [
"RATIO"
],
"start": 8297,
"text": "Accordingly, when the prosecution has failed to establish that the contraband is nothing but ID liquor, there is no occasion for raising of presumption against the accused as per Sec. 53 of the Odisha Excise Act."
}
},
{
"from_name": null,
"id": "b4a057b758be409c9999f42b5b57a543",
"to_name": null,
"type": null,
"value": {
"end": 8676,
"labels": [
"RATIO"
],
"start": 8510,
"text": "More over, as discussed in paragraph 6 , the prosecution has failed to establish the seizure of contraband from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "9572d97453b14ca0ac3e9b1353b67591",
"to_name": null,
"type": null,
"value": {
"end": 8869,
"labels": [
"RATIO"
],
"start": 8676,
"text": "\n 8. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself."
}
},
{
"from_name": null,
"id": "751975299a384e7fae140805024830f5",
"to_name": null,
"type": null,
"value": {
"end": 9036,
"labels": [
"RPC"
],
"start": 8869,
"text": "\n In the result I hold the accused not guilty of offence u/s 52(a)(i) of Odisha Excise Act and is acquitted therefrom as per the provision of section 248(1) of Cr.P.C."
}
},
{
"from_name": null,
"id": "3418ac8ce2bb41f4b3f3d85855f44aeb",
"to_name": null,
"type": null,
"value": {
"end": 9148,
"labels": [
"RPC"
],
"start": 9037,
"text": "The accused be set at liberty forthwith and be discharged from her bail bond so far as this case is concerned ."
}
},
{
"from_name": null,
"id": "ae54b05578c7419081094b2e0ec74721",
"to_name": null,
"type": null,
"value": {
"end": 9159,
"labels": [
"RPC"
],
"start": 9150,
"text": "9. "
}
},
{
"from_name": null,
"id": "c0280b2943014d86bb82e2a1abd8852f",
"to_name": null,
"type": null,
"value": {
"end": 9328,
"labels": [
"RPC"
],
"start": 9159,
"text": "The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "165024360bf7426c850a88b0ef7827f3",
"to_name": null,
"type": null,
"value": {
"end": 9390,
"labels": [
"RPC"
],
"start": 9330,
"text": "Enter this case as mistake of fact for statistical purpose ."
}
},
{
"from_name": null,
"id": "3f87f1701d934ff287107561395a5c68",
"to_name": null,
"type": null,
"value": {
"end": 9412,
"labels": [
"NONE"
],
"start": 9390,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
"from_name": null,
"id": "213936bd46644a6894152a80100df22a",
"to_name": null,
"type": null,
"value": {
"end": 9581,
"labels": [
"NONE"
],
"start": 9412,
"text": "\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court under my signature and seal on this the 30th day of August, 2018."
}
},
{
"from_name": null,
"id": "2bf55f85e2094e4080ea80037962d649",
"to_name": null,
"type": null,
"value": {
"end": 9603,
"labels": [
"NONE"
],
"start": 9581,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
"from_name": null,
"id": "a4a625d0be3d4ff098fd4fe1fabc2590",
"to_name": null,
"type": null,
"value": {
"end": 9771,
"labels": [
"NONE"
],
"start": 9605,
"text": "LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Kumuduni Dehury P.W. 2 Hira Dalpati P.W. 3 Soudamini Banchhur LIST OF WITNESSES EXAMINED FOR THE DEFENCE:"
}
},
{
"from_name": null,
"id": "4f83e842e7de4b3eae795195b63d5553",
"to_name": null,
"type": null,
"value": {
"end": 9978,
"labels": [
"NONE"
],
"start": 9772,
"text": "Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Signature of P.W.1 Ext.1/2 Signature of P.W.2 Ext.1/3 Tested blue litmus paper Ext.1/4 Signature of PW.3 Ext.2 "
}
},
{
"from_name": null,
"id": "698e04e669cd4bb881daa9c542d2dd1d",
"to_name": null,
"type": null,
"value": {
"end": 10022,
"labels": [
"NONE"
],
"start": 9978,
"text": "spot map Ext.2/1 Signature of P.W.2 Ext.2/2"
}
},
{
"from_name": null,
"id": "e6b4de14acbd4d80aff4c38ab0507981",
"to_name": null,
"type": null,
"value": {
"end": 10041,
"labels": [
"NONE"
],
"start": 10024,
"text": "Signature of PW.3"
}
},
{
"from_name": null,
"id": "e4b95f1085594604baf3a4ac627743b6",
"to_name": null,
"type": null,
"value": {
"end": 10097,
"labels": [
"NONE"
],
"start": 10042,
"text": "LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil."
}
},
{
"from_name": null,
"id": "5a908265ca9748d394a5020506ed81f9",
"to_name": null,
"type": null,
"value": {
"end": 10147,
"labels": [
"NONE"
],
"start": 10098,
"text": "LIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION."
}
},
{
"from_name": null,
"id": "2b35a8cf5c55445c9ad3b46434a594fe",
"to_name": null,
"type": null,
"value": {
"end": 10153,
"labels": [
"NONE"
],
"start": 10147,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "b36909faf5384323857e1c29528abab6",
"to_name": null,
"type": null,
"value": {
"end": 10199,
"labels": [
"NONE"
],
"start": 10154,
"text": "LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE."
}
},
{
"from_name": null,
"id": "d050f2f7f1ab438ab49cc0da2a1a2874",
"to_name": null,
"type": null,
"value": {
"end": 10205,
"labels": [
"NONE"
],
"start": 10199,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "d47572e8545a40198554e6d64bf63bc7",
"to_name": null,
"type": null,
"value": {
"end": 10227,
"labels": [
"NONE"
],
"start": 10205,
"text": "\n S.D.J.M.,Sundargarh."
}
}
]
}
] | 4,086 | {
"text": " IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n Present:\n\n Miss Chinmayee Panda, B.A.LL.B.(Hons.)\n S.D.J.M.,Sundargarh.\n\n Date of Argument: - 28.08.2018\n Date of Judgment: - 30.08.2018\n\n 2(a)cc Case No.186/2018\n Trial No. 436/2018\n\n State\n\n Vrs.\n\n Bilasini Sunani, aged about 48 years,\n W/o- Alekha Sunani, resident of\n vill- Rabandihi, Ps-Dharuadihi, Dist-Sundargarh.\n\n ...Accused\n\nCounsel for the State....... Ld. A.P.P, Sundargarh.\nCounsel for the defence.....Sri G. Hati & associates.\n\n Status of the accused :On bail\n\n Offence U/s.52 (a)(i) Odisha Excise Act\n\n J U D G M E N T\n 1. The accused stands charged for allegedly committing offence u/s 52(a) (i) of Odisha Excise Act (hereinafter referred to as O Excise Act) .\n 2. The case of the prosecution as unfolded from the PR is that on 11.06.2018 at about 08.30 AM while the then SI of Excise, Sadar Charge, Sundargarh, Shri Hira Dalapati was performing patrolling duty along with his staff at Rabandihi area, on receipt of reliable information he detained the accused. After observing all legal formalities of search, he searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 12 liters . The SI of Excise tested the contents of the plastic jarkin by blue litmus paper and it turned into red. He also conducted hydrometer test of the same. From such tests, from the color and odor of the liquid and from his departmental experience and distillery training, he confirmed the same to be nothing but ID liquor. Hence, he seized the same in presence of witnesses and prepared seizure list.\n On the basis of the P.R. submitted by the I.O., cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 52(a)(i) of Bihar and Orissa Excise Act.\nHence, this case.\n 3. The plea of defence is one of denial and false implication .\n 4. Points for determination : (i) Whether on 11.06.2018 at about 08.30 AM at Rabandihi area the Excise officials seized 12 liters of ID liquor from exclusive and conscious possession of the accused ?\n (ii) Whether the seized articles was nothing but ID liquor ?\n 5. In order to substantiate its case prosecution has examined as many as three witnesses out of whom P.W.2, is the SI of Excise and P.W.3 is the Excise staff who had accompanied P.W.2 during the alleged patrolling duty and PW 1 is an independent seizure witness . On the other hand the defence has preferred not to examine any witness on behalf of the accused .\n 6. In order to establish seizure, P.W.2 has deposed that on 11.06.2018 at about 08.30 AM while he was conducting patrolling duty along with his staff at Rabandihi area, on receipt of reliable information he detained the accused. And after observing all legal formalities of search, he searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 12 liters. As per his evidence he conducted blue litmus paper test and hydrometer test of the liquid and after being confirmed about the nature of the liquid to be ID liquor, he seized the same from the possession of the accused and prepared seizure list vide Ext.1.\n P.W.3 has also deposed in the same light as that of P.W.2. So far as the independent seizure witness is concerned he has stated that on 11.06.2018 at about 08:00 AM Excise officials seized one plastic jarkin containing 12 liters of ID liquor from the accused but during course of cross examination he has stated that Excise officials called him and as per their direction he had put his signature . It is further revealed from his cross examination that at the relevant time he was in his own house and the house of the accused is about half kilometers from his house, which is not within visible distance. It is further revealed from the cross examination of PW.1 that by the time he reached the spot, there were 2 to 3 other persons on the spot apart from the accused. In view of such statement of PW.1, his evidence regarding the seizure of contraband articles from the possession of the accused seems to be suspicious.\n During course of cross-examination P.W.2 has admitted that the seized liquor has not been produced in court during course of trial. P.W.2 has further admitted that the spot was a busy place many people had gathered on the spot and he was not able to say the name of the witnesses present at the spot. In the absence of independent corroboration to the evidence of the Excise personnel, the prosecution case is suspicious. The seized article was also not produced before the Court during the course of trial. Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article. In view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful. Hence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts.\n 7. So far as the nature of seized article is concerned P.W.2 has stated that he conducted blue litmus and hydrometer test of the liquid and from such test as well as from his Departmental experience and distillery training and the colour and odor of the liquid he confirmed the same to be nothing but ID liquor. During course of argument , learned APP strenuously argued that as per Sec. 53 of Odisha Excise act, 2008 in case of an offence u/s 52 of the Act, if it is established by chemical analysis or by adducing evidence of trained Excise Officer or otherwise that the seized liquid , materials or other things are - (a) intoxicant or (b) still, utensils, implement or apparatus whatsoever for the manufacture of any intoxicant other than tari or (c) any material, which has undergone any process towards the manufacture of any intoxicant or from which an intoxicant has been manufactured, the Court shall presume that the seized liquid or materials or other things are recovered from the conscious possession of the accused unless and until the contrary is proved. The learned APP argued that as the SI of Excise has done the tests required to ascertain the nature of liquor and as from such tests and from his departmental experience and distillery training, he has opined the same to be nothing but ID liquor, as per the presumption provided u/s 53 of the Odisha Excise Act, it shall be presumed that the contraband was seized from the conscious possession of the accused and hence, the accused is liable to be held guilty.\n Law is well settled that chemical test is the surest test of I.D liquor. Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test. In this context, it is pertinent to reflect the Explanation appended to Sec. 53 of the Odisha Excise Act, 2008 , which provides as follows: Explanation- \" Trained Excise Officer\" shall mean an officer who has under gone distillery training and obtained a certificate from the concerned Superintendent of Excise.\n But in the instant case, there is nothing in the evidence of P.W.2 to reveal that he had under gone distillery training. Further, there is also no specific experience and distillery training certificate granted by the Supt. Of Excise in favour of P.W.2. In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W.2. In view of the above discussion, the allegation that the seized article is nothing but I.D liquor comes under cloud. Hence, it can be safely concluded that prosecution has failed to prove that the seized article is I.D liquor beyond all reasonable doubts. Accordingly, when the prosecution has failed to establish that the contraband is nothing but ID liquor, there is no occasion for raising of presumption against the accused as per Sec. 53 of the Odisha Excise Act. More over, as discussed in paragraph 6 , the prosecution has failed to establish the seizure of contraband from the exclusive and conscious possession of the accused.\n 8. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself.\n In the result I hold the accused not guilty of offence u/s 52(a)(i) of Odisha Excise Act and is acquitted therefrom as per the provision of section 248(1) of Cr.P.C. The accused be set at liberty forthwith and be discharged from her bail bond so far as this case is concerned .\n 9. The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court.\n Enter this case as mistake of fact for statistical purpose .\n S.D.J.M.,Sundargarh.\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court under my signature and seal on this the 30th day of August, 2018.\n S.D.J.M.,Sundargarh.\n LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Kumuduni Dehury P.W. 2 Hira Dalpati P.W. 3 Soudamini Banchhur LIST OF WITNESSES EXAMINED FOR THE DEFENCE: Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Signature of P.W.1 Ext.1/2 Signature of P.W.2 Ext.1/3 Tested blue litmus paper Ext.1/4 Signature of PW.3 Ext.2 spot map Ext.2/1 Signature of P.W.2 Ext.2/2 Signature of PW.3 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil.\nLIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION.\n Nil.\nLIST OF M.O. MARKED ON BEHALF OF THE DEFENCE.\n Nil.\n S.D.J.M.,Sundargarh.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "3ffb082e7255453d828e444f071762e7",
"to_name": null,
"type": null,
"value": {
"end": 90,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nGOPAL & ORS.\n\nVs.\n\nRESPONDENT:\nSTATE OF TAMIL NADU\n\nDATE OF JUDGMENT30/01/1986"
}
},
{
"from_name": null,
"id": "717bb77a7b4a40fa9f56bf3e93babe01",
"to_name": null,
"type": null,
"value": {
"end": 766,
"labels": [
"PREAMBLE"
],
"start": 90,
"text": "\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nERADI, V. BALAKRISHNA (J)\n\nCITATION: 1986 SCR (1) 199\n 1986 AIR 702 1986 SCALE (1)132\n 1986 SCC (2) 93\n\nACT:\n Constitution of India, 1950, Article 136 - Criminal\n\nappeal - Conviction and sentence - Concurrently arrived at\nby trial and Appellate Courts - Interference by Supreme\nCourt When arises.\n\n Practice and Procedure - Sentence - Question of Supreme\nCourt - When would interfere.\n\nHEADNOTE:\n The Mirasdars used to bring labourers from outside for\n\nharvest of paddy from their fields as local labourers were\nreluctant to harvest paddy at the wage of 4 1/2 measures of\npaddy."
}
},
{
"from_name": null,
"id": "f49c605092c64c3ba44943cc492a1a42",
"to_name": null,
"type": null,
"value": {
"end": 873,
"labels": [
"PREAMBLE"
],
"start": 767,
"text": "The local labourers were very much aggrieved by this\nbringing of men from outside for harvesting of paddy."
}
},
{
"from_name": null,
"id": "057a40200a414dc4801ac433e6736e78",
"to_name": null,
"type": null,
"value": {
"end": 1076,
"labels": [
"PREAMBLE"
],
"start": 874,
"text": "On\n25th December, 1968 one Packiriswami Pillai, since deceased,\nalongwith 17 other labourers of Irakkai village was\nreturning home at about 5.30 P.M. after harvesting of crops\nfrom the fields of P.W.15."
}
},
{
"from_name": null,
"id": "a83409ab31a44f12b9e1b2af4fd4fd7f",
"to_name": null,
"type": null,
"value": {
"end": 1177,
"labels": [
"PREAMBLE"
],
"start": 1077,
"text": "They reached the east-west\nHarijan Street at about 7.30 P.M. mere was moon light and\nelectric light."
}
},
{
"from_name": null,
"id": "30d471cb9dbd44b6ac60ce1bb02f35e4",
"to_name": null,
"type": null,
"value": {
"end": 1247,
"labels": [
"PREAMBLE"
],
"start": 1178,
"text": "There, P.Ws. 31,32,34 to 44 saw a crowd of\n10 to 15 persons standing."
}
},
{
"from_name": null,
"id": "be47a9915e694ac7811d55ab20ba5fdd",
"to_name": null,
"type": null,
"value": {
"end": 1326,
"labels": [
"PREAMBLE"
],
"start": 1248,
"text": "In that crowd P.Ws. 31,32,34 to\n37 saw accused Nos.l and 2 armed with aruvals."
}
},
{
"from_name": null,
"id": "15a51587bed140daadf0517d55d09f68",
"to_name": null,
"type": null,
"value": {
"end": 1440,
"labels": [
"PREAMBLE"
],
"start": 1327,
"text": "The crowd\nquestioned them as to which place they belonged to, whereon\nthey replied that they belonged to Irakkai."
}
},
{
"from_name": null,
"id": "8d97cf1793914c3a8608ba3f2a90fc21",
"to_name": null,
"type": null,
"value": {
"end": 1527,
"labels": [
"PREAMBLE"
],
"start": 1441,
"text": "Immediately, A-\nl, Gopal cried out \"Do not leave Irakkai people, cut them,\nbeat them.\""
}
},
{
"from_name": null,
"id": "ed864ea7c11244b9a130c3fa04c15682",
"to_name": null,
"type": null,
"value": {
"end": 1665,
"labels": [
"PREAMBLE"
],
"start": 1528,
"text": "P.Ws. 31,32,34 to 37 while running found\nPackiriswami Pillai tripping and falling down near the\nelectric lamp post on the Harijan Street."
}
},
{
"from_name": null,
"id": "dd65f80f3c4443f3b8daa368c3d04e3e",
"to_name": null,
"type": null,
"value": {
"end": 1778,
"labels": [
"PREAMBLE"
],
"start": 1666,
"text": "They also saw\naccused Nos. 1 and 2 and some others in the crowd lifting\nthe deceased by hands, legs and clothes."
}
},
{
"from_name": null,
"id": "83479a2a33e9479891d235503c9fbf0c",
"to_name": null,
"type": null,
"value": {
"end": 1833,
"labels": [
"PREAMBLE"
],
"start": 1779,
"text": "Then he was carried\nto some distance towards the east."
}
},
{
"from_name": null,
"id": "1810c6a890a0459a85c8216d8c060054",
"to_name": null,
"type": null,
"value": {
"end": 1959,
"labels": [
"PREAMBLE"
],
"start": 1834,
"text": "At that time Packiriswami\nPillai cried out that he was being cut by Gopal (A-l) and\nthey were leaving him behind ant running."
}
},
{
"from_name": null,
"id": "99f4fd23b3d945498124f56d551f10f3",
"to_name": null,
"type": null,
"value": {
"end": 2075,
"labels": [
"PREAMBLE"
],
"start": 1960,
"text": "P.Ws. 31,32 and 34\nto 37 saw the first accused cutting Packiriswami Pillai with\naruval on his neck and on his head."
}
},
{
"from_name": null,
"id": "f85b0d709077412cbe530a46a57bd6c0",
"to_name": null,
"type": null,
"value": {
"end": 2188,
"labels": [
"PREAMBLE"
],
"start": 2076,
"text": "P.Ws. 31,32, 34,35,36\nand 37 ran towards the Caste Hindu Street and ultimately\nentered into the house of P.W.47."
}
},
{
"from_name": null,
"id": "6a98d83397fe4f2d9187bc8fa246649e",
"to_name": null,
"type": null,
"value": {
"end": 2356,
"labels": [
"PREAMBLE"
],
"start": 2189,
"text": "Another crowd of 50-60\npersons armed with aruvals and sticks came from thesouth and they caused injuries on the persons of P.Ws. 54\nand 55 who came out of their house."
}
},
{
"from_name": null,
"id": "85f20505def24f9980934541a0d7c3bb",
"to_name": null,
"type": null,
"value": {
"end": 2380,
"labels": [
"PREAMBLE"
],
"start": 2357,
"text": "On getting information\n"
}
},
{
"from_name": null,
"id": "836a722cf5dd4a868b9bde2fbf3b4e73",
"to_name": null,
"type": null,
"value": {
"end": 2751,
"labels": [
"PREAMBLE"
],
"start": 2380,
"text": "at about 8.00 P.M., P.W.72, the Head Constable, with some\n\nS.A.P. men went to Keezha Vanmani and after collecting the\ninjured persons from the house of P.W.47 as well as\ncollecting the injured P.W.54 and 55 in the van came to the\nKeevalur Police Station where P.W.79 (Inspector of Police)\nrecorded the statement of P.W.54 and registered the same as\nCrime No. 326 of 1968."
}
},
{
"from_name": null,
"id": "80e093652f84464d8154cccf02249ac4",
"to_name": null,
"type": null,
"value": {
"end": 2841,
"labels": [
"PREAMBLE"
],
"start": 2752,
"text": "He thereafter recorded the statements\nof P.W.55 and P.Ws. 34 to 37 in the Police Station."
}
},
{
"from_name": null,
"id": "7f24ed94a9464b479520b0ef5bddf2a6",
"to_name": null,
"type": null,
"value": {
"end": 2914,
"labels": [
"PREAMBLE"
],
"start": 2842,
"text": "At about\n11.45 P.M. P.W.79 left for Keezha Vanmani and met P.W.31\nthere."
}
},
{
"from_name": null,
"id": "53f36788566e4b04940ff7c1c60005fb",
"to_name": null,
"type": null,
"value": {
"end": 3023,
"labels": [
"PREAMBLE"
],
"start": 2915,
"text": "Then both of them went to Nadu Street and found the\ndead body of Packiriswami Pillai with multiple injuries."
}
},
{
"from_name": null,
"id": "08c7e95365b24d59a57b194579ad336a",
"to_name": null,
"type": null,
"value": {
"end": 3330,
"labels": [
"PREAMBLE"
],
"start": 3024,
"text": "P.W.79 recorded the statement of P.W.31 and registered the\nsame as Crime No. 328 of 1968.\n\n Out of 22 accused, the Sessions Judge acquitted 14 and\nconvected 8, namely, accused Nos.1,2,12,13,17,18,19 and 20\nunder various offences and sentenced them to suffer rigorous\nimprisonment for various terms."
}
},
{
"from_name": null,
"id": "2d534eaed3f74c398382acd3a8bbc8bf",
"to_name": null,
"type": null,
"value": {
"end": 4129,
"labels": [
"PREAMBLE"
],
"start": 3331,
"text": "Te Sessions Judge found the\naforesaid accused guilty of various offences on the grounds\n(1) that there was electric light and also moon light at the\ntime of the occurrence and that P.Ws. 31,32 and 34 to 37\nwitnessed the fatal injuries caused by aruvals on the head\nand neck of Packiriswami Pillai by Gopal (A-l); (2) that the\ncrying out by the deceased Packiriswami Pillai that Gopal\n(A-l) was cutting him was in the nature of Dying Declaration\nand no motive could be ascribed for the deceased to falsely\nimplicate the accused A-l, Gopal at that moment; (3) that\nthe injuries sustained by P.Ws. 34 to 36 with all\nprobabilities establish the presence of these P.Ws. at a\nclose range and seeing the occurrence; and (4) that there\nwas also overwhelming evidence as to the presence of A-l in\nthe crowd."
}
},
{
"from_name": null,
"id": "919d2e874de848de9b97a42d910781d1",
"to_name": null,
"type": null,
"value": {
"end": 4212,
"labels": [
"PREAMBLE"
],
"start": 4130,
"text": "The appeal of all the 8 accused persons filed\nbefore the High Court was dismissed."
}
},
{
"from_name": null,
"id": "7173da050f5f4f88a17ca0bc4b430d6d",
"to_name": null,
"type": null,
"value": {
"end": 4278,
"labels": [
"PREAMBLE"
],
"start": 4212,
"text": "\n\n Dismissing the appeal to this Court,\n^\n\n HELD :"
}
},
{
"from_name": null,
"id": "88dde9f6c6e84890b10bae44035c1015",
"to_name": null,
"type": null,
"value": {
"end": 4287,
"labels": [
"PREAMBLE"
],
"start": 4279,
"text": "1. m ere"
}
},
{
"from_name": null,
"id": "fb085cb052264aad845013360a5873b3",
"to_name": null,
"type": null,
"value": {
"end": 4491,
"labels": [
"PREAMBLE"
],
"start": 4288,
"text": "is no infirmity far less any illegality\nor failure of justice which would impel the Supreme Court to\ninterfere with the order of conviction and sentence con\ncurrently arrived at by both the courts below."
}
},
{
"from_name": null,
"id": "47f66ddd587546648d59fb0f15fda67f",
"to_name": null,
"type": null,
"value": {
"end": 4754,
"labels": [
"PREAMBLE"
],
"start": 4492,
"text": "[210 D]\n\n 2(i) P.Ws. 34 to 37 have clearly stated in their\ndepositions that they witnessed A-l inflict cutting injuries\non the neck and heat of Packiriswami Pillai after lifting\nhim along-with other accused and carrying him to the east of Harijan\nStreet."
}
},
{
"from_name": null,
"id": "5ca87b66c971454e86fa36162d0b3e0f",
"to_name": null,
"type": null,
"value": {
"end": 4959,
"labels": [
"PREAMBLE"
],
"start": 4755,
"text": "The court of appeal below has rightly held that\nP.W. 54 was only concerned with the incident that occurred\nbefore his house and, as such, in Exhibit P-11 there was\nonly the reference to the said incident."
}
},
{
"from_name": null,
"id": "46fa4ccba9da4182a20ba9d29fa781bf",
"to_name": null,
"type": null,
"value": {
"end": 5096,
"labels": [
"PREAMBLE"
],
"start": 4960,
"text": "It was also held\nthat P.W. 79 in his deposition refuted the suggestion that\nhe did not examine P.W. 34 to 37 at the time alleged by him."
}
},
{
"from_name": null,
"id": "af08e009ad57482d8f104992fa436eed",
"to_name": null,
"type": null,
"value": {
"end": 5228,
"labels": [
"PREAMBLE"
],
"start": 5096,
"text": "\nMoreover, all these P.Ws. 34 to 37 suffered several injuries\nbeing chased by the crowd while running forwards the house\nof P.W. 47."
}
},
{
"from_name": null,
"id": "74054c96454943f5be1ad498495c587e",
"to_name": null,
"type": null,
"value": {
"end": 5419,
"labels": [
"PREAMBLE"
],
"start": 5229,
"text": "Therefore, evidences of all these eye witnesses\nas well as of P.W. 31 were believed by both the courts below\nthat A-l caused fatal cut injuries on the person of deceased\nPackiriswami Pillai."
}
},
{
"from_name": null,
"id": "b8fb1e290413451ab7ffbf13cb02d55d",
"to_name": null,
"type": null,
"value": {
"end": 5765,
"labels": [
"PREAMBLE"
],
"start": 5420,
"text": "[207 A-C]\n\n 2(ii) P.W. 65, Assistant Surgeon, Government Hospital,\nwho conducted postmortem also stated in his deposition that\nout of the 11 injuries caused on the person of deceased\nPackiriswami Pillai, the injuries Nos. 1 and 2 which could\nhave been caused by single cut were sufficient in the\nordinary course of nature to cause death."
}
},
{
"from_name": null,
"id": "63d1f20897e44628aede42f2630ca026",
"to_name": null,
"type": null,
"value": {
"end": 5886,
"labels": [
"PREAMBLE"
],
"start": 5766,
"text": "The doctor has\nalso stated in his evidence that after the infliction of\ninjury No. 1 the injured could have shouted out."
}
},
{
"from_name": null,
"id": "ff1a9ab36c274f5abfd54eed0fa43006",
"to_name": null,
"type": null,
"value": {
"end": 5996,
"labels": [
"PREAMBLE"
],
"start": 5887,
"text": "There is,\ntherefore, ample evidence to negative the submission that\nthe accused No. 1 was falsely implicated."
}
},
{
"from_name": null,
"id": "8bf377b35a99415494f0ad8397d2d50c",
"to_name": null,
"type": null,
"value": {
"end": 6186,
"labels": [
"PREAMBLE"
],
"start": 5997,
"text": "Moreover, P.W. 72\n\nhas stated in his deposition that he is deaf and as such he\ncould not hear whether P.Ws. 34 to 37 stated about the\ninjuries caused by A-1 on deceased Packiriswami Pillai."
}
},
{
"from_name": null,
"id": "50d9e38207384f50b9ad459c8ae62515",
"to_name": null,
"type": null,
"value": {
"end": 6267,
"labels": [
"PREAMBLE"
],
"start": 6187,
"text": "He\nalso stated that he heard P.Ws. 34 to 37 uttering\nPackiriswami, Packiriswami."
}
},
{
"from_name": null,
"id": "4c139663836b4ce78a293a35be77c519",
"to_name": null,
"type": null,
"value": {
"end": 6373,
"labels": [
"PREAMBLE"
],
"start": 6268,
"text": "It was rightly held by both the\ncourts below that P.W. 72 was deaf and could not hear what\nthey told him."
}
},
{
"from_name": null,
"id": "77b0a0d5c5094c4cb345ecbf65c3367c",
"to_name": null,
"type": null,
"value": {
"end": 6592,
"labels": [
"PREAMBLE"
],
"start": 6374,
"text": "The non-mentioning of attack on Packiriswami\nPillai by P.W. 54 in his statement does not in any way lead\nto the inference that the statements of P.Ws. 34 to 37 were\nrecorded after recording of the statement of P.W. 31."
}
},
{
"from_name": null,
"id": "9a65d6c8ea65451f85e973a6f05bef96",
"to_name": null,
"type": null,
"value": {
"end": 6742,
"labels": [
"PREAMBLE"
],
"start": 6593,
"text": "[207\nD-F]\n\n 3(i) P.W. 79 recorded the statement of P.Ws. 34 to 37\nin the Police Station after recording of the statements of\nP.Ws. 54 and 55."
}
},
{
"from_name": null,
"id": "71dd8c9699e34d37bc4ba65638f35f7d",
"to_name": null,
"type": null,
"value": {
"end": 7077,
"labels": [
"PREAMBLE"
],
"start": 6743,
"text": "The mere recording of Statements in plain-\nsheet instead of in diary form in these circumstances does\nnot lead to any where in view of the clear evidence of P.W.\n79 which was believed by both the courts below that the\nstatements of these P.Ws. were recorded by him immediately\nafter recording the statement of P.W. 54 (Exhibit P-11).\n"
}
},
{
"from_name": null,
"id": "d3a2871be48c4ef3982d2263dd6ec71d",
"to_name": null,
"type": null,
"value": {
"end": 7202,
"labels": [
"PREAMBLE"
],
"start": 7077,
"text": "[207 H; 208 A]\n\n 3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their\nevidence that they did not see P.W. 1 at all."
}
},
{
"from_name": null,
"id": "8606eee0540f415dba3558f53ae4e49e",
"to_name": null,
"type": null,
"value": {
"end": 7283,
"labels": [
"PREAMBLE"
],
"start": 7203,
"text": "The evidence\nof P.W. 1 was that he did not go to Caste Hindu Street at\nthattime."
}
},
{
"from_name": null,
"id": "44398d3b9cc747158360e826411cb178",
"to_name": null,
"type": null,
"value": {
"end": 7449,
"labels": [
"PREAMBLE"
],
"start": 7284,
"text": "In view of these evidence, the Court of appeal below\nheld that the evidence of P.W. 72 to the effect that P.W. 1\ncame near the house of P.W. 47 could not be accepted"
}
},
{
"from_name": null,
"id": "6389da4dee644bab9b3ab4f480e376df",
"to_name": null,
"type": null,
"value": {
"end": 7517,
"labels": [
"PREAMBLE"
],
"start": 7449,
"text": ". It was\nalso pointed out by the Court of appeal below that P.W. 72\n"
}
},
{
"from_name": null,
"id": "fd245b66006c491c8abb3d79d228f819",
"to_name": null,
"type": null,
"value": {
"end": 7628,
"labels": [
"PREAMBLE"
],
"start": 7517,
"text": "has not spoken about presence of P.W. 1 at about that time\neither in Crime No. 326 or in Crime No. 328 of 1968."
}
},
{
"from_name": null,
"id": "ff0d49dfd55c4519b34035e86a335b06",
"to_name": null,
"type": null,
"value": {
"end": 7757,
"labels": [
"PREAMBLE"
],
"start": 7629,
"text": "It was\nonly during the investigation in Crime No. 327 of 1968\nnamely the connected arson case, P.W. 72 made the above\nstatement."
}
},
{
"from_name": null,
"id": "7b3bbe222bb04a3fb6f1c9199a4b89de",
"to_name": null,
"type": null,
"value": {
"end": 7766,
"labels": [
"PREAMBLE"
],
"start": 7758,
"text": "[208 C-D"
}
},
{
"from_name": null,
"id": "ac90cc62c7164b698a9bdc5438ab5af9",
"to_name": null,
"type": null,
"value": {
"end": 7780,
"labels": [
"PREAMBLE"
],
"start": 7766,
"text": "]\n\n 4."
}
},
{
"from_name": null,
"id": "75607d9a5df541ceb5cbc6f7c1a5d5ed",
"to_name": null,
"type": null,
"value": {
"end": 8031,
"labels": [
"PREAMBLE"
],
"start": 7781,
"text": "It was not improbable that because at the time of\nthe recording of statement of P.Ws. 34 to 37, P.W. 79 was\nnot aware of the death of Packiriswami Pillai, so he did not\nconsider it a grave crime and did not register it separately\nas spoken to by him."
}
},
{
"from_name": null,
"id": "2530af236a8d48e29cc71e5384da9ec3",
"to_name": null,
"type": null,
"value": {
"end": 8199,
"labels": [
"PREAMBLE"
],
"start": 8032,
"text": "P.W. 79 further stated in his evidence\nthat both the occurrences namely attack on P.Ws. 54 and 55\nand Packiriswami Pillai formed part of one and the same\ntrans action."
}
},
{
"from_name": null,
"id": "2f7911b8acce440faa6be091335a4bcd",
"to_name": null,
"type": null,
"value": {
"end": 8331,
"labels": [
"PREAMBLE"
],
"start": 8200,
"text": "P.W. 79 further admitted that he ought not to\nhave registered a separate case in Crime No. 328 of 1968 on\nthe statement of P.W. 31."
}
},
{
"from_name": null,
"id": "00572800ed5d481e9f1d6bffaa8f6655",
"to_name": null,
"type": null,
"value": {
"end": 8606,
"labels": [
"PREAMBLE"
],
"start": 8332,
"text": "It was rightly held by the Court\nof appeal below that P.W. 79 adopted irregular procedure in\nregistering separate Crime number on the basis of the\nstatement of P.W. 31 and this cannot lead to the inference\nthat P.Ws. 34 to 37 were examined only after examination of\nP.W. 31."
}
},
{
"from_name": null,
"id": "5adf5802946042fdbad1de4e22afd64d",
"to_name": null,
"type": null,
"value": {
"end": 8967,
"labels": [
"PREAMBLE"
],
"start": 8607,
"text": "It was rightly held by the court of appeal below\nthat these irregularities committed by P.W. 79 in not\nrecording the statement of P.Ws. 34 to 37 in Case Diary Form\nand registering the separate crime number on the statement\nof P.W. 31 could not militate against the prosecution case.\nNo motive has been suggested against P.W. 79. [208 G-H; 209\nA-B]\n\n 5."
}
},
{
"from_name": null,
"id": "2db31af21fdf4704bb64e9e973aef73b",
"to_name": null,
"type": null,
"value": {
"end": 9148,
"labels": [
"PREAMBLE"
],
"start": 8968,
"text": "The accused 1 and 2 have been convicted by the\nCourts below on the finding that the offences charged\nagainst them have been proved by the eye witnesses beyond\nany reasonable doubt."
}
},
{
"from_name": null,
"id": "2abae00ec8ec4a969fd304072381cd5f",
"to_name": null,
"type": null,
"value": {
"end": 9330,
"labels": [
"PREAMBLE"
],
"start": 9149,
"text": "There was no illegality nor any\nquestion of principle involved in the matter of making order\nsentencing them to imprisonment as provided in 88. 302 and\n364 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "8d53320df9924213998383ec76359490",
"to_name": null,
"type": null,
"value": {
"end": 9409,
"labels": [
"PREAMBLE"
],
"start": 9331,
"text": "Therefore, the Court is not\ninclined to interfere with the sentences passed by"
}
},
{
"from_name": null,
"id": "20b84f341a88497b9cc1c46df44f9f1c",
"to_name": null,
"type": null,
"value": {
"end": 9426,
"labels": [
"PREAMBLE"
],
"start": 9410,
"text": "the\nCourts below"
}
},
{
"from_name": null,
"id": "9714a75c39204ef48d4537c191814773",
"to_name": null,
"type": null,
"value": {
"end": 9435,
"labels": [
"PREAMBLE"
],
"start": 9426,
"text": ". [209 E-"
}
},
{
"from_name": null,
"id": "d90d992f76a84a70b99be3f557c489a3",
"to_name": null,
"type": null,
"value": {
"end": 9521,
"labels": [
"PREAMBLE"
],
"start": 9435,
"text": "F]\n\n State of Maharastra v. Mayer Hans George, A.I.R. 1965\n\n\nS.C. 722 applied."
}
},
{
"from_name": null,
"id": "4074e7d602ec4e06877d6a3cec924b64",
"to_name": null,
"type": null,
"value": {
"end": 9713,
"labels": [
"PREAMBLE"
],
"start": 9521,
"text": "\n Pritam Singh v. The State, A.I.R. 1950 S.C. 169 and\n\nSadhu Singh Harnam Singh v. state of Pepsu) A.I.R. 1954 S.C.\n271 referred to.\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "c40741d03a90468ab52679adc018ff71",
"to_name": null,
"type": null,
"value": {
"end": 9733,
"labels": [
"NONE"
],
"start": 9714,
"text": "Criminal Appeal No."
}
},
{
"from_name": null,
"id": "2cbe0618a7834646b92688e5fa19a7b5",
"to_name": null,
"type": null,
"value": {
"end": 9747,
"labels": [
"NONE"
],
"start": 9733,
"text": "\n 234 of 1973."
}
},
{
"from_name": null,
"id": "f633fd8e25aa4e2f9b53120f9aa508ab",
"to_name": null,
"type": null,
"value": {
"end": 9859,
"labels": [
"NONE"
],
"start": 9757,
"text": "From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971."
}
},
{
"from_name": null,
"id": "594ea87ef1374db6ab432a8a946cbeb7",
"to_name": null,
"type": null,
"value": {
"end": 9926,
"labels": [
"NONE"
],
"start": 9859,
"text": "\n R.K. Garg, Gopal Singh and L.R. Singh for the Appellants."
}
},
{
"from_name": null,
"id": "e6212f9298084d299bd135f5e719d134",
"to_name": null,
"type": null,
"value": {
"end": 10024,
"labels": [
"NONE"
],
"start": 9926,
"text": "\n K.G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent."
}
},
{
"from_name": null,
"id": "d38b524ecbfe45558a9cbb7d51fb0dc7",
"to_name": null,
"type": null,
"value": {
"end": 10089,
"labels": [
"NONE"
],
"start": 10034,
"text": "The Judgment of the Court was delivered by B.C. RAY, J."
}
},
{
"from_name": null,
"id": "b9706d8c5a164c5db03c2359e215e2a6",
"to_name": null,
"type": null,
"value": {
"end": 10464,
"labels": [
"RLC"
],
"start": 10090,
"text": "This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No.\n23 of 1971 whereby the appeal was dismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos. 1, 2, 12, 13, 17, 18, 19 and 20 were confirmed."
}
},
{
"from_name": null,
"id": "264fc5aa8e534afd95c3dbec6616b0ff",
"to_name": null,
"type": null,
"value": {
"end": 10594,
"labels": [
"FAC"
],
"start": 10466,
"text": "The prosecution case is as follows: All the accused appellants are residents of various villages within Keevalur Police Station."
}
},
{
"from_name": null,
"id": "3f748dc788344e35bdc2b5b952114347",
"to_name": null,
"type": null,
"value": {
"end": 10716,
"labels": [
"FAC"
],
"start": 10595,
"text": "The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages."
}
},
{
"from_name": null,
"id": "716a7bc405824c0e83687d57a07ba279",
"to_name": null,
"type": null,
"value": {
"end": 10810,
"labels": [
"FAC"
],
"start": 10717,
"text": "Accused nos.\n17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village."
}
},
{
"from_name": null,
"id": "de7cfd4b722440058dbe2e79108e44ac",
"to_name": null,
"type": null,
"value": {
"end": 10934,
"labels": [
"FAC"
],
"start": 10811,
"text": "There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest."
}
},
{
"from_name": null,
"id": "93af666e71184307a5ecc54823119c18",
"to_name": null,
"type": null,
"value": {
"end": 11063,
"labels": [
"FAC"
],
"start": 10935,
"text": "These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and convening meetings."
}
},
{
"from_name": null,
"id": "4831c75f022445feac19490be46cc41c",
"to_name": null,
"type": null,
"value": {
"end": 11229,
"labels": [
"FAC"
],
"start": 11064,
"text": "There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers."
}
},
{
"from_name": null,
"id": "99e7b5f486e84e0592f88c4fa6008273",
"to_name": null,
"type": null,
"value": {
"end": 11527,
"labels": [
"FAC"
],
"start": 11230,
"text": "This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers trespassed into the lands and illegally harvested paddy crops."
}
},
{
"from_name": null,
"id": "4382552d357d43879a8bb596c5e49258",
"to_name": null,
"type": null,
"value": {
"end": 11640,
"labels": [
"FAC"
],
"start": 11528,
"text": "This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages."
}
},
{
"from_name": null,
"id": "e07882aef3a34fa6b73ae2aa0edafe44",
"to_name": null,
"type": null,
"value": {
"end": 11722,
"labels": [
"FAC"
],
"start": 11641,
"text": "There was the Paddy Producers Association having its offices in several villages."
}
},
{
"from_name": null,
"id": "986d6514357d4a8c81142c881b92539d",
"to_name": null,
"type": null,
"value": {
"end": 11953,
"labels": [
"FAC"
],
"start": 11723,
"text": "P.W. 1 Gopal Krishna Naidu was the President ofPaddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association."
}
},
{
"from_name": null,
"id": "d502cfb0ba63427992af93f5a7fdb56a",
"to_name": null,
"type": null,
"value": {
"end": 12135,
"labels": [
"FAC"
],
"start": 11954,
"text": "The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4- 1/2 measures of paddy."
}
},
{
"from_name": null,
"id": "a539ac66c6194347a33c11490051f484",
"to_name": null,
"type": null,
"value": {
"end": 12242,
"labels": [
"FAC"
],
"start": 12136,
"text": "The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy."
}
},
{
"from_name": null,
"id": "8c0125a801d7429fb8ec4a5f9ab65393",
"to_name": null,
"type": null,
"value": {
"end": 12437,
"labels": [
"FAC"
],
"start": 12252,
"text": "On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar P.W. 15 at about 9 a.m."
}
},
{
"from_name": null,
"id": "6f6033fd1a1f4e59a494ed2911ef32b3",
"to_name": null,
"type": null,
"value": {
"end": 12689,
"labels": [
"FAC"
],
"start": 12438,
"text": "It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully."
}
},
{
"from_name": null,
"id": "b769dddb068e45c9bd449a8474a37d93",
"to_name": null,
"type": null,
"value": {
"end": 12790,
"labels": [
"FAC"
],
"start": 12690,
"text": "The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham."
}
},
{
"from_name": null,
"id": "113c37dc1c934e32a6f8e05bc5e9b1a9",
"to_name": null,
"type": null,
"value": {
"end": 12848,
"labels": [
"FAC"
],
"start": 12791,
"text": "Each of them were paid 4-1/2 measures of paddy per kalam."
}
},
{
"from_name": null,
"id": "34ccbf91486e45439649618c57e03b30",
"to_name": null,
"type": null,
"value": {
"end": 12949,
"labels": [
"FAC"
],
"start": 12849,
"text": "P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture."
}
},
{
"from_name": null,
"id": "c57847684d6b4f6395a1ca7f0524d3ba",
"to_name": null,
"type": null,
"value": {
"end": 13016,
"labels": [
"FAC"
],
"start": 12950,
"text": "The seventeen Irukkai people started for home sometime thereafter."
}
},
{
"from_name": null,
"id": "96f228ea8f824786b0171ef95231bceb",
"to_name": null,
"type": null,
"value": {
"end": 13094,
"labels": [
"FAC"
],
"start": 13017,
"text": "The Irukkai labourers reached the east-west Harijan Street at about 7.30 p.m."
}
},
{
"from_name": null,
"id": "5b5dfdb854af4c9fba43358abfe1a0cb",
"to_name": null,
"type": null,
"value": {
"end": 13182,
"labels": [
"FAC"
],
"start": 13095,
"text": "P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road."
}
},
{
"from_name": null,
"id": "b92dc7e519d1422ca702bec87e3269e7",
"to_name": null,
"type": null,
"value": {
"end": 13223,
"labels": [
"FAC"
],
"start": 13183,
"text": "There was moon light and electric light."
}
},
{
"from_name": null,
"id": "8b02a893431441619ac2f2423de6d4c2",
"to_name": null,
"type": null,
"value": {
"end": 13369,
"labels": [
"FAC"
],
"start": 13223,
"text": "\nThere were bamboo clusters in the form of a hood on either side of the east-west Harijan Street near the second electric lamp post from the west."
}
},
{
"from_name": null,
"id": "fdb0d006e9ff4e498346164b2b993459",
"to_name": null,
"type": null,
"value": {
"end": 13467,
"labels": [
"FAC"
],
"start": 13370,
"text": "At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing."
}
},
{
"from_name": null,
"id": "204f5b45f23344a7b24f59e3f3d1220b",
"to_name": null,
"type": null,
"value": {
"end": 13548,
"labels": [
"FAC"
],
"start": 13468,
"text": "In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals."
}
},
{
"from_name": null,
"id": "58b58734b5414d1793caee377291eaef",
"to_name": null,
"type": null,
"value": {
"end": 13663,
"labels": [
"FAC"
],
"start": 13549,
"text": "Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai."
}
},
{
"from_name": null,
"id": "705f7495e6c54b33b7fa4a7be2d87c47",
"to_name": null,
"type": null,
"value": {
"end": 13749,
"labels": [
"FAC"
],
"start": 13664,
"text": "Immediately, A-l Gopal cried out, \"Do not leave Irukkai people, cut them, beat them.\""
}
},
{
"from_name": null,
"id": "7aec38e7bc3d49a0a5ed7ad5dff3f182",
"to_name": null,
"type": null,
"value": {
"end": 13856,
"labels": [
"FAC"
],
"start": 13750,
"text": "A crowd of about 50 persons being armed with aruvals, sticks etc. came running towards the Irukkai people."
}
},
{
"from_name": null,
"id": "46b7852c55f64bc79219e6fef9097555",
"to_name": null,
"type": null,
"value": {
"end": 13996,
"labels": [
"FAC"
],
"start": 13857,
"text": "P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street."
}
},
{
"from_name": null,
"id": "995606abc907473cbf9d26f2d2bb9d59",
"to_name": null,
"type": null,
"value": {
"end": 14090,
"labels": [
"FAC"
],
"start": 13997,
"text": "Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes."
}
},
{
"from_name": null,
"id": "7363e7660c074dcd950db0a14d171449",
"to_name": null,
"type": null,
"value": {
"end": 14145,
"labels": [
"FAC"
],
"start": 14091,
"text": "Then he was carried to some distance towards the east."
}
},
{
"from_name": null,
"id": "42270405739e45ebbd93670381057f5d",
"to_name": null,
"type": null,
"value": {
"end": 14271,
"labels": [
"FAC"
],
"start": 14146,
"text": "At that time Packiriswami Pillai cried out that he was being cut by Gopal (A-1) and they were leaving him behind and running."
}
},
{
"from_name": null,
"id": "8aecec072c4749b091ab95bbe874d53d",
"to_name": null,
"type": null,
"value": {
"end": 14388,
"labels": [
"FAC"
],
"start": 14272,
"text": "P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head."
}
},
{
"from_name": null,
"id": "4e6aa9c092a548379b34a863a491b078",
"to_name": null,
"type": null,
"value": {
"end": 14504,
"labels": [
"FAC"
],
"start": 14389,
"text": "P.Ws. 31, 32, 347 35, 36 and 37ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47."
}
},
{
"from_name": null,
"id": "9140aea69f974f3cbcbe1ae138a58c10",
"to_name": null,
"type": null,
"value": {
"end": 14674,
"labels": [
"FAC"
],
"start": 14505,
"text": "Another crowd of 50-60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses."
}
},
{
"from_name": null,
"id": "b5da75dddd364043b2680d699d50ed17",
"to_name": null,
"type": null,
"value": {
"end": 15060,
"labels": [
"FAC"
],
"start": 14675,
"text": "On the same day at about 8.00 p.m. P.W.\n79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle (van) from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi."
}
},
{
"from_name": null,
"id": "0f83883c1b6b4e4c9ed96d1a94126f44",
"to_name": null,
"type": null,
"value": {
"end": 15468,
"labels": [
"FAC"
],
"start": 15061,
"text": "P.W. 72 with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P. W. 47 as well as collecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 (Inspector of Police) recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station."
}
},
{
"from_name": null,
"id": "5acddc3901e440e4a6ac49c11bd34ed0",
"to_name": null,
"type": null,
"value": {
"end": 15603,
"labels": [
"FAC"
],
"start": 15469,
"text": "He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws. 34 to 37 in the Police Station."
}
},
{
"from_name": null,
"id": "de65f6897b7f46fdb9d5737ede03686d",
"to_name": null,
"type": null,
"value": {
"end": 15704,
"labels": [
"FAC"
],
"start": 15604,
"text": "Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night."
}
},
{
"from_name": null,
"id": "f7a306c628e644549fe3053bafab2a6c",
"to_name": null,
"type": null,
"value": {
"end": 15726,
"labels": [
"FAC"
],
"start": 15705,
"text": "He met P.W. 31 there."
}
},
{
"from_name": null,
"id": "3d7fead2d4c54b278198ce35b8f755cf",
"to_name": null,
"type": null,
"value": {
"end": 15884,
"labels": [
"FAC"
],
"start": 15727,
"text": "P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries."
}
},
{
"from_name": null,
"id": "3a6c8b026cc04ca8b2f09e7539d8ca19",
"to_name": null,
"type": null,
"value": {
"end": 15978,
"labels": [
"FAC"
],
"start": 15885,
"text": "P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968."
}
},
{
"from_name": null,
"id": "b735b802093f4823b60f172be84cbd26",
"to_name": null,
"type": null,
"value": {
"end": 16147,
"labels": [
"RLC"
],
"start": 15978,
"text": "\n The learned Sessions Judge after duly weighing the evidences of P.Ws. found inter alia that there was electric light and also moon light at the time of the occurrence."
}
},
{
"from_name": null,
"id": "5398cd9433f24959844e02f80893e3b9",
"to_name": null,
"type": null,
"value": {
"end": 16280,
"labels": [
"RLC"
],
"start": 16147,
"text": "\nP.Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal (A-l)."
}
},
{
"from_name": null,
"id": "77d040cab1fb447e9560754530ac6328",
"to_name": null,
"type": null,
"value": {
"end": 16533,
"labels": [
"RLC"
],
"start": 16281,
"text": "It was also held that the crying out by the deceased Packiriswami Pillai that Gopal (A-1) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A-1 Gopal at that moment."
}
},
{
"from_name": null,
"id": "07ed3464c05344ebb7f1dabe4cbe15cc",
"to_name": null,
"type": null,
"value": {
"end": 16689,
"labels": [
"RLC"
],
"start": 16534,
"text": "Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence."
}
},
{
"from_name": null,
"id": "615d06e156e44466a03ff0e1c44d625e",
"to_name": null,
"type": null,
"value": {
"end": 16766,
"labels": [
"RLC"
],
"start": 16690,
"text": "There was also overwhelming evidence as to the presence of A-1 in the crowd."
}
},
{
"from_name": null,
"id": "cdb87ccab3c442fa8eeeeba338de828f",
"to_name": null,
"type": null,
"value": {
"end": 16895,
"labels": [
"RLC"
],
"start": 16767,
"text": "The learned Sessions Judge found accused No. 1 guilty of offence under s. 302 I.P.C. and sentenced him to imprisonment for life."
}
},
{
"from_name": null,
"id": "d1a1494b68534bba8d1873d7292bddf2",
"to_name": null,
"type": null,
"value": {
"end": 17077,
"labels": [
"RLC"
],
"start": 16896,
"text": "He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorousimprisonment for two years."
}
},
{
"from_name": null,
"id": "a629a03f47f7492eae555fd756c198ef",
"to_name": null,
"type": null,
"value": {
"end": 17228,
"labels": [
"RLC"
],
"start": 17078,
"text": "Accused Nos. 1 and 2 were also held guilty of the offence under s. 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years."
}
},
{
"from_name": null,
"id": "bb27851f162b4aaeb9fdfcc0e38f0881",
"to_name": null,
"type": null,
"value": {
"end": 17271,
"labels": [
"ANALYSIS"
],
"start": 17228,
"text": "\nAll these sentences will run concurrently."
}
},
{
"from_name": null,
"id": "316900826329452f83341350393593b7",
"to_name": null,
"type": null,
"value": {
"end": 17500,
"labels": [
"ANALYSIS"
],
"start": 17272,
"text": "Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e.\naccused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms."
}
},
{
"from_name": null,
"id": "302455e534af4520b2b0f2466d946af5",
"to_name": null,
"type": null,
"value": {
"end": 17622,
"labels": [
"RLC"
],
"start": 17502,
"text": "Against the aforesaid judgment and order of conviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971."
}
},
{
"from_name": null,
"id": "1389fb488ff34530850dcc529163f047",
"to_name": null,
"type": null,
"value": {
"end": 17792,
"labels": [
"RLC"
],
"start": 17623,
"text": "The appeal was dismissed and the conviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were confirmed."
}
},
{
"from_name": null,
"id": "34abd8fc6f514ea0bb112f5216b43bd5",
"to_name": null,
"type": null,
"value": {
"end": 18277,
"labels": [
"ARG_PETITIONER"
],
"start": 17792,
"text": "\n Mr. Garg, learned counsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was convicted under s. 364 I.\nP. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence."
}
},
{
"from_name": null,
"id": "613680086fc8486f8b38e4ff812ac473",
"to_name": null,
"type": null,
"value": {
"end": 18563,
"labels": [
"ARG_PETITIONER"
],
"start": 18277,
"text": "\n It has been firstly contended by Mr. Garg, learned counsel, that the statement of P.W. 54 Packiriswamy Poraiyar (exhibit P-11) which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did not mention about the attack on deceased Packiriswami Pillai or any Irukkai people."
}
},
{
"from_name": null,
"id": "fa250600eb734aec9fa300e4c4fadc34",
"to_name": null,
"type": null,
"value": {
"end": 18810,
"labels": [
"ARG_PETITIONER"
],
"start": 18564,
"text": "It has also been submitted that P.W. 72 (Head Constable) who collected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did not tell about the attack on the deceased Packiriswami Pillai."
}
},
{
"from_name": null,
"id": "c9ddc751d06d49679bf97c83717c5167",
"to_name": null,
"type": null,
"value": {
"end": 18990,
"labels": [
"ARG_PETITIONER"
],
"start": 18811,
"text": "It has been, therefore, submitted that the statements of P.Ws. 34 to 37 were recorded not at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P-11."
}
},
{
"from_name": null,
"id": "93009af9201b4e40bafecbfdb5e9c03b",
"to_name": null,
"type": null,
"value": {
"end": 19309,
"labels": [
"ARG_PETITIONER"
],
"start": 18991,
"text": "It has also been submitted that the accused Gopal (A-1) who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station."
}
},
{
"from_name": null,
"id": "406d3d11e57b4978a58763ae2c88bf30",
"to_name": null,
"type": null,
"value": {
"end": 19352,
"labels": [
"ANALYSIS"
],
"start": 19310,
"text": "This submission has no legs to stand upon."
}
},
{
"from_name": null,
"id": "b32503646e2643dca49875cdb71af2b4",
"to_name": null,
"type": null,
"value": {
"end": 19567,
"labels": [
"ANALYSIS"
],
"start": 19353,
"text": "It has been held by both the courts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station (P.W. 79) as soon as they were brought to the PoliceStation at about 10.30 a.m."
}
},
{
"from_name": null,
"id": "fcb8837c5e674e02afff5d23720013cd",
"to_name": null,
"type": null,
"value": {
"end": 19811,
"labels": [
"ANALYSIS"
],
"start": 19568,
"text": "All these witnesses have clearly stated in their depositions that they witnessed A-1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street."
}
},
{
"from_name": null,
"id": "46b1a8f463674db7b6f4c01f57265388",
"to_name": null,
"type": null,
"value": {
"end": 20013,
"labels": [
"ANALYSIS"
],
"start": 19812,
"text": "The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occured before his house and as such in Exhibit P-11 there was only the reference to the said incident."
}
},
{
"from_name": null,
"id": "fc7704f95bf8412a9a9fb91da1df1eee",
"to_name": null,
"type": null,
"value": {
"end": 20150,
"labels": [
"ANALYSIS"
],
"start": 20014,
"text": "It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him."
}
},
{
"from_name": null,
"id": "7836d2268bc34bf1b1e3780ca2b257e9",
"to_name": null,
"type": null,
"value": {
"end": 20280,
"labels": [
"ANALYSIS"
],
"start": 20151,
"text": "Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47."
}
},
{
"from_name": null,
"id": "2f75829c2acd4bf18a000dbff72320a1",
"to_name": null,
"type": null,
"value": {
"end": 20470,
"labels": [
"ANALYSIS"
],
"start": 20281,
"text": "Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A-1 caused fatal cut injuries on the person of deceased Packiriswami Pillai."
}
},
{
"from_name": null,
"id": "6b15889985034f2db569ef13008a2505",
"to_name": null,
"type": null,
"value": {
"end": 20478,
"labels": [
"ANALYSIS"
],
"start": 20471,
"text": "P.W. 65"
}
},
{
"from_name": null,
"id": "bea49db9fa6d436e844a75af2ec6eb04",
"to_name": null,
"type": null,
"value": {
"end": 20820,
"labels": [
"ANALYSIS"
],
"start": 20479,
"text": "Dr.\nMadan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who conducted post-mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut was sufficient in the ordinary course of nature to cause death."
}
},
{
"from_name": null,
"id": "8c7a0140bb0f4ad8abf049ff57eef697",
"to_name": null,
"type": null,
"value": {
"end": 20942,
"labels": [
"ANALYSIS"
],
"start": 20821,
"text": "The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out."
}
},
{
"from_name": null,
"id": "65565777814f4828ba615f10d78189a5",
"to_name": null,
"type": null,
"value": {
"end": 21052,
"labels": [
"ANALYSIS"
],
"start": 20943,
"text": "There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated."
}
},
{
"from_name": null,
"id": "b889a8aa425343ccbb92af110537af32",
"to_name": null,
"type": null,
"value": {
"end": 21241,
"labels": [
"ANALYSIS"
],
"start": 21053,
"text": "Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A-1 on deceased Packiriswami Pillai."
}
},
{
"from_name": null,
"id": "031fc0352cee4a78b7df16f855e60511",
"to_name": null,
"type": null,
"value": {
"end": 21322,
"labels": [
"ANALYSIS"
],
"start": 21242,
"text": "He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami."
}
},
{
"from_name": null,
"id": "fc0e9e25c80b429c819b47221f4507b3",
"to_name": null,
"type": null,
"value": {
"end": 21428,
"labels": [
"ANALYSIS"
],
"start": 21323,
"text": "It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him."
}
},
{
"from_name": null,
"id": "39b7a198111543c08f1f8f290243c36b",
"to_name": null,
"type": null,
"value": {
"end": 21648,
"labels": [
"ANALYSIS"
],
"start": 21429,
"text": "The non- mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31."
}
},
{
"from_name": null,
"id": "49e3b015340044059d83cd37189b318c",
"to_name": null,
"type": null,
"value": {
"end": 21957,
"labels": [
"ANALYSIS"
],
"start": 21649,
"text": "It has been tried to be submitted in this connection that the statements of these P.Ws. were recorded in plain-sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not recorded immediately after the recording of the statement of P.W. 54."
}
},
{
"from_name": null,
"id": "7ef94504330848fa8beadf2f4ad4e1c2",
"to_name": null,
"type": null,
"value": {
"end": 22158,
"labels": [
"ANALYSIS"
],
"start": 21958,
"text": "This submission was also set at naught by the courts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55."
}
},
{
"from_name": null,
"id": "b424efe0191546a59bd7ecb42892c6fc",
"to_name": null,
"type": null,
"value": {
"end": 22494,
"labels": [
"ANALYSIS"
],
"start": 22159,
"text": "The mere recording ofstatements in plain-sheet instead of in diary form in these A circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P-11).\n "
}
},
{
"from_name": null,
"id": "ede230528ef14bfc9d642ccffd39ba9a",
"to_name": null,
"type": null,
"value": {
"end": 22817,
"labels": [
"ANALYSIS"
],
"start": 22494,
"text": "It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72"
}
},
{
"from_name": null,
"id": "4d4fe29e2d974672a0eebfc00da8c973",
"to_name": null,
"type": null,
"value": {
"end": 22853,
"labels": [
"ANALYSIS"
],
"start": 22817,
"text": ". This submission has also no merit."
}
},
{
"from_name": null,
"id": "75635253563f4e8eb7b348c81aa4e912",
"to_name": null,
"type": null,
"value": {
"end": 23000,
"labels": [
"ANALYSIS"
],
"start": 22854,
"text": "It has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all."
}
},
{
"from_name": null,
"id": "e43e5392bd6446fbabff935c0c2a2ad5",
"to_name": null,
"type": null,
"value": {
"end": 23082,
"labels": [
"ANALYSIS"
],
"start": 23001,
"text": "The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that time."
}
},
{
"from_name": null,
"id": "c88976b0022141e6ae2e85d412e73f5b",
"to_name": null,
"type": null,
"value": {
"end": 23250,
"labels": [
"ANALYSIS"
],
"start": 23083,
"text": "In view of these evidences, the court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted."
}
},
{
"from_name": null,
"id": "247437e1a9774d46b50d5a5e34f3451a",
"to_name": null,
"type": null,
"value": {
"end": 23422,
"labels": [
"ANALYSIS"
],
"start": 23250,
"text": "\nit was also pointed out by the court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968."
}
},
{
"from_name": null,
"id": "d2921ad3702f47bcaf3b85d47e315700",
"to_name": null,
"type": null,
"value": {
"end": 23550,
"labels": [
"ANALYSIS"
],
"start": 23423,
"text": "It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case P.W. 72 made the above statement."
}
},
{
"from_name": null,
"id": "c757c433b2b34729a769ffce10779bd8",
"to_name": null,
"type": null,
"value": {
"end": 23597,
"labels": [
"ANALYSIS"
],
"start": 23551,
"text": "Therefore, this submission is not sustainable."
}
},
{
"from_name": null,
"id": "4ade1bcb970f439b91bd5d90bce440e1",
"to_name": null,
"type": null,
"value": {
"end": 23987,
"labels": [
"ARG_PETITIONER"
],
"start": 23597,
"text": "\n It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968."
}
},
{
"from_name": null,
"id": "bdd28c7855144fa091bb4fa1b5e5238c",
"to_name": null,
"type": null,
"value": {
"end": 24104,
"labels": [
"ANALYSIS"
],
"start": 23988,
"text": "It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31."
}
},
{
"from_name": null,
"id": "f56448d603874639bf6bedc43e5e23db",
"to_name": null,
"type": null,
"value": {
"end": 24441,
"labels": [
"ANALYSIS"
],
"start": 24105,
"text": "This submission was also urged before the Court of appeal below and it was held that it was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P. W. 79 was not aware of the death of Packiriswamy Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him."
}
},
{
"from_name": null,
"id": "2b2a5ed6f3d34e14b186277df03d0f9b",
"to_name": null,
"type": null,
"value": {
"end": 24608,
"labels": [
"ANALYSIS"
],
"start": 24442,
"text": "P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction."
}
},
{
"from_name": null,
"id": "d8ebd998db1b4ae9bc6197317cebc0c1",
"to_name": null,
"type": null,
"value": {
"end": 24740,
"labels": [
"ANALYSIS"
],
"start": 24609,
"text": "P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31."
}
},
{
"from_name": null,
"id": "26d396df0dcc4d4c853361b6a89dacd3",
"to_name": null,
"type": null,
"value": {
"end": 25014,
"labels": [
"ANALYSIS"
],
"start": 24741,
"text": "It wasrightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31."
}
},
{
"from_name": null,
"id": "cc461e57dfbd4c5ebebd8d3cf840fd01",
"to_name": null,
"type": null,
"value": {
"end": 25297,
"labels": [
"ANALYSIS"
],
"start": 25015,
"text": "It was rightly held by the Court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws.\n34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case."
}
},
{
"from_name": null,
"id": "07f35dee75624e52a298b184421bf06a",
"to_name": null,
"type": null,
"value": {
"end": 25345,
"labels": [
"ANALYSIS"
],
"start": 25298,
"text": "No motive has been suggested against P.W. 79.\n "
}
},
{
"from_name": null,
"id": "6b5559219fe4432ca83b56ba8a54b806",
"to_name": null,
"type": null,
"value": {
"end": 25515,
"labels": [
"ANALYSIS"
],
"start": 25345,
"text": "It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A-l and A-2 this Court should remit the remaining period of their sentence."
}
},
{
"from_name": null,
"id": "f0d76be0e58b4f3f99f5e34df96b67a9",
"to_name": null,
"type": null,
"value": {
"end": 25577,
"labels": [
"ANALYSIS"
],
"start": 25515,
"text": "\nWe are unable to accept this submission advanced by Mr.\nGarg."
}
},
{
"from_name": null,
"id": "0e472bb4a76b4c85b44d38db98897aa2",
"to_name": null,
"type": null,
"value": {
"end": 25955,
"labels": [
"ANALYSIS"
],
"start": 25578,
"text": "Mention may be made in this connection to the observations of this Court in State of Maharastra v. Mayer Hans George, A.I.R. [1965] S.C. 722, which are as follows:- \"It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle.\"\n "
}
},
{
"from_name": null,
"id": "19943e883e8041eb993cf0be34f8a2d9",
"to_name": null,
"type": null,
"value": {
"end": 26180,
"labels": [
"ANALYSIS"
],
"start": 25955,
"text": "As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt."
}
},
{
"from_name": null,
"id": "fe7eb27d899443aab6c0904c3a1ca233",
"to_name": null,
"type": null,
"value": {
"end": 26362,
"labels": [
"ANALYSIS"
],
"start": 26180,
"text": "\nThere was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in ss. 302 and 364 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "fbbbbdd731874ff8b70f17653d6d8c9f",
"to_name": null,
"type": null,
"value": {
"end": 26453,
"labels": [
"ANALYSIS"
],
"start": 26363,
"text": "Therefore, we are not inclined to interfere with the sentences passed by the Courts below."
}
},
{
"from_name": null,
"id": "97858420273f4b4ab5d5248872815b2b",
"to_name": null,
"type": null,
"value": {
"end": 27083,
"labels": [
"PRE_RELIED"
],
"start": 26453,
"text": "\n It is pertinent to mention here the observations made by this Court in Pritam Singh v. The State, A.I.R. [1950] S.C. 169, which are as follows:- \"It will not grant special leave to appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for."
}
},
{
"from_name": null,
"id": "c953d7446f1e4f00b3187e4a43ad8593",
"to_name": null,
"type": null,
"value": {
"end": 27212,
"labels": [
"PRE_RELIED"
],
"start": 27084,
"text": "It is well established that this court does not by special leave convert itself into a court to review evidence of a third time."
}
},
{
"from_name": null,
"id": "e639b1f2b3414620806770993c957a9a",
"to_name": null,
"type": null,
"value": {
"end": 27609,
"labels": [
"PRE_RELIED"
],
"start": 27213,
"text": "Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice.\"\n "
}
},
{
"from_name": null,
"id": "a60d84ee9db74c75a7f7bbceeecd1c9f",
"to_name": null,
"type": null,
"value": {
"end": 27768,
"labels": [
"PRE_RELIED"
],
"start": 27609,
"text": "This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh v. State of Pepsu, A.I.R. [1954] S.C. 271.\n "
}
},
{
"from_name": null,
"id": "7d3537097a7e4a46a944df8b2315bfeb",
"to_name": null,
"type": null,
"value": {
"end": 27994,
"labels": [
"RATIO"
],
"start": 27768,
"text": "In the premise aforesaid, we do not find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below."
}
},
{
"from_name": null,
"id": "5273604dc2db4c40b46c0595ecb3e006",
"to_name": null,
"type": null,
"value": {
"end": 28173,
"labels": [
"RPC"
],
"start": 27994,
"text": "\n We, therefore, dismiss the appeal and confirm the convicFPJ tion and sentences passed on accused Nos. A-l and A-2 as well as on other appellants.\n M.L.A. "
}
},
{
"from_name": null,
"id": "163f9eb2aba7437d91e72f9d7653c6e5",
"to_name": null,
"type": null,
"value": {
"end": 28190,
"labels": [
"RPC"
],
"start": 28173,
"text": "Appeal dismissed."
}
}
]
}
] | 4,261 | {
"text": "PETITIONER:\nGOPAL & ORS.\n\nVs.\n\nRESPONDENT:\nSTATE OF TAMIL NADU\n\nDATE OF JUDGMENT30/01/1986\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nERADI, V. BALAKRISHNA (J)\n\nCITATION: 1986 SCR (1) 199\n 1986 AIR 702 1986 SCALE (1)132\n 1986 SCC (2) 93\n\nACT:\n Constitution of India, 1950, Article 136 - Criminal\n\nappeal - Conviction and sentence - Concurrently arrived at\nby trial and Appellate Courts - Interference by Supreme\nCourt When arises.\n\n Practice and Procedure - Sentence - Question of Supreme\nCourt - When would interfere.\n\nHEADNOTE:\n The Mirasdars used to bring labourers from outside for\n\nharvest of paddy from their fields as local labourers were\nreluctant to harvest paddy at the wage of 4 1/2 measures of\npaddy. The local labourers were very much aggrieved by this\nbringing of men from outside for harvesting of paddy. On\n25th December, 1968 one Packiriswami Pillai, since deceased,\nalongwith 17 other labourers of Irakkai village was\nreturning home at about 5.30 P.M. after harvesting of crops\nfrom the fields of P.W.15. They reached the east-west\nHarijan Street at about 7.30 P.M. mere was moon light and\nelectric light. There, P.Ws. 31,32,34 to 44 saw a crowd of\n10 to 15 persons standing. In that crowd P.Ws. 31,32,34 to\n37 saw accused Nos.l and 2 armed with aruvals. The crowd\nquestioned them as to which place they belonged to, whereon\nthey replied that they belonged to Irakkai. Immediately, A-\nl, Gopal cried out \"Do not leave Irakkai people, cut them,\nbeat them.\" P.Ws. 31,32,34 to 37 while running found\nPackiriswami Pillai tripping and falling down near the\nelectric lamp post on the Harijan Street. They also saw\naccused Nos. 1 and 2 and some others in the crowd lifting\nthe deceased by hands, legs and clothes. Then he was carried\nto some distance towards the east. At that time Packiriswami\nPillai cried out that he was being cut by Gopal (A-l) and\nthey were leaving him behind ant running. P.Ws. 31,32 and 34\nto 37 saw the first accused cutting Packiriswami Pillai with\naruval on his neck and on his head. P.Ws. 31,32, 34,35,36\nand 37 ran towards the Caste Hindu Street and ultimately\nentered into the house of P.W.47. Another crowd of 50-60\npersons armed with aruvals and sticks came from thesouth and they caused injuries on the persons of P.Ws. 54\nand 55 who came out of their house. On getting information\nat about 8.00 P.M., P.W.72, the Head Constable, with some\n\nS.A.P. men went to Keezha Vanmani and after collecting the\ninjured persons from the house of P.W.47 as well as\ncollecting the injured P.W.54 and 55 in the van came to the\nKeevalur Police Station where P.W.79 (Inspector of Police)\nrecorded the statement of P.W.54 and registered the same as\nCrime No. 326 of 1968. He thereafter recorded the statements\nof P.W.55 and P.Ws. 34 to 37 in the Police Station. At about\n11.45 P.M. P.W.79 left for Keezha Vanmani and met P.W.31\nthere. Then both of them went to Nadu Street and found the\ndead body of Packiriswami Pillai with multiple injuries.\nP.W.79 recorded the statement of P.W.31 and registered the\nsame as Crime No. 328 of 1968.\n\n Out of 22 accused, the Sessions Judge acquitted 14 and\nconvected 8, namely, accused Nos.1,2,12,13,17,18,19 and 20\nunder various offences and sentenced them to suffer rigorous\nimprisonment for various terms. Te Sessions Judge found the\naforesaid accused guilty of various offences on the grounds\n(1) that there was electric light and also moon light at the\ntime of the occurrence and that P.Ws. 31,32 and 34 to 37\nwitnessed the fatal injuries caused by aruvals on the head\nand neck of Packiriswami Pillai by Gopal (A-l); (2) that the\ncrying out by the deceased Packiriswami Pillai that Gopal\n(A-l) was cutting him was in the nature of Dying Declaration\nand no motive could be ascribed for the deceased to falsely\nimplicate the accused A-l, Gopal at that moment; (3) that\nthe injuries sustained by P.Ws. 34 to 36 with all\nprobabilities establish the presence of these P.Ws. at a\nclose range and seeing the occurrence; and (4) that there\nwas also overwhelming evidence as to the presence of A-l in\nthe crowd. The appeal of all the 8 accused persons filed\nbefore the High Court was dismissed.\n\n Dismissing the appeal to this Court,\n^\n\n HELD : 1. m ere is no infirmity far less any illegality\nor failure of justice which would impel the Supreme Court to\ninterfere with the order of conviction and sentence con\ncurrently arrived at by both the courts below. [210 D]\n\n 2(i) P.Ws. 34 to 37 have clearly stated in their\ndepositions that they witnessed A-l inflict cutting injuries\non the neck and heat of Packiriswami Pillai after lifting\nhim along-with other accused and carrying him to the east of Harijan\nStreet. The court of appeal below has rightly held that\nP.W. 54 was only concerned with the incident that occurred\nbefore his house and, as such, in Exhibit P-11 there was\nonly the reference to the said incident. It was also held\nthat P.W. 79 in his deposition refuted the suggestion that\nhe did not examine P.W. 34 to 37 at the time alleged by him.\nMoreover, all these P.Ws. 34 to 37 suffered several injuries\nbeing chased by the crowd while running forwards the house\nof P.W. 47. Therefore, evidences of all these eye witnesses\nas well as of P.W. 31 were believed by both the courts below\nthat A-l caused fatal cut injuries on the person of deceased\nPackiriswami Pillai. [207 A-C]\n\n 2(ii) P.W. 65, Assistant Surgeon, Government Hospital,\nwho conducted postmortem also stated in his deposition that\nout of the 11 injuries caused on the person of deceased\nPackiriswami Pillai, the injuries Nos. 1 and 2 which could\nhave been caused by single cut were sufficient in the\nordinary course of nature to cause death. The doctor has\nalso stated in his evidence that after the infliction of\ninjury No. 1 the injured could have shouted out. There is,\ntherefore, ample evidence to negative the submission that\nthe accused No. 1 was falsely implicated. Moreover, P.W. 72\n\nhas stated in his deposition that he is deaf and as such he\ncould not hear whether P.Ws. 34 to 37 stated about the\ninjuries caused by A-1 on deceased Packiriswami Pillai. He\nalso stated that he heard P.Ws. 34 to 37 uttering\nPackiriswami, Packiriswami. It was rightly held by both the\ncourts below that P.W. 72 was deaf and could not hear what\nthey told him. The non-mentioning of attack on Packiriswami\nPillai by P.W. 54 in his statement does not in any way lead\nto the inference that the statements of P.Ws. 34 to 37 were\nrecorded after recording of the statement of P.W. 31. [207\nD-F]\n\n 3(i) P.W. 79 recorded the statement of P.Ws. 34 to 37\nin the Police Station after recording of the statements of\nP.Ws. 54 and 55. The mere recording of Statements in plain-\nsheet instead of in diary form in these circumstances does\nnot lead to any where in view of the clear evidence of P.W.\n79 which was believed by both the courts below that the\nstatements of these P.Ws. were recorded by him immediately\nafter recording the statement of P.W. 54 (Exhibit P-11).\n[207 H; 208 A]\n\n 3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their\nevidence that they did not see P.W. 1 at all. The evidence\nof P.W. 1 was that he did not go to Caste Hindu Street at\nthattime. In view of these evidence, the Court of appeal below\nheld that the evidence of P.W. 72 to the effect that P.W. 1\ncame near the house of P.W. 47 could not be accepted. It was\nalso pointed out by the Court of appeal below that P.W. 72\nhas not spoken about presence of P.W. 1 at about that time\neither in Crime No. 326 or in Crime No. 328 of 1968. It was\nonly during the investigation in Crime No. 327 of 1968\nnamely the connected arson case, P.W. 72 made the above\nstatement. [208 C-D]\n\n 4. It was not improbable that because at the time of\nthe recording of statement of P.Ws. 34 to 37, P.W. 79 was\nnot aware of the death of Packiriswami Pillai, so he did not\nconsider it a grave crime and did not register it separately\nas spoken to by him. P.W. 79 further stated in his evidence\nthat both the occurrences namely attack on P.Ws. 54 and 55\nand Packiriswami Pillai formed part of one and the same\ntrans action. P.W. 79 further admitted that he ought not to\nhave registered a separate case in Crime No. 328 of 1968 on\nthe statement of P.W. 31. It was rightly held by the Court\nof appeal below that P.W. 79 adopted irregular procedure in\nregistering separate Crime number on the basis of the\nstatement of P.W. 31 and this cannot lead to the inference\nthat P.Ws. 34 to 37 were examined only after examination of\nP.W. 31. It was rightly held by the court of appeal below\nthat these irregularities committed by P.W. 79 in not\nrecording the statement of P.Ws. 34 to 37 in Case Diary Form\nand registering the separate crime number on the statement\nof P.W. 31 could not militate against the prosecution case.\nNo motive has been suggested against P.W. 79. [208 G-H; 209\nA-B]\n\n 5. The accused 1 and 2 have been convicted by the\nCourts below on the finding that the offences charged\nagainst them have been proved by the eye witnesses beyond\nany reasonable doubt. There was no illegality nor any\nquestion of principle involved in the matter of making order\nsentencing them to imprisonment as provided in 88. 302 and\n364 of the Indian Penal Code. Therefore, the Court is not\ninclined to interfere with the sentences passed by the\nCourts below. [209 E-F]\n\n State of Maharastra v. Mayer Hans George, A.I.R. 1965\n\n\nS.C. 722 applied.\n Pritam Singh v. The State, A.I.R. 1950 S.C. 169 and\n\nSadhu Singh Harnam Singh v. state of Pepsu) A.I.R. 1954 S.C.\n271 referred to.\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 234 of 1973.\n From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971.\n R.K. Garg, Gopal Singh and L.R. Singh for the Appellants.\n K.G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent.\n The Judgment of the Court was delivered by B.C. RAY, J. This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No.\n23 of 1971 whereby the appeal was dismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos. 1, 2, 12, 13, 17, 18, 19 and 20 were confirmed.\n The prosecution case is as follows: All the accused appellants are residents of various villages within Keevalur Police Station. The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages. Accused nos.\n17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village. There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest. These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and convening meetings. There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers. This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers trespassed into the lands and illegally harvested paddy crops. This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages. There was the Paddy Producers Association having its offices in several villages. P.W. 1 Gopal Krishna Naidu was the President ofPaddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association. The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4- 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy.\n On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar P.W. 15 at about 9 a.m. It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully. The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham. Each of them were paid 4-1/2 measures of paddy per kalam. P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture. The seventeen Irukkai people started for home sometime thereafter. The Irukkai labourers reached the east-west Harijan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road. There was moon light and electric light.\nThere were bamboo clusters in the form of a hood on either side of the east-west Harijan Street near the second electric lamp post from the west. At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals. Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai. Immediately, A-l Gopal cried out, \"Do not leave Irukkai people, cut them, beat them.\" A crowd of about 50 persons being armed with aruvals, sticks etc. came running towards the Irukkai people. P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A-1) and they were leaving him behind and running. P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head. P.Ws. 31, 32, 347 35, 36 and 37ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47. Another crowd of 50-60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses. On the same day at about 8.00 p.m. P.W.\n79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle (van) from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi. P.W. 72 with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P. W. 47 as well as collecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 (Inspector of Police) recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station. He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws. 34 to 37 in the Police Station. Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night. He met P.W. 31 there. P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries. P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968.\n The learned Sessions Judge after duly weighing the evidences of P.Ws. found inter alia that there was electric light and also moon light at the time of the occurrence.\nP.Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal (A-l). It was also held that the crying out by the deceased Packiriswami Pillai that Gopal (A-1) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A-1 Gopal at that moment. Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence. There was also overwhelming evidence as to the presence of A-1 in the crowd. The learned Sessions Judge found accused No. 1 guilty of offence under s. 302 I.P.C. and sentenced him to imprisonment for life. He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorousimprisonment for two years. Accused Nos. 1 and 2 were also held guilty of the offence under s. 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years.\nAll these sentences will run concurrently. Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e.\naccused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms.\n Against the aforesaid judgment and order of conviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971. The appeal was dismissed and the conviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were confirmed.\n Mr. Garg, learned counsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was convicted under s. 364 I.\nP. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence.\n It has been firstly contended by Mr. Garg, learned counsel, that the statement of P.W. 54 Packiriswamy Poraiyar (exhibit P-11) which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did not mention about the attack on deceased Packiriswami Pillai or any Irukkai people. It has also been submitted that P.W. 72 (Head Constable) who collected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did not tell about the attack on the deceased Packiriswami Pillai. It has been, therefore, submitted that the statements of P.Ws. 34 to 37 were recorded not at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P-11. It has also been submitted that the accused Gopal (A-1) who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station. This submission has no legs to stand upon. It has been held by both the courts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station (P.W. 79) as soon as they were brought to the PoliceStation at about 10.30 a.m. All these witnesses have clearly stated in their depositions that they witnessed A-1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street. The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occured before his house and as such in Exhibit P-11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47. Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A-1 caused fatal cut injuries on the person of deceased Packiriswami Pillai. P.W. 65 Dr.\nMadan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who conducted post-mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut was sufficient in the ordinary course of nature to cause death. The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A-1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him. The non- mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. It has been tried to be submitted in this connection that the statements of these P.Ws. were recorded in plain-sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not recorded immediately after the recording of the statement of P.W. 54. This submission was also set at naught by the courts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording ofstatements in plain-sheet instead of in diary form in these A circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P-11).\n It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72. This submission has also no merit. It has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all. The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that time. In view of these evidences, the court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted.\nit was also pointed out by the court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case P.W. 72 made the above statement. Therefore, this submission is not sustainable.\n It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968. It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31. This submission was also urged before the Court of appeal below and it was held that it was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P. W. 79 was not aware of the death of Packiriswamy Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction. P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It wasrightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the Court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws.\n34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case. No motive has been suggested against P.W. 79.\n It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A-l and A-2 this Court should remit the remaining period of their sentence.\nWe are unable to accept this submission advanced by Mr.\nGarg. Mention may be made in this connection to the observations of this Court in State of Maharastra v. Mayer Hans George, A.I.R. [1965] S.C. 722, which are as follows:- \"It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle.\"\n As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt.\nThere was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in ss. 302 and 364 of the Indian Penal Code. Therefore, we are not inclined to interfere with the sentences passed by the Courts below.\n It is pertinent to mention here the observations made by this Court in Pritam Singh v. The State, A.I.R. [1950] S.C. 169, which are as follows:- \"It will not grant special leave to appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence of a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice.\"\n This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh v. State of Pepsu, A.I.R. [1954] S.C. 271.\n In the premise aforesaid, we do not find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below.\n We, therefore, dismiss the appeal and confirm the convicFPJ tion and sentences passed on accused Nos. A-l and A-2 as well as on other appellants.\n M.L.A. Appeal dismissed.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "2aaf891d8fad42fc969e8b78c1a4ca99",
"to_name": null,
"type": null,
"value": {
"end": 859,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nBHARWADA BHOGINBHAI HIRJIBHAI\n\n Vs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT24/05/1983\n\nBENCH:\nTHAKKAR, M.P. (J)\nBENCH:\nTHAKKAR, M.P. (J)\nSEN, A.P. (J)\n\nCITATION:\n\n1983 AIR 753 1983 SCR (3) 280\n 1983 SCALE (1)665\n1983 SCC (3) 217\n (10,14)\nCITATOR INFO : (247)\n (27)\nRF 1988 SC 696 (14,19)\n\nR 1988 SC1883\n\nR 1989 SC1890\n\nR 1990 SC 658\n\nACT:\n Constitution of India, 1950, Article 136 read with\n\norder XXI of the Supreme Court Rules, 7966-Concurrent\nfinding of fact, when can be reopened by the Supreme Court\nin an appeal by Special Leave, explained.\n\n Evidence - Reappreciation of evidence in the context of\nminor discrepancies, explained.\n\n Evidence-Corroborative evidence in rape cases-"
}
},
{
"from_name": null,
"id": "738c50cfc7b84fe8a3233e2499ea9f33",
"to_name": null,
"type": null,
"value": {
"end": 980,
"labels": [
"PREAMBLE"
],
"start": 859,
"text": "Whether,\nwhen and to what extent corroboration to the testimony of a\nvictim of rape is essential to establish the charge."
}
},
{
"from_name": null,
"id": "9d20d681019f456cb614fe3348e1cdcc",
"to_name": null,
"type": null,
"value": {
"end": 1313,
"labels": [
"PREAMBLE"
],
"start": 980,
"text": "\n\nHEADNOTE:\n The appellant, a government servant employed in the\n\nSachivalaya at Gandhinagar was found guilty, by the Sessions\nJudge, Mehsna, of serious charges of sexual misbehaviour\nwith two young girls (aged about 10 or 12 and was convicted\nfor the offence of rape, outraging the modesty of women, and\nwrongful confinement"
}
},
{
"from_name": null,
"id": "81fa9a8b33e6495592944e494d1eb67c",
"to_name": null,
"type": null,
"value": {
"end": 1372,
"labels": [
"PREAMBLE"
],
"start": 1314,
"text": "The appeal carried to the High Court\nsubstantially failed."
}
},
{
"from_name": null,
"id": "d6f4cdec0bb047a4b803a6c0e3be4b33",
"to_name": null,
"type": null,
"value": {
"end": 1565,
"labels": [
"PREAMBLE"
],
"start": 1373,
"text": "The High Court affirmed the orders of\nconviction under section 342 I.P.C. for wrongfully confining\nthe girls and conviction under Section 354 I.P.C. for\noutraging the modesty of the two girls."
}
},
{
"from_name": null,
"id": "556917080b8c47e0b67cf302477218fb",
"to_name": null,
"type": null,
"value": {
"end": 1767,
"labels": [
"PREAMBLE"
],
"start": 1566,
"text": "With regard to the\nmore serious charge of rape on one of the girls, the High\nCourt came to the conclusion that what was established by\nevidence was an offence or attempt to commit rape and not of\nrape."
}
},
{
"from_name": null,
"id": "c8f7df4407d84cae8888e9b2db4505b2",
"to_name": null,
"type": null,
"value": {
"end": 1893,
"labels": [
"PREAMBLE"
],
"start": 1768,
"text": "Accordingly, the conviction under Section 376 was\naltered into one under Section 376 read with Section Sl I\nI.P.C.\n\n "
}
},
{
"from_name": null,
"id": "ddc580e9ffaa48d9a18ce44ee2197ea8",
"to_name": null,
"type": null,
"value": {
"end": 1959,
"labels": [
"PREAMBLE"
],
"start": 1893,
"text": "Dismissing the appeal and maintaining the conviction on\nall counts"
}
},
{
"from_name": null,
"id": "12faa302be2b48beb00a1672730e63a8",
"to_name": null,
"type": null,
"value": {
"end": 1988,
"labels": [
"PREAMBLE"
],
"start": 1959,
"text": ", Court\n^\n\n HELD: 1:1"
}
},
{
"from_name": null,
"id": "12c391ff995a42b88de91dac33008421",
"to_name": null,
"type": null,
"value": {
"end": 2132,
"labels": [
"PREAMBLE"
],
"start": 1989,
"text": "A concurrent finding of fact as recorded by\nthe Sessions Court and affirmed by the High Court, cannot be\nreopened in an appeal by Special Leave"
}
},
{
"from_name": null,
"id": "c9804d6d04c242a69c5f5581692e69a4",
"to_name": null,
"type": null,
"value": {
"end": 2673,
"labels": [
"PREAMBLE"
],
"start": 2133,
"text": "unless it is\nestablished (1) that the finding is based on no evidence or\n(2) that the finding is perverse, it being such as no\nreasonable person could have arrived at even if the evidence\n\nwas taken at its face value or (3) the finding is based and\nbuilt on inadmissible evidence, which evidence if excluded\nfrom vision, would negate the prosecution case or\nsubstantially discredit or impair it or (4) some vital piece\nof evidence which would tilt the balance in favour of the\nconvict has been overlooked, disregarded, or wrongly\ndiscarded."
}
},
{
"from_name": null,
"id": "275c6b22882c4ec1920a0c4bcbd692d5",
"to_name": null,
"type": null,
"value": {
"end": 2717,
"labels": [
"PREAMBLE"
],
"start": 2674,
"text": "The present is not a case of such a nature."
}
},
{
"from_name": null,
"id": "f3026e3f34794fe68910f36c32ed5d1f",
"to_name": null,
"type": null,
"value": {
"end": 2900,
"labels": [
"PREAMBLE"
],
"start": 2718,
"text": "[285\nG-H, 286 A]\n\n 1:2. Discrepancies which do not go to the root of the\nmatter and shake the basic version of the witnesses\ntherefore cannot be annexed with undueimportance."
}
},
{
"from_name": null,
"id": "c36033493eaa48679eaa13463c2ebb46",
"to_name": null,
"type": null,
"value": {
"end": 3014,
"labels": [
"PREAMBLE"
],
"start": 2901,
"text": "More so when the all important \"probabilities-\nfactor\" echoes in favour of the version narrated by the\nwitnesses."
}
},
{
"from_name": null,
"id": "6a44910b1dba4e9b9f3739802dfb1454",
"to_name": null,
"type": null,
"value": {
"end": 3152,
"labels": [
"PREAMBLE"
],
"start": 3015,
"text": "The reasons are: (1) By and large a witness\ncannot be expected to possess a photographic memory and to\nrecall the details of an incident."
}
},
{
"from_name": null,
"id": "adb1218b43564b789d38db2d82d11b13",
"to_name": null,
"type": null,
"value": {
"end": 3283,
"labels": [
"PREAMBLE"
],
"start": 3153,
"text": "It is not as if a video\ntape is replayed on the mental screen; (2) ordinarily it so\nhappens that a witness is overtaken by events."
}
},
{
"from_name": null,
"id": "4420358b84044d53901c82d6de4fdd57",
"to_name": null,
"type": null,
"value": {
"end": 3380,
"labels": [
"PREAMBLE"
],
"start": 3284,
"text": "The witness\ncould not have anticipated the occurrence which so often has\nan element of surprise."
}
},
{
"from_name": null,
"id": "d0a46605106d43a4ba78c1a88ae6ba92",
"to_name": null,
"type": null,
"value": {
"end": 3527,
"labels": [
"PREAMBLE"
],
"start": 3381,
"text": "The mental faculties therefore\ncannot be expected to be attuned to absorb the details; (3)\nThe powers of observation differ from person to person."
}
},
{
"from_name": null,
"id": "6cd801601519459cad46622fd2c2f5d0",
"to_name": null,
"type": null,
"value": {
"end": 3565,
"labels": [
"PREAMBLE"
],
"start": 3528,
"text": "What\none may notice, another may not."
}
},
{
"from_name": null,
"id": "8b40b78acd394bf4b26eb7c96db900ae",
"to_name": null,
"type": null,
"value": {
"end": 3710,
"labels": [
"PREAMBLE"
],
"start": 3566,
"text": "An object or movement might\nemboss its image on one person's mind whereas it might go\nunnoticed on the part of another; (4) By and large people\n"
}
},
{
"from_name": null,
"id": "a28b88ef856049d1b580fcf4407bb04d",
"to_name": null,
"type": null,
"value": {
"end": 3809,
"labels": [
"PREAMBLE"
],
"start": 3710,
"text": "cannot accurately recall a conversation and reproduce the\nvery words used by them or heard by them."
}
},
{
"from_name": null,
"id": "8f6f08a3351044f78b7987981496adcb",
"to_name": null,
"type": null,
"value": {
"end": 3868,
"labels": [
"PREAMBLE"
],
"start": 3810,
"text": "They can only\nrecall the main purport of the conversation."
}
},
{
"from_name": null,
"id": "c00befd778d34dfe9bcef3f1f991bc75",
"to_name": null,
"type": null,
"value": {
"end": 4125,
"labels": [
"PREAMBLE"
],
"start": 3869,
"text": "It is\nunrealistic to expect a witness to be a human tape recorder;\n(5) In regard to exact time of an incident, or the time\nduration of an occurrence, usually, people make their\nestimates by guess work on the spur of the moment at the\ntime of interrogation."
}
},
{
"from_name": null,
"id": "19b2a0584b8c4714ab3860d476a791ba",
"to_name": null,
"type": null,
"value": {
"end": 4214,
"labels": [
"PREAMBLE"
],
"start": 4126,
"text": "And one cannot expect people to make\nvery precise or reliable estimates in such matters."
}
},
{
"from_name": null,
"id": "81e1bec79f1f4ab29c39152dd03e20f6",
"to_name": null,
"type": null,
"value": {
"end": 4233,
"labels": [
"PREAMBLE"
],
"start": 4215,
"text": "Again,\nit depends."
}
},
{
"from_name": null,
"id": "60daea4bd3d9400caea7ede0bfcd3931",
"to_name": null,
"type": null,
"value": {
"end": 4303,
"labels": [
"PREAMBLE"
],
"start": 4234,
"text": "On the 'timesense' of individuals which varies\nfrom person to person."
}
},
{
"from_name": null,
"id": "2557805fd9e2475fa28cabf93e548eea",
"to_name": null,
"type": null,
"value": {
"end": 4453,
"labels": [
"PREAMBLE"
],
"start": 4304,
"text": "(6) ordinarily a witness cannot be\nexpected to recall accurately the sequence of events which\ntake place in rapid succession or in a short time span."
}
},
{
"from_name": null,
"id": "0399f9fcb2d84c97971b5733df3267b1",
"to_name": null,
"type": null,
"value": {
"end": 4809,
"labels": [
"PREAMBLE"
],
"start": 4454,
"text": "A\nwitness is liable to get confused, or mixed up, when\ninterrogated later on; (7) A witness, though wholly\ntruthful, is liable to be overawed by the court atmosphere\nand the piercing cross examination made by counsel and out\nof nervousness mix up facts; get confused regarding sequence\nof events, or fill up details from imagination on the spur\nof moment."
}
},
{
"from_name": null,
"id": "dd6da976a0b744f2958e9b1517f72a25",
"to_name": null,
"type": null,
"value": {
"end": 5122,
"labels": [
"PREAMBLE"
],
"start": 4810,
"text": "The subconscious mind of the witness sometimes so\noperates on account of the fear of looking foolish, or being\ndisbelieved, though the witness is giving a truthful and\nhonest account of the occurrence witnessed by him-Perhaps it\nis a sort of a psychological defence mechanism activated on\nthe spur of the moment."
}
},
{
"from_name": null,
"id": "b47e6776ca4d466681b11600bd14c2f2",
"to_name": null,
"type": null,
"value": {
"end": 5156,
"labels": [
"PREAMBLE"
],
"start": 5123,
"text": "[286 B-H, 287 A-E]\n\n 2:1."
}
},
{
"from_name": null,
"id": "347345b238d24ac782b4fa749818040f",
"to_name": null,
"type": null,
"value": {
"end": 5201,
"labels": [
"PREAMBLE"
],
"start": 5157,
"text": "Corroboration is not the sine-quo-non for a\n"
}
},
{
"from_name": null,
"id": "6f2e973c463644769a65fd7747b704b5",
"to_name": null,
"type": null,
"value": {
"end": 5211,
"labels": [
"PREAMBLE"
],
"start": 5201,
"text": "conviction"
}
},
{
"from_name": null,
"id": "33daeed9f24b4600aa85fca1bb29c8f9",
"to_name": null,
"type": null,
"value": {
"end": 5226,
"labels": [
"PREAMBLE"
],
"start": 5212,
"text": "in a rape case"
}
},
{
"from_name": null,
"id": "484a97852391436ea1984b522fcf6eff",
"to_name": null,
"type": null,
"value": {
"end": 5383,
"labels": [
"PREAMBLE"
],
"start": 5226,
"text": ". In the Indian setting, refusal to\nact on the testimony of a victum of sexual assault in the\nabsence of corroboration as a rule, is adding insult to\ninjury."
}
},
{
"from_name": null,
"id": "63c9d3396e2f49c491437abb0a1ca170",
"to_name": null,
"type": null,
"value": {
"end": 5635,
"labels": [
"PREAMBLE"
],
"start": 5384,
"text": "Viewing the evidence of the girl or the women who\ncomplains of rape or sexual molestation with the aid of\nspectacles fitted with lenses tinged with doubt, disbelief\nor suspicion, is to justify the charge of male chauvinism in\na male dominated society."
}
},
{
"from_name": null,
"id": "53a36795de164c6aac43af15627b9329",
"to_name": null,
"type": null,
"value": {
"end": 5748,
"labels": [
"PREAMBLE"
],
"start": 5636,
"text": "[287 F. 288 C-D]\n\n Rameshwar v. The State of Rajasthan, [1952] S.C.R. 377\n@ 386 followed.\n\n 2:2."
}
},
{
"from_name": null,
"id": "f623874bfb5a485390f1524c339c2589",
"to_name": null,
"type": null,
"value": {
"end": 5794,
"labels": [
"PREAMBLE"
],
"start": 5749,
"text": "Corroboration may be considered essential to\n"
}
},
{
"from_name": null,
"id": "29f04750b1c0435eb2aa3fc856b92a93",
"to_name": null,
"type": null,
"value": {
"end": 5803,
"labels": [
"PREAMBLE"
],
"start": 5794,
"text": "establish"
}
},
{
"from_name": null,
"id": "3b859d63b2364186bf39934f5de752f6",
"to_name": null,
"type": null,
"value": {
"end": 5820,
"labels": [
"PREAMBLE"
],
"start": 5804,
"text": "a sexual offence"
}
},
{
"from_name": null,
"id": "75f8996fb19d44e6ba2215dd94f1f450",
"to_name": null,
"type": null,
"value": {
"end": 5839,
"labels": [
"PREAMBLE"
],
"start": 5821,
"text": "in the backdrop of"
}
},
{
"from_name": null,
"id": "77d9ddbeecd347d1a2841e1be9871fcb",
"to_name": null,
"type": null,
"value": {
"end": 5879,
"labels": [
"PREAMBLE"
],
"start": 5840,
"text": "the social\necology of the Western World"
}
},
{
"from_name": null,
"id": "5eb66ef613e24e1ebf8aef249e3652e6",
"to_name": null,
"type": null,
"value": {
"end": 6112,
"labels": [
"PREAMBLE"
],
"start": 5879,
"text": ". It is wholly unnecessary to\n\nimport the said concept on a turn-key basis and to\ntransplant it on the Indian soil regardless of the\naltogether different atmosphere, attitudes, mores, responses\nof the Indian Society, and its profile."
}
},
{
"from_name": null,
"id": "910f1f7f14a24a34a62706af5d0608fd",
"to_name": null,
"type": null,
"value": {
"end": 6160,
"labels": [
"PREAMBLE"
],
"start": 6113,
"text": "The identities of\nthe two worlds are different."
}
},
{
"from_name": null,
"id": "a32cdf0cbf914f4fb224379ee210aa23",
"to_name": null,
"type": null,
"value": {
"end": 6215,
"labels": [
"PREAMBLE"
],
"start": 6161,
"text": "The solution of problems\ncannot therefore be idential."
}
},
{
"from_name": null,
"id": "31179115e36b4f22b500500222f11afa",
"to_name": null,
"type": null,
"value": {
"end": 6713,
"labels": [
"PREAMBLE"
],
"start": 6216,
"text": "It is conceivable in the\nWestern Society that a female may level false accusation as\nregards sexual molestation against a male for several\nreasons such as:-(1) The female may be a 'golddigger' and may well have an economic motive-to extract\nmoney by holding out the gun of prosecution or public\nexposure; (2) She may be suffering from psychological\nneurosis and may seek an escape from the neurotic prison by\nphantasizing or imagining a situation where she is desired,\nwanted and chased, by males."
}
},
{
"from_name": null,
"id": "e3d5b9f99c134f88bff8a0a69345d3ee",
"to_name": null,
"type": null,
"value": {
"end": 6790,
"labels": [
"PREAMBLE"
],
"start": 6714,
"text": "(3) She may want to wreak\nvengence on the male for real or imaginary wrongs."
}
},
{
"from_name": null,
"id": "3ac0c1ba567e4e35930fbed65feaad1f",
"to_name": null,
"type": null,
"value": {
"end": 7138,
"labels": [
"PREAMBLE"
],
"start": 6791,
"text": "She may\nhave a grudge against a particular male, or males in\ngeneral, and may have the design to square the account; (4)\nShe may have been induced to do so in consideration of\neconomic rewards, by a person interested in placing the\naccused in a compromising or embarassing position, on\naccount of personal or political vendetta; (5) She may do so\n"
}
},
{
"from_name": null,
"id": "39c19a84e4e64cc5a1f71833571b6542",
"to_name": null,
"type": null,
"value": {
"end": 7198,
"labels": [
"PREAMBLE"
],
"start": 7138,
"text": "to gain notoriety or publicity or to appease her own ego, or"
}
},
{
"from_name": null,
"id": "eda9ddc839494ec598f76cfe1b81ae5f",
"to_name": null,
"type": null,
"value": {
"end": 7409,
"labels": [
"PREAMBLE"
],
"start": 7198,
"text": "\nto satisfy her feeling of self-importance in the context of\nher inferiority complex; (6) She may do so on account of\njealousy; (7) She may do so to win sympathy of others; (8)\nShe may do so upon being repulsed."
}
},
{
"from_name": null,
"id": "48adcfedb90447e7ab3a658c7fd6b24d",
"to_name": null,
"type": null,
"value": {
"end": 7490,
"labels": [
"PREAMBLE"
],
"start": 7410,
"text": "By and large these\nfactors are not relevant to India, and the Indian\nConditions."
}
},
{
"from_name": null,
"id": "bff6c5acf7284f57b455e876d6b4e863",
"to_name": null,
"type": null,
"value": {
"end": 7524,
"labels": [
"PREAMBLE"
],
"start": 7491,
"text": "[288 F-H, 289 A-E]\n\n 2:3."
}
},
{
"from_name": null,
"id": "7d1f803c07584867aecb706418f174a0",
"to_name": null,
"type": null,
"value": {
"end": 7735,
"labels": [
"PREAMBLE"
],
"start": 7525,
"text": "Rarely will a girl or a woman in India make such\nfalse allegations of sexual assault, whether she belongs to\nthe urban or rural society, or, sophisticated, or, not-so\nsophisticated, or, unsophisticated society."
}
},
{
"from_name": null,
"id": "16c50b27d9cf425e87cd478c65f88506",
"to_name": null,
"type": null,
"value": {
"end": 7859,
"labels": [
"PREAMBLE"
],
"start": 7736,
"text": "Only very rerely\ncan one conceivably come accross an exception or two and\nthat too possibily from amongst the urban elites."
}
},
{
"from_name": null,
"id": "7bc58d7928ab4bc6897f44865559569c",
"to_name": null,
"type": null,
"value": {
"end": 8803,
"labels": [
"PREAMBLE"
],
"start": 7860,
"text": "Because:-\n(1) A girl or a woman in the tradition bound non-permissive\nSociety of India would be extremely reluctant even to admit\nthat any incident which is likely to reflect on her chastity\nhad ever occurred; (2) She would be conscious of the danger\nof being ostracised by the Society or being looked down by\nthe society including by her own family members, relatives,\nfriends, and neighbours; (3) She would have to brave the\nwhole world; (4) She would face the risk of losing the love\nand respect of her own husband and near relatives, and of\nher matrimonial home and happiness being shattered; (5) If\nshe is unmarried, she would apprehend that it would be,\ndifficult to secure an alliance with a suitable match from a\nrespectable or an acceptable family; (6) lt would almost\ninevitably and almost invariably result in mental torture\nand suffering to herself; (7) The tear of being taunted by\nothers will always haunt her; (8) She would feel"
}
},
{
"from_name": null,
"id": "44c2d35727d849679cf640e675889d30",
"to_name": null,
"type": null,
"value": {
"end": 8990,
"labels": [
"PREAMBLE"
],
"start": 8804,
"text": "extremely\nembarrassed in relating the incident to others being over\npowered by feeling of shame on account of the upbringing in\na tradition bound society where by and large sex is taboo;"
}
},
{
"from_name": null,
"id": "a0b7ac1e47fa4d8baed1aafcea703f2a",
"to_name": null,
"type": null,
"value": {
"end": 9734,
"labels": [
"PREAMBLE"
],
"start": 8990,
"text": "\n(9) The natural inclination would be to avoid giving\npublicity to the incident lest the family name and family\nhonour is brought into controversy; (10) The parents of an\nunmarried girl as also the husband and members of the\nhusband's family of a married woman, would also more often\nthan not, want to avoid publicity on account of the fear of\nsocial stigma on the family name and family honour; (11) The\nfear of the victim herself being considered to be\npromiscuous or in some way responsible for the incident\nregardless of her innocence; (12) The reluctance to face\n\ninterrogation by the investigating agency, to face the\ncourt, to face the cross examination by Counsel for the\nculprit, and the risk of being disbelieved, acts as a\ndeterrent."
}
},
{
"from_name": null,
"id": "a62c89bec7684182a41cbc758dd0828d",
"to_name": null,
"type": null,
"value": {
"end": 9839,
"labels": [
"PREAMBLE"
],
"start": 9735,
"text": "In view of these factors the victims and their\nrelatives are not too keen to bring the culprit to books."
}
},
{
"from_name": null,
"id": "d2367071654a4ecfb8822f5c63ab7778",
"to_name": null,
"type": null,
"value": {
"end": 9988,
"labels": [
"PREAMBLE"
],
"start": 9839,
"text": "\nAnd when in the face of these factors the crime is brought\nto light there is a built in assurance that the charge is\ngenuine rather than fabricated."
}
},
{
"from_name": null,
"id": "9b30db6b4178442882234e98d0d7ca3f",
"to_name": null,
"type": null,
"value": {
"end": 10021,
"labels": [
"PREAMBLE"
],
"start": 9989,
"text": "[289 F-H, 290 A-E]\n 2:4."
}
},
{
"from_name": null,
"id": "aefd9fa19be647bb9ff1f8dc088b7da8",
"to_name": null,
"type": null,
"value": {
"end": 10077,
"labels": [
"PREAMBLE"
],
"start": 10022,
"text": "On principle the evidence of a victim of sexual\nassault"
}
},
{
"from_name": null,
"id": "5fd7c3759e3e446e8692ce3dbe1c46ba",
"to_name": null,
"type": null,
"value": {
"end": 10128,
"labels": [
"PREAMBLE"
],
"start": 10078,
"text": "stands on par with evidence of an injured witness."
}
},
{
"from_name": null,
"id": "a7b816062d504da8815fb8230d22c5ea",
"to_name": null,
"type": null,
"value": {
"end": 10430,
"labels": [
"PREAMBLE"
],
"start": 10128,
"text": "\nJust as a witness who has sustained an injury (which is not\nshown or believed to be self-inflicted) is the best witness\nin the sense that he is least likely to exculpate the real\noffender, the evidence of a victim of a sex-offence is\nentitled to great weight, absence of corroboration\nnotwithstanding."
}
},
{
"from_name": null,
"id": "f82e88389efd441bb4aba9d2073aefa7",
"to_name": null,
"type": null,
"value": {
"end": 10589,
"labels": [
"PREAMBLE"
],
"start": 10431,
"text": "And while corroboration in the form of eye\nwitness account of an independent witness may often be\nforthcoming in physical assault cases, such evidence cannot\n"
}
},
{
"from_name": null,
"id": "407b3a08a3934b9991c9d06412cc92b0",
"to_name": null,
"type": null,
"value": {
"end": 10666,
"labels": [
"PREAMBLE"
],
"start": 10589,
"text": "be expected in sex offences, having regard to the very\nnature of the offence."
}
},
{
"from_name": null,
"id": "ac26ff23918f4defa69830f34f566c56",
"to_name": null,
"type": null,
"value": {
"end": 10818,
"labels": [
"PREAMBLE"
],
"start": 10667,
"text": "It would therefore be adding insult\nto injury to insist on corroboration drawing inspiration\nfrom the rules devised by the courts in the Western World."
}
},
{
"from_name": null,
"id": "0ea631fdb673466a9ee3e758be53d4d1",
"to_name": null,
"type": null,
"value": {
"end": 10843,
"labels": [
"PREAMBLE"
],
"start": 10819,
"text": "[290 E-G]\n\n 2:5."
}
},
{
"from_name": null,
"id": "df8b466cac74430cafa642ce5b04b94c",
"to_name": null,
"type": null,
"value": {
"end": 11474,
"labels": [
"PREAMBLE"
],
"start": 10844,
"text": "Therefore, if the evidence of the victim does not\nsuffer from any basic infirmity, and the 'probabilities-\nfactor' does not render it unworth of credence, as a general\nrule, there is no reason to insist on corroboration except\nfrom the medical evidence, where, having regard to the\ncircumstances of the case, medical evidence can be expected\nto be forthcoming, subject to the following qualification:\nCorroboration may be insisted upon when a woman having\nattained majority is surprised in a compromising position\nand there is a likelihood of her having levelled such an\naccusation on account of the instinct of self-preservation."
}
},
{
"from_name": null,
"id": "af40cc06c8ff4a7890100613e3d577d3",
"to_name": null,
"type": null,
"value": {
"end": 11571,
"labels": [
"PREAMBLE"
],
"start": 11474,
"text": "\nOr when the 'probabilities-factor' is found to be out of\ntune. [290 G-H, 291 A-B]\n\n 2:6."
}
},
{
"from_name": null,
"id": "88819fc89ab04faa8f3fa2422f97c17e",
"to_name": null,
"type": null,
"value": {
"end": 11783,
"labels": [
"PREAMBLE"
],
"start": 11572,
"text": "To countenance the suggestion, in the instant\ncase, that the appellant has been falsely roped in at the\ninstance of the father of P.W. 2 who was supposed to have\nsome enmity against the appellant would be wrong."
}
},
{
"from_name": null,
"id": "802ac9af9d5e45d2a4e317219d3f08c0",
"to_name": null,
"type": null,
"value": {
"end": 12019,
"labels": [
"PREAMBLE"
],
"start": 11784,
"text": "Ordinarily\nno parents would do so in Indian Society as at present and\nthereby bring down their own social status and spoil their\nreputation in Society, not to speak of the danger of\ntraumatic effect on the psychology of their daughter."
}
},
{
"from_name": null,
"id": "8111ab2d85624a3fb9e11d741d8c88a1",
"to_name": null,
"type": null,
"value": {
"end": 12185,
"labels": [
"PREAMBLE"
],
"start": 12020,
"text": "Having\nregard to the prevailing mores of the Indian Society, it is\ninconceivable that a girl of 10 or 12 would invent on her\nown a false story of sexual molestation."
}
},
{
"from_name": null,
"id": "0b920079da0b47d495dbd668d445561b",
"to_name": null,
"type": null,
"value": {
"end": 12330,
"labels": [
"PREAMBLE"
],
"start": 12186,
"text": "Moreover, the\nmedical evidence fully supports the finding of the High\nCourt that there was an attempt to commit rape on P.W. 1 by\nthe appellant."
}
},
{
"from_name": null,
"id": "7d98bf661fb34644a628559432ebeb74",
"to_name": null,
"type": null,
"value": {
"end": 12349,
"labels": [
"PREAMBLE"
],
"start": 12331,
"text": "[291 G-H, 292 A-D]"
}
},
{
"from_name": null,
"id": "41d3f948ff654dcc851b7517b70c9995",
"to_name": null,
"type": null,
"value": {
"end": 12360,
"labels": [
"PREAMBLE"
],
"start": 12349,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "6cd904c26f27453cb31c8c18ff287728",
"to_name": null,
"type": null,
"value": {
"end": 12583,
"labels": [
"NONE"
],
"start": 12360,
"text": "\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 68 of 1977.\n Appeal by Special Leave from the Judgment and order dated 15th November, 1976 of the Gujarat High Court in Criminal Appeal No. 832 of 1976."
}
},
{
"from_name": null,
"id": "ff114ef2c6074ff283b7a2f2f6326996",
"to_name": null,
"type": null,
"value": {
"end": 12631,
"labels": [
"NONE"
],
"start": 12583,
"text": "\n R.H. Dhebar and B. V. Desai for the Appellant."
}
},
{
"from_name": null,
"id": "c90b11e282f44dc2a04fe514f6bb9608",
"to_name": null,
"type": null,
"value": {
"end": 12672,
"labels": [
"NONE"
],
"start": 12631,
"text": "\n R.N. Poddar for the Respondent."
}
},
{
"from_name": null,
"id": "8287e6fcc0db47488504f832b5a1953a",
"to_name": null,
"type": null,
"value": {
"end": 12744,
"labels": [
"NONE"
],
"start": 12672,
"text": "\n The Judgment of the Court was delivered by THAKKAR, J."
}
},
{
"from_name": null,
"id": "30e1b88ca64142d593aba6456d1611cf",
"to_name": null,
"type": null,
"value": {
"end": 12859,
"labels": [
"NONE"
],
"start": 12745,
"text": "To say at the beginning what we cannot help saying at the end: human goodness has limits-human depravity has none."
}
},
{
"from_name": null,
"id": "9413578b8f904707a1286b429ab6c591",
"to_name": null,
"type": null,
"value": {
"end": 12910,
"labels": [
"NONE"
],
"start": 12860,
"text": "The need of the hour however, is not exasperation."
}
},
{
"from_name": null,
"id": "253b96098083442b9dd9998f21972643",
"to_name": null,
"type": null,
"value": {
"end": 13201,
"labels": [
"NONE"
],
"start": 12910,
"text": "\n The need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem: \"Whether, when, and to what extent corroboration to the testimony of a victim of rape is essential to establish the charge.\""
}
},
{
"from_name": null,
"id": "2aa991535aeb4e768f3297b19cbb341d",
"to_name": null,
"type": null,
"value": {
"end": 13491,
"labels": [
"NONE"
],
"start": 13202,
"text": "And the problem has special significance for the women in India, for, while they have often been idolized, adored, and even worshipped, for ages they have also been exploited and denied even handed justice-Sixty crores anxious eyes of Indian a women are therefore focussed on this problem."
}
},
{
"from_name": null,
"id": "9557d46dd198483cab871ad5bca7e158",
"to_name": null,
"type": null,
"value": {
"end": 13548,
"labels": [
"NONE"
],
"start": 13492,
"text": "And to that problem we will presently address ourselves."
}
},
{
"from_name": null,
"id": "144d88f8d3ca49eb8d3db34216a440bf",
"to_name": null,
"type": null,
"value": {
"end": 13873,
"labels": [
"RLC"
],
"start": 13550,
"text": "The learned Sessions Judge Mehsana found the appellant, a Government servant employed in the Sachivalaya at Gandhinagar, guilty of serious charges of sexual misbenaviour with two young girls (aged about 10 or 12) and convicted the appellant for the offence of rape, outraging the modesty of women, and wrongful confinement."
}
},
{
"from_name": null,
"id": "08e2389c6de4414d92d183fab09e5335",
"to_name": null,
"type": null,
"value": {
"end": 13932,
"labels": [
"FAC"
],
"start": 13874,
"text": "The appeal carried to the High Court substantially failed."
}
},
{
"from_name": null,
"id": "dd3005399f4b48e09efc00592fb2b859",
"to_name": null,
"type": null,
"value": {
"end": 14056,
"labels": [
"RLC"
],
"start": 13933,
"text": "The High Court affirmed the order of conviction under Sec. 342 of the Indian Penal Code for wrongfully confining the girls."
}
},
{
"from_name": null,
"id": "3c19ba14e66844d1bbc9ae5555a0e3b0",
"to_name": null,
"type": null,
"value": {
"end": 14194,
"labels": [
"RLC"
],
"start": 14057,
"text": "The High Court also sustained the order of conviction under Sec.\n354 of the Indian Penal Code for outraging the modesty of the two girls."
}
},
{
"from_name": null,
"id": "0af4af3b075245999f21a53072c1a540",
"to_name": null,
"type": null,
"value": {
"end": 14396,
"labels": [
"RLC"
],
"start": 14195,
"text": "With regard to the more serious charge of rape on one of the girls, the High Court came to the conclusion that what was established by evidence was an offence of attempt to commit rape and not of rape."
}
},
{
"from_name": null,
"id": "bca6e5b38bd34b44af0292ee22d4fba4",
"to_name": null,
"type": null,
"value": {
"end": 14519,
"labels": [
"FAC"
],
"start": 14396,
"text": "\nAccordingly the conviction under Sec. 376 was altered into one under Sec. 376 read with Sec. 511 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "7bbb1be48d0e40ccbbd78bf9c9565d87",
"to_name": null,
"type": null,
"value": {
"end": 14586,
"labels": [
"FAC"
],
"start": 14520,
"text": "The appellant has preferred the present appeal with special leave."
}
},
{
"from_name": null,
"id": "b36a2e42a8c54aeb83d0cf3b78f830f7",
"to_name": null,
"type": null,
"value": {
"end": 14689,
"labels": [
"FAC"
],
"start": 14586,
"text": "\n The incident occurred on Sunday, September 7, 1975, at about 5.30 p.m. at the house of the appellant."
}
},
{
"from_name": null,
"id": "06d47632ddf8473bada8d16aaa55a700",
"to_name": null,
"type": null,
"value": {
"end": 14884,
"labels": [
"FAC"
],
"start": 14690,
"text": "The evidence of P.W. 1 and P.W. 2 shows that they went to the house of the appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who happened to be their friend."
}
},
{
"from_name": null,
"id": "82bd4007d46d476999280fb0bd3f7798",
"to_name": null,
"type": null,
"value": {
"end": 15007,
"labels": [
"FAC"
],
"start": 14885,
"text": "The appellant induced them to enter his house by creating an impression that she was at home, though, in fact she was not."
}
},
{
"from_name": null,
"id": "3f82be40b4474a9b98c259ad1a19228a",
"to_name": null,
"type": null,
"value": {
"end": 15135,
"labels": [
"FAC"
],
"start": 15008,
"text": "Once they were inside, the appellant closed the door, undressed himself in the presence of both the girls, and exposed himself."
}
},
{
"from_name": null,
"id": "0b8b183beab34dddb89c310903afcae6",
"to_name": null,
"type": null,
"value": {
"end": 15182,
"labels": [
"FAC"
],
"start": 15136,
"text": "He asked P.W. 2 to indulge in an indecent act."
}
},
{
"from_name": null,
"id": "2032dce306494122bd2a8025f4a1df3e",
"to_name": null,
"type": null,
"value": {
"end": 15225,
"labels": [
"FAC"
],
"start": 15183,
"text": "P.W. 2 started crying and fled from there."
}
},
{
"from_name": null,
"id": "0140fee3f8aa4ab78b664a356cd85a90",
"to_name": null,
"type": null,
"value": {
"end": 15257,
"labels": [
"FAC"
],
"start": 15225,
"text": "\nP.W. 1however could not escape."
}
},
{
"from_name": null,
"id": "8ec7cfbda61848e4b53c80b85806765d",
"to_name": null,
"type": null,
"value": {
"end": 15309,
"labels": [
"FAC"
],
"start": 15258,
"text": "She was pushed into a cot, and was made to undress."
}
},
{
"from_name": null,
"id": "bd3f2c2eaf52419c82cd3e15f3c78990",
"to_name": null,
"type": null,
"value": {
"end": 15347,
"labels": [
"FAC"
],
"start": 15310,
"text": "The appellant sexually assaulted her."
}
},
{
"from_name": null,
"id": "821ba20503a5468d9befa87e55b4c857",
"to_name": null,
"type": null,
"value": {
"end": 15403,
"labels": [
"FAC"
],
"start": 15348,
"text": "P.W.\n1 was in distress and was weeping as she went out."
}
},
{
"from_name": null,
"id": "0368c4135ab44aebb32a2e6922ae62f0",
"to_name": null,
"type": null,
"value": {
"end": 15553,
"labels": [
"FAC"
],
"start": 15404,
"text": "She however could not apprise her parents about what had transpired because both of them were out of Gandhinagar (they returned after 4 or 5 days).\n "
}
},
{
"from_name": null,
"id": "778078118ea24f2481dca6cc497873f3",
"to_name": null,
"type": null,
"value": {
"end": 15649,
"labels": [
"FAC"
],
"start": 15553,
"text": "It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter."
}
},
{
"from_name": null,
"id": "5639b64f74e04d5498f120abe8d2c191",
"to_name": null,
"type": null,
"value": {
"end": 15704,
"labels": [
"FAC"
],
"start": 15650,
"text": "Some unexpected developments however forced the issue."
}
},
{
"from_name": null,
"id": "dbdb0a7f2d4e412dad77b780a9ab8752",
"to_name": null,
"type": null,
"value": {
"end": 15775,
"labels": [
"FAC"
],
"start": 15705,
"text": "The residents of the locality somehow came to know about the incident."
}
},
{
"from_name": null,
"id": "fb66f1a2432a4dcd815b4390384c6d0f",
"to_name": null,
"type": null,
"value": {
"end": 15904,
"labels": [
"FAC"
],
"start": 15776,
"text": "And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause."
}
},
{
"from_name": null,
"id": "4cb4a55be3f240d6b849120a1ae0006c",
"to_name": null,
"type": null,
"value": {
"end": 16138,
"labels": [
"FAC"
],
"start": 15905,
"text": "She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present."
}
},
{
"from_name": null,
"id": "3d44f971081045839aa173d0407093b2",
"to_name": null,
"type": null,
"value": {
"end": 16274,
"labels": [
"FAC"
],
"start": 16139,
"text": "Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct."
}
},
{
"from_name": null,
"id": "9b4f621a16904e229b07303e61ba3ab5",
"to_name": null,
"type": null,
"value": {
"end": 16326,
"labels": [
"FAC"
],
"start": 16275,
"text": "She therefore called on the appellant at his house."
}
},
{
"from_name": null,
"id": "ecb00ed1892e4b9c9d9e87363ec82321",
"to_name": null,
"type": null,
"value": {
"end": 16425,
"labels": [
"FAC"
],
"start": 16327,
"text": "It appears that about 500 women of the locality had also gathered near the house of the appellant."
}
},
{
"from_name": null,
"id": "eac7f11c825b45c4b991ef5c39c7eb65",
"to_name": null,
"type": null,
"value": {
"end": 16535,
"labels": [
"FAC"
],
"start": 16426,
"text": "Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there."
}
},
{
"from_name": null,
"id": "f992c6ff19934d3182364370aae29e24",
"to_name": null,
"type": null,
"value": {
"end": 16664,
"labels": [
"FAC"
],
"start": 16536,
"text": "If the appellant had acceded to .\nthis request possibly the matter might have rested there and might not have come to the court."
}
},
{
"from_name": null,
"id": "cb081b61b63b4ab6bc15a506e1be304a",
"to_name": null,
"type": null,
"value": {
"end": 16739,
"labels": [
"FAC"
],
"start": 16665,
"text": "The appellant, however, made it a prestige issue and refused to apologize."
}
},
{
"from_name": null,
"id": "038db67e91ea466da1f4554670ab9ed3",
"to_name": null,
"type": null,
"value": {
"end": 16829,
"labels": [
"FAC"
],
"start": 16740,
"text": "Thereupon the police was contacted and a complaint was lodged by P.W.\n1 on 19 Sept. 1975."
}
},
{
"from_name": null,
"id": "18f9f8749b9045618c0728598606342a",
"to_name": null,
"type": null,
"value": {
"end": 16898,
"labels": [
"FAC"
],
"start": 16830,
"text": "P.W. 1 was then sent to the Medical officer for medical examination."
}
},
{
"from_name": null,
"id": "2bc0e36f932d4420af6ea9f5e1659dcd",
"to_name": null,
"type": null,
"value": {
"end": 17033,
"labels": [
"FAC"
],
"start": 16899,
"text": "The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back."
}
},
{
"from_name": null,
"id": "c4e0c85041a8462ab0bdbc1919c1c2c3",
"to_name": null,
"type": null,
"value": {
"end": 17289,
"labels": [
"FAC"
],
"start": 17034,
"text": "The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2."
}
},
{
"from_name": null,
"id": "bdcaf592141141a686344a80b491d0b1",
"to_name": null,
"type": null,
"value": {
"end": 17444,
"labels": [
"ANALYSIS"
],
"start": 17290,
"text": "Their evidence has been considered to be worthy of acceptance lt is a pure. finding of fact recorded by the Sessions Court and affirmed by the High Court."
}
},
{
"from_name": null,
"id": "beeb787392834f318012428a9078602d",
"to_name": null,
"type": null,
"value": {
"end": 18068,
"labels": [
"ANALYSIS"
],
"start": 17445,
"text": "Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discreditor impair it or (43 some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded."
}
},
{
"from_name": null,
"id": "4ae4190245b246009f61a5ffd94736c0",
"to_name": null,
"type": null,
"value": {
"end": 18112,
"labels": [
"ANALYSIS"
],
"start": 18069,
"text": "The present is not a case of such a nature."
}
},
{
"from_name": null,
"id": "8f37730a896440a48fdbb74845ac9226",
"to_name": null,
"type": null,
"value": {
"end": 18274,
"labels": [
"ANALYSIS"
],
"start": 18113,
"text": "The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence."
}
},
{
"from_name": null,
"id": "5b06e7f5ced54195a9be5465d46d8cbd",
"to_name": null,
"type": null,
"value": {
"end": 18491,
"labels": [
"ANALYSIS"
],
"start": 18275,
"text": "We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant."
}
},
{
"from_name": null,
"id": "f9d7d2ad80df4fcabe174af7be944b2d",
"to_name": null,
"type": null,
"value": {
"end": 18555,
"labels": [
"ANALYSIS"
],
"start": 18492,
"text": "Over much importance cannot be attached to minor discrepancies."
}
},
{
"from_name": null,
"id": "2ab61bad85e242cf975a756d7c0786f2",
"to_name": null,
"type": null,
"value": {
"end": 18701,
"labels": [
"ANALYSIS"
],
"start": 18556,
"text": "The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident."
}
},
{
"from_name": null,
"id": "92ecd836301a405e9388763c7f0f3ced",
"to_name": null,
"type": null,
"value": {
"end": 18764,
"labels": [
"ANALYSIS"
],
"start": 18702,
"text": "It is not as if a video tape is replayed on the mental screen."
}
},
{
"from_name": null,
"id": "a6f7114e12cc4bca95db123d891f710f",
"to_name": null,
"type": null,
"value": {
"end": 18833,
"labels": [
"ANALYSIS"
],
"start": 18764,
"text": "\n (2) ordinarily it so happens that a witness is overtaken by events."
}
},
{
"from_name": null,
"id": "e35c2a37ae2945fba6b321ea72d10d8d",
"to_name": null,
"type": null,
"value": {
"end": 18930,
"labels": [
"ANALYSIS"
],
"start": 18834,
"text": "The witness could not have anticipated the occurrence which so often has an element of surprise."
}
},
{
"from_name": null,
"id": "09d96e64db164185a77b0e3a60d0533d",
"to_name": null,
"type": null,
"value": {
"end": 19017,
"labels": [
"ANALYSIS"
],
"start": 18931,
"text": "The mental faculties therefore cannot be expected to be attuned to absorb the details."
}
},
{
"from_name": null,
"id": "9691b679d8e94a46b8b3ea206e5c0ec7",
"to_name": null,
"type": null,
"value": {
"end": 19078,
"labels": [
"ANALYSIS"
],
"start": 19017,
"text": "\n (3) The powers of observation differ from person to person."
}
},
{
"from_name": null,
"id": "b26aff07073d4d7f9d320b96a4e4ff0f",
"to_name": null,
"type": null,
"value": {
"end": 19116,
"labels": [
"ANALYSIS"
],
"start": 19079,
"text": "What one may notice, another may not."
}
},
{
"from_name": null,
"id": "4de1d859313a492e8e2998373b02a982",
"to_name": null,
"type": null,
"value": {
"end": 19236,
"labels": [
"ANALYSIS"
],
"start": 19117,
"text": "An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another."
}
},
{
"from_name": null,
"id": "592bce2a842b45a3ad7cdf6be06b756d",
"to_name": null,
"type": null,
"value": {
"end": 19361,
"labels": [
"ANALYSIS"
],
"start": 19236,
"text": "\n (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them."
}
},
{
"from_name": null,
"id": "12c2cb30e0c041ba8b24b84f66f3eb5f",
"to_name": null,
"type": null,
"value": {
"end": 19420,
"labels": [
"ANALYSIS"
],
"start": 19362,
"text": "They can only recall the main purport of the conversation."
}
},
{
"from_name": null,
"id": "6bba5e0a4d2748be8b0c158337c36078",
"to_name": null,
"type": null,
"value": {
"end": 19505,
"labels": [
"ANALYSIS"
],
"start": 19420,
"text": "\n It is unrealistic to expect a witness to be a human tape recorder."
}
},
{
"from_name": null,
"id": "5a76d1f1afb043519748e953a62710ba",
"to_name": null,
"type": null,
"value": {
"end": 19700,
"labels": [
"ANALYSIS"
],
"start": 19505,
"text": "\n (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation."
}
},
{
"from_name": null,
"id": "238e988da1044eea8235c4076eb26c1a",
"to_name": null,
"type": null,
"value": {
"end": 19789,
"labels": [
"ANALYSIS"
],
"start": 19701,
"text": "And one cannot expect people to make very precise or reliable estimates in such matters."
}
},
{
"from_name": null,
"id": "b9c670ef322b454a9ac3ac30ca75440f",
"to_name": null,
"type": null,
"value": {
"end": 19877,
"labels": [
"ANALYSIS"
],
"start": 19790,
"text": "Again, it depends on the time- sense of individuals which varies from person to person."
}
},
{
"from_name": null,
"id": "0a88b9210d19455fb45c7ac454fda04b",
"to_name": null,
"type": null,
"value": {
"end": 20035,
"labels": [
"ANALYSIS"
],
"start": 19878,
"text": " (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span."
}
},
{
"from_name": null,
"id": "5463badea24540ceb526cf57ba192532",
"to_name": null,
"type": null,
"value": {
"end": 20112,
"labels": [
"ANALYSIS"
],
"start": 20036,
"text": "A witness is liable to get confused, or mixed up when interrogated later on."
}
},
{
"from_name": null,
"id": "3bd58ad8e2fa4a9fa2cb89e18df03d49",
"to_name": null,
"type": null,
"value": {
"end": 20403,
"labels": [
"ANALYSIS"
],
"start": 20112,
"text": "\n (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment."
}
},
{
"from_name": null,
"id": "1f6050ab6aa2498a8639e37bac7e70e0",
"to_name": null,
"type": null,
"value": {
"end": 20715,
"labels": [
"ANALYSIS"
],
"start": 20404,
"text": "The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
}
},
{
"from_name": null,
"id": "7e182b1940b14a5280b0a754126d7bbb",
"to_name": null,
"type": null,
"value": {
"end": 20876,
"labels": [
"ANALYSIS"
],
"start": 20715,
"text": "\n Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance."
}
},
{
"from_name": null,
"id": "6b34c6fbb6a54ca48032ac38e70d561a",
"to_name": null,
"type": null,
"value": {
"end": 20989,
"labels": [
"ANALYSIS"
],
"start": 20877,
"text": "More so when the all important \"probabilities-factor\" echoes in favour of the version narrated by the witnesses."
}
},
{
"from_name": null,
"id": "a5ac232656c8436a8d55618ba24d9753",
"to_name": null,
"type": null,
"value": {
"end": 21145,
"labels": [
"ANALYSIS"
],
"start": 20989,
"text": "\n It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences."
}
},
{
"from_name": null,
"id": "b4b815a13dc74a228e2750dbaf44c7d3",
"to_name": null,
"type": null,
"value": {
"end": 21289,
"labels": [
"PRE_RELIED"
],
"start": 21146,
"text": "This Court, in Rameshwar v.\nThe State of Rajasthan,(1) has declared that corroboration is not the sine que-non for a conviction in a rape case."
}
},
{
"from_name": null,
"id": "3918360951aa43209bccf0940f95d88f",
"to_name": null,
"type": null,
"value": {
"end": 21476,
"labels": [
"ANALYSIS"
],
"start": 21290,
"text": "The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court"
}
},
{
"from_name": null,
"id": "37077f9d59454e53aa8a9aa811a64aed",
"to_name": null,
"type": null,
"value": {
"end": 21806,
"labels": [
"PRE_RELIED"
],
"start": 21477,
"text": "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge ....... "
}
},
{
"from_name": null,
"id": "44385661c9a64dafb4cdc8ad877285b4",
"to_name": null,
"type": null,
"value": {
"end": 21978,
"labels": [
"PRE_RELIED"
],
"start": 21806,
"text": "The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them."
}
},
{
"from_name": null,
"id": "a01e792c852d436598b0d499e9edc5c2",
"to_name": null,
"type": null,
"value": {
"end": 22112,
"labels": [
"PRE_RELIED"
],
"start": 21979,
"text": "There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.\"\n "
}
},
{
"from_name": null,
"id": "1acfb6722ed34a41a563d5c2b89098b4",
"to_name": null,
"type": null,
"value": {
"end": 22263,
"labels": [
"ANALYSIS"
],
"start": 22112,
"text": "And whilst the sands were running out in the time glass, the crime graph of offences against women in India has been scaling new peaks from day to day."
}
},
{
"from_name": null,
"id": "6210d65b54014b8a92e64a90085545f5",
"to_name": null,
"type": null,
"value": {
"end": 22392,
"labels": [
"ANALYSIS"
],
"start": 22264,
"text": "That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos' and 'ethos', has been necessitated."
}
},
{
"from_name": null,
"id": "e068276b4cf045f988800691ca384d7c",
"to_name": null,
"type": null,
"value": {
"end": 22557,
"labels": [
"ANALYSIS"
],
"start": 22402,
"text": "In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury."
}
},
{
"from_name": null,
"id": "dccd24618096462ca4301fc10be52cc5",
"to_name": null,
"type": null,
"value": {
"end": 22750,
"labels": [
"ANALYSIS"
],
"start": 22558,
"text": "Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ?"
}
},
{
"from_name": null,
"id": "fa06f02125d041cd9c34588120c40a74",
"to_name": null,
"type": null,
"value": {
"end": 22832,
"labels": [
"ANALYSIS"
],
"start": 22751,
"text": "To do so is to justify the charge of male chauvinism in a male dominated society."
}
},
{
"from_name": null,
"id": "92f394a6ccc74b4d94fdcb86344dfa9d",
"to_name": null,
"type": null,
"value": {
"end": 22966,
"labels": [
"ANALYSIS"
],
"start": 22833,
"text": "We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination."
}
},
{
"from_name": null,
"id": "dd0662f4cd9a4dafbad79c730a34af17",
"to_name": null,
"type": null,
"value": {
"end": 23156,
"labels": [
"ANALYSIS"
],
"start": 22966,
"text": "\nAnd we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon."
}
},
{
"from_name": null,
"id": "43c8b69a752049f482b0db58d31e96c5",
"to_name": null,
"type": null,
"value": {
"end": 23339,
"labels": [
"ANALYSIS"
],
"start": 23157,
"text": "We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life."
}
},
{
"from_name": null,
"id": "44aed4748b5341dd99d2f1276a1b2141",
"to_name": null,
"type": null,
"value": {
"end": 23471,
"labels": [
"ANALYSIS"
],
"start": 23340,
"text": "Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World."
}
},
{
"from_name": null,
"id": "fe5358eea92c4e04a9db25ec5cad0655",
"to_name": null,
"type": null,
"value": {
"end": 23701,
"labels": [
"ANALYSIS"
],
"start": 23472,
"text": "It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile."
}
},
{
"from_name": null,
"id": "bb87ffa439834eb68957d63b47f9e82e",
"to_name": null,
"type": null,
"value": {
"end": 23749,
"labels": [
"ANALYSIS"
],
"start": 23702,
"text": "The identities of the two worlds are different."
}
},
{
"from_name": null,
"id": "de8399d1aee6463c83ddfae2e205821c",
"to_name": null,
"type": null,
"value": {
"end": 23805,
"labels": [
"ANALYSIS"
],
"start": 23750,
"text": "The solution of problems cannot therefore be identical."
}
},
{
"from_name": null,
"id": "5cc1ec6a01dc467092535440381a4475",
"to_name": null,
"type": null,
"value": {
"end": 24111,
"labels": [
"ANALYSIS"
],
"start": 23806,
"text": "It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as: (1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure."
}
},
{
"from_name": null,
"id": "574a0a0614764264ba0e49dd4cf56011",
"to_name": null,
"type": null,
"value": {
"end": 24313,
"labels": [
"ANALYSIS"
],
"start": 24111,
"text": "\n (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males."
}
},
{
"from_name": null,
"id": "50544c969d31419294a359aa34fae901",
"to_name": null,
"type": null,
"value": {
"end": 24399,
"labels": [
"ANALYSIS"
],
"start": 24313,
"text": "\n (3) She may want to wreak vengence on the male for real or imaginary wrongs."
}
},
{
"from_name": null,
"id": "ce55b09fa0a44c9c9b3f6d8b2707e3d4",
"to_name": null,
"type": null,
"value": {
"end": 25072,
"labels": [
"ANALYSIS"
],
"start": 24400,
"text": "She may have a grudge against a particular male, or males in general, and may have the design to square the account.\n (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta.\n (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.\n (6) She may do so on account of jealousy.\n (7) She may do so to win sympathy of others.\n (8) She may do so upon being repulsed.\n "
}
},
{
"from_name": null,
"id": "345c3dd5d52a47dabb3de2a2039d73c1",
"to_name": null,
"type": null,
"value": {
"end": 25152,
"labels": [
"ANALYSIS"
],
"start": 25072,
"text": "By and large these factors are not relevant to India, and the Indian conditions."
}
},
{
"from_name": null,
"id": "4c92f5210bdb4417afbe7fa57e40f92d",
"to_name": null,
"type": null,
"value": {
"end": 25386,
"labels": [
"ANALYSIS"
],
"start": 25153,
"text": "Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted."
}
},
{
"from_name": null,
"id": "3836387e24f84c84be7240c07d4ee9fc",
"to_name": null,
"type": null,
"value": {
"end": 25469,
"labels": [
"ANALYSIS"
],
"start": 25387,
"text": "The statement is generally true in the context of the urban as also rural Society."
}
},
{
"from_name": null,
"id": "e6f1f32232cd4590a7320a1ee813e609",
"to_name": null,
"type": null,
"value": {
"end": 25586,
"labels": [
"ANALYSIS"
],
"start": 25470,
"text": "It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society."
}
},
{
"from_name": null,
"id": "b0fb4a620d754db9a7cf5f3d3156b922",
"to_name": null,
"type": null,
"value": {
"end": 25708,
"labels": [
"ANALYSIS"
],
"start": 25587,
"text": "Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
}
},
{
"from_name": null,
"id": "40fadde680b548a69a39c312e514a4c2",
"to_name": null,
"type": null,
"value": {
"end": 25918,
"labels": [
"ANALYSIS"
],
"start": 25708,
"text": "\nBecause: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred."
}
},
{
"from_name": null,
"id": "022a973d82b346b1a9268f90a41e0dd6",
"to_name": null,
"type": null,
"value": {
"end": 26102,
"labels": [
"ANALYSIS"
],
"start": 25919,
"text": "(2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours."
}
},
{
"from_name": null,
"id": "15a6774d7beb4a6ca9d44d131fa2ad5a",
"to_name": null,
"type": null,
"value": {
"end": 26146,
"labels": [
"ANALYSIS"
],
"start": 26103,
"text": "(3) She would have to brave thewhole world."
}
},
{
"from_name": null,
"id": "10d379f3dce14af9a6e3cb24d9e32b41",
"to_name": null,
"type": null,
"value": {
"end": 26303,
"labels": [
"ANALYSIS"
],
"start": 26147,
"text": "(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered."
}
},
{
"from_name": null,
"id": "594ceeb06b8848b3870e8e92071790f7",
"to_name": null,
"type": null,
"value": {
"end": 26463,
"labels": [
"ANALYSIS"
],
"start": 26304,
"text": "(S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family."
}
},
{
"from_name": null,
"id": "8b7e7c7f82174d969663ce35bc090f3a",
"to_name": null,
"type": null,
"value": {
"end": 26567,
"labels": [
"ANALYSIS"
],
"start": 26464,
"text": "(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself."
}
},
{
"from_name": null,
"id": "455008c516764c49ac59dd0b838a96d5",
"to_name": null,
"type": null,
"value": {
"end": 26630,
"labels": [
"ANALYSIS"
],
"start": 26568,
"text": "(7) The fear of being taunted by others will always haunt her."
}
},
{
"from_name": null,
"id": "64da798088894efd99c930e46ed9ac1d",
"to_name": null,
"type": null,
"value": {
"end": 26838,
"labels": [
"ANALYSIS"
],
"start": 26631,
"text": "(8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo."
}
},
{
"from_name": null,
"id": "e83afa3f82c742ef9180b96a9069dae1",
"to_name": null,
"type": null,
"value": {
"end": 26985,
"labels": [
"ANALYSIS"
],
"start": 26839,
"text": "(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy."
}
},
{
"from_name": null,
"id": "9d77d12604dc4651b973ec554a06667f",
"to_name": null,
"type": null,
"value": {
"end": 27232,
"labels": [
"ANALYSIS"
],
"start": 26986,
"text": "(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour."
}
},
{
"from_name": null,
"id": "e9106fa5c8b548109916d4857b296668",
"to_name": null,
"type": null,
"value": {
"end": 27376,
"labels": [
"ANALYSIS"
],
"start": 27233,
"text": "(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence."
}
},
{
"from_name": null,
"id": "babd0cbbfe9c46b09a21415647566f71",
"to_name": null,
"type": null,
"value": {
"end": 27580,
"labels": [
"ANALYSIS"
],
"start": 27377,
"text": "(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
}
},
{
"from_name": null,
"id": "4be09e4cfb10479987fc589c19dad5dd",
"to_name": null,
"type": null,
"value": {
"end": 27686,
"labels": [
"ANALYSIS"
],
"start": 27580,
"text": "\n In view of these factors the victims and their relatives are not too keen to bring the culprit to books."
}
},
{
"from_name": null,
"id": "f67fa44ce4fd435482e6ac3dc8fcf642",
"to_name": null,
"type": null,
"value": {
"end": 27836,
"labels": [
"ANALYSIS"
],
"start": 27686,
"text": "\nAnd when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.."
}
},
{
"from_name": null,
"id": "c1ff332b80e54dc7b1d7b7d0ff573545",
"to_name": null,
"type": null,
"value": {
"end": 27943,
"labels": [
"ANALYSIS"
],
"start": 27837,
"text": "On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness."
}
},
{
"from_name": null,
"id": "a0be197cb2b2415e85b537c2b9093428",
"to_name": null,
"type": null,
"value": {
"end": 28245,
"labels": [
"ANALYSIS"
],
"start": 27944,
"text": "Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding."
}
},
{
"from_name": null,
"id": "5a96e03a90d740518dd77a39023a726e",
"to_name": null,
"type": null,
"value": {
"end": 28481,
"labels": [
"ANALYSIS"
],
"start": 28246,
"text": "And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence."
}
},
{
"from_name": null,
"id": "cfe1d2b8baf845f282b5e8c1a0a31e96",
"to_name": null,
"type": null,
"value": {
"end": 28633,
"labels": [
"ANALYSIS"
],
"start": 28482,
"text": "It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World."
}
},
{
"from_name": null,
"id": "79e9414591b0481ab0992d44d99c93e4",
"to_name": null,
"type": null,
"value": {
"end": 28728,
"labels": [
"ANALYSIS"
],
"start": 28634,
"text": "Obseisance to which has perhaps become a habit presumably on account of the colonial hangover."
}
},
{
"from_name": null,
"id": "d55cbb319683402aad0fe3688d95bf79",
"to_name": null,
"type": null,
"value": {
"end": 29380,
"labels": [
"ANALYSIS"
],
"start": 28729,
"text": "We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factors does not render it unworthy of credence, as a generalrule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation.\n"
}
},
{
"from_name": null,
"id": "dacb543934154d2b80308a585608fdaa",
"to_name": null,
"type": null,
"value": {
"end": 29387,
"labels": [
"ANALYSIS"
],
"start": 29380,
"text": "Or when"
}
},
{
"from_name": null,
"id": "437e86f8b4464976ac2040128b5b4a94",
"to_name": null,
"type": null,
"value": {
"end": 29442,
"labels": [
"ANALYSIS"
],
"start": 29388,
"text": "the 'probabilities-factor' is found to be out of tune."
}
},
{
"from_name": null,
"id": "8cfb13e35f774813a672f36a94c9dc1e",
"to_name": null,
"type": null,
"value": {
"end": 29491,
"labels": [
"ANALYSIS"
],
"start": 29444,
"text": "Now we return to the facts of the present case."
}
},
{
"from_name": null,
"id": "c51477426dbb4ba6b8da3c753d3c2f44",
"to_name": null,
"type": null,
"value": {
"end": 29590,
"labels": [
"ANALYSIS"
],
"start": 29492,
"text": "Testing the evidence from this perspective, the evidence of P.W. 1 and P.W. 2 inspires confidence."
}
},
{
"from_name": null,
"id": "8f08e386dd7d4b46aa21f444ee5ff6d2",
"to_name": null,
"type": null,
"value": {
"end": 29735,
"labels": [
"ANALYSIS"
],
"start": 29591,
"text": "The only motive suggested by defence was that there was some history of past trade union rivalry between the father of P.W. 2 and the appellant."
}
},
{
"from_name": null,
"id": "4673bf0051b84cb0bcdbd8deedd51e8b",
"to_name": null,
"type": null,
"value": {
"end": 29926,
"labels": [
"ANALYSIS"
],
"start": 29736,
"text": "It must be realized that having regard to the prevailing mores of the Indian Society, it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation."
}
},
{
"from_name": null,
"id": "8b70b1600ac0417bb176ec6b589de794",
"to_name": null,
"type": null,
"value": {
"end": 30104,
"labels": [
"ANALYSIS"
],
"start": 29927,
"text": "Even at the age of 10 or 12 a girl in India can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised, upon such a story being spread."
}
},
{
"from_name": null,
"id": "9b247f400e6d4714ab6287611b5f6f71",
"to_name": null,
"type": null,
"value": {
"end": 30374,
"labels": [
"ANALYSIS"
],
"start": 30105,
"text": "She can be trusted to-know that in the Indian Society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the Society."
}
},
{
"from_name": null,
"id": "fa6ef6313705480682add8626729e41f",
"to_name": null,
"type": null,
"value": {
"end": 30509,
"labels": [
"ANALYSIS"
],
"start": 30375,
"text": "It is also unthinkable that the parents would tutor their minor daughter to invent such a story in order to wreak vengence on someone."
}
},
{
"from_name": null,
"id": "bb26124efa2142fdb5d41baeded8af26",
"to_name": null,
"type": null,
"value": {
"end": 30676,
"labels": [
"ANALYSIS"
],
"start": 30510,
"text": "They would not do so for the simple reason that it would bring down their own social status in the Society apart from ruining the future prospects of their own child."
}
},
{
"from_name": null,
"id": "454388b34e054c6ea7ade0bca23ff254",
"to_name": null,
"type": null,
"value": {
"end": 30842,
"labels": [
"ANALYSIS"
],
"start": 30676,
"text": "\nThey would also be expected to be conscious of The traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up."
}
},
{
"from_name": null,
"id": "d1892305815d455288576c1ceebac728",
"to_name": null,
"type": null,
"value": {
"end": 31033,
"labels": [
"ANALYSIS"
],
"start": 30843,
"text": "She herself would prefer to suffer the injury and the harassment, rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity."
}
},
{
"from_name": null,
"id": "6c5b8486d8274369b7790324aa48e8be",
"to_name": null,
"type": null,
"value": {
"end": 31248,
"labels": [
"ANALYSIS"
],
"start": 31034,
"text": "We therefore refuse to countenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of P.W. 2 who was supposed to have some enmity against the appellant."
}
},
{
"from_name": null,
"id": "8dc29cbb03a443ae92937f1dded1f8a0",
"to_name": null,
"type": null,
"value": {
"end": 31451,
"labels": [
"ANALYSIS"
],
"start": 31249,
"text": "It is unthinkable that the parents of P.W. 2 would tutor her to invent a story of sexual misbehavior on the part of the appellant merely in order to implicate him on account of past trade union rivalry."
}
},
{
"from_name": null,
"id": "37b29f3fd4514e7a810cfb18bdcbe491",
"to_name": null,
"type": null,
"value": {
"end": 31556,
"labels": [
"ANALYSIS"
],
"start": 31452,
"text": "The parents would have also realized the danger of traumatic effect on the psychology of their daughter."
}
},
{
"from_name": null,
"id": "f807ad76e46e4e77a4da6f215b670de9",
"to_name": null,
"type": null,
"value": {
"end": 31644,
"labels": [
"ANALYSIS"
],
"start": 31557,
"text": "In fact it would have been considered to be extremely distasteful tobroach the subject."
}
},
{
"from_name": null,
"id": "74f2ce65e2a147d8b32b3267a746a587",
"to_name": null,
"type": null,
"value": {
"end": 31889,
"labels": [
"ANALYSIS"
],
"start": 31645,
"text": "It is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in Society."
}
},
{
"from_name": null,
"id": "b0990baaf22d43cab4aecbbe4a1f07e1",
"to_name": null,
"type": null,
"value": {
"end": 31956,
"labels": [
"ANALYSIS"
],
"start": 31890,
"text": "Ordinarily no parents would do so in Indian society as at present."
}
},
{
"from_name": null,
"id": "724d5615960b403093353cea8f93f40e",
"to_name": null,
"type": null,
"value": {
"end": 32155,
"labels": [
"ANALYSIS"
],
"start": 31957,
"text": "Under the circumstances the defence version that the father of P.W. 2 had tutored her to concoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard."
}
},
{
"from_name": null,
"id": "9a93fda6bb1a4dd2917562abf9ee739f",
"to_name": null,
"type": null,
"value": {
"end": 32246,
"labels": [
"ANALYSIS"
],
"start": 32156,
"text": "Besides, why should the parents of P.W. 1 mar the future prospects of their own daughter ?"
}
},
{
"from_name": null,
"id": "dd10d27f91294899abc9a37f148f9d86",
"to_name": null,
"type": null,
"value": {
"end": 32327,
"labels": [
"ANALYSIS"
],
"start": 32247,
"text": "It is not alleged that P.W. 1 had any motive to falsely implicate the appellant."
}
},
{
"from_name": null,
"id": "0571cc2f6cf44e6f82e138e8d4dc22e8",
"to_name": null,
"type": null,
"value": {
"end": 32411,
"labels": [
"ANALYSIS"
],
"start": 32328,
"text": "So also it is not even suggested why P.W. 1 should falsely implicate the appellant."
}
},
{
"from_name": null,
"id": "6ced08f6b0544ec6b63d1fd59e86d108",
"to_name": null,
"type": null,
"value": {
"end": 32581,
"labels": [
"ANALYSIS"
],
"start": 32412,
"text": "From the stand point of probabilities it is not possible to countenance the suggestion that a false story has been concocted in order to falsely implicate the appellant."
}
},
{
"from_name": null,
"id": "bfa8122388cb4c45b2ffba82fcbd0ecf",
"to_name": null,
"type": null,
"value": {
"end": 32739,
"labels": [
"ANALYSIS"
],
"start": 32582,
"text": "The medical evidence provided by P.W 6, Dr. Hemangini Desai, fully supports the finding of the High Court that there was an attempt to commit rape on P.W. 1."
}
},
{
"from_name": null,
"id": "446171f4da464c57ad47f1726f05a2d8",
"to_name": null,
"type": null,
"value": {
"end": 32837,
"labels": [
"ANALYSIS"
],
"start": 32740,
"text": "Under the circumstances the conclusion reached by the High Court cannot be successfully assailed."
}
},
{
"from_name": null,
"id": "a8b2da80883e4377bb0065f1a7575f3c",
"to_name": null,
"type": null,
"value": {
"end": 32918,
"labels": [
"ANALYSIS"
],
"start": 32837,
"text": "\n The only question that now remains to be considered is as regards the sentence."
}
},
{
"from_name": null,
"id": "c9a1d4ef0dfd411aa204671ea4ab0011",
"to_name": null,
"type": null,
"value": {
"end": 32977,
"labels": [
"ANALYSIS"
],
"start": 32919,
"text": "The appellant has behaved in a shockingly indecent manner."
}
},
{
"from_name": null,
"id": "7067718c5e3b4b9e90460b83f40ba70d",
"to_name": null,
"type": null,
"value": {
"end": 33251,
"labels": [
"ANALYSIS"
],
"start": 32978,
"text": "The magnitude of his offence cannot be overemphasized m the context of the fact that he misused his position as a father of a girl friend of P.W. 1 and- P.W. 2. P.W. 1 and P.W. 2 were visiting his house unhesitatingly because of the fact that his daughter was their friend."
}
},
{
"from_name": null,
"id": "11f49fd23009424fb0a8e661a223acdc",
"to_name": null,
"type": null,
"value": {
"end": 33473,
"labels": [
"ANALYSIS"
],
"start": 33252,
"text": "To have misused this position and to-have tricked them into entering the house, and to have taken undue advantage of the situation by subjecting them to sexual harassment, is a crime of which a serious view must be taken."
}
},
{
"from_name": null,
"id": "cded257ee79c46548c86c1f922856f62",
"to_name": null,
"type": null,
"value": {
"end": 33619,
"labels": [
"RATIO"
],
"start": 33474,
"text": "But for the following facts and circumstances, we would not have countenanced the prayer for leniency addressed to us on behalf of the appellant."
}
},
{
"from_name": null,
"id": "b4c9b48ed8814079845d09f660df5160",
"to_name": null,
"type": null,
"value": {
"end": 33656,
"labels": [
"ANALYSIS"
],
"start": 33620,
"text": "The special circumstances are these."
}
},
{
"from_name": null,
"id": "e91d644e9f5a4c1894488d228c5e411b",
"to_name": null,
"type": null,
"value": {
"end": 33741,
"labels": [
"ANALYSIS"
],
"start": 33657,
"text": "The appellant has lost his job in view of the conviction recorded by the High Court."
}
},
{
"from_name": null,
"id": "6491aaf19e3f470b91cc9035604706d9",
"to_name": null,
"type": null,
"value": {
"end": 33782,
"labels": [
"ANALYSIS"
],
"start": 33742,
"text": "The incident occurred some 7 years back."
}
},
{
"from_name": null,
"id": "7693c7cbebd84dce976a90005997614b",
"to_name": null,
"type": null,
"value": {
"end": 33857,
"labels": [
"ANALYSIS"
],
"start": 33783,
"text": "The appeal preferred to the High Court was dismissed in November 15, 1976."
}
},
{
"from_name": null,
"id": "a55b170df786401ca15484988b60364a",
"to_name": null,
"type": null,
"value": {
"end": 33901,
"labels": [
"ANALYSIS"
],
"start": 33858,
"text": "About 6- 1/2 years have elapsed thereafter."
}
},
{
"from_name": null,
"id": "b04f22ee7b6d492aa21247c39c8b377f",
"to_name": null,
"type": null,
"value": {
"end": 34020,
"labels": [
"ANALYSIS"
],
"start": 33902,
"text": "In the view that we are taking the appellant will have to be sent back to jail after an interval of about 6-1/2 years."
}
},
{
"from_name": null,
"id": "616589661e8a4d98870532049e45dc50",
"to_name": null,
"type": null,
"value": {
"end": 34087,
"labels": [
"ANALYSIS"
],
"start": 34021,
"text": "The appellant must have suffered great humiliation in the Society."
}
},
{
"from_name": null,
"id": "ef7c432d73b7438da4c125c891f4cb44",
"to_name": null,
"type": null,
"value": {
"end": 34289,
"labels": [
"ANALYSIS"
],
"start": 34088,
"text": "The prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the context of such an offence."
}
},
{
"from_name": null,
"id": "699d3484000b485cbab6c2dbcbfe1c6d",
"to_name": null,
"type": null,
"value": {
"end": 34629,
"labels": [
"RPC"
],
"start": 34289,
"text": "\n Taking into account the cumulative effect of these circumstances, and an overall view of the matter, we are of the opinion that the ends of Justice will be satisfied if the substantive sentence imposed by the High Court for the offence under Sec. 376 read with Sec. 511 is reduced from one of 2-1/2 years' R. I., to one of 15 months' R.I."
}
},
{
"from_name": null,
"id": "f097c4cdaa7947d1bef2f98e103b3a16",
"to_name": null,
"type": null,
"value": {
"end": 34710,
"labels": [
"RPC"
],
"start": 34630,
"text": "The sentence of fine, and in default of fine, will be course remain undisturbed."
}
},
{
"from_name": null,
"id": "8a59d6f91fa447d38f36a6aec479b7d6",
"to_name": null,
"type": null,
"value": {
"end": 34841,
"labels": [
"RPC"
],
"start": 34711,
"text": "So also the sentence imposed in the context of the offence under Sec. 342 and Sec 354 of the Indian Penal Code will remain intact."
}
},
{
"from_name": null,
"id": "6a1452668c2d4eee8c49bdecc2c4fd11",
"to_name": null,
"type": null,
"value": {
"end": 34943,
"labels": [
"RPC"
],
"start": 34842,
"text": "Subject to the modification in the sentence to the aforesaid extent the appeal fails and is dismissed"
}
},
{
"from_name": null,
"id": "5b9edc14d8d2499e94173346fb6447f5",
"to_name": null,
"type": null,
"value": {
"end": 35007,
"labels": [
"RPC"
],
"start": 34944,
"text": "The appellant shall surrender in order to undergo the sentence."
}
},
{
"from_name": null,
"id": "c38368db8bd1497b8104454e8ac09114",
"to_name": null,
"type": null,
"value": {
"end": 35044,
"labels": [
"RPC"
],
"start": 35008,
"text": "The bail bonds will stand cancelled."
}
},
{
"from_name": null,
"id": "dde5e01343744176938c1f317f5f761f",
"to_name": null,
"type": null,
"value": {
"end": 35084,
"labels": [
"RPC"
],
"start": 35044,
"text": "\n S.R. Appeal dismissed."
}
}
]
}
] | 4,179 | {
"text": "PETITIONER:\nBHARWADA BHOGINBHAI HIRJIBHAI\n\n Vs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT24/05/1983\n\nBENCH:\nTHAKKAR, M.P. (J)\nBENCH:\nTHAKKAR, M.P. (J)\nSEN, A.P. (J)\n\nCITATION:\n\n1983 AIR 753 1983 SCR (3) 280\n 1983 SCALE (1)665\n1983 SCC (3) 217\n (10,14)\nCITATOR INFO : (247)\n (27)\nRF 1988 SC 696 (14,19)\n\nR 1988 SC1883\n\nR 1989 SC1890\n\nR 1990 SC 658\n\nACT:\n Constitution of India, 1950, Article 136 read with\n\norder XXI of the Supreme Court Rules, 7966-Concurrent\nfinding of fact, when can be reopened by the Supreme Court\nin an appeal by Special Leave, explained.\n\n Evidence - Reappreciation of evidence in the context of\nminor discrepancies, explained.\n\n Evidence-Corroborative evidence in rape cases-Whether,\nwhen and to what extent corroboration to the testimony of a\nvictim of rape is essential to establish the charge.\n\nHEADNOTE:\n The appellant, a government servant employed in the\n\nSachivalaya at Gandhinagar was found guilty, by the Sessions\nJudge, Mehsna, of serious charges of sexual misbehaviour\nwith two young girls (aged about 10 or 12 and was convicted\nfor the offence of rape, outraging the modesty of women, and\nwrongful confinement The appeal carried to the High Court\nsubstantially failed. The High Court affirmed the orders of\nconviction under section 342 I.P.C. for wrongfully confining\nthe girls and conviction under Section 354 I.P.C. for\noutraging the modesty of the two girls. With regard to the\nmore serious charge of rape on one of the girls, the High\nCourt came to the conclusion that what was established by\nevidence was an offence or attempt to commit rape and not of\nrape. Accordingly, the conviction under Section 376 was\naltered into one under Section 376 read with Section Sl I\nI.P.C.\n\n Dismissing the appeal and maintaining the conviction on\nall counts, Court\n^\n\n HELD: 1:1 A concurrent finding of fact as recorded by\nthe Sessions Court and affirmed by the High Court, cannot be\nreopened in an appeal by Special Leave unless it is\nestablished (1) that the finding is based on no evidence or\n(2) that the finding is perverse, it being such as no\nreasonable person could have arrived at even if the evidence\n\nwas taken at its face value or (3) the finding is based and\nbuilt on inadmissible evidence, which evidence if excluded\nfrom vision, would negate the prosecution case or\nsubstantially discredit or impair it or (4) some vital piece\nof evidence which would tilt the balance in favour of the\nconvict has been overlooked, disregarded, or wrongly\ndiscarded. The present is not a case of such a nature. [285\nG-H, 286 A]\n\n 1:2. Discrepancies which do not go to the root of the\nmatter and shake the basic version of the witnesses\ntherefore cannot be annexed with undueimportance. More so when the all important \"probabilities-\nfactor\" echoes in favour of the version narrated by the\nwitnesses. The reasons are: (1) By and large a witness\ncannot be expected to possess a photographic memory and to\nrecall the details of an incident. It is not as if a video\ntape is replayed on the mental screen; (2) ordinarily it so\nhappens that a witness is overtaken by events. The witness\ncould not have anticipated the occurrence which so often has\nan element of surprise. The mental faculties therefore\ncannot be expected to be attuned to absorb the details; (3)\nThe powers of observation differ from person to person. What\none may notice, another may not. An object or movement might\nemboss its image on one person's mind whereas it might go\nunnoticed on the part of another; (4) By and large people\ncannot accurately recall a conversation and reproduce the\nvery words used by them or heard by them. They can only\nrecall the main purport of the conversation. It is\nunrealistic to expect a witness to be a human tape recorder;\n(5) In regard to exact time of an incident, or the time\nduration of an occurrence, usually, people make their\nestimates by guess work on the spur of the moment at the\ntime of interrogation. And one cannot expect people to make\nvery precise or reliable estimates in such matters. Again,\nit depends. On the 'timesense' of individuals which varies\nfrom person to person. (6) ordinarily a witness cannot be\nexpected to recall accurately the sequence of events which\ntake place in rapid succession or in a short time span. A\nwitness is liable to get confused, or mixed up, when\ninterrogated later on; (7) A witness, though wholly\ntruthful, is liable to be overawed by the court atmosphere\nand the piercing cross examination made by counsel and out\nof nervousness mix up facts; get confused regarding sequence\nof events, or fill up details from imagination on the spur\nof moment. The subconscious mind of the witness sometimes so\noperates on account of the fear of looking foolish, or being\ndisbelieved, though the witness is giving a truthful and\nhonest account of the occurrence witnessed by him-Perhaps it\nis a sort of a psychological defence mechanism activated on\nthe spur of the moment. [286 B-H, 287 A-E]\n\n 2:1. Corroboration is not the sine-quo-non for a\nconviction in a rape case. In the Indian setting, refusal to\nact on the testimony of a victum of sexual assault in the\nabsence of corroboration as a rule, is adding insult to\ninjury. Viewing the evidence of the girl or the women who\ncomplains of rape or sexual molestation with the aid of\nspectacles fitted with lenses tinged with doubt, disbelief\nor suspicion, is to justify the charge of male chauvinism in\na male dominated society. [287 F. 288 C-D]\n\n Rameshwar v. The State of Rajasthan, [1952] S.C.R. 377\n@ 386 followed.\n\n 2:2. Corroboration may be considered essential to\nestablish a sexual offence in the backdrop of the social\necology of the Western World. It is wholly unnecessary to\n\nimport the said concept on a turn-key basis and to\ntransplant it on the Indian soil regardless of the\naltogether different atmosphere, attitudes, mores, responses\nof the Indian Society, and its profile. The identities of\nthe two worlds are different. The solution of problems\ncannot therefore be idential. It is conceivable in the\nWestern Society that a female may level false accusation as\nregards sexual molestation against a male for several\nreasons such as:-(1) The female may be a 'golddigger' and may well have an economic motive-to extract\nmoney by holding out the gun of prosecution or public\nexposure; (2) She may be suffering from psychological\nneurosis and may seek an escape from the neurotic prison by\nphantasizing or imagining a situation where she is desired,\nwanted and chased, by males. (3) She may want to wreak\nvengence on the male for real or imaginary wrongs. She may\nhave a grudge against a particular male, or males in\ngeneral, and may have the design to square the account; (4)\nShe may have been induced to do so in consideration of\neconomic rewards, by a person interested in placing the\naccused in a compromising or embarassing position, on\naccount of personal or political vendetta; (5) She may do so\nto gain notoriety or publicity or to appease her own ego, or\nto satisfy her feeling of self-importance in the context of\nher inferiority complex; (6) She may do so on account of\njealousy; (7) She may do so to win sympathy of others; (8)\nShe may do so upon being repulsed. By and large these\nfactors are not relevant to India, and the Indian\nConditions. [288 F-H, 289 A-E]\n\n 2:3. Rarely will a girl or a woman in India make such\nfalse allegations of sexual assault, whether she belongs to\nthe urban or rural society, or, sophisticated, or, not-so\nsophisticated, or, unsophisticated society. Only very rerely\ncan one conceivably come accross an exception or two and\nthat too possibily from amongst the urban elites. Because:-\n(1) A girl or a woman in the tradition bound non-permissive\nSociety of India would be extremely reluctant even to admit\nthat any incident which is likely to reflect on her chastity\nhad ever occurred; (2) She would be conscious of the danger\nof being ostracised by the Society or being looked down by\nthe society including by her own family members, relatives,\nfriends, and neighbours; (3) She would have to brave the\nwhole world; (4) She would face the risk of losing the love\nand respect of her own husband and near relatives, and of\nher matrimonial home and happiness being shattered; (5) If\nshe is unmarried, she would apprehend that it would be,\ndifficult to secure an alliance with a suitable match from a\nrespectable or an acceptable family; (6) lt would almost\ninevitably and almost invariably result in mental torture\nand suffering to herself; (7) The tear of being taunted by\nothers will always haunt her; (8) She would feel extremely\nembarrassed in relating the incident to others being over\npowered by feeling of shame on account of the upbringing in\na tradition bound society where by and large sex is taboo;\n(9) The natural inclination would be to avoid giving\npublicity to the incident lest the family name and family\nhonour is brought into controversy; (10) The parents of an\nunmarried girl as also the husband and members of the\nhusband's family of a married woman, would also more often\nthan not, want to avoid publicity on account of the fear of\nsocial stigma on the family name and family honour; (11) The\nfear of the victim herself being considered to be\npromiscuous or in some way responsible for the incident\nregardless of her innocence; (12) The reluctance to face\n\ninterrogation by the investigating agency, to face the\ncourt, to face the cross examination by Counsel for the\nculprit, and the risk of being disbelieved, acts as a\ndeterrent. In view of these factors the victims and their\nrelatives are not too keen to bring the culprit to books.\nAnd when in the face of these factors the crime is brought\nto light there is a built in assurance that the charge is\ngenuine rather than fabricated. [289 F-H, 290 A-E]\n 2:4. On principle the evidence of a victim of sexual\nassault stands on par with evidence of an injured witness.\nJust as a witness who has sustained an injury (which is not\nshown or believed to be self-inflicted) is the best witness\nin the sense that he is least likely to exculpate the real\noffender, the evidence of a victim of a sex-offence is\nentitled to great weight, absence of corroboration\nnotwithstanding. And while corroboration in the form of eye\nwitness account of an independent witness may often be\nforthcoming in physical assault cases, such evidence cannot\nbe expected in sex offences, having regard to the very\nnature of the offence. It would therefore be adding insult\nto injury to insist on corroboration drawing inspiration\nfrom the rules devised by the courts in the Western World.\n[290 E-G]\n\n 2:5. Therefore, if the evidence of the victim does not\nsuffer from any basic infirmity, and the 'probabilities-\nfactor' does not render it unworth of credence, as a general\nrule, there is no reason to insist on corroboration except\nfrom the medical evidence, where, having regard to the\ncircumstances of the case, medical evidence can be expected\nto be forthcoming, subject to the following qualification:\nCorroboration may be insisted upon when a woman having\nattained majority is surprised in a compromising position\nand there is a likelihood of her having levelled such an\naccusation on account of the instinct of self-preservation.\nOr when the 'probabilities-factor' is found to be out of\ntune. [290 G-H, 291 A-B]\n\n 2:6. To countenance the suggestion, in the instant\ncase, that the appellant has been falsely roped in at the\ninstance of the father of P.W. 2 who was supposed to have\nsome enmity against the appellant would be wrong. Ordinarily\nno parents would do so in Indian Society as at present and\nthereby bring down their own social status and spoil their\nreputation in Society, not to speak of the danger of\ntraumatic effect on the psychology of their daughter. Having\nregard to the prevailing mores of the Indian Society, it is\ninconceivable that a girl of 10 or 12 would invent on her\nown a false story of sexual molestation. Moreover, the\nmedical evidence fully supports the finding of the High\nCourt that there was an attempt to commit rape on P.W. 1 by\nthe appellant. [291 G-H, 292 A-D]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 68 of 1977.\n Appeal by Special Leave from the Judgment and order dated 15th November, 1976 of the Gujarat High Court in Criminal Appeal No. 832 of 1976.\n R.H. Dhebar and B. V. Desai for the Appellant.\n R.N. Poddar for the Respondent.\n The Judgment of the Court was delivered by THAKKAR, J. To say at the beginning what we cannot help saying at the end: human goodness has limits-human depravity has none. The need of the hour however, is not exasperation.\n The need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem: \"Whether, when, and to what extent corroboration to the testimony of a victim of rape is essential to establish the charge.\" And the problem has special significance for the women in India, for, while they have often been idolized, adored, and even worshipped, for ages they have also been exploited and denied even handed justice-Sixty crores anxious eyes of Indian a women are therefore focussed on this problem. And to that problem we will presently address ourselves.\n The learned Sessions Judge Mehsana found the appellant, a Government servant employed in the Sachivalaya at Gandhinagar, guilty of serious charges of sexual misbenaviour with two young girls (aged about 10 or 12) and convicted the appellant for the offence of rape, outraging the modesty of women, and wrongful confinement. The appeal carried to the High Court substantially failed. The High Court affirmed the order of conviction under Sec. 342 of the Indian Penal Code for wrongfully confining the girls. The High Court also sustained the order of conviction under Sec.\n354 of the Indian Penal Code for outraging the modesty of the two girls. With regard to the more serious charge of rape on one of the girls, the High Court came to the conclusion that what was established by evidence was an offence of attempt to commit rape and not of rape.\nAccordingly the conviction under Sec. 376 was altered into one under Sec. 376 read with Sec. 511 of the Indian Penal Code. The appellant has preferred the present appeal with special leave.\n The incident occurred on Sunday, September 7, 1975, at about 5.30 p.m. at the house of the appellant. The evidence of P.W. 1 and P.W. 2 shows that they went to the house of the appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who happened to be their friend. The appellant induced them to enter his house by creating an impression that she was at home, though, in fact she was not. Once they were inside, the appellant closed the door, undressed himself in the presence of both the girls, and exposed himself. He asked P.W. 2 to indulge in an indecent act. P.W. 2 started crying and fled from there.\nP.W. 1however could not escape. She was pushed into a cot, and was made to undress. The appellant sexually assaulted her. P.W.\n1 was in distress and was weeping as she went out. She however could not apprise her parents about what had transpired because both of them were out of Gandhinagar (they returned after 4 or 5 days).\n It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. If the appellant had acceded to .\nthis request possibly the matter might have rested there and might not have come to the court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W.\n1 on 19 Sept. 1975. P.W. 1 was then sent to the Medical officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2. Their evidence has been considered to be worthy of acceptance lt is a pure. finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discreditor impair it or (43 some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\n (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.\n (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.\n (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation.\n It is unrealistic to expect a witness to be a human tape recorder.\n (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.\n (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.\n Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important \"probabilities-factor\" echoes in favour of the version narrated by the witnesses.\n It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v.\nThe State of Rajasthan,(1) has declared that corroboration is not the sine que-non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge ....... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.\"\n And whilst the sands were running out in the time glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of 'logos' and 'ethos', has been necessitated.\n In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination.\nAnd we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as: (1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.\n (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.\n (3) She may want to wreak vengence on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.\n (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta.\n (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.\n (6) She may do so on account of jealousy.\n (7) She may do so to win sympathy of others.\n (8) She may do so upon being repulsed.\n By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.\nBecause: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave thewhole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.\n In view of these factors the victims and their relatives are not too keen to bring the culprit to books.\nAnd when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World. Obseisance to which has perhaps become a habit presumably on account of the colonial hangover. We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factors does not render it unworthy of credence, as a generalrule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation.\nOr when the 'probabilities-factor' is found to be out of tune.\n Now we return to the facts of the present case. Testing the evidence from this perspective, the evidence of P.W. 1 and P.W. 2 inspires confidence. The only motive suggested by defence was that there was some history of past trade union rivalry between the father of P.W. 2 and the appellant. It must be realized that having regard to the prevailing mores of the Indian Society, it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation. Even at the age of 10 or 12 a girl in India can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised, upon such a story being spread. She can be trusted to-know that in the Indian Society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the Society. It is also unthinkable that the parents would tutor their minor daughter to invent such a story in order to wreak vengence on someone. They would not do so for the simple reason that it would bring down their own social status in the Society apart from ruining the future prospects of their own child.\nThey would also be expected to be conscious of The traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up. She herself would prefer to suffer the injury and the harassment, rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity. We therefore refuse to countenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of P.W. 2 who was supposed to have some enmity against the appellant. It is unthinkable that the parents of P.W. 2 would tutor her to invent a story of sexual misbehavior on the part of the appellant merely in order to implicate him on account of past trade union rivalry. The parents would have also realized the danger of traumatic effect on the psychology of their daughter. In fact it would have been considered to be extremely distasteful tobroach the subject. It is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in Society. Ordinarily no parents would do so in Indian society as at present. Under the circumstances the defence version that the father of P.W. 2 had tutored her to concoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard.\nBesides, why should the parents of P.W. 1 mar the future prospects of their own daughter ? It is not alleged that P.W. 1 had any motive to falsely implicate the appellant. So also it is not even suggested why P.W. 1 should falsely implicate the appellant. From the stand point of probabilities it is not possible to countenance the suggestion that a false story has been concocted in order to falsely implicate the appellant. The medical evidence provided by P.W 6, Dr. Hemangini Desai, fully supports the finding of the High Court that there was an attempt to commit rape on P.W. 1. Under the circumstances the conclusion reached by the High Court cannot be successfully assailed.\n The only question that now remains to be considered is as regards the sentence. The appellant has behaved in a shockingly indecent manner. The magnitude of his offence cannot be overemphasized m the context of the fact that he misused his position as a father of a girl friend of P.W. 1 and- P.W. 2. P.W. 1 and P.W. 2 were visiting his house unhesitatingly because of the fact that his daughter was their friend. To have misused this position and to-have tricked them into entering the house, and to have taken undue advantage of the situation by subjecting them to sexual harassment, is a crime of which a serious view must be taken. But for the following facts and circumstances, we would not have countenanced the prayer for leniency addressed to us on behalf of the appellant. The special circumstances are these. The appellant has lost his job in view of the conviction recorded by the High Court. The incident occurred some 7 years back. The appeal preferred to the High Court was dismissed in November 15, 1976. About 6- 1/2 years have elapsed thereafter. In the view that we are taking the appellant will have to be sent back to jail after an interval of about 6-1/2 years. The appellant must have suffered great humiliation in the Society. The prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the context of such an offence.\n Taking into account the cumulative effect of these circumstances, and an overall view of the matter, we are of the opinion that the ends of Justice will be satisfied if the substantive sentence imposed by the High Court for the offence under Sec. 376 read with Sec. 511 is reduced from one of 2-1/2 years' R. I., to one of 15 months' R.I. The sentence of fine, and in default of fine, will be course remain undisturbed. So also the sentence imposed in the context of the offence under Sec. 342 and Sec 354 of the Indian Penal Code will remain intact. Subject to the modification in the sentence to the aforesaid extent the appeal fails and is dismissed The appellant shall surrender in order to undergo the sentence. The bail bonds will stand cancelled.\n S.R. Appeal dismissed.\n "
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"text": "It appears that upon some intimation telephonically received by the brother (PW-9) he along with his wife (PW-1) had reached the matrimonial home - they found the dead body lying on the ground, their arrival apparently being after Rajni had been brought down from the position of hanging."
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"text": "Eventually, Rajni was shifted to All India Institute of Medical Sciences (AIIMS), the medico-legal certificate (MLC) in her respect having been recorded (vide Ex.PW- 22/B), there and indicating she to have been brought dead to the casualty at 02:28:33 hours on 29.05.2012.\n 4. "
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"value": {
"end": 4516,
"labels": [
"FAC"
],
"start": 4213,
"text": "Amongst the various steps that were taken by PW-20 (the Investigating officer), information was conveyed to Dr. R.K.\nAggarwal (PW-10), who was working at the relevant point of time as Sub-Divisional Magistrate (SDM), the dead body having been shifted for the purpose of autopsy to the mortuary of AIIMS."
}
},
{
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"id": "949d3608d21c4055bfb9db522ee97ade",
"to_name": "text",
"type": "labels",
"value": {
"end": 4921,
"labels": [
"FAC"
],
"start": 4517,
"text": "The autopsy was carried out by Dr. Shashank Poonia (PW-21), his report (Ex.PW21/A), read with subsequent opinion (Ex.PW-21/B), and Forensic Science Laboratory (FSL) report (Ex.PW22/A) leaving no room for doubt that the death had occurred due to asphyxia on account of ante-mortem hanging, the possibility of poisoning having been ruled out on examination of the viscera that had been preserved.\n 5. "
}
},
{
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"id": "d282a911afd44610aab65d1efa6a8531",
"to_name": "text",
"type": "labels",
"value": {
"end": 5143,
"labels": [
"FAC"
],
"start": 4921,
"text": "In the initial intimation (while DD No.45-A), suspicion had been raised by the parental family, particularly brother Jagdish Koli (PW-9) that Rajni had been intentionally done to death, so as to render it a case of murder."
}
},
{
"from_name": "label",
"id": "49aab405aa9c41d78ac27fc781245a6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5281,
"labels": [
"FAC"
],
"start": 5144,
"text": "Statements (Ex.PW9/F and Ex.PW1/D1 respectively) to this effect were made by him (PW-9) and his wife (PW-1) before the SDM on 29.05.2012."
}
},
{
"from_name": "label",
"id": "bf09be71b9214270904f43336675670d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5574,
"labels": [
"FAC"
],
"start": 5282,
"text": "It may be added here that during the inquest proceedings on 29.05.2012, the SDM had also examined Ram Preet (PW8), his statement (Ex.PW8/B), however, being non-committal inasmuch as he only pointed out some injury marks on the neck of Rajni, he being not clear as to how she may have died.\n 6"
}
},
{
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"id": "c489fdc058f64a0cb4b5596e97a7596e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5974,
"labels": [
"FAC"
],
"start": 5574,
"text": ". Be that as it may, the investigation could not bring out any evidence to support the allegations of it being a case of culpable homicide, the autopsy report (particularly the final opinion given by the autopsy doctor), and the circumstances in which the dead body had been discovered, as reflected, inter alia, by the evidence of at least two neighbours – Nihal Devi (PW-6) and Kamlesh (PW-11)"
}
},
{
"from_name": "label",
"id": "d437dfbffad149eb91ca1fddff182aec",
"to_name": "text",
"type": "labels",
"value": {
"end": 6091,
"labels": [
"FAC"
],
"start": 5975,
"text": "– leaving no room for doubt that Rajni had committed suicide by hanging herself by the neck, it leading to asphyxia."
}
},
{
"from_name": "label",
"id": "4f419faab6c8465f9dd2147c13e98030",
"to_name": "text",
"type": "labels",
"value": {
"end": 6462,
"labels": [
"FAC"
],
"start": 6091,
"text": "\n 7. While the inquiry was pending before the SDM, Lado Devi (PW-4) mother of Rajni (hereinafter, the deceased) made a complaint to various authorities on 18.06.2012, the addressees including, amongst others, the Commissioner of Police, the Deputy Commissioner of Police of the area and the Station House Officer (SHO) of the police station."
}
},
{
"from_name": "label",
"id": "79780a16f6c04702a0bcc23925919d1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6719,
"labels": [
"FAC"
],
"start": 6463,
"text": "In the said complaint, she reiterated her suspicion that her daughter had been killed narrating in that context certain events which showed that Rajni had been subjected to cruelty for dowry in the matrimonial home by the husband and some of the relatives."
}
},
{
"from_name": "label",
"id": "9b16fabacde74bc8aa52f39387cbfa69",
"to_name": "text",
"type": "labels",
"value": {
"end": 6983,
"labels": [
"FAC"
],
"start": 6720,
"text": "Against the said backdrop, on 06.08.2012, the SDM issued a directive (Ex.PW10/G) to the SHO of Police Station Kotla Mubarakpur calling him upon to “take necessary action as per law in the matter of Rajni” referring in this context to DD No.45-A, dated 28.05.2012."
}
},
{
"from_name": "label",
"id": "5fd8ae3abe254df6bb0e310a07dddfe7",
"to_name": "text",
"type": "labels",
"value": {
"end": 7298,
"labels": [
"FAC"
],
"start": 6984,
"text": "In the entire proceedings, as indeed in the statement of the SDM (PW-10), there is no clarity as to what had prompted the SDM to “recommend” the registration of the FIR against the backdrop of the statements which had been recorded by him after examining Jagdish Kohli (PW-9), Sangeeta (PW-1) and Ram Preet (PW-8)."
}
},
{
"from_name": "label",
"id": "09249fda10a942928f0710ab2939d774",
"to_name": "text",
"type": "labels",
"value": {
"end": 8226,
"labels": [
"FAC"
],
"start": 7298,
"text": "\n 8. Be that as it may, upon receipt of the aforementioned directions of the SDM, and in express compliance thereof, the investigating officer (PW-20) to whom the said order had been made over by the SHO, recorded an endorsement (Ex.PW-20/A) in continuation of the statement (Ex.PW9/F) of Jagdish Koli (PW-9) seeking from the duty officer registration of first information report (FIR) for offences under sections 498A/304-B and 34 IPC, and pursuant to the said endorsement, the duty officer ASI Raj Kumar (PW-16) registered the FIR (Ex.PW16/A) at 10:30 p.m. on 06.08.2012, more than two months after the event of unnatural death.\n 9. During the course of the investigation by SI Vishal Choudhary (PW-20) amongst others steps, he recorded the statements of Jagdish Koli (PW-9), his wife Sangeeta (PW1), his mother Lado Devi (PW-4), his sister Seema (PW-2) and Kamlesh (PW-3), besides those of other relevant witnesses."
}
},
{
"from_name": "label",
"id": "36db492a0a0d4917b19a6c1db7140e05",
"to_name": "text",
"type": "labels",
"value": {
"end": 9046,
"labels": [
"FAC"
],
"start": 8227,
"text": "Based primarily on the said evidence, and some confirmation from the call detail records (CDR) of at least three mobile telephone numbers which had statedly been in use of the individuals involved, a report (charge sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was submitted on 23.11.2012 in the Court of Metropolitan Magistrate (MM) seeking trial for offences under Sections 498-A/304-B/201/34 IPC.\n 10. Upon cognizance being taken by the concerned Metropolitan Magistrate, it leading to issuance of process, four persons came to be put on trial they including Fateh Singh (A1), Daya Ram (A2), Puran Lal (A3) and Rajkumari @ Natho Devi (A4), the charges framed against them on 07.11.2013 being primarily for offences under Sections 498-A and Section 304-B IPC read with Section 34 IPC."
}
},
{
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"id": "54d18611059c4552b8d95dcb16b7bcbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 9140,
"labels": [
"FAC"
],
"start": 9047,
"text": "The trial court also framed an alternative charge under Section 302 read with Section 34 IPC."
}
},
{
"from_name": "label",
"id": "7b61f749a9c34321981bac757be25513",
"to_name": "text",
"type": "labels",
"value": {
"end": 11329,
"labels": [
"FAC"
],
"start": 9140,
"text": "\n 11. The prosecution led evidence by examining twenty-five witnesses, they including Sangeeta (PW-1), sister-in-law of Rajni (deceased); Seema (PW-2), younger sister of the deceased; Kamlesh (PW-3), elder sister of the deceased; Lado Devi (PW-4), mother of the deceased; Constable Jagdish (PW-5), who had gone to the house of the accused and arrested him vide memo (Ex PW-5/A); Nihal Devi (PW- 6), neighbour of the deceased; Constable Rajeev Kumar (PW-7), who had gone to the mortuary of AIIMS for the post mortem examination on the dead body of the deceased; Rampreet (PW-8), sister-in-law of the deceased; Jagdish Koli (PW-9), brother of the deceased; Dr. R.K.\nAggarwal (PW-10), Superintendent of Department Training and Technical Education; Kamlesh (PW-11), neighbour of the deceased; Constable Ankit (PW-12), who had taken the dead body to the mortuary of AIIMS and seized certain articles; Israr Babu (PW-13), Alternate Nodal Officer of Vodafone Mobile Services; Constable Satyapal Sharma (PW-14), who had collected sealed envelope along with the sample seal and taken the same to FSL, Rohini; Inspector Naresh Kumar (PW-15), who had inspected the spot and prepared report in such regard (Ex.P/W-15/A); ASI Raj Kumar (PW-16), who had registered the FIR No.168/12; Head Constable Kapil (PW-17), who had gone to the place of incident and taken the photographs; Sarvesh Kumar (PW-18), Nodal Officer of Idea Cellular Ltd.; Constable Kavita (PW-19), who recorded the statement of some of the witnesses; SI Vishal Choudhary (PW-20), the investigating officer (IO); Dr. Shashank Pooniya (PW-21), Ex-senior resident of AIIMS Hospital, who had conducted the post-mortem examination on the dead body of the deceased; Retired S.I. Balbir Singh (also examined as PW-21 and so referred to as PW-21-A) duty officer at Police Station Kotla Mubarakpur; Dr. Lingaraj Sahoo (PW-22), Senior Scientific Officer, Chemistry, FSL; Dr. Yogesh Kumar Meena (also examined as PW-22 and so referred to as PW22-A), Senior resident (surgery), AIIMS, who proved MLC No.54514 of deceased Rajni; and Surender Kumar (PW-23), Nodal Officer at Bharti Airtel Ltd., who proved call details record of A1 (Fateh Singh)."
}
},
{
"from_name": "label",
"id": "a5b444bd29f94a638b33b225465343ce",
"to_name": "text",
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"value": {
"end": 11339,
"labels": [
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],
"start": 11331,
"text": "12. "
}
},
{
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"id": "d113f6bf886c48fc861e46d56db52b08",
"to_name": "text",
"type": "labels",
"value": {
"end": 11441,
"labels": [
"FAC"
],
"start": 11339,
"text": "The evidence led by the prosecution was put to the accused persons (now appellants before this court)."
}
},
{
"from_name": "label",
"id": "57260742dfd54996b28112185dc3258a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11741,
"labels": [
"FAC"
],
"start": 11442,
"text": "While admitting the evidence about the marriage of Rajni with Fateh Singh (A-1) on 03.12.2011, and her unnatural death in the matrimonial home on 28.05.2012, the evidence showing cruelty having been meted out to her in the matrimonial home, particularly, on account of dowry was denied and disputed."
}
},
{
"from_name": "label",
"id": "c7d02d96a67f4b06b815383fb85b8119",
"to_name": "text",
"type": "labels",
"value": {
"end": 11997,
"labels": [
"FAC"
],
"start": 11743,
"text": "13. It may be mentioned here that Daya Ram (A-2) is cousin brother of Raj Kumari (A-4) and, therefore, is treated by Fateh Singh (A-1) as maternal uncle (mama) and consequently, he has been referred to as mama-sasur in relation to the deceased Rajni."
}
},
{
"from_name": "label",
"id": "e779dcfdf5034033bdea8651dd7e4cb2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12097,
"labels": [
"FAC"
],
"start": 11998,
"text": "Certain role in the context of alleged cruelty for dowry is attributed to him by some of witnesses."
}
},
{
"from_name": "label",
"id": "b9df34bec0b54192b50b9c99ea0435a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12239,
"labels": [
"FAC"
],
"start": 12097,
"text": "\n 14. After the statements under Section 313 Cr.PC. had been recorded, the accused persons were called upon to adduce evidence in defence."
}
},
{
"from_name": "label",
"id": "f528293520574ffe8db93f2ff9a3d62d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12409,
"labels": [
"FAC"
],
"start": 12240,
"text": "Geeta (DW1), a relative of the appellants was examined primarily to bring on record the circumstances in which the fact of Rajni having committed suicide was discovered."
}
},
{
"from_name": "label",
"id": "96a7d287235e41268c4c86dc4b5cc4f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12583,
"labels": [
"FAC"
],
"start": 12410,
"text": "Daya Ram (A-2) entered the witness box (as DW2), also supporting the word of DW1 in above regard, he claiming to have been present at the scene on account of a social visit."
}
},
{
"from_name": "label",
"id": "f889429461fc4029aabcb72766b87cc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12901,
"labels": [
"RLC"
],
"start": 12583,
"text": "\n 15. The learned Additional Session Judge considered the evidence brought on record and, by his judgment dated 17.12.2018, concluded that the alternative charge under Section 302 read with Section 34 IPC had not been brought home, his findings indicating acceptance of the theory that Rajni had committed suicide."
}
},
{
"from_name": "label",
"id": "d43552f62124494ba1e76024856f1b86",
"to_name": "text",
"type": "labels",
"value": {
"end": 13200,
"labels": [
"RLC"
],
"start": 12902,
"text": "The trial court accepted the evidence of prosecution witnesses, particularly Jagdish Koli (PW-9), Sangeeta (PW-1), Seema (PW-2), Kamlesh (PW-3) and Lado Devi (PW-4) as to cruelty for dowry having been meted out to Rajni in the matrimonial home, soon before her death and in unnatural circumstances."
}
},
{
"from_name": "label",
"id": "bbb8af1d1eb844c190388d893833a48e",
"to_name": "text",
"type": "labels",
"value": {
"end": 13357,
"labels": [
"RLC"
],
"start": 13201,
"text": "On these conclusions, the appellants were held guilty and convicted on the charge for offences under Sections 498A/304-B read with Section 34 IPC.\n 16. "
}
},
{
"from_name": "label",
"id": "600ba74f9db841b6b27c256cc13ce8a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 13627,
"labels": [
"RLC"
],
"start": 13357,
"text": "By order dated 19.12.2018, the trial court awarded simple imprisonment for three years with fine of Rs.50,000/- each for offence under Section 498-A read with section 34 IPC, and simple imprisonment for ten years for offence under Section 304-B read with Section 34 IPC."
}
},
{
"from_name": "label",
"id": "12b27f1a2bfa4976a307dd9b1d98acea",
"to_name": "text",
"type": "labels",
"value": {
"end": 13762,
"labels": [
"RLC"
],
"start": 13628,
"text": "It was directed that both the sentences would run concurrently, the benefit of set off under Section 428 Cr.P.C. having been accorded."
}
},
{
"from_name": "label",
"id": "1c35eddf2d194595bc097c66f68b1888",
"to_name": "text",
"type": "labels",
"value": {
"end": 13891,
"labels": [
"NONE"
],
"start": 13762,
"text": "\n 17. The arguments on the appeals have been heard at length and the record has been perused with assistance from both sides."
}
},
{
"from_name": "label",
"id": "52ba156d60da482d8c6cd7c90a8342fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 14007,
"labels": [
"FAC"
],
"start": 13891,
"text": "\n 18. The charge under Section 302 read with section 34 of IPC had not been pressed by the investigating agency."
}
},
{
"from_name": "label",
"id": "969a2586887a4003809d5755b9d795b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 14066,
"labels": [
"FAC"
],
"start": 14008,
"text": "It was framed by the trial court as an alternative charge."
}
},
{
"from_name": "label",
"id": "7eb07344f4634f8180d745f5cce2a8c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14159,
"labels": [
"ANALYSIS"
],
"start": 14067,
"text": "The said charge could not be proved, as is shown by the finding returned by the trial court."
}
},
{
"from_name": "label",
"id": "8484eaf5970347558ec4ef0f43eac43f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14262,
"labels": [
"ANALYSIS"
],
"start": 14160,
"text": "The State has not challenged the judgment of the trial court to that extent by any appeal or petition."
}
},
{
"from_name": "label",
"id": "e846a7d324c44204b3810aa6d7200962",
"to_name": "text",
"type": "labels",
"value": {
"end": 14952,
"labels": [
"ANALYSIS"
],
"start": 14263,
"text": "The findings to that extent have attained finality and, thus, the accusations to such effect will have to be kept aside; all the more so because on the basis of available evidence, such charge cannot succeed, it being clear from the evidence on both sides that the room where Rajni was found hanging by the neck, she apparently having died before her body was shifted to AIIMS, was closed from inside, there being no credence to the suspicion that she may have been killed, the injury mark on the neck to which some reference was made by the members of parental family being the mark caused by the ligature, as is substantiated by photographs of the dead body which were brought on record."
}
},
{
"from_name": "label",
"id": "f929e0b72d3f4da88e7d2434bc10b8b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 15099,
"labels": [
"ANALYSIS"
],
"start": 14953,
"text": "Thus, the other evidence requires to be re-appreciated, while accepting the conclusion of the trial court that Rajni had indeed committed suicide."
}
},
{
"from_name": "label",
"id": "25972ff54a7c4587b814e1d6efab7323",
"to_name": "text",
"type": "labels",
"value": {
"end": 15184,
"labels": [
"ANALYSIS"
],
"start": 15099,
"text": "\n 19. The marriage of Rajni with Fateh Singh (A-1) had taken place on 03.12.2011."
}
},
{
"from_name": "label",
"id": "159a50f619924e6d87257600e6f6777e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15288,
"labels": [
"ANALYSIS"
],
"start": 15185,
"text": "It is indeed shocking that she was constrained to commit suicide in the matrimonial home on 28.05.2012."
}
},
{
"from_name": "label",
"id": "b48ec78d6cae4b4ba3908293984e7683",
"to_name": "text",
"type": "labels",
"value": {
"end": 15380,
"labels": [
"ANALYSIS"
],
"start": 15289,
"text": "But, it is the reasons that may have impelled her to commit suicide which would be crucial."
}
},
{
"from_name": "label",
"id": "ea29e935a67d4f3a974df2cd842ffdbf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15731,
"labels": [
"ANALYSIS"
],
"start": 15381,
"text": "In these circumstances, the court has to examine, particularly on account of charge under Section 304-B IPC, to find out as to whether there is any evidence available to show that soon before her death she had been subjected by the husband or members of the matrimonial family, to cruelty or harassment for or in connection with any demand for dowry."
}
},
{
"from_name": "label",
"id": "3687380f7ebd44afbdfd3a3eea0abd62",
"to_name": "text",
"type": "labels",
"value": {
"end": 16112,
"labels": [
"ANALYSIS"
],
"start": 15732,
"text": "The trial court has answered the said query in the affirmative and on the basis of such conclusion has applied the presumption under Section 113-B of the Indian Evidence Act, 1872 to hold the appellants guilty of the charge under Section 304-B IPC, the accusations relevant to the charge under Section 498-A IPC being inherent in the gravamen of the charge for the former offence."
}
},
{
"from_name": "label",
"id": "b554dfb838db4daa933d729051180caa",
"to_name": "text",
"type": "labels",
"value": {
"end": 16304,
"labels": [
"ANALYSIS"
],
"start": 16112,
"text": "\n 20. From the above perspective, the case hangs in balance on the testimonies of Jagdish Koli (PW-9), Sangeeta (PW-1), Seema (PW-2), Kamlesh (PW-3), Lado Devi (PW-4) and Ram Preet (PW-8)."
}
},
{
"from_name": "label",
"id": "5374f08c54a84f4080addde5ffb51f14",
"to_name": "text",
"type": "labels",
"value": {
"end": 16391,
"labels": [
"ANALYSIS"
],
"start": 16305,
"text": "The evidence of the said witnesses has been subjected to acute scrutiny by this court."
}
},
{
"from_name": "label",
"id": "61ceee70a4464099b70f6b704969d686",
"to_name": "text",
"type": "labels",
"value": {
"end": 16442,
"labels": [
"ANALYSIS"
],
"start": 16392,
"text": "It will be appropriate to deal with them seriatim."
}
},
{
"from_name": "label",
"id": "b2985fb7277d4cd7857d8468de44e717",
"to_name": "text",
"type": "labels",
"value": {
"end": 16667,
"labels": [
"ANALYSIS"
],
"start": 16442,
"text": "\n 21. It is clear from the evidence that her father having died earlier, the mother (PW-4) being a widowed illiterate lady, the responsibility of settling Rajni in marriage had fallen upon her brother Jagdish Koli (PW-9)."
}
},
{
"from_name": "label",
"id": "188559bdd66d42ccbf0960dc34e86680",
"to_name": "text",
"type": "labels",
"value": {
"end": 16803,
"labels": [
"ANALYSIS"
],
"start": 16668,
"text": "He is on record to state that it is he who had arranged the marriage with great pomp and show, having spent sufficient amount of money."
}
},
{
"from_name": "label",
"id": "4aaaf39f951d4d58a05643c6bfeb5344",
"to_name": "text",
"type": "labels",
"value": {
"end": 16939,
"labels": [
"ANALYSIS"
],
"start": 16804,
"text": "Undoubtedly, the mother (PW-4) would have also chipped in for finances, she obviously having been party to the arrangements throughout."
}
},
{
"from_name": "label",
"id": "efdb395489d34b87ac9066c486fab30c",
"to_name": "text",
"type": "labels",
"value": {
"end": 17257,
"labels": [
"ANALYSIS"
],
"start": 16939,
"text": "\n 22. The evidence of the above mentioned witnesses of the parental family of the deceased clearly demonstrates that they hail from Rajasthan where the widowed mother of the deceased had certain landed property for sale of which she appeared to have been away around the time when the unfortunate event took place."
}
},
{
"from_name": "label",
"id": "c5ae7c8f09bc4631a60d4f0243d5863e",
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"type": "labels",
"value": {
"end": 17395,
"labels": [
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],
"start": 17258,
"text": "Be that as it may, they appear to be a close-knit family, who would be thick with each other, assisting and supporting those in distress."
}
},
{
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"id": "1f562c894c0d4352bbe21bb0462647d7",
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"value": {
"end": 17531,
"labels": [
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],
"start": 17396,
"text": "One of the sisters who were living with Jagdish Koli (PW-9) under the same roof include Kamlesh (PW-3), who is stated to be a divorcee."
}
},
{
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"id": "78fefcca0d404872aa53b6c14e0eedac",
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"value": {
"end": 17738,
"labels": [
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],
"start": 17532,
"text": "There is evidence brought on record showing a telephonic contact made by the deceased on 26.05.2012 with her sisters (PW-2) and (PW-3) who, pursuant to her entreaties, had met her in a temple on 27.05.2012."
}
},
{
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"id": "bcd25ad8114c4bbb9cc9c9c483207e1d",
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"end": 18184,
"labels": [
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],
"start": 17738,
"text": "\nNoticeably, PW-2 and PW-3 would speak about said meeting though also confirming that Rajni had been accompanied at that point of time by her husband Fateh Singh (A-1).\n 23. The prosecution evidence brought out through mouthpiece of Jagdish Koli (PW-9) and Sangeeta (PW-1) reveals that on 28.05.2012, the deceased had called the latter on her phone at about 3-4 p.m.\ninforming her about ill treatment at the hands of the mother-in-law (A- 4)."
}
},
{
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"id": "65f581c7735b4364aca179e48074ac77",
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"end": 18343,
"labels": [
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],
"start": 18185,
"text": "It is stated that Rajni sounded to be in distress and wanted the parental family to assist her or else she would be constrained to leave the matrimonial home."
}
},
{
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"id": "c4826d924cd74a478e9b8d46f601b37d",
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"end": 18456,
"labels": [
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],
"start": 18344,
"text": "The evidence shows that PW-1 had tried to soothe her with some assurances and then informed her husband (PW- 9)."
}
},
{
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"id": "78da8b81baea450690b03b5aa05f5f24",
"to_name": "text",
"type": "labels",
"value": {
"end": 18651,
"labels": [
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],
"start": 18457,
"text": "After some time, at about 4–5 p.m., Fateh Singh (A-1) had called Sangeeta (PW-1) on her mobile phone telling her that Rajni was in serious condition and was being shifted to Safdarjung hospital."
}
},
{
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"id": "6d03855f2ca442eea1d2aeb32ef112cd",
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"value": {
"end": 18740,
"labels": [
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],
"start": 18652,
"text": "It is stated that after some time, A-1 again rang up to inform PW-9 that Rajni had died."
}
},
{
"from_name": "label",
"id": "3231ee6667a94bec956283b8c0295454",
"to_name": "text",
"type": "labels",
"value": {
"end": 19029,
"labels": [
"ANALYSIS"
],
"start": 18741,
"text": "It is against this backdrop that PW-9 accompanied by his wife PW-1, and followed by his brother-in-law (PW-8), had reached the matrimonial home of Rajni finding her dead body lying there with the injury mark on the neck, which had given reason to their suspicion that she had been killed."
}
},
{
"from_name": "label",
"id": "eda2ed618b0e408b8644f1350f4d36ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 19232,
"labels": [
"ANALYSIS"
],
"start": 19029,
"text": "\n 24. When the aforementioned three witnesses were examined by the SDM on 29.05.2012, there was no allegation of any history of ill treatment to Rajni on account of demands of dowry. "
}
},
{
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"id": "bddfe805e13a426e9618ea0f4bd5d8dc",
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"type": "labels",
"value": {
"end": 19527,
"labels": [
"ANALYSIS"
],
"start": 19232,
"text": "Though Rampreet (PW-8) was totally silent on this issue, his statement (Ex.PW-8/B) not even indicating any questioning on this score, he nonetheless expressly stated that Rajni was living after marriage with her husband happily, (“शादी के बाद रजनी अपने पति फ़िेह स हिं के ाथ ख़श ु ी े रह रही थी”)."
}
},
{
"from_name": "label",
"id": "5a75aa2b07d8461ea6146841c19cc5ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 19716,
"labels": [
"ANALYSIS"
],
"start": 19528,
"text": "Jagdish Koli (PW-9) and Sangeeta (PW-1), in contrast, by their respective statements (Ex.PW-9/F and Ex.PW-1/D1) before SDM had totally ruled out any harassment on account of dowry demands."
}
},
{
"from_name": "label",
"id": "8352a79e418d47c88dd7f1bb1f7824ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 19991,
"labels": [
"ANALYSIS"
],
"start": 19717,
"text": "PW-9 stated that neither Fateh Singh (A-1) nor any members of his family had ever made any demand of dowry from him or any members of his family (“मेरे दामाद फ़िेह स हिं िथा उ के पररवार वाऱो ने मझ ु े िथा मेरे पररवार के कक ी भी दस्य े कभी दहे ज़ की कोई मािंग नहीिं की”),"
}
},
{
"from_name": "label",
"id": "e83839806b344c28abb25265eda104d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 20009,
"labels": [
"ANALYSIS"
],
"start": 19992,
"text": "similar statement"
}
},
{
"from_name": "label",
"id": "5a09e1c9a56940408386d41f8c634a9b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20327,
"labels": [
"ANALYSIS"
],
"start": 20010,
"text": "being made by PW-1, (“मेरे नन्दोई फ़िेह स हिं िथा उ के पररवार वाऱो ने हम े कभी कोई दहे ज़ की मािंग नहीिं की”).\n 25. In their respective statements before the SDM, PW-9 and PW-1, however, spoke about there having been two or three other occasions wherein Rajni (the deceased) had had quarrels with her husband (A-1)."
}
},
{
"from_name": "label",
"id": "2d7c6928da2c4e11bba22b02b4f659dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 20571,
"labels": [
"ANALYSIS"
],
"start": 20327,
"text": "\nPW-9 informed the SDM, and PW-1 confirmed her husband in such regard, that upon information being given about the quarrels by his sister (the deceased), he had gone to meet her in the matrimonial home but she was unable to say anything to him."
}
},
{
"from_name": "label",
"id": "bed78ea758214f8587a5697559762236",
"to_name": "text",
"type": "labels",
"value": {
"end": 20988,
"labels": [
"ANALYSIS"
],
"start": 20572,
"text": "(“ऱेककन जब मैं उ के पा जािा था िो वह कुछ कह नहीिं पािी थी ”).\n 26. PW-9 and PW-1 narrated the sequence of events of 28.05.2012, wherein the first telephonic call had come from the deceased on the mobile phone of PW-1 at about 3/4 p.m. wherein she had informed that A-1 was harassing her by taunts (“उ की ा (नत्थो दे वी) उ े िाने मार रही है ”) and that she was threatening to leave the matrimonial home.\n "
}
},
{
"from_name": "label",
"id": "ad827712aec442a1878c2760ea48ffaa",
"to_name": "text",
"type": "labels",
"value": {
"end": 21138,
"labels": [
"ANALYSIS"
],
"start": 20988,
"text": "This was followed by the telephonic call at about 4/5 p.m. from A-1, initially indicating that Rajni was unwell but later confirming she to have died."
}
},
{
"from_name": "label",
"id": "9454f966baa74e0385d6a73b2cb26fbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 21314,
"labels": [
"ANALYSIS"
],
"start": 21139,
"text": "It is obvious that though the suicidal death by hanging had come to the notice to the matrimonial family, they were unable to communicate immediately with the parental family."
}
},
{
"from_name": "label",
"id": "dbbed37a265b4b2bbc641117c374dfb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 21708,
"labels": [
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],
"start": 21315,
"text": " It may be mentioned here itself, that in the said three statements before the SDM, there was no reference made to telephonic or other contact between Rajni and the parental family on the preceding two dates, particularly the telephonic call to PW-2 on 26.05.2012, pursuant to which Rajni, on one hand, and PW-2 and PW-3, on the other had met each other in a temple on 27.05.2012.\n "
}
},
{
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"id": "a18342c37fe74cf88769014df0a1f7a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 21824,
"labels": [
"ANALYSIS"
],
"start": 21708,
"text": "27. As mentioned above, the inquiry remained pending with the SDM till 06.08.2012 without any meaningful action."
}
},
{
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"id": "2b3c1fa011ff4e4ba2d56e2830e7eb24",
"to_name": "text",
"type": "labels",
"value": {
"end": 21939,
"labels": [
"ANALYSIS"
],
"start": 21825,
"text": "In the three statements before the SDM, there was no allegation of any harassment of the deceased woman for dowry."
}
},
{
"from_name": "label",
"id": "73356e87485743f6bb1862dd919d1661",
"to_name": "text",
"type": "labels",
"value": {
"end": 22112,
"labels": [
"ANALYSIS"
],
"start": 21940,
"text": "Though it was indicated that the parental family had suspicion about the death being homicidal, there was no confirmation inasmuch as the autopsy opinion was still awaited."
}
},
{
"from_name": "label",
"id": "86cb09c8d8a546eab27dcfb42038b3d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22255,
"labels": [
"ANALYSIS"
],
"start": 22113,
"text": "As also noticed earlier, the suspicion about the death being homicidal was unfounded, the accusations in that regard having eventually failed."
}
},
{
"from_name": "label",
"id": "13f19393a29f410b8f52fafb03abbc01",
"to_name": "text",
"type": "labels",
"value": {
"end": 22508,
"labels": [
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],
"start": 22255,
"text": "\n 28. The events, however, took a turn in the wake of the complaint dated 18.06.2012 made by PW-4 (Lado Devi) to the various authorities, such complaint reaching, as per the endorsement, the SHO of the police station only on 26.06.2012. "
}
},
{
"from_name": "label",
"id": "d80243af28b74af3818070bf39e8d60e",
"to_name": "text",
"type": "labels",
"value": {
"end": 22573,
"labels": [
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],
"start": 22508,
"text": "The complaint dated 18.06.2012 runs into four type written pages."
}
},
{
"from_name": "label",
"id": "e25105b8c8674b79894cab14498f39a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22706,
"labels": [
"ANALYSIS"
],
"start": 22574,
"text": "It has not been introduced in the evidence formally by the prosecution nor was it used by the defence for any purposes at the trial."
}
},
{
"from_name": "label",
"id": "6c398923060a4a6aab126ec4370e3ef8",
"to_name": "text",
"type": "labels",
"value": {
"end": 22807,
"labels": [
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],
"start": 22707,
"text": "Be that as it may, the same available (at pages 743-749) on the trial court record has been perused."
}
},
{
"from_name": "label",
"id": "7119da2746f647e2b9164d16ab1e628a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22961,
"labels": [
"ANALYSIS"
],
"start": 22807,
"text": "\nThe prime thrust of the allegations therein was to bring the suspicion about murder to the notice of the police authorities to seek action under the law."
}
},
{
"from_name": "label",
"id": "2d3657b547d94b64acfb42597b2b2952",
"to_name": "text",
"type": "labels",
"value": {
"end": 23038,
"labels": [
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],
"start": 22962,
"text": " Nonetheless, accusations were also made about harassment for dowry."
}
},
{
"from_name": "label",
"id": "d6e07057c3ae417c981988738d4875d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 23219,
"labels": [
"ANALYSIS"
],
"start": 23039,
"text": " It is against this backdrop, that after registration of the FIR on 06.8.2012, the investigating officer (PW-20) started recording statements under Section 161 Cr.P.C."
}
},
{
"from_name": "label",
"id": "438fef61c5c8417298b4449d79de68aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 23386,
"labels": [
"ANALYSIS"
],
"start": 23220,
"text": "He recorded the statement of first informant Jagdish Koli (PW-9) vide Ex.PW- 9/DA and that of his wife Sangeeta (PW-1) vide (Ex.PW-1/D2) both on 28.08.2012.\n 29. "
}
},
{
"from_name": "label",
"id": "d955e909e005436aa78e7f5cc7896b93",
"to_name": "text",
"type": "labels",
"value": {
"end": 23529,
"labels": [
"ANALYSIS"
],
"start": 23386,
"text": "In the above said statements under Section 161 Cr.P.C., the witnesses made marked improvements over their version of 29.05.2012 before the SDM."
}
},
{
"from_name": "label",
"id": "774d628496ea4ee0b4e8205fecfc38eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 23823,
"labels": [
"ANALYSIS"
],
"start": 23530,
"text": "They would now accuse the husband and other members of the family including parents, and mama-sasur, of having subjected Rajni to harassment on account of dowry demand, the demand particularly being about a motor cycle, Daya Ram (A-2) being the person who had instigated others in such regard."
}
},
{
"from_name": "label",
"id": "5b3d1dce2aa24b3ab1887311c7fcd60a",
"to_name": "text",
"type": "labels",
"value": {
"end": 23964,
"labels": [
"ANALYSIS"
],
"start": 23824,
"text": "The IO had also recorded the supplementary statement of Jagdish Koli (PW-9) on 07.08.2012 (Ex.PW-9/DB) about certain steps in investigation."
}
},
{
"from_name": "label",
"id": "a64440f9cc63459a8f10848694669b47",
"to_name": "text",
"type": "labels",
"value": {
"end": 24155,
"labels": [
"ANALYSIS"
],
"start": 23964,
"text": "\nAround the same period, statements under Section 161 Cr.P.C. of PW- 2 (Seema), PW-3 (Kamlesh) and PW-4 (Lado Devi) were recorded, such statements making out eventually a case of dowry death."
}
},
{
"from_name": "label",
"id": "688e1c8671df4c21a5cec3bed6a6c8f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 24165,
"labels": [
"ANALYSIS"
],
"start": 24155,
"text": "\n 30. "
}
},
{
"from_name": "label",
"id": "1eff457fb6f2484294de840fa7f8dccf",
"to_name": "text",
"type": "labels",
"value": {
"end": 24473,
"labels": [
"ANALYSIS"
],
"start": 24165,
"text": "Sangeeta (PW-1) and Jagdish Koli (PW-9) spoke about A-2 (Daya Ram) having raised a quarrel (on the date of marriage itself) over non fulfillment of the demand of motorcycle and dowry, the appellants having been pacified at that point of time with assurances that such demand would be fulfilled in due course."
}
},
{
"from_name": "label",
"id": "c99768c0d52c435984bbec90fcebe750",
"to_name": "text",
"type": "labels",
"value": {
"end": 24526,
"labels": [
"ANALYSIS"
],
"start": 24474,
"text": "Similar statements were made by PW-2, PW-3 and PW-4."
}
},
{
"from_name": "label",
"id": "45d5d6d247fa4c6ea594459f4ccffa0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 24615,
"labels": [
"ANALYSIS"
],
"start": 24527,
"text": "There was reference made to the events of marriage having been subjected to videography."
}
},
{
"from_name": "label",
"id": "2c5803c353314ffaa95f2fcd79c6d863",
"to_name": "text",
"type": "labels",
"value": {
"end": 24692,
"labels": [
"ANALYSIS"
],
"start": 24615,
"text": "\nReference was also made to a DVD of such video footage being made available."
}
},
{
"from_name": "label",
"id": "70c9d4d51229483a8b64f528090e2b23",
"to_name": "text",
"type": "labels",
"value": {
"end": 24931,
"labels": [
"ANALYSIS"
],
"start": 24693,
"text": " The investigating officer (PW-20), on his part, during cross-examination, however, confirmed that the DVD footage of the marriage had been seen by him and it did not depict any scene of such quarrel or dispute at the time of marriage."
}
},
{
"from_name": "label",
"id": "cf2e355df9f149f7ae4d75b4e406c85d",
"to_name": "text",
"type": "labels",
"value": {
"end": 25358,
"labels": [
"ANALYSIS"
],
"start": 24932,
"text": "Though, witnesses of the family of the deceased would speak about such quarrel having been raised in loud voices, it having been witnessed by a large number of persons who were attending the marriage, aside from the immediate members of the family, there is no corroboration from any independent quarter, and this includes PW-6 (Nihal Devi) and PW-11 (Kamlesh), who have been neighbours to the appellants in the same locality."
}
},
{
"from_name": "label",
"id": "7ffdd551fb624a7a955e8217adbb5475",
"to_name": "text",
"type": "labels",
"value": {
"end": 25495,
"labels": [
"ANALYSIS"
],
"start": 25358,
"text": "\n 31. During the course of trial, Sangeeta (PW-1) and Jagdish (PW-9) were confronted with their respective statements before the SDM."
}
},
{
"from_name": "label",
"id": "1ac3fb14769a40a8a504803919ff56aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 25835,
"labels": [
"ANALYSIS"
],
"start": 25496,
"text": "It is difficult to accept the allegation from their mouthpiece that the appellants had subjected Rajni to any harassment on account of illicit demands for dowry, inclusive of expectation of a motorcycle, particularly against the backdrop of their first version before the SDM given at the earliest opportune moment on 29.05.2012.\n 32. "
}
},
{
"from_name": "label",
"id": "74243b7a431541f5a1f14c00f277e467",
"to_name": "text",
"type": "labels",
"value": {
"end": 26020,
"labels": [
"ANALYSIS"
],
"start": 25835,
"text": "Thus, the evidence of PW-1 (Sangeeta) and PW-9 (Jagdish Koli) to the extent it relates to the allegations of harassment of Rajni for illicit demands of dowry will have to be kept aside."
}
},
{
"from_name": "label",
"id": "97bb53a3154b4b33bee75810399dac39",
"to_name": "text",
"type": "labels",
"value": {
"end": 26372,
"labels": [
"ANALYSIS"
],
"start": 26021,
"text": "The only circumstances which can be picked up safely from such evidence are the history of quarrels between Rajni, on one hand, and her husband A1 (Fateh Singh), on the other, atleast on two or three occasions in the past, each time the brother (PW-9) having gone to assist the sister (the deceased), but she not confiding in him the background facts."
}
},
{
"from_name": "label",
"id": "65e2fb0a34e743ae9d57ca99f516727c",
"to_name": "text",
"type": "labels",
"value": {
"end": 26602,
"labels": [
"ANALYSIS"
],
"start": 26373,
"text": "The telephonic call that was made by the deceased to PW-1 in the afternoon of 28.05.2012, a few hours before she committed suicide, does indicate that she was perturbed because the mother-in-law (A4) was subjecting her to taunts."
}
},
{
"from_name": "label",
"id": "f7573ce2195044228fc20ff79d809cc2",
"to_name": "text",
"type": "labels",
"value": {
"end": 26729,
"labels": [
"ANALYSIS"
],
"start": 26603,
"text": "But, there is nothing in the evidence to reveal as to what was the root cause of the said verbal issue with the mother-in-law."
}
},
{
"from_name": "label",
"id": "926ea7183c004f519acd612d749a00f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 26864,
"labels": [
"ANALYSIS"
],
"start": 26730,
"text": "There is nothing indicated that the taunts were of such nature as would instigate a person of mature age to proceed to commit suicide."
}
},
{
"from_name": "label",
"id": "78510073c1cf4554b89976e61795fa4c",
"to_name": "text",
"type": "labels",
"value": {
"end": 27015,
"labels": [
"ANALYSIS"
],
"start": 26864,
"text": "\n 33. Thus, the case of the prosecution has to be tested from the view- point of the evidence of PW-2 (Seema), PW-3 (Kamlesh) and PW-4 (Lado Devi)."
}
},
{
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"id": "237b0d5c887e444fad61075af57bdd7e",
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"end": 27076,
"labels": [
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],
"start": 27017,
"text": "34. PW-4, as observed earlier, is an aged widowed lady."
}
},
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"start": 27077,
"text": "She spoke about visits of the deceased to her house, after marriage, she having confided in her that she was not allowed any food and that the appellants would abuse her, she feeling surrounded and haunted, also having been threatened to be killed."
}
},
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"text": "None of the earlier witnesses would speak on these lines."
}
},
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],
"start": 27384,
"text": "Since Jagdish Koli (PW-9) is the elder brother who had arranged the marriage, it is difficult to imagine against the conservative family background from which the parties come, that he would not be privy to such grievances of Rajni."
}
},
{
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"end": 27751,
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"text": "\nNoticeably, in his statement before the SDM, he had informed on 29.05.2012 that he was not aware of any cause of grouse felt by Rajni."
}
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"text": "\nHe also did not mention about any visits of Rajni to the parental home during the said period."
}
},
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"text": "\n 35. PW-2 and PW-3 spoke about the telephonic call of 26.05.2012 leading to a meeting by them with Rajni in a temple in Hari Nagar in the morning hours of 27.05.2012."
}
},
{
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"labels": [
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],
"start": 28018,
"text": "As mentioned earlier, both the said witnesses confirmed that A-1 (Fateh Singh) had also accompanied Rajni at that point of time though they would refer to their conversation as one in confidence in the privacy of toilets."
}
},
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"end": 28442,
"labels": [
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],
"start": 28240,
"text": "As per PW-2, during the said meeting, Rajni had disclosed that A-1, A-4 and sisters-in-law (who were not prosecuted) would beat her up demanding dowry as they were not satisfied with the dowry articles."
}
},
{
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"end": 28493,
"labels": [
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],
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"text": "\n He stated that Rajni appeared weak and perturbed."
}
},
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"end": 28600,
"labels": [
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],
"start": 28494,
"text": "She had statedly told that she was having some injury on her back which had been inflicted by A-1 and A-4."
}
},
{
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"end": 28972,
"labels": [
"ANALYSIS"
],
"start": 28601,
"text": " PW-3 while deposing about the said meeting with Rajni on 27.05.2012 instead spoke about harassment not only by the husband and mother-in-law but also by mama-sasur and both sisters, adding the name of Mohit, the younger brother of the husband, the last attributable to some theft of cash from her almirah, Mohit having rebuked her for having locked the almirah."
}
},
{
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"value": {
"end": 29115,
"labels": [
"ANALYSIS"
],
"start": 28972,
"text": "\n 36. The evidence of PW-2 and PW-3 about exchange of words with Rajni in the temple in the morning of 27.05.2012 is not on the same lines."
}
},
{
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"id": "eb789068c7684edd9c5a0d11655b71ee",
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"value": {
"end": 29214,
"labels": [
"ANALYSIS"
],
"start": 29116,
"text": "Both spoke differently, though A-1 (Fateh Singh) and A-4 (Raj Kumari) would remain common factors."
}
},
{
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"id": "d389178982b9439eb51e1b760c7c36de",
"to_name": "text",
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"value": {
"end": 29360,
"labels": [
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],
"start": 29215,
"text": "The reference in their statements to physical beating having resulted in some injury on the back of Rajni is not supported by any other evidence."
}
},
{
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"id": "5d8e3609ba66404ba35e81aca69f063e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29481,
"labels": [
"ANALYSIS"
],
"start": 29361,
"text": "The learned Additional Public Prosecutor conceded that neither the MLC nor the autopsy report would confirm this aspect."
}
},
{
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"id": "78ac70ccfdd04371bfa670540ffab1bb",
"to_name": "text",
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"value": {
"end": 29716,
"labels": [
"ANALYSIS"
],
"start": 29482,
"text": " The theory of dispute involving Mohit concerning theft of cash from the almirah of Rajni indicates that possibility of grouses other than those arising out of dowry harassment being the root cause cannot be ruled out.\n 37. "
}
},
{
"from_name": "label",
"id": "079a05ef25aa4d9484efe5b5bfb3a799",
"to_name": "text",
"type": "labels",
"value": {
"end": 29900,
"labels": [
"ANALYSIS"
],
"start": 29716,
"text": "In the above mentioned facts and circumstances, the evidence of PW-2, PW-3 and PW-4 about harassment meted out to the deceased in the matrimonial home is also not found to be credible."
}
},
{
"from_name": "label",
"id": "c950bf94ab8c48b49a6c01dbc94bf124",
"to_name": "text",
"type": "labels",
"value": {
"end": 30012,
"labels": [
"ANALYSIS"
],
"start": 29901,
"text": "Mystery remains as to why Rajni felt constrained to commit suicide within less than six months of her marriage."
}
},
{
"from_name": "label",
"id": "95d327117bbb4e0c99cd40d7edbc6ae3",
"to_name": "text",
"type": "labels",
"value": {
"end": 30164,
"labels": [
"ANALYSIS"
],
"start": 30013,
"text": "Some clue in this regard possibly lies in the revelations made by Jagdish Koli (PW-9) that Rajni was not keeping well and she had been under treatment."
}
},
{
"from_name": "label",
"id": "957a2d7804924359bceaa46ffa0f8b4c",
"to_name": "text",
"type": "labels",
"value": {
"end": 30386,
"labels": [
"RATIO"
],
"start": 30165,
"text": "The investigation unfortunately did not dig out any material as to what kind of ailment Rajni was suffering from and as to whether it could or would have any connection with the possible reasons for her to commit suicide."
}
},
{
"from_name": "label",
"id": "2662af441a224a3f967bc5761c5e745b",
"to_name": "text",
"type": "labels",
"value": {
"end": 30517,
"labels": [
"RATIO"
],
"start": 30386,
"text": "\n 38. Be that as it may, from the above facts and circumstances, this court finds it difficult to uphold the impugned judgment."
}
},
{
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"id": "a254fb140e95471393dd11dd7b62f93f",
"to_name": "text",
"type": "labels",
"value": {
"end": 30700,
"labels": [
"RATIO"
],
"start": 30518,
"text": "Sufficient evidence has not come up to invoke presumption under Section 113-B of Indian Evidence Act or, for that matter presumption under Section 113-A of Indian Evidence Act, 1872."
}
},
{
"from_name": "label",
"id": "75cdd8fed7dc4611b152f0c2938a9826",
"to_name": "text",
"type": "labels",
"value": {
"end": 30774,
"labels": [
"RPC"
],
"start": 30701,
"text": "In the result, the impugned judgment and order on sentence are set aside."
}
},
{
"from_name": "label",
"id": "ad2489c39c9a4c09b8b3e0c20a658505",
"to_name": "text",
"type": "labels",
"value": {
"end": 30808,
"labels": [
"RPC"
],
"start": 30775,
"text": "All the appellants are acquitted."
}
},
{
"from_name": "label",
"id": "84ea7779c3de48568aee2a83ec57fa56",
"to_name": "text",
"type": "labels",
"value": {
"end": 30965,
"labels": [
"RPC"
],
"start": 30808,
"text": "\n 39. Appellant Fateh Singh continues to be in custody, while other appellants were enlarged by order dated 25.02.2019 on bail pending hearing on appeal."
}
},
{
"from_name": "label",
"id": "2626228128ec408b8beaea05b8629c09",
"to_name": "text",
"type": "labels",
"value": {
"end": 31029,
"labels": [
"RPC"
],
"start": 30966,
"text": "Appellant Fateh Singh shall be released from custody forthwith."
}
},
{
"from_name": "label",
"id": "1eae610eec064a9c911b2e4147d1de8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 31099,
"labels": [
"RPC"
],
"start": 31030,
"text": "Bail bonds and surety bonds of the other appellants stand discharged."
}
},
{
"from_name": "label",
"id": "48c07bc7aeac4654b24536c034da2814",
"to_name": "text",
"type": "labels",
"value": {
"end": 31151,
"labels": [
"RPC"
],
"start": 31099,
"text": "\n 40. Trial court record be sent back forthwith."
}
},
{
"from_name": "label",
"id": "c7a92cc35fb14908a0def97b14c49ae7",
"to_name": "text",
"type": "labels",
"value": {
"end": 31211,
"labels": [
"RPC"
],
"start": 31151,
"text": "\n 41. Both the appeals stand disposed of in above terms."
}
},
{
"from_name": "label",
"id": "8dcfe58f5b214b5c8cfc56edf9f8cd3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 31245,
"labels": [
"NONE"
],
"start": 31211,
"text": "\n R.K.GAUBA, J.\n APRIL 02, 2019 vk"
}
}
]
}
] | 1,754 | {
"text": "$~23 & 24 (common order)\n IN THE HIGH COURT OF DELHI AT NEW DELHI\n Decided on: 2nd April, 2019\n+ CRL.A. 53/2019\n DAYA RAM ..... Appellant\n Through: Mr. R.K. Tarun, Advocate with\n Mr. K.K. Sharma, Adv. &\n Mr. Shubham Prajapati,\n Advocates\n versus\n\n THE STATE ..... Respondent\n Through: Mr. Sanjeev Sabharwal, APP\n for the State with SI Roshan\n Lal, PS Kotla Mubarakpur.\n+ CRL.A. 121/2019\n FATEH SINGH & ORS ..... Appellants\n Through: Mr. M. Naushad, Advocate\n\n versus\n\n THE STATE (GOVT OF NCT DELHI) & ORS\n ..... Respondents\n Through: Mr. Sanjeev Sabharwal, APP\n for the State with SI Roshan\n Lal, PS Kotla Mubarakpur.\nCORAM:\nHON'BLE MR. JUSTICE R.K.GAUBA\n\n JUDGMENT (ORAL) 1. The appellants have been held guilty and convicted and sentenced in case arising out of first information report (FIR) No.168/2012 of Police Station Kotla Mubarakpur for offences under Sections 498-A/304-B/34 of Indian Penal Code, 1860 (IPC) by the court of sessions, by judgment dated 17.12.2018 and order on sentence dated 19.12.2018, passed in Sessions case No.2433/16. By these appeals, they have challenged the said judgment and order on sentence.\n 2. Rajni, fourth amongst seven siblings, then aged about 24 years, she being daughter of late Shri Ghansi Ram and Lado Devi (PW-4) was married on 03.12.2011 to appellant Fateh Singh (A1), the latter being the son of appellant Puran Lal (A3) and Raj Kumari (also known as Natho Devi) (A4). After marriage, she started living in matrimonial home, i.e., C-343, Shradhanand Gali, Nanakchand Basti, Kotla Mubarakpur, Delhi where her husband (A1), his parents (A3) and (A4) besides other members of the family including Mohit, younger brother of the husband, would also reside. The parental home of Rajni was house No.D-194, Sakurpur J.J. Colony, Delhi-110034, within the jurisdiction of Police Station Subhash Place where her widowed mother (PW-4) along with other children would live. It may be mentioned here that the parental family included elder brother Jagdish Koli (PW-9) and two sisters viz. Seema (PW-2) and Kamlesh (PW-3) (one unmarried and other divorcee). The family also included Sangeeta (PW-1), wife of elder brother Jagdish Koli (PW-9). One of the married sisters Premo Devi would live elsewhere in house No.E- 360, Prem Nagar, Nangloi, Delhi-110 041, Ram Preet (PW-8) being her husband.\n 3. On 28.05.2012, Rajni was found hanging by the neck in the matrimonial home. There is evidence brought on record by the prosecution, as also by the defence, showing the room where Rajni was found in such state, was closed from within, the door required to be broken open. It appears that upon some intimation telephonically received by the brother (PW-9) he along with his wife (PW-1) had reached the matrimonial home - they found the dead body lying on the ground, their arrival apparently being after Rajni had been brought down from the position of hanging. Eventually, Rajni was shifted to All India Institute of Medical Sciences (AIIMS), the medico-legal certificate (MLC) in her respect having been recorded (vide Ex.PW- 22/B), there and indicating she to have been brought dead to the casualty at 02:28:33 hours on 29.05.2012.\n 4. The police was informed about the death vide DD No.45-A (Ex.PW-21/B) at 10:42 p.m. on 25.05.2012, this being preceded by another telephonic information vide DD No.44-A (Ex.PW21/A) at 10:30 p.m. on 28.05.2012. The matter was inquired into by SI Vishal Choudhary (PW-20), who was accompanied by Constable Ankit (PW- 12). Amongst the various steps that were taken by PW-20 (the Investigating officer), information was conveyed to Dr. R.K.\nAggarwal (PW-10), who was working at the relevant point of time as Sub-Divisional Magistrate (SDM), the dead body having been shifted for the purpose of autopsy to the mortuary of AIIMS. The autopsy was carried out by Dr. Shashank Poonia (PW-21), his report (Ex.PW21/A), read with subsequent opinion (Ex.PW-21/B), and Forensic Science Laboratory (FSL) report (Ex.PW22/A) leaving no room for doubt that the death had occurred due to asphyxia on account of ante-mortem hanging, the possibility of poisoning having been ruled out on examination of the viscera that had been preserved.\n 5. In the initial intimation (while DD No.45-A), suspicion had been raised by the parental family, particularly brother Jagdish Koli (PW-9) that Rajni had been intentionally done to death, so as to render it a case of murder. Statements (Ex.PW9/F and Ex.PW1/D1 respectively) to this effect were made by him (PW-9) and his wife (PW-1) before the SDM on 29.05.2012. It may be added here that during the inquest proceedings on 29.05.2012, the SDM had also examined Ram Preet (PW8), his statement (Ex.PW8/B), however, being non-committal inasmuch as he only pointed out some injury marks on the neck of Rajni, he being not clear as to how she may have died.\n 6. Be that as it may, the investigation could not bring out any evidence to support the allegations of it being a case of culpable homicide, the autopsy report (particularly the final opinion given by the autopsy doctor), and the circumstances in which the dead body had been discovered, as reflected, inter alia, by the evidence of at least two neighbours – Nihal Devi (PW-6) and Kamlesh (PW-11) – leaving no room for doubt that Rajni had committed suicide by hanging herself by the neck, it leading to asphyxia.\n 7. While the inquiry was pending before the SDM, Lado Devi (PW-4) mother of Rajni (hereinafter, the deceased) made a complaint to various authorities on 18.06.2012, the addressees including, amongst others, the Commissioner of Police, the Deputy Commissioner of Police of the area and the Station House Officer (SHO) of the police station. In the said complaint, she reiterated her suspicion that her daughter had been killed narrating in that context certain events which showed that Rajni had been subjected to cruelty for dowry in the matrimonial home by the husband and some of the relatives. Against the said backdrop, on 06.08.2012, the SDM issued a directive (Ex.PW10/G) to the SHO of Police Station Kotla Mubarakpur calling him upon to “take necessary action as per law in the matter of Rajni” referring in this context to DD No.45-A, dated 28.05.2012. In the entire proceedings, as indeed in the statement of the SDM (PW-10), there is no clarity as to what had prompted the SDM to “recommend” the registration of the FIR against the backdrop of the statements which had been recorded by him after examining Jagdish Kohli (PW-9), Sangeeta (PW-1) and Ram Preet (PW-8).\n 8. Be that as it may, upon receipt of the aforementioned directions of the SDM, and in express compliance thereof, the investigating officer (PW-20) to whom the said order had been made over by the SHO, recorded an endorsement (Ex.PW-20/A) in continuation of the statement (Ex.PW9/F) of Jagdish Koli (PW-9) seeking from the duty officer registration of first information report (FIR) for offences under sections 498A/304-B and 34 IPC, and pursuant to the said endorsement, the duty officer ASI Raj Kumar (PW-16) registered the FIR (Ex.PW16/A) at 10:30 p.m. on 06.08.2012, more than two months after the event of unnatural death.\n 9. During the course of the investigation by SI Vishal Choudhary (PW-20) amongst others steps, he recorded the statements of Jagdish Koli (PW-9), his wife Sangeeta (PW1), his mother Lado Devi (PW-4), his sister Seema (PW-2) and Kamlesh (PW-3), besides those of other relevant witnesses. Based primarily on the said evidence, and some confirmation from the call detail records (CDR) of at least three mobile telephone numbers which had statedly been in use of the individuals involved, a report (charge sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was submitted on 23.11.2012 in the Court of Metropolitan Magistrate (MM) seeking trial for offences under Sections 498-A/304-B/201/34 IPC.\n 10. Upon cognizance being taken by the concerned Metropolitan Magistrate, it leading to issuance of process, four persons came to be put on trial they including Fateh Singh (A1), Daya Ram (A2), Puran Lal (A3) and Rajkumari @ Natho Devi (A4), the charges framed against them on 07.11.2013 being primarily for offences under Sections 498-A and Section 304-B IPC read with Section 34 IPC. The trial court also framed an alternative charge under Section 302 read with Section 34 IPC.\n 11. The prosecution led evidence by examining twenty-five witnesses, they including Sangeeta (PW-1), sister-in-law of Rajni (deceased); Seema (PW-2), younger sister of the deceased; Kamlesh (PW-3), elder sister of the deceased; Lado Devi (PW-4), mother of the deceased; Constable Jagdish (PW-5), who had gone to the house of the accused and arrested him vide memo (Ex PW-5/A); Nihal Devi (PW- 6), neighbour of the deceased; Constable Rajeev Kumar (PW-7), who had gone to the mortuary of AIIMS for the post mortem examination on the dead body of the deceased; Rampreet (PW-8), sister-in-law of the deceased; Jagdish Koli (PW-9), brother of the deceased; Dr. R.K.\nAggarwal (PW-10), Superintendent of Department Training and Technical Education; Kamlesh (PW-11), neighbour of the deceased; Constable Ankit (PW-12), who had taken the dead body to the mortuary of AIIMS and seized certain articles; Israr Babu (PW-13), Alternate Nodal Officer of Vodafone Mobile Services; Constable Satyapal Sharma (PW-14), who had collected sealed envelope along with the sample seal and taken the same to FSL, Rohini; Inspector Naresh Kumar (PW-15), who had inspected the spot and prepared report in such regard (Ex.P/W-15/A); ASI Raj Kumar (PW-16), who had registered the FIR No.168/12; Head Constable Kapil (PW-17), who had gone to the place of incident and taken the photographs; Sarvesh Kumar (PW-18), Nodal Officer of Idea Cellular Ltd.; Constable Kavita (PW-19), who recorded the statement of some of the witnesses; SI Vishal Choudhary (PW-20), the investigating officer (IO); Dr. Shashank Pooniya (PW-21), Ex-senior resident of AIIMS Hospital, who had conducted the post-mortem examination on the dead body of the deceased; Retired S.I. Balbir Singh (also examined as PW-21 and so referred to as PW-21-A) duty officer at Police Station Kotla Mubarakpur; Dr. Lingaraj Sahoo (PW-22), Senior Scientific Officer, Chemistry, FSL; Dr. Yogesh Kumar Meena (also examined as PW-22 and so referred to as PW22-A), Senior resident (surgery), AIIMS, who proved MLC No.54514 of deceased Rajni; and Surender Kumar (PW-23), Nodal Officer at Bharti Airtel Ltd., who proved call details record of A1 (Fateh Singh).\n 12. The evidence led by the prosecution was put to the accused persons (now appellants before this court). While admitting the evidence about the marriage of Rajni with Fateh Singh (A-1) on 03.12.2011, and her unnatural death in the matrimonial home on 28.05.2012, the evidence showing cruelty having been meted out to her in the matrimonial home, particularly, on account of dowry was denied and disputed.\n 13. It may be mentioned here that Daya Ram (A-2) is cousin brother of Raj Kumari (A-4) and, therefore, is treated by Fateh Singh (A-1) as maternal uncle (mama) and consequently, he has been referred to as mama-sasur in relation to the deceased Rajni. Certain role in the context of alleged cruelty for dowry is attributed to him by some of witnesses.\n 14. After the statements under Section 313 Cr.PC. had been recorded, the accused persons were called upon to adduce evidence in defence. Geeta (DW1), a relative of the appellants was examined primarily to bring on record the circumstances in which the fact of Rajni having committed suicide was discovered. Daya Ram (A-2) entered the witness box (as DW2), also supporting the word of DW1 in above regard, he claiming to have been present at the scene on account of a social visit.\n 15. The learned Additional Session Judge considered the evidence brought on record and, by his judgment dated 17.12.2018, concluded that the alternative charge under Section 302 read with Section 34 IPC had not been brought home, his findings indicating acceptance of the theory that Rajni had committed suicide. The trial court accepted the evidence of prosecution witnesses, particularly Jagdish Koli (PW-9), Sangeeta (PW-1), Seema (PW-2), Kamlesh (PW-3) and Lado Devi (PW-4) as to cruelty for dowry having been meted out to Rajni in the matrimonial home, soon before her death and in unnatural circumstances. On these conclusions, the appellants were held guilty and convicted on the charge for offences under Sections 498A/304-B read with Section 34 IPC.\n 16. By order dated 19.12.2018, the trial court awarded simple imprisonment for three years with fine of Rs.50,000/- each for offence under Section 498-A read with section 34 IPC, and simple imprisonment for ten years for offence under Section 304-B read with Section 34 IPC. It was directed that both the sentences would run concurrently, the benefit of set off under Section 428 Cr.P.C. having been accorded.\n 17. The arguments on the appeals have been heard at length and the record has been perused with assistance from both sides.\n 18. The charge under Section 302 read with section 34 of IPC had not been pressed by the investigating agency. It was framed by the trial court as an alternative charge. The said charge could not be proved, as is shown by the finding returned by the trial court. The State has not challenged the judgment of the trial court to that extent by any appeal or petition. The findings to that extent have attained finality and, thus, the accusations to such effect will have to be kept aside; all the more so because on the basis of available evidence, such charge cannot succeed, it being clear from the evidence on both sides that the room where Rajni was found hanging by the neck, she apparently having died before her body was shifted to AIIMS, was closed from inside, there being no credence to the suspicion that she may have been killed, the injury mark on the neck to which some reference was made by the members of parental family being the mark caused by the ligature, as is substantiated by photographs of the dead body which were brought on record. Thus, the other evidence requires to be re-appreciated, while accepting the conclusion of the trial court that Rajni had indeed committed suicide.\n 19. The marriage of Rajni with Fateh Singh (A-1) had taken place on 03.12.2011. It is indeed shocking that she was constrained to commit suicide in the matrimonial home on 28.05.2012. But, it is the reasons that may have impelled her to commit suicide which would be crucial. In these circumstances, the court has to examine, particularly on account of charge under Section 304-B IPC, to find out as to whether there is any evidence available to show that soon before her death she had been subjected by the husband or members of the matrimonial family, to cruelty or harassment for or in connection with any demand for dowry. The trial court has answered the said query in the affirmative and on the basis of such conclusion has applied the presumption under Section 113-B of the Indian Evidence Act, 1872 to hold the appellants guilty of the charge under Section 304-B IPC, the accusations relevant to the charge under Section 498-A IPC being inherent in the gravamen of the charge for the former offence.\n 20. From the above perspective, the case hangs in balance on the testimonies of Jagdish Koli (PW-9), Sangeeta (PW-1), Seema (PW-2), Kamlesh (PW-3), Lado Devi (PW-4) and Ram Preet (PW-8). The evidence of the said witnesses has been subjected to acute scrutiny by this court. It will be appropriate to deal with them seriatim.\n 21. It is clear from the evidence that her father having died earlier, the mother (PW-4) being a widowed illiterate lady, the responsibility of settling Rajni in marriage had fallen upon her brother Jagdish Koli (PW-9). He is on record to state that it is he who had arranged the marriage with great pomp and show, having spent sufficient amount of money. Undoubtedly, the mother (PW-4) would have also chipped in for finances, she obviously having been party to the arrangements throughout.\n 22. The evidence of the above mentioned witnesses of the parental family of the deceased clearly demonstrates that they hail from Rajasthan where the widowed mother of the deceased had certain landed property for sale of which she appeared to have been away around the time when the unfortunate event took place. Be that as it may, they appear to be a close-knit family, who would be thick with each other, assisting and supporting those in distress. One of the sisters who were living with Jagdish Koli (PW-9) under the same roof include Kamlesh (PW-3), who is stated to be a divorcee. There is evidence brought on record showing a telephonic contact made by the deceased on 26.05.2012 with her sisters (PW-2) and (PW-3) who, pursuant to her entreaties, had met her in a temple on 27.05.2012.\nNoticeably, PW-2 and PW-3 would speak about said meeting though also confirming that Rajni had been accompanied at that point of time by her husband Fateh Singh (A-1).\n 23. The prosecution evidence brought out through mouthpiece of Jagdish Koli (PW-9) and Sangeeta (PW-1) reveals that on 28.05.2012, the deceased had called the latter on her phone at about 3-4 p.m.\ninforming her about ill treatment at the hands of the mother-in-law (A- 4). It is stated that Rajni sounded to be in distress and wanted the parental family to assist her or else she would be constrained to leave the matrimonial home. The evidence shows that PW-1 had tried to soothe her with some assurances and then informed her husband (PW- 9). After some time, at about 4–5 p.m., Fateh Singh (A-1) had called Sangeeta (PW-1) on her mobile phone telling her that Rajni was in serious condition and was being shifted to Safdarjung hospital. It is stated that after some time, A-1 again rang up to inform PW-9 that Rajni had died. It is against this backdrop that PW-9 accompanied by his wife PW-1, and followed by his brother-in-law (PW-8), had reached the matrimonial home of Rajni finding her dead body lying there with the injury mark on the neck, which had given reason to their suspicion that she had been killed.\n 24. When the aforementioned three witnesses were examined by the SDM on 29.05.2012, there was no allegation of any history of ill treatment to Rajni on account of demands of dowry. Though Rampreet (PW-8) was totally silent on this issue, his statement (Ex.PW-8/B) not even indicating any questioning on this score, he nonetheless expressly stated that Rajni was living after marriage with her husband happily, (“शादी के बाद रजनी अपने पति फ़िेह स हिं के ाथ ख़श ु ी े रह रही थी”). Jagdish Koli (PW-9) and Sangeeta (PW-1), in contrast, by their respective statements (Ex.PW-9/F and Ex.PW-1/D1) before SDM had totally ruled out any harassment on account of dowry demands. PW-9 stated that neither Fateh Singh (A-1) nor any members of his family had ever made any demand of dowry from him or any members of his family (“मेरे दामाद फ़िेह स हिं िथा उ के पररवार वाऱो ने मझ ु े िथा मेरे पररवार के कक ी भी दस्य े कभी दहे ज़ की कोई मािंग नहीिं की”), similar statement being made by PW-1, (“मेरे नन्दोई फ़िेह स हिं िथा उ के पररवार वाऱो ने हम े कभी कोई दहे ज़ की मािंग नहीिं की”).\n 25. In their respective statements before the SDM, PW-9 and PW-1, however, spoke about there having been two or three other occasions wherein Rajni (the deceased) had had quarrels with her husband (A-1).\nPW-9 informed the SDM, and PW-1 confirmed her husband in such regard, that upon information being given about the quarrels by his sister (the deceased), he had gone to meet her in the matrimonial home but she was unable to say anything to him. (“ऱेककन जब मैं उ के पा जािा था िो वह कुछ कह नहीिं पािी थी ”).\n 26. PW-9 and PW-1 narrated the sequence of events of 28.05.2012, wherein the first telephonic call had come from the deceased on the mobile phone of PW-1 at about 3/4 p.m. wherein she had informed that A-1 was harassing her by taunts (“उ की ा (नत्थो दे वी) उ े िाने मार रही है ”) and that she was threatening to leave the matrimonial home.\n This was followed by the telephonic call at about 4/5 p.m. from A-1, initially indicating that Rajni was unwell but later confirming she to have died. It is obvious that though the suicidal death by hanging had come to the notice to the matrimonial family, they were unable to communicate immediately with the parental family. It may be mentioned here itself, that in the said three statements before the SDM, there was no reference made to telephonic or other contact between Rajni and the parental family on the preceding two dates, particularly the telephonic call to PW-2 on 26.05.2012, pursuant to which Rajni, on one hand, and PW-2 and PW-3, on the other had met each other in a temple on 27.05.2012.\n 27. As mentioned above, the inquiry remained pending with the SDM till 06.08.2012 without any meaningful action. In the three statements before the SDM, there was no allegation of any harassment of the deceased woman for dowry. Though it was indicated that the parental family had suspicion about the death being homicidal, there was no confirmation inasmuch as the autopsy opinion was still awaited. As also noticed earlier, the suspicion about the death being homicidal was unfounded, the accusations in that regard having eventually failed.\n 28. The events, however, took a turn in the wake of the complaint dated 18.06.2012 made by PW-4 (Lado Devi) to the various authorities, such complaint reaching, as per the endorsement, the SHO of the police station only on 26.06.2012. The complaint dated 18.06.2012 runs into four type written pages. It has not been introduced in the evidence formally by the prosecution nor was it used by the defence for any purposes at the trial. Be that as it may, the same available (at pages 743-749) on the trial court record has been perused.\nThe prime thrust of the allegations therein was to bring the suspicion about murder to the notice of the police authorities to seek action under the law. Nonetheless, accusations were also made about harassment for dowry. It is against this backdrop, that after registration of the FIR on 06.8.2012, the investigating officer (PW-20) started recording statements under Section 161 Cr.P.C. He recorded the statement of first informant Jagdish Koli (PW-9) vide Ex.PW- 9/DA and that of his wife Sangeeta (PW-1) vide (Ex.PW-1/D2) both on 28.08.2012.\n 29. In the above said statements under Section 161 Cr.P.C., the witnesses made marked improvements over their version of 29.05.2012 before the SDM. They would now accuse the husband and other members of the family including parents, and mama-sasur, of having subjected Rajni to harassment on account of dowry demand, the demand particularly being about a motor cycle, Daya Ram (A-2) being the person who had instigated others in such regard. The IO had also recorded the supplementary statement of Jagdish Koli (PW-9) on 07.08.2012 (Ex.PW-9/DB) about certain steps in investigation.\nAround the same period, statements under Section 161 Cr.P.C. of PW- 2 (Seema), PW-3 (Kamlesh) and PW-4 (Lado Devi) were recorded, such statements making out eventually a case of dowry death.\n 30. Sangeeta (PW-1) and Jagdish Koli (PW-9) spoke about A-2 (Daya Ram) having raised a quarrel (on the date of marriage itself) over non fulfillment of the demand of motorcycle and dowry, the appellants having been pacified at that point of time with assurances that such demand would be fulfilled in due course. Similar statements were made by PW-2, PW-3 and PW-4. There was reference made to the events of marriage having been subjected to videography.\nReference was also made to a DVD of such video footage being made available. The investigating officer (PW-20), on his part, during cross-examination, however, confirmed that the DVD footage of the marriage had been seen by him and it did not depict any scene of such quarrel or dispute at the time of marriage. Though, witnesses of the family of the deceased would speak about such quarrel having been raised in loud voices, it having been witnessed by a large number of persons who were attending the marriage, aside from the immediate members of the family, there is no corroboration from any independent quarter, and this includes PW-6 (Nihal Devi) and PW-11 (Kamlesh), who have been neighbours to the appellants in the same locality.\n 31. During the course of trial, Sangeeta (PW-1) and Jagdish (PW-9) were confronted with their respective statements before the SDM. It is difficult to accept the allegation from their mouthpiece that the appellants had subjected Rajni to any harassment on account of illicit demands for dowry, inclusive of expectation of a motorcycle, particularly against the backdrop of their first version before the SDM given at the earliest opportune moment on 29.05.2012.\n 32. Thus, the evidence of PW-1 (Sangeeta) and PW-9 (Jagdish Koli) to the extent it relates to the allegations of harassment of Rajni for illicit demands of dowry will have to be kept aside. The only circumstances which can be picked up safely from such evidence are the history of quarrels between Rajni, on one hand, and her husband A1 (Fateh Singh), on the other, atleast on two or three occasions in the past, each time the brother (PW-9) having gone to assist the sister (the deceased), but she not confiding in him the background facts. The telephonic call that was made by the deceased to PW-1 in the afternoon of 28.05.2012, a few hours before she committed suicide, does indicate that she was perturbed because the mother-in-law (A4) was subjecting her to taunts. But, there is nothing in the evidence to reveal as to what was the root cause of the said verbal issue with the mother-in-law. There is nothing indicated that the taunts were of such nature as would instigate a person of mature age to proceed to commit suicide.\n 33. Thus, the case of the prosecution has to be tested from the view- point of the evidence of PW-2 (Seema), PW-3 (Kamlesh) and PW-4 (Lado Devi).\n 34. PW-4, as observed earlier, is an aged widowed lady. She spoke about visits of the deceased to her house, after marriage, she having confided in her that she was not allowed any food and that the appellants would abuse her, she feeling surrounded and haunted, also having been threatened to be killed. None of the earlier witnesses would speak on these lines. Since Jagdish Koli (PW-9) is the elder brother who had arranged the marriage, it is difficult to imagine against the conservative family background from which the parties come, that he would not be privy to such grievances of Rajni.\nNoticeably, in his statement before the SDM, he had informed on 29.05.2012 that he was not aware of any cause of grouse felt by Rajni.\nHe also did not mention about any visits of Rajni to the parental home during the said period.\n 35. PW-2 and PW-3 spoke about the telephonic call of 26.05.2012 leading to a meeting by them with Rajni in a temple in Hari Nagar in the morning hours of 27.05.2012. As mentioned earlier, both the said witnesses confirmed that A-1 (Fateh Singh) had also accompanied Rajni at that point of time though they would refer to their conversation as one in confidence in the privacy of toilets. As per PW-2, during the said meeting, Rajni had disclosed that A-1, A-4 and sisters-in-law (who were not prosecuted) would beat her up demanding dowry as they were not satisfied with the dowry articles.\n He stated that Rajni appeared weak and perturbed. She had statedly told that she was having some injury on her back which had been inflicted by A-1 and A-4. PW-3 while deposing about the said meeting with Rajni on 27.05.2012 instead spoke about harassment not only by the husband and mother-in-law but also by mama-sasur and both sisters, adding the name of Mohit, the younger brother of the husband, the last attributable to some theft of cash from her almirah, Mohit having rebuked her for having locked the almirah.\n 36. The evidence of PW-2 and PW-3 about exchange of words with Rajni in the temple in the morning of 27.05.2012 is not on the same lines. Both spoke differently, though A-1 (Fateh Singh) and A-4 (Raj Kumari) would remain common factors. The reference in their statements to physical beating having resulted in some injury on the back of Rajni is not supported by any other evidence. The learned Additional Public Prosecutor conceded that neither the MLC nor the autopsy report would confirm this aspect. The theory of dispute involving Mohit concerning theft of cash from the almirah of Rajni indicates that possibility of grouses other than those arising out of dowry harassment being the root cause cannot be ruled out.\n 37. In the above mentioned facts and circumstances, the evidence of PW-2, PW-3 and PW-4 about harassment meted out to the deceased in the matrimonial home is also not found to be credible. Mystery remains as to why Rajni felt constrained to commit suicide within less than six months of her marriage. Some clue in this regard possibly lies in the revelations made by Jagdish Koli (PW-9) that Rajni was not keeping well and she had been under treatment. The investigation unfortunately did not dig out any material as to what kind of ailment Rajni was suffering from and as to whether it could or would have any connection with the possible reasons for her to commit suicide.\n 38. Be that as it may, from the above facts and circumstances, this court finds it difficult to uphold the impugned judgment. Sufficient evidence has not come up to invoke presumption under Section 113-B of Indian Evidence Act or, for that matter presumption under Section 113-A of Indian Evidence Act, 1872. In the result, the impugned judgment and order on sentence are set aside. All the appellants are acquitted.\n 39. Appellant Fateh Singh continues to be in custody, while other appellants were enlarged by order dated 25.02.2019 on bail pending hearing on appeal. Appellant Fateh Singh shall be released from custody forthwith. Bail bonds and surety bonds of the other appellants stand discharged.\n 40. Trial court record be sent back forthwith.\n 41. Both the appeals stand disposed of in above terms.\n R.K.GAUBA, J.\n APRIL 02, 2019 vk "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "5ebe77114ea84e90819be1a0fd1a6406",
"to_name": null,
"type": null,
"value": {
"end": 413,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, BOMBAY\n\n Vs.\n\nRESPONDENT:\nM/S. DWARKADAS KHETAN & CO.\n\nDATE OF JUDGMENT:\n01/12/1960\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nKAPUR, J.L.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 680 1961 SCR (2) 821\n\nCITATOR INFO : (8)\n (23)\nE 1966 SC 15\n\nMV 1966 SC1490\n\nACT:\nIncome Tax--Partnership firm including minor,"
}
},
{
"from_name": null,
"id": "47f7678ceedb4686bc5b9d97c833311a",
"to_name": null,
"type": null,
"value": {
"end": 724,
"labels": [
"PREAMBLE"
],
"start": 414,
"text": "if can be\nregistered--Indian Income-tax Act, 1922 (11 of 1922), S.\n26A--Indian Partnership Act, 1932 (IX of 1932), s. 30.\n\nHEADNOTE:\nOne of the persons who entered into a partnership was a\nminor and in the instrument of partnership he was described\nas a full partner with equal rights and obligations with the\n"
}
},
{
"from_name": null,
"id": "d6d45cf70c2c4ed5958e8825d18bdc6a",
"to_name": null,
"type": null,
"value": {
"end": 744,
"labels": [
"PREAMBLE"
],
"start": 724,
"text": "other adult partners"
}
},
{
"from_name": null,
"id": "53347ee632194b0988a9faacfefba5e9",
"to_name": null,
"type": null,
"value": {
"end": 993,
"labels": [
"PREAMBLE"
],
"start": 744,
"text": ". The deed of partnership which was\nsigned by the minor was produced before th e Registrar of\nFirms f or registration and he granted a certificate showing\nthe minor as a full partner and not as one entitled merely\nto the benefits of the partnership."
}
},
{
"from_name": null,
"id": "5e878dca2e744b27bd47e75bebad83a0",
"to_name": null,
"type": null,
"value": {
"end": 1194,
"labels": [
"PREAMBLE"
],
"start": 994,
"text": "The Income-tax Officer,\nhowever, refused to register the firm under S. 26A of the\nIndian Income-tax Act and his decision was upheld by the\nIncome-tax Authorities and the Income-tax Appellate\nTribunal."
}
},
{
"from_name": null,
"id": "9a05a01318fd496cb42711f517774920",
"to_name": null,
"type": null,
"value": {
"end": 1281,
"labels": [
"PREAMBLE"
],
"start": 1195,
"text": "The High Court differed from the Tribunal and\nheld that the firm should be registered."
}
},
{
"from_name": null,
"id": "1e135e3515a5439c86ca3ba5115b6937",
"to_name": null,
"type": null,
"value": {
"end": 1496,
"labels": [
"PREAMBLE"
],
"start": 1282,
"text": "On appeal by the\nCommissioner of Income-tax,\nHeld, that the Rules framed under S. 26A quite clearly show\nthat a minor who is admitted to the benefits of partnership\nneed not sign- the application for registration.."
}
},
{
"from_name": null,
"id": "fc295c77673e49498b154deefda08645",
"to_name": null,
"type": null,
"value": {
"end": 1716,
"labels": [
"PREAMBLE"
],
"start": 1497,
"text": "The law\nrequires all partners to sign the application, and if the\ndefinition were to be carried to the extreme, even a minor\nwho is admitted to the benefits of partnership would be\ncompetent to sign such an application."
}
},
{
"from_name": null,
"id": "316b564157754c0a876c7c1abf348459",
"to_name": null,
"type": null,
"value": {
"end": 1847,
"labels": [
"PREAMBLE"
],
"start": 1717,
"text": "The definition is\ndesigned to confer equal benefits upon the minor by treating\nhim as a partner; but it does not render a minor a\n"
}
},
{
"from_name": null,
"id": "f72ef8c83b3b4f13a34e19c2ffd1e15d",
"to_name": null,
"type": null,
"value": {
"end": 1856,
"labels": [
"PREAMBLE"
],
"start": 1847,
"text": "competent"
}
},
{
"from_name": null,
"id": "5eca1b78505b4cc29791a3f9a0e63ae4",
"to_name": null,
"type": null,
"value": {
"end": 1865,
"labels": [
"PREAMBLE"
],
"start": 1857,
"text": "and full"
}
},
{
"from_name": null,
"id": "481a36d6b56b4950a0887b0bfb9ea363",
"to_name": null,
"type": null,
"value": {
"end": 1873,
"labels": [
"PREAMBLE"
],
"start": 1866,
"text": "partner"
}
},
{
"from_name": null,
"id": "cee46adf20ed423c860b36478d2fae8b",
"to_name": null,
"type": null,
"value": {
"end": 1984,
"labels": [
"PREAMBLE"
],
"start": 1873,
"text": ". For that purpose, the law of\nPartnership must be considered, apart from the definition in\nthe Income-tax Act."
}
},
{
"from_name": null,
"id": "35fbc5f8306e4d86b29b048c9135764c",
"to_name": null,
"type": null,
"value": {
"end": 2185,
"labels": [
"PREAMBLE"
],
"start": 1984,
"text": "\nSection 30 of the Indian Partnershi Act clearly lays down\nthat a minor...cannot become a partner, I tough with the\nconsent of the adult.....partners, he may be admitted to the\nbenefits of partnership."
}
},
{
"from_name": null,
"id": "236876ca2ee34904ad94c6e9fcc959bc",
"to_name": null,
"type": null,
"value": {
"end": 2295,
"labels": [
"PREAMBLE"
],
"start": 2186,
"text": ".....Any document which goes beyond\nthis section cannot be regarded as valid for the purpose of\nregistration."
}
},
{
"from_name": null,
"id": "2af8cc16851a4dd2894570c75e93235d",
"to_name": null,
"type": null,
"value": {
"end": 2417,
"labels": [
"PREAMBLE"
],
"start": 2296,
"text": "Registration can only be granted of a\n\ndocument between persons who are parties to it and on the\ncovenants set out in it."
}
},
{
"from_name": null,
"id": "9acb60a720394551a309bf5abdb56ad6",
"to_name": null,
"type": null,
"value": {
"end": 2579,
"labels": [
"PREAMBLE"
],
"start": 2418,
"text": "If the Income-tax Authorities\nregister the:partnership as between the adults only contrary\nto the terms of the document, in substance a new contract is\nmade out."
}
},
{
"from_name": null,
"id": "15f84d52f6964c25b8e5d24b0d0f51e8",
"to_name": null,
"type": null,
"value": {
"end": 2627,
"labels": [
"PREAMBLE"
],
"start": 2580,
"text": "It is tot open to the Incometax Authorities to\n"
}
},
{
"from_name": null,
"id": "8c3237c940184a36b0f5a3280703a1bc",
"to_name": null,
"type": null,
"value": {
"end": 2635,
"labels": [
"PREAMBLE"
],
"start": 2627,
"text": "register"
}
},
{
"from_name": null,
"id": "074da28af67b4e34bf998321d0cc195c",
"to_name": null,
"type": null,
"value": {
"end": 2678,
"labels": [
"PREAMBLE"
],
"start": 2636,
"text": "a document which is different from the one"
}
},
{
"from_name": null,
"id": "08b0585585ae4101b5d05c0e2c04d8fc",
"to_name": null,
"type": null,
"value": {
"end": 2723,
"labels": [
"PREAMBLE"
],
"start": 2679,
"text": "actually\nexecuted and asked to be registered"
}
},
{
"from_name": null,
"id": "9f399b41db6f44a4b8655a09d28c12b7",
"to_name": null,
"type": null,
"value": {
"end": 2974,
"labels": [
"PREAMBLE"
],
"start": 2723,
"text": ".\nHoosen Kassam Dada v. Commissioner of Income-tax, Bengal,\n[1937]5 I.T.R. 182, Hardutt Ray Gajadhar Ram v. Commissioner\nof822\nIncome-tax, [1950] 18 I.T.R. 106, Banka Mal Lajja Ram and\nCo. v. Commissioner of Income-tax, [1953] 24 I.T.R. 150,\napproved."
}
},
{
"from_name": null,
"id": "4a43406db45942daa12d38747631cfa3",
"to_name": null,
"type": null,
"value": {
"end": 3063,
"labels": [
"PREAMBLE"
],
"start": 2974,
"text": "\nJakka Devayya and Sons v. Commissioner of Income-tax, [1952)\n22 I.T.R. 264, disapproved."
}
},
{
"from_name": null,
"id": "e1979237dcb747f3a3f19aadfd05082c",
"to_name": null,
"type": null,
"value": {
"end": 3074,
"labels": [
"PREAMBLE"
],
"start": 3063,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "4e4f10c9f7424737863eefbcaece3f72",
"to_name": null,
"type": null,
"value": {
"end": 3423,
"labels": [
"NONE"
],
"start": 3074,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 328 of 1959.\nAppeal by special leave from the judgment and order dated 23rd February, 1956, of the Bombay High Court in Income-tax Reference No. 34 of 1955.\nK....N. Rajagopala Ayyangar and D. Gupta, for the appellant.\nRameshwar Nath, S. N. Andley, J. B. Dadachanji and P. L.\nVohra, for the respondent."
}
},
{
"from_name": null,
"id": "b0278091dea94f03b3f7247298bb1752",
"to_name": null,
"type": null,
"value": {
"end": 3429,
"labels": [
"NONE"
],
"start": 3423,
"text": "\n1960."
}
},
{
"from_name": null,
"id": "c5eb0b9ecf58456dbeba96692e81d3a0",
"to_name": null,
"type": null,
"value": {
"end": 3441,
"labels": [
"NONE"
],
"start": 3430,
"text": "December 1."
}
},
{
"from_name": null,
"id": "a93e726f99cd4653b76c86ec39b2f1b9",
"to_name": null,
"type": null,
"value": {
"end": 3498,
"labels": [
"NONE"
],
"start": 3442,
"text": "The Judgment of the Court was delivered by HIDAYATULLAH,"
}
},
{
"from_name": null,
"id": "f3affe4a055744b799bb76fc08c494cd",
"to_name": null,
"type": null,
"value": {
"end": 3505,
"labels": [
"FAC"
],
"start": 3499,
"text": "J.-The"
}
},
{
"from_name": null,
"id": "ed8bab0094254c76b8e225537fd95cff",
"to_name": null,
"type": null,
"value": {
"end": 3766,
"labels": [
"FAC"
],
"start": 3506,
"text": "Commissioner of Incometax has filed this appeal, with special leave, against the judgment and order of the High Court of Bombay, by which the High Court answered two questions referred to it in favour of the respondents, Messrs. Dwarkadas Khetan & Co., Bombay."
}
},
{
"from_name": null,
"id": "c51b17be145e43fe9d993ce7294348ea",
"to_name": null,
"type": null,
"value": {
"end": 4224,
"labels": [
"ISSUE"
],
"start": 3767,
"text": "These questions were: \"(1) Whether the instrument of partnership dated 27-3-1946 created a deed of partnership?\n(2)..If the answer to question No. 1 is in the affirmative, whether the fact that on 1-1-1946 there was no firm in existence would be fatal to the application for registration of the firm under Section 26A of the Indian Income-tax Act or whether the firm could be registered with effect from 26- 3-1946 if it is held that the firm was genuine?\"\n"
}
},
{
"from_name": null,
"id": "33b3b3eacaa24a31acf59fb3a98cc084",
"to_name": null,
"type": null,
"value": {
"end": 4296,
"labels": [
"FAC"
],
"start": 4224,
"text": "Prior to January 1, 1945, there was a firm called Dwarkadas Khetan & Co."
}
},
{
"from_name": null,
"id": "a4a26f9be8234ffc820a00e630734bcc",
"to_name": null,
"type": null,
"value": {
"end": 4457,
"labels": [
"FAC"
],
"start": 4297,
"text": "On that date, the firm ceased to exist, because the other partners had previously withdrawn, and it came to be the sole proprietary concern of Dwarkadas Khetan."
}
},
{
"from_name": null,
"id": "a8875cfd751d45449e4f2db6a81f9fee",
"to_name": null,
"type": null,
"value": {
"end": 4555,
"labels": [
"FAC"
],
"start": 4458,
"text": "On February 12, 1946, Dwarkadas Khetan obtained the selling agency of Seksaria Cotton Mills, Ltd."
}
},
{
"from_name": null,
"id": "1f653f59ebfb4091aba77432b9fa189b",
"to_name": null,
"type": null,
"value": {
"end": 4673,
"labels": [
"FAC"
],
"start": 4556,
"text": "On March 27, 1946, he entered into a partnership, with three othersby an instrument of partnership executed that day."
}
},
{
"from_name": null,
"id": "436b8e6244f14be28b932893f8361a0a",
"to_name": null,
"type": null,
"value": {
"end": 4757,
"labels": [
"FAC"
],
"start": 4674,
"text": "Those three others were Viswanath Purumul, Govindram Khetan and Kantilal Kasherdeo."
}
},
{
"from_name": null,
"id": "2c50aea2eeb048c89fb0db0a57310b79",
"to_name": null,
"type": null,
"value": {
"end": 4906,
"labels": [
"FAC"
],
"start": 4758,
"text": "Dwarkadas Khetan's share in the partnership was 7 annas in the rupee, while the remaining 9 annas' share was divided equally among the three others."
}
},
{
"from_name": null,
"id": "515300a1eaec4b9cb05575779bf7a204",
"to_name": null,
"type": null,
"value": {
"end": 5084,
"labels": [
"FAC"
],
"start": 4906,
"text": "\nThough Kantilal Kasherdeo was a minor, he was admitted as a full partner and not merely to the benefits of the partner- ship, as required by s. 30 of the Indian Partnership Act."
}
},
{
"from_name": null,
"id": "0cbd1329754d42659c123364d102f81c",
"to_name": null,
"type": null,
"value": {
"end": 5282,
"labels": [
"FAC"
],
"start": 5084,
"text": "\nTo the instrument of partnership, Kantilal Kasherdeo was also a signatory, though immediately after his signature there was the signature of one Kasherdeo Rungta, the natural guardian of the minor."
}
},
{
"from_name": null,
"id": "de1a40f8050a4b40b220884c61dd245d",
"to_name": null,
"type": null,
"value": {
"end": 5462,
"labels": [
"FAC"
],
"start": 5283,
"text": "In the instrument, Kantilal Kasherdeo was described as a full partner entitled not only to a share in the profits but also liable to bear all the losses including loss of capital."
}
},
{
"from_name": null,
"id": "a90378efc5aa4be49c675db6ca2a93db",
"to_name": null,
"type": null,
"value": {
"end": 5644,
"labels": [
"FAC"
],
"start": 5463,
"text": "It was also provided that all the four partners were to attend to the business, and if consent was needed, all the partners including the minor had to give their consent in writing."
}
},
{
"from_name": null,
"id": "3115fe0cd1c9460ca76626a659146291",
"to_name": null,
"type": null,
"value": {
"end": 5823,
"labels": [
"FAC"
],
"start": 5645,
"text": "The minor was also entitled to manage the affairs of the firm, including inspection of the account books, and was given the right to vote, if a decision on votes had to be taken."
}
},
{
"from_name": null,
"id": "6b456665aff4425f870b200b808e90a5",
"to_name": null,
"type": null,
"value": {
"end": 6083,
"labels": [
"FAC"
],
"start": 5824,
"text": "In short, no distinction was made between the adult partners and the minor, and to all intents and purposes, the minor was a full partner, even though under the partnership law he could only be admitted to the benefits of the partnership and not as a partner."
}
},
{
"from_name": null,
"id": "4e0de56706524b68aab0fc4f928a36c4",
"to_name": null,
"type": null,
"value": {
"end": 6191,
"labels": [
"FAC"
],
"start": 6083,
"text": "\nThe deed of partnership was produced before the Registrar of Firms showing the names of the four partner,%."
}
},
{
"from_name": null,
"id": "a969ee7e15324b91829cdbc0350f0008",
"to_name": null,
"type": null,
"value": {
"end": 6390,
"labels": [
"FAC"
],
"start": 6192,
"text": "The Registrar of Firms granted a registration certificate, and in the certificate, Kantilal Kasherdeo was shown as a full partner and not as one entitled merely to the benefits of the,, partnership."
}
},
{
"from_name": null,
"id": "81950389e4584bcf851157f43edbb6c2",
"to_name": null,
"type": null,
"value": {
"end": 6445,
"labels": [
"FAC"
],
"start": 6391,
"text": "Banks were also informed about the four partners, and."
}
},
{
"from_name": null,
"id": "0f4b0197f4334a728dcd2f9a66a1cc2f",
"to_name": null,
"type": null,
"value": {
"end": 6541,
"labels": [
"FAC"
],
"start": 6446,
"text": "it does not appear that to them intimation was sent that one of the named partners was a minor."
}
},
{
"from_name": null,
"id": "c070670bf77f43bda89b5837c4ab6be6",
"to_name": null,
"type": null,
"value": {
"end": 6677,
"labels": [
"FAC"
],
"start": 6542,
"text": "Though the partnership came into existence on March 27, 1946, the firm was stated to have started retrospectively from January 1, 1946."
}
},
{
"from_name": null,
"id": "5c50e0a9aed248629efc3e0ffd29c659",
"to_name": null,
"type": null,
"value": {
"end": 6886,
"labels": [
"FAC"
],
"start": 6678,
"text": "It may be pointed out that the firm has the calendar year as its account year, and the matter before us refers to the account year, 1946 corresponding to the assessment year, 1947-48.For purposes of that year"
}
},
{
"from_name": null,
"id": "2bbed41510134e7a939debfcc60b18ef",
"to_name": null,
"type": null,
"value": {
"end": 6966,
"labels": [
"FAC"
],
"start": 6886,
"text": ", registration of the firm was sought under s. 26A of the Indian Income-tax Act."
}
},
{
"from_name": null,
"id": "3c3dfc14c535432cbaedef9d04d7cd1b",
"to_name": null,
"type": null,
"value": {
"end": 7150,
"labels": [
"FAC"
],
"start": 6967,
"text": "The Income-tax Officer refused to accord registration on the ground that a minor had been admitted as a partner contrary to law, and that the deed could not, therefore, be registered."
}
},
{
"from_name": null,
"id": "77e4d35b589a4647b26b23f1a3be553f",
"to_name": null,
"type": null,
"value": {
"end": 7348,
"labels": [
"FAC"
],
"start": 7151,
"text": "The appeal to the Appellate Assistant Commissioner also failed, the Commissioner holding that registration could only be of a legal or valid document and not of a document which was invalid in law."
}
},
{
"from_name": null,
"id": "0c3b4517b305413f877c5896dde33458",
"to_name": null,
"type": null,
"value": {
"end": 7553,
"labels": [
"FAC"
],
"start": 7349,
"text": "An appeal was then taken to the Tribunal, and it was contended that the document must be construed as showing only that the minor was admitted not as a full partner but to the benefits of the partnership."
}
},
{
"from_name": null,
"id": "9739420633b54eea90d61cd9114f5429",
"to_name": null,
"type": null,
"value": {
"end": 7668,
"labels": [
"FAC"
],
"start": 7554,
"text": "The Accountant Member hold that the order of the Appellate Assistant Commissioner was correct, giving two reasons."
}
},
{
"from_name": null,
"id": "e19a809fda824dd791e88bc865c39752",
"to_name": null,
"type": null,
"value": {
"end": 7914,
"labels": [
"FAC"
],
"start": 7669,
"text": "The first was that the construction sought to be placed upon the document was not open, and the second, that since retrospective operation was given to the firm even though no firm existed from January 1, 1946, registration could not be granted."
}
},
{
"from_name": null,
"id": "c41493ba8c6f4034baa84ac84265867f",
"to_name": null,
"type": null,
"value": {
"end": 8121,
"labels": [
"FAC"
],
"start": 7915,
"text": "The Judicial Member differed from the Accountant Member, holding, as was contended, that the document must be construed as showing merely that the minor had been admitted to the benefits of the partnership."
}
},
{
"from_name": null,
"id": "b8801125199b4897830db7f40b52fef7",
"to_name": null,
"type": null,
"value": {
"end": 8325,
"labels": [
"FAC"
],
"start": 8122,
"text": "The appeal was then placed before the President, who agreed with the conclusion of the Accountant Member, with the result that the refusal to register the firm under s. 26A by the authorities was upheld."
}
},
{
"from_name": null,
"id": "d648332b3d104d7b9113aa62c0e89c5c",
"to_name": null,
"type": null,
"value": {
"end": 8391,
"labels": [
"RLC"
],
"start": 8325,
"text": "\nTwo questions were then posed for the decision of the High Court."
}
},
{
"from_name": null,
"id": "f20d9592a7ac4c91ab2ee99d1e584ca8",
"to_name": null,
"type": null,
"value": {
"end": 8493,
"labels": [
"RLC"
],
"start": 8392,
"text": "The High Court differed from the Tribunal, and answered both the questions in favour of the assessee."
}
},
{
"from_name": null,
"id": "0fe7e4a20c5940e19395087f95178f91",
"to_name": null,
"type": null,
"value": {
"end": 8654,
"labels": [
"PRE_RELIED"
],
"start": 8494,
"text": "In so far as the second question is concerned, the matter is now settled by the decision of this Court in B. C. Mitter & Sons v. Commissioner of Income-tax (1)."
}
},
{
"from_name": null,
"id": "b4b48deb86174820b776b4d67dc5e114",
"to_name": null,
"type": null,
"value": {
"end": 8817,
"labels": [
"ANALYSIS"
],
"start": 8655,
"text": "But, in our opinion, the decision of the High Court on the first question was not correct, and the correct answer does not leave the second quest-ion open at all."
}
},
{
"from_name": null,
"id": "4fe40ca3cce449ccb7f22e16b99089bb",
"to_name": null,
"type": null,
"value": {
"end": 8894,
"labels": [
"ANALYSIS"
],
"start": 8817,
"text": "\nThere is a distinct cleavage of opinion among the High Courts on this point."
}
},
{
"from_name": null,
"id": "bbd5bb07f10c496eb2e77d02ad06b86e",
"to_name": null,
"type": null,
"value": {
"end": 9193,
"labels": [
"ANALYSIS"
],
"start": 8895,
"text": "The Bombay, Madras and (1) [1959] 36 I.T. R. 194.\n Patna High Courts have held that where a minor is admitted as a full partner by adult partners, the document can be registered after interpreting it to mean that the minor has been admitted to the benefits of partnership and not as a full partner."
}
},
{
"from_name": null,
"id": "d961ac64f8074b55af5115c67db2f3e9",
"to_name": null,
"type": null,
"value": {
"end": 9268,
"labels": [
"ANALYSIS"
],
"start": 9194,
"text": "The Calcutta, Allahabad and Punjab High Courts have taken a contrary view."
}
},
{
"from_name": null,
"id": "e1719ac56f964c75abf00a1090cc562f",
"to_name": null,
"type": null,
"value": {
"end": 9422,
"labels": [
"ANALYSIS"
],
"start": 9269,
"text": "The Bombay case is the one which is under appeal, and the Patna High Court followed that decision and the two earlier decisions of the Madras High Court."
}
},
{
"from_name": null,
"id": "db8836e1b3554eb4ac70aa3d04a8fde4",
"to_name": null,
"type": null,
"value": {
"end": 9525,
"labels": [
"ANALYSIS"
],
"start": 9423,
"text": "The Madras High Court decisions are of the same Divisional Bench, and were pronounced on the same day."
}
},
{
"from_name": null,
"id": "3b80556667b049758c81dbe77a6ff220",
"to_name": null,
"type": null,
"value": {
"end": 9797,
"labels": [
"PRE_RELIED"
],
"start": 9526,
"text": "The leading case in support of the respondents is the Madras decision reported in Jakka Devayya and Sons v. Commissioner of Income-tax (1), and that case alone needs to be considered, because all the reasons on which the cases on this side have proceeded are given there."
}
},
{
"from_name": null,
"id": "dd4aff0eabfe4ac998bead0e763430f7",
"to_name": null,
"type": null,
"value": {
"end": 9863,
"labels": [
"ANALYSIS"
],
"start": 9798,
"text": "In that case, there were three partners, one of whom was a minor."
}
},
{
"from_name": null,
"id": "b3e89c9550ad4717a5d1082e97d73013",
"to_name": null,
"type": null,
"value": {
"end": 10000,
"labels": [
"ANALYSIS"
],
"start": 9864,
"text": "They formed a Hindu undivided family; later, a deed of partnership was executed in which the minor was represented by his father-in-law."
}
},
{
"from_name": null,
"id": "354601283a2a4b5fa613add148b04493",
"to_name": null,
"type": null,
"value": {
"end": 10249,
"labels": [
"ANALYSIS"
],
"start": 10001,
"text": "It was held that the fact that the minor was included as a partner did not make the partnership as between the two adult partners invalid, and that the minor must be deemed to have been admitted to the benefits of the partnership by the two adults."
}
},
{
"from_name": null,
"id": "62c43d861b56422c9e5cd78743c34006",
"to_name": null,
"type": null,
"value": {
"end": 10703,
"labels": [
"STA"
],
"start": 10250,
"text": "The learned Judges referred to the provision of s. 2 (6-B) of the Income-tax Act, where it is provided: \" \"Partner\" includes any person who being a minor has been admitted to the benefits of partnership;\", and observed that in view of this definition and the fact that a minor could be admitted to the benefits of partnership under s. 30, the document was not invalid, but must be read as giving to the minor the rights laid down by the Partnership Act."
}
},
{
"from_name": null,
"id": "df0a24ed43ba4506b89cf400d63d0abe",
"to_name": null,
"type": null,
"value": {
"end": 10885,
"labels": [
"PRE_RELIED"
],
"start": 10704,
"text": "They also observed that too rigid a construction need not be put upon the deed, and referred to Lindley on Partnership, 11th Edn., p. 87 and A. Khorasany v.\n C. Acha and Others (2)."
}
},
{
"from_name": null,
"id": "2da4824981f64ad8ba50179abaedd25f",
"to_name": null,
"type": null,
"value": {
"end": 11089,
"labels": [
"PRE_NOT_RELIED"
],
"start": 10886,
"text": "The other cases which we need not examine are Vincent and Others v. Commissioner of (1) [1952] 22 I.T.R. 264.\n (2) (1928) I.L.R. 6 Ran. 198.\n Income-tax and Sahai Brothers v. Commissioner of Income- tax"
}
},
{
"from_name": null,
"id": "1d4ea78b8d2f402cabbf9b7bbd3b7e1b",
"to_name": null,
"type": null,
"value": {
"end": 11277,
"labels": [
"PRE_RELIED"
],
"start": 11090,
"text": "On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada v. Commissioner of Income-tax, Bengal (3), in which Costello and Panckridge, JJ. have held"
}
},
{
"from_name": null,
"id": "e420030648444aa2aba7e0277833dba0",
"to_name": null,
"type": null,
"value": {
"end": 11492,
"labels": [
"PRE_RELIED"
],
"start": 11278,
"text": "that under s. 26A of the Income-tax Act and the Rules, the Income-tax Officer is only. empowered to register a partnership which is specified in the instrument of partnership and of which registration is asked for."
}
},
{
"from_name": null,
"id": "6febf6b7aaef442bb576bfc0fb9e8685",
"to_name": null,
"type": null,
"value": {
"end": 11646,
"labels": [
"ANALYSIS"
],
"start": 11493,
"text": "The learned Judges, therefore, hold that it is not open to the Department to 'register partnership different from that which is formed by the instrument."
}
},
{
"from_name": null,
"id": "2a33838f0d6a4829a6423e01dba86b01",
"to_name": null,
"type": null,
"value": {
"end": 11855,
"labels": [
"PRE_RELIED"
],
"start": 11647,
"text": "In Hardutt Ray Gajadhar Ram v. Commissioner of Income-tax(4) Malik, C. J. and Seth, J. hold that where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid."
}
},
{
"from_name": null,
"id": "6b7af92fd66645cab819132c7780b31a",
"to_name": null,
"type": null,
"value": {
"end": 11923,
"labels": [
"ANALYSIS"
],
"start": 11856,
"text": "It is pointed out that the English law on the subject is different."
}
},
{
"from_name": null,
"id": "e8d1a32827c8475cbad309c99a17f8e3",
"to_name": null,
"type": null,
"value": {
"end": 12183,
"labels": [
"ANALYSIS"
],
"start": 11924,
"text": "In that case, however, there was one other ground for invalidating the deed, because the minor had been adopted into another family and his natural father who had signed as his guardian in the deed could not do so, as he had ceased to be the natural guardian."
}
},
{
"from_name": null,
"id": "68dc00e30e054f47a4cde67b590b7f0a",
"to_name": null,
"type": null,
"value": {
"end": 12245,
"labels": [
"ANALYSIS"
],
"start": 12184,
"text": "The decision, however, supports the case of the Commissioner."
}
},
{
"from_name": null,
"id": "5068d28421de4831bb24bd8623b36016",
"to_name": null,
"type": null,
"value": {
"end": 12439,
"labels": [
"PRE_RELIED"
],
"start": 12245,
"text": "\n In Banka Mal Lajja Ram & Co. v. Commissioner of Income-tax (5), it is held that a minor cannot be a partner, and that the partnership which admits a minor as full partner cannot be registered."
}
},
{
"from_name": null,
"id": "5eec419065454e1c9935e9b6e230d146",
"to_name": null,
"type": null,
"value": {
"end": 12660,
"labels": [
"ANALYSIS"
],
"start": 12440,
"text": "It is true that in that case the High Court did not consider the question whether the partnership should have. been taken to be a valid partnership consisting of the adult partners, because no such question was referred."
}
},
{
"from_name": null,
"id": "e6782ac44c6b4f36a02134a7f3bda4d2",
"to_name": null,
"type": null,
"value": {
"end": 12739,
"labels": [
"ANALYSIS"
],
"start": 12661,
"text": "The decision, however, is against a claim for registration of such a document."
}
},
{
"from_name": null,
"id": "23e8288c9ef14980bf97d89fe5c57ca0",
"to_name": null,
"type": null,
"value": {
"end": 12831,
"labels": [
"ANALYSIS"
],
"start": 12739,
"text": "\nIn our opinion, the Calcutta vie' is preferable to the view taken by the Madras High Court."
}
},
{
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"value": {
"end": 13080,
"labels": [
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"start": 12832,
"text": "The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner (1)[1952] 22 I.T.R. 285.\n(3)[1937] 5 I.T.R. 182.\n(2)[1950] 33 I.T.R. 40.\n(4)[1950] 18 I.T.R. 106.\n(5)[1953] 24 I.T.R. 150.is valid."
}
},
{
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"id": "69ed0f9077874bb5abeaf9941ab7ada3",
"to_name": null,
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"value": {
"end": 13235,
"labels": [
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],
"start": 13081,
"text": "What the definition does is to apply to a minor admitted to the benefits of partnership all the 2 provisions of the Income-tax Act applicable to partners."
}
},
{
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"id": "d6f32a5c44cd4c799c6f7ba489b9ef0c",
"to_name": null,
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"labels": [
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],
"start": 13236,
"text": "The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership."
}
},
{
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"id": "789edf65dd38458da2912284375c9abc",
"to_name": null,
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"value": {
"end": 13651,
"labels": [
"ANALYSIS"
],
"start": 13479,
"text": "The Rules which have been framed under s. 26A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration."
}
},
{
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"id": "a4119722fe8b46539bb8c72453659812",
"to_name": null,
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"value": {
"end": 13871,
"labels": [
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],
"start": 13652,
"text": "The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits of partnership would be competent to sign such an application."
}
},
{
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"id": "a3c89b15b2634def816dd528a0bbd77c",
"to_name": null,
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"value": {
"end": 14029,
"labels": [
"ANALYSIS"
],
"start": 13872,
"text": "The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner."
}
},
{
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"id": "9513265857ce40f69510758e47384196",
"to_name": null,
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"value": {
"end": 14140,
"labels": [
"ANALYSIS"
],
"start": 14030,
"text": "For that purpose, the law of Partnership must be considered, apart from the definition in the Income- tax Act."
}
},
{
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"id": "0ab3f5369f474d3ba8afdf45eaa5db26",
"to_name": null,
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"value": {
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"labels": [
"STA"
],
"start": 14140,
"text": "\nSection 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership."
}
},
{
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"id": "81902659193f454385e8756e0a5e336c",
"to_name": null,
"type": null,
"value": {
"end": 14440,
"labels": [
"ANALYSIS"
],
"start": 14336,
"text": "Any document which goes beyond this section cannot be regarded as valid for the purpose of registration."
}
},
{
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"id": "829dc141abe745bbad2d43987cf44cf9",
"to_name": null,
"type": null,
"value": {
"end": 14561,
"labels": [
"ANALYSIS"
],
"start": 14441,
"text": "Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it."
}
},
{
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"id": "dbd05ab2c71b49d1bcf9d753de71aa49",
"to_name": null,
"type": null,
"value": {
"end": 14723,
"labels": [
"ANALYSIS"
],
"start": 14562,
"text": "If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out."
}
},
{
"from_name": null,
"id": "aaa02dd9bd5c48c9ae92b3a8b4ab8fed",
"to_name": null,
"type": null,
"value": {
"end": 14869,
"labels": [
"ANALYSIS"
],
"start": 14724,
"text": "It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered."
}
},
{
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"id": "624dfb5b4fb34e05a5062732c5ed18ff",
"to_name": null,
"type": null,
"value": {
"end": 14921,
"labels": [
"ANALYSIS"
],
"start": 14870,
"text": "In our opinion, the Madras view cannot be accepted."
}
},
{
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"id": "e0997b1c36f84de3aa2ed8f310909725",
"to_name": null,
"type": null,
"value": {
"end": 15078,
"labels": [
"RATIO"
],
"start": 14921,
"text": "\nThe judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court had fallen earlier."
}
},
{
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"id": "9373a87ae6fb426aa11badf669d33c19",
"to_name": null,
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"value": {
"end": 15170,
"labels": [
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],
"start": 15079,
"text": "The answer to the first question should, therefore, have been in favour ;of the Department."
}
},
{
"from_name": null,
"id": "78d97d00d48f4d09a4354d402759d395",
"to_name": null,
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"value": {
"end": 15271,
"labels": [
"RATIO"
],
"start": 15171,
"text": "The answer given by the High Court is vacated, andthe question will now be answered in the negative."
}
},
{
"from_name": null,
"id": "b722f93bbc9d42eb99e22bd97b1df513",
"to_name": null,
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"value": {
"end": 15360,
"labels": [
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],
"start": 15272,
"text": "As already stated, there is no need to answer the second question, which does not arise."
}
},
{
"from_name": null,
"id": "c15906df33fc4f728bee00074fdb51cd",
"to_name": null,
"type": null,
"value": {
"end": 15421,
"labels": [
"RPC"
],
"start": 15360,
"text": "\nThe appeal is allowed with costs here and in the High Court."
}
},
{
"from_name": null,
"id": "e015b43a97dc46a1ab1cd4710a32917a",
"to_name": null,
"type": null,
"value": {
"end": 15438,
"labels": [
"RPC"
],
"start": 15421,
"text": "\n Appeal allowed."
}
}
]
}
] | 4,092 | {
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, BOMBAY\n\n Vs.\n\nRESPONDENT:\nM/S. DWARKADAS KHETAN & CO.\n\nDATE OF JUDGMENT:\n01/12/1960\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nKAPUR, J.L.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 680 1961 SCR (2) 821\n\nCITATOR INFO : (8)\n (23)\nE 1966 SC 15\n\nMV 1966 SC1490\n\nACT:\nIncome Tax--Partnership firm including minor, if can be\nregistered--Indian Income-tax Act, 1922 (11 of 1922), S.\n26A--Indian Partnership Act, 1932 (IX of 1932), s. 30.\n\nHEADNOTE:\nOne of the persons who entered into a partnership was a\nminor and in the instrument of partnership he was described\nas a full partner with equal rights and obligations with the\nother adult partners. The deed of partnership which was\nsigned by the minor was produced before th e Registrar of\nFirms f or registration and he granted a certificate showing\nthe minor as a full partner and not as one entitled merely\nto the benefits of the partnership. The Income-tax Officer,\nhowever, refused to register the firm under S. 26A of the\nIndian Income-tax Act and his decision was upheld by the\nIncome-tax Authorities and the Income-tax Appellate\nTribunal. The High Court differed from the Tribunal and\nheld that the firm should be registered. On appeal by the\nCommissioner of Income-tax,\nHeld, that the Rules framed under S. 26A quite clearly show\nthat a minor who is admitted to the benefits of partnership\nneed not sign- the application for registration.. The law\nrequires all partners to sign the application, and if the\ndefinition were to be carried to the extreme, even a minor\nwho is admitted to the benefits of partnership would be\ncompetent to sign such an application. The definition is\ndesigned to confer equal benefits upon the minor by treating\nhim as a partner; but it does not render a minor a\ncompetent and full partner. For that purpose, the law of\nPartnership must be considered, apart from the definition in\nthe Income-tax Act.\nSection 30 of the Indian Partnershi Act clearly lays down\nthat a minor...cannot become a partner, I tough with the\nconsent of the adult.....partners, he may be admitted to the\nbenefits of partnership. .....Any document which goes beyond\nthis section cannot be regarded as valid for the purpose of\nregistration. Registration can only be granted of a\n\ndocument between persons who are parties to it and on the\ncovenants set out in it. If the Income-tax Authorities\nregister the:partnership as between the adults only contrary\nto the terms of the document, in substance a new contract is\nmade out. It is tot open to the Incometax Authorities to\nregister a document which is different from the one actually\nexecuted and asked to be registered.\nHoosen Kassam Dada v. Commissioner of Income-tax, Bengal,\n[1937]5 I.T.R. 182, Hardutt Ray Gajadhar Ram v. Commissioner\nof822\nIncome-tax, [1950] 18 I.T.R. 106, Banka Mal Lajja Ram and\nCo. v. Commissioner of Income-tax, [1953] 24 I.T.R. 150,\napproved.\nJakka Devayya and Sons v. Commissioner of Income-tax, [1952)\n22 I.T.R. 264, disapproved.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 328 of 1959.\nAppeal by special leave from the judgment and order dated 23rd February, 1956, of the Bombay High Court in Income-tax Reference No. 34 of 1955.\nK....N. Rajagopala Ayyangar and D. Gupta, for the appellant.\nRameshwar Nath, S. N. Andley, J. B. Dadachanji and P. L.\nVohra, for the respondent.\n1960. December 1. The Judgment of the Court was delivered by HIDAYATULLAH, J.-The Commissioner of Incometax has filed this appeal, with special leave, against the judgment and order of the High Court of Bombay, by which the High Court answered two questions referred to it in favour of the respondents, Messrs. Dwarkadas Khetan & Co., Bombay. These questions were: \"(1) Whether the instrument of partnership dated 27-3-1946 created a deed of partnership?\n(2)..If the answer to question No. 1 is in the affirmative, whether the fact that on 1-1-1946 there was no firm in existence would be fatal to the application for registration of the firm under Section 26A of the Indian Income-tax Act or whether the firm could be registered with effect from 26- 3-1946 if it is held that the firm was genuine?\"\nPrior to January 1, 1945, there was a firm called Dwarkadas Khetan & Co. On that date, the firm ceased to exist, because the other partners had previously withdrawn, and it came to be the sole proprietary concern of Dwarkadas Khetan. On February 12, 1946, Dwarkadas Khetan obtained the selling agency of Seksaria Cotton Mills, Ltd. On March 27, 1946, he entered into a partnership, with three othersby an instrument of partnership executed that day. Those three others were Viswanath Purumul, Govindram Khetan and Kantilal Kasherdeo. Dwarkadas Khetan's share in the partnership was 7 annas in the rupee, while the remaining 9 annas' share was divided equally among the three others.\nThough Kantilal Kasherdeo was a minor, he was admitted as a full partner and not merely to the benefits of the partner- ship, as required by s. 30 of the Indian Partnership Act.\nTo the instrument of partnership, Kantilal Kasherdeo was also a signatory, though immediately after his signature there was the signature of one Kasherdeo Rungta, the natural guardian of the minor. In the instrument, Kantilal Kasherdeo was described as a full partner entitled not only to a share in the profits but also liable to bear all the losses including loss of capital. It was also provided that all the four partners were to attend to the business, and if consent was needed, all the partners including the minor had to give their consent in writing. The minor was also entitled to manage the affairs of the firm, including inspection of the account books, and was given the right to vote, if a decision on votes had to be taken. In short, no distinction was made between the adult partners and the minor, and to all intents and purposes, the minor was a full partner, even though under the partnership law he could only be admitted to the benefits of the partnership and not as a partner.\nThe deed of partnership was produced before the Registrar of Firms showing the names of the four partner,%. The Registrar of Firms granted a registration certificate, and in the certificate, Kantilal Kasherdeo was shown as a full partner and not as one entitled merely to the benefits of the,, partnership. Banks were also informed about the four partners, and. it does not appear that to them intimation was sent that one of the named partners was a minor. Though the partnership came into existence on March 27, 1946, the firm was stated to have started retrospectively from January 1, 1946. It may be pointed out that the firm has the calendar year as its account year, and the matter before us refers to the account year, 1946 corresponding to the assessment year, 1947-48.For purposes of that year, registration of the firm was sought under s. 26A of the Indian Income-tax Act. The Income-tax Officer refused to accord registration on the ground that a minor had been admitted as a partner contrary to law, and that the deed could not, therefore, be registered. The appeal to the Appellate Assistant Commissioner also failed, the Commissioner holding that registration could only be of a legal or valid document and not of a document which was invalid in law. An appeal was then taken to the Tribunal, and it was contended that the document must be construed as showing only that the minor was admitted not as a full partner but to the benefits of the partnership. The Accountant Member hold that the order of the Appellate Assistant Commissioner was correct, giving two reasons. The first was that the construction sought to be placed upon the document was not open, and the second, that since retrospective operation was given to the firm even though no firm existed from January 1, 1946, registration could not be granted. The Judicial Member differed from the Accountant Member, holding, as was contended, that the document must be construed as showing merely that the minor had been admitted to the benefits of the partnership. The appeal was then placed before the President, who agreed with the conclusion of the Accountant Member, with the result that the refusal to register the firm under s. 26A by the authorities was upheld.\nTwo questions were then posed for the decision of the High Court. The High Court differed from the Tribunal, and answered both the questions in favour of the assessee. In so far as the second question is concerned, the matter is now settled by the decision of this Court in B. C. Mitter & Sons v. Commissioner of Income-tax (1). But, in our opinion, the decision of the High Court on the first question was not correct, and the correct answer does not leave the second quest-ion open at all.\nThere is a distinct cleavage of opinion among the High Courts on this point. The Bombay, Madras and (1) [1959] 36 I.T. R. 194.\n Patna High Courts have held that where a minor is admitted as a full partner by adult partners, the document can be registered after interpreting it to mean that the minor has been admitted to the benefits of partnership and not as a full partner. The Calcutta, Allahabad and Punjab High Courts have taken a contrary view. The Bombay case is the one which is under appeal, and the Patna High Court followed that decision and the two earlier decisions of the Madras High Court. The Madras High Court decisions are of the same Divisional Bench, and were pronounced on the same day. The leading case in support of the respondents is the Madras decision reported in Jakka Devayya and Sons v. Commissioner of Income-tax (1), and that case alone needs to be considered, because all the reasons on which the cases on this side have proceeded are given there. In that case, there were three partners, one of whom was a minor. They formed a Hindu undivided family; later, a deed of partnership was executed in which the minor was represented by his father-in-law. It was held that the fact that the minor was included as a partner did not make the partnership as between the two adult partners invalid, and that the minor must be deemed to have been admitted to the benefits of the partnership by the two adults. The learned Judges referred to the provision of s. 2 (6-B) of the Income-tax Act, where it is provided: \" \"Partner\" includes any person who being a minor has been admitted to the benefits of partnership;\", and observed that in view of this definition and the fact that a minor could be admitted to the benefits of partnership under s. 30, the document was not invalid, but must be read as giving to the minor the rights laid down by the Partnership Act. They also observed that too rigid a construction need not be put upon the deed, and referred to Lindley on Partnership, 11th Edn., p. 87 and A. Khorasany v.\n C. Acha and Others (2). The other cases which we need not examine are Vincent and Others v. Commissioner of (1) [1952] 22 I.T.R. 264.\n (2) (1928) I.L.R. 6 Ran. 198.\n Income-tax and Sahai Brothers v. Commissioner of Income- tax On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada v. Commissioner of Income-tax, Bengal (3), in which Costello and Panckridge, JJ. have held that under s. 26A of the Income-tax Act and the Rules, the Income-tax Officer is only. empowered to register a partnership which is specified in the instrument of partnership and of which registration is asked for. The learned Judges, therefore, hold that it is not open to the Department to 'register partnership different from that which is formed by the instrument. In Hardutt Ray Gajadhar Ram v. Commissioner of Income-tax(4) Malik, C. J. and Seth, J. hold that where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid. It is pointed out that the English law on the subject is different. In that case, however, there was one other ground for invalidating the deed, because the minor had been adopted into another family and his natural father who had signed as his guardian in the deed could not do so, as he had ceased to be the natural guardian. The decision, however, supports the case of the Commissioner.\n In Banka Mal Lajja Ram & Co. v. Commissioner of Income-tax (5), it is held that a minor cannot be a partner, and that the partnership which admits a minor as full partner cannot be registered. It is true that in that case the High Court did not consider the question whether the partnership should have. been taken to be a valid partnership consisting of the adult partners, because no such question was referred. The decision, however, is against a claim for registration of such a document.\nIn our opinion, the Calcutta vie' is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner (1)[1952] 22 I.T.R. 285.\n(3)[1937] 5 I.T.R. 182.\n(2)[1950] 33 I.T.R. 40.\n(4)[1950] 18 I.T.R. 106.\n(5)[1953] 24 I.T.R. 150.is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the 2 provisions of the Income-tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under s. 26A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits of partnership would be competent to sign such an application. The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income- tax Act.\nSection 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income-tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income-tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted.\nThe judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court had fallen earlier. The answer to the first question should, therefore, have been in favour ;of the Department. The answer given by the High Court is vacated, andthe question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise.\nThe appeal is allowed with costs here and in the High Court.\n Appeal allowed.\n "
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"text": " IN THE HIGH COURT OF KARNATAKA"
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"text": "DHARWAD BENCH\n\nDATED THIS THE 13TH DAY OF FEBRUARY, 2019"
}
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"text": "THE HON'BLE MR. JUSTICE G. NARENDAR"
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"text": "\n\n WRIT PETITION NO.107971/2015 (GM-RES)"
}
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"text": "\n\nBETWEEN:\n\nJMT AUTO LIMITED,\nREPRESENTED BY\nITS GENERAL MANAGER\nMR. D. RAVI\nMANAGER EXCISE\nHAVING ITS OFFICE AT\nPLOT NO 224-A, KIADB\nBELUR INDUSTRIAL\nAREA GROWTH CENTER,"
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"start": 408,
"text": "\nDHARWAD 580 011\n\n ... PETITIONER\n\n(BY SRI. S S PATIL & SANJAY CHANAL, ADVOCATES)\n\nAND:\n\n1. DIRECTOR GENERAL OF FOREIGN TRADE,\n UDYOG BHAVAN H WING GATE 2\n MULAN AZAD ROAD,\n NEW DELHI 110 011\n\n2."
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"start": 650,
"text": "THE DEVELOPMENT COMMISSIONER\n COCHIN SPECIAL ECONOMIC ZONE\n (CSEZ) SUB OFFICE FOR 100%"
}
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"text": "\n EOUS IN KARNATAKA\n\n MINISTRY OF COMMERCE & INDUSTRY\n GOVERNMENT OF INDIA,\n SEZ BHAVAN,\n NO. 120-C EPIP, WHITEFIELD\n BENGALURU 560 066\n\n3."
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"start": 924,
"text": "THE ASSISTANT COMMISSIONER\n OF CENTRAL EXCISE\n CENTRAL EXCISE,\n CUSTOMS & SERVICE TAX\n DHARWAD DIVISION, 2ND FLOOR,\n C.R.BUILDING, NAVANAGER,\n HUBBALLI-580025\n ... RESPONDENTS\n\n(BY SRI. B. B. KANAVI, CGSC FOR R1 & R2;\n SRI. S. N. RAJENDRA, CGSC FOR R3)"
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],
"start": 1336,
"text": "THIS PETITION IS FILED UNDER ARTICLES 226 AND\n227 OF THE CONSTITUTION OF INDIA PRAYING TO:\n\na. SET-ASIDE ORDER OF RESPONDENT NO.1 PASSED ON 15.06.2015 IN BEARING REFERRING NO.F.NO.01/92/171/ 23/AM-16/PC-VI/100 AT ANNEXURE-A AND, b. DIRECT THE RESPONDENT NO.2 TO CONSIDER THE APPLICATION DATED 27.07.2O15 PENDING BEFORE IT, WHICH IS PRODUCED AT ANNEXURE-F AND ETC, THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER"
}
},
{
"from_name": null,
"id": "f2a6d38f278a4dd28a9d6c8c0610cee6",
"to_name": null,
"type": null,
"value": {
"end": 1893,
"labels": [
"NONE"
],
"start": 1781,
"text": "This writ petition is listed for consideration of I.A/2018 for vacating the interim order granted by this Court."
}
},
{
"from_name": null,
"id": "44c729ef46fe47948f7706557bf70361",
"to_name": null,
"type": null,
"value": {
"end": 2003,
"labels": [
"NONE"
],
"start": 1894,
"text": "As the writ petition lies in a narrow compass, with the consent of the counsels, it is taken up for disposal."
}
},
{
"from_name": null,
"id": "88e5cccc136e44a48545d040149f3d02",
"to_name": null,
"type": null,
"value": {
"end": 2120,
"labels": [
"NONE"
],
"start": 2005,
"text": "Heard the learned counsel for the petitioner and learned counsel Sri. S. N. Rajendra for respondents No.1 to 3.\n 2."
}
},
{
"from_name": null,
"id": "a10829f90ee14641bd22aa1984797eff",
"to_name": null,
"type": null,
"value": {
"end": 2432,
"labels": [
"NONE"
],
"start": 2121,
"text": "The petitioner is before this Court being aggrieved by the order dated 15.06.2015 passed in F.No.01/92/71/23/AM-16/PC-VI/100, whereby the Appellate Authority has been pleased to upheld the order in revision passed by the Development Commissioner, Chchin Special Economic Zone (CSEZ), Bengaluru dated 08.01.2013."
}
},
{
"from_name": null,
"id": "1bd1c2570edf40468b0c765caadc5d70",
"to_name": null,
"type": null,
"value": {
"end": 2908,
"labels": [
"FAC"
],
"start": 2432,
"text": "\n 3. The facts in brief are that the petitioner was issued a letter of permission dated 08.10.2007, whereby the petitioner's unit was permitted to operate as an Export Oriented Unit in lieu of the scheme as envisaged under the Foreign Trade policy, 2004-09 in respect of the undertaking established by the petitioner in plot No.224-B, KIADB, Belur, Dharwad, Karnataka - 580 011 for the purpose of manufacturing 6-12\" Cups and Cones with an annual capacity of 1,05,000 numbers."
}
},
{
"from_name": null,
"id": "4fb37b9009e44eaab2461709c1a0063e",
"to_name": null,
"type": null,
"value": {
"end": 3053,
"labels": [
"FAC"
],
"start": 2908,
"text": "\n 4. The Letter of Permission was granted subject to certain conditions imposed therein and the standard conditions as contained in the Annexure."
}
},
{
"from_name": null,
"id": "8716b5ef88ba436fb8b73f012dbeed60",
"to_name": null,
"type": null,
"value": {
"end": 3301,
"labels": [
"FAC"
],
"start": 3054,
"text": "Under the letter of permission, in paragraph 2, certain conditions were imposed and certain benefits were also extended and the unit was required to meet certain obligations in lieu of the benefits conferred upon it under the Letter of Permission."
}
},
{
"from_name": null,
"id": "30bc4b9ba0c54e9b93907109974ae423",
"to_name": null,
"type": null,
"value": {
"end": 3557,
"labels": [
"FAC"
],
"start": 3302,
"text": "One of the conditions, more specifically the condition imposed under Clause-(i) of paragraph 2 mandates that the unit shall export its entire production, excluding rejects, for a period of five years from the date of commencement of commercial production."
}
},
{
"from_name": null,
"id": "c59a9e1aa6f64ac592cc42e90f7dc983",
"to_name": null,
"type": null,
"value": {
"end": 3801,
"labels": [
"FAC"
],
"start": 3558,
"text": "Though several other stipulations are imposed under the said letter of permission, this Court is of the considered opinion that the writ petition could be disposed of on the said short point alone, in other words the conditions referred above."
}
},
{
"from_name": null,
"id": "10d0a8b9f6414ea3897bb046e1b2a3f9",
"to_name": null,
"type": null,
"value": {
"end": 4208,
"labels": [
"ARG_RESPONDENT"
],
"start": 3801,
"text": "\n 5. It is contended by the learned counsel for the respondents that the petitioner have not commenced production of their own and was merely carrying out job works for entities in the domestic tariff area or the local market and the petitioner had not met any of its export commitments or obligations, though it had availed of duty free imports and also exemption under Section 10(B) of the Income Tax Act."
}
},
{
"from_name": null,
"id": "f65a73cb4a7643e9887dc14045b61223",
"to_name": null,
"type": null,
"value": {
"end": 4443,
"labels": [
"ARG_RESPONDENT"
],
"start": 4209,
"text": "Under Clause (vi) of paragraph 2, the Letter of Permission was made valid for a period of three years and the petitioner was required to implement the project within that period and was also required to commence commercial production."
}
},
{
"from_name": null,
"id": "e3c1166656c148a584215d4c48cbd8f7",
"to_name": null,
"type": null,
"value": {
"end": 4473,
"labels": [
"ANALYSIS"
],
"start": 4444,
"text": "Clause 6 reads as under: \"vi."
}
},
{
"from_name": null,
"id": "29d15787c09c41f8b366d8df5663e6d9",
"to_name": null,
"type": null,
"value": {
"end": 4757,
"labels": [
"ANALYSIS"
],
"start": 4474,
"text": "This Letter of Permission is valid for 3 years from its date of issue within which you should implement the project and commence commercial production and would automatically lapse if an application for the extension of validity is not made before the end of the said period."
}
},
{
"from_name": null,
"id": "4a298411d3e44d36a394621ec7a0074b",
"to_name": null,
"type": null,
"value": {
"end": 4886,
"labels": [
"ANALYSIS"
],
"start": 4758,
"text": "Date of commencement of commercial production shall be intimated to the Development Commissioner, Cochin Special Economic Zone.\""
}
},
{
"from_name": null,
"id": "a1319a62e2ca48b7917cf0838b17a969",
"to_name": null,
"type": null,
"value": {
"end": 5145,
"labels": [
"ANALYSIS"
],
"start": 4888,
"text": "6. In view of the perceived non-compliance of the obligations arising under the Foreign Trade Policy and the obligations arising out of the Letter of Permission and the standard conditions, the Original Authority issued a show cause notice dated 25.04.2012."
}
},
{
"from_name": null,
"id": "a3ca00834ebe409086ca6bc5fd069cd4",
"to_name": null,
"type": null,
"value": {
"end": 5216,
"labels": [
"ANALYSIS"
],
"start": 5146,
"text": "The same was replied to by the petitioner vide reply dated 06.07.2012."
}
},
{
"from_name": null,
"id": "9e6f37e97256480d9e8f46cd2ca22b2c",
"to_name": null,
"type": null,
"value": {
"end": 5492,
"labels": [
"ANALYSIS"
],
"start": 5217,
"text": "In paragraph 2 of the reply it is contended as under: \"2. We wish to submit that the Cups and Cones in unfinished condition received from various manufacturers are inspected/checked, cleaned, pre-heated, carburized, washed, inspected, tested and thereafter dispatched to M/s."
}
},
{
"from_name": null,
"id": "e9529857594e4ceb8a310cbdd14c4a0d",
"to_name": null,
"type": null,
"value": {
"end": 5548,
"labels": [
"ANALYSIS"
],
"start": 5493,
"text": "Timken India Manufacturers Private Limited, a SEZ Unit."
}
},
{
"from_name": null,
"id": "a8796b9838ba40949728f83312759e4d",
"to_name": null,
"type": null,
"value": {
"end": 5806,
"labels": [
"ANALYSIS"
],
"start": 5549,
"text": "The Cups and Cones are thus subjected to carburizing or heat treatment, through a series of processes, and the goods of specified quality after treatment and testing are cleared so that they could be used as a part/component in the bearings for automobiles."
}
},
{
"from_name": null,
"id": "db0aad208ebc498d9ce64cc370782640",
"to_name": null,
"type": null,
"value": {
"end": 5919,
"labels": [
"ANALYSIS"
],
"start": 5807,
"text": "The SEZ Unit uses these components for manufacture of bearing falling under CHH 8482 0000 and exports the same.\""
}
},
{
"from_name": null,
"id": "f8a52b2fc29c4277b04bbb189a2653d7",
"to_name": null,
"type": null,
"value": {
"end": 6295,
"labels": [
"ANALYSIS"
],
"start": 5919,
"text": "\n 7. From a bare reading of the reply and particularly paragraph 2 of the reply, it is apparent that the petitioner has not fulfilled it's export obligations as required under the Foreign Trade policy, under which the Letter of Permission came to be issued, thereby conferring upon the petitioner certain benefits in the form as that were available to an export oriented unit."
}
},
{
"from_name": null,
"id": "1d93b6c1be4e4afeb54270f24e9a6f60",
"to_name": null,
"type": null,
"value": {
"end": 6765,
"labels": [
"ANALYSIS"
],
"start": 6295,
"text": "\n 8. The Original Authority afforded an opportunity of personal hearing to the petitioner and thereafter in the light of all the records and material available was pleased to pass the order in original, whereby the Letter of Permission came to be cancelled with immediate effect and penalty of Rs.5,00,000/- was imposed on account of non-fulfillment of the obligations arising under the Letter of Permission and aggrieved by that, the petitioner has preferred an appeal."
}
},
{
"from_name": null,
"id": "d5a8feabad6744b887946e1506fe4bb7",
"to_name": null,
"type": null,
"value": {
"end": 7081,
"labels": [
"ANALYSIS"
],
"start": 6766,
"text": "The Appellate Court after going through the finding of fact rendered by the order of the Original Authority has categorically held that the petitioner has not carried out any exports and the job works carried out by the petitioners do not amount to deemed export or that it cannot be construed to be deemed exports."
}
},
{
"from_name": null,
"id": "0269e2350342415bb36059bd67ae9c82",
"to_name": null,
"type": null,
"value": {
"end": 7118,
"labels": [
"ANALYSIS"
],
"start": 7081,
"text": "\nAccordingly, it rejected the appeal."
}
},
{
"from_name": null,
"id": "c0afc5247b3f46ebae91e260270b15c8",
"to_name": null,
"type": null,
"value": {
"end": 7162,
"labels": [
"ANALYSIS"
],
"start": 7119,
"text": "Hence, the petitioner is before this Court."
}
},
{
"from_name": null,
"id": "4e08c33bc5cb40188d9484cd84d4c503",
"to_name": null,
"type": null,
"value": {
"end": 7321,
"labels": [
"RATIO"
],
"start": 7164,
"text": "9. There is no denying fact that the petitioner has failed to comply with any of the obligations that have been imposed on it under the Letter of Permission."
}
},
{
"from_name": null,
"id": "d0ce89d469e64a54ae122a3b0727039e",
"to_name": null,
"type": null,
"value": {
"end": 7672,
"labels": [
"RATIO"
],
"start": 7321,
"text": "\nThe Letter of Permission, treating the unit as an Export Oriented Unit, being a conditional one subject to the condition imposed under Clause (vi) of paragraph 2 of the letter, this Court does not find any error or perversity in the reasoning assigned by the Original Authority or the Appellate Authority to arrive at the conclusion rendered by them."
}
},
{
"from_name": null,
"id": "4617663b0c2a467f8b38279d5e689b43",
"to_name": null,
"type": null,
"value": {
"end": 7881,
"labels": [
"RATIO"
],
"start": 7673,
"text": "No material is demonstrated or placed before this Court by the petitioner for this Court to conclude contrary to the finding of fact rendered by the Original Authority as confirmed by the Appellate Authority."
}
},
{
"from_name": null,
"id": "ef3306d399ae4cd4b96c20282356ac88",
"to_name": null,
"type": null,
"value": {
"end": 7962,
"labels": [
"RPC"
],
"start": 7881,
"text": "\n In that view of the matter, the petition being devoid of merit stands rejected."
}
},
{
"from_name": null,
"id": "c75f3798f11b485eaf5955a481b1ff6c",
"to_name": null,
"type": null,
"value": {
"end": 7978,
"labels": [
"NONE"
],
"start": 7962,
"text": "\n Sd/- JUDGE gab"
}
}
]
}
] | 4,239 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\nDATED THIS THE 13TH DAY OF FEBRUARY, 2019\n BEFORE\n\n THE HON'BLE MR. JUSTICE G. NARENDAR\n\n WRIT PETITION NO.107971/2015 (GM-RES)\n\nBETWEEN:\n\nJMT AUTO LIMITED,\nREPRESENTED BY\nITS GENERAL MANAGER\nMR. D. RAVI\nMANAGER EXCISE\nHAVING ITS OFFICE AT\nPLOT NO 224-A, KIADB\nBELUR INDUSTRIAL\nAREA GROWTH CENTER,\nDHARWAD 580 011\n\n ... PETITIONER\n\n(BY SRI. S S PATIL & SANJAY CHANAL, ADVOCATES)\n\nAND:\n\n1. DIRECTOR GENERAL OF FOREIGN TRADE,\n UDYOG BHAVAN H WING GATE 2\n MULAN AZAD ROAD,\n NEW DELHI 110 011\n\n2. THE DEVELOPMENT COMMISSIONER\n COCHIN SPECIAL ECONOMIC ZONE\n (CSEZ) SUB OFFICE FOR 100%\n EOUS IN KARNATAKA\n\n MINISTRY OF COMMERCE & INDUSTRY\n GOVERNMENT OF INDIA,\n SEZ BHAVAN,\n NO. 120-C EPIP, WHITEFIELD\n BENGALURU 560 066\n\n3. THE ASSISTANT COMMISSIONER\n OF CENTRAL EXCISE\n CENTRAL EXCISE,\n CUSTOMS & SERVICE TAX\n DHARWAD DIVISION, 2ND FLOOR,\n C.R.BUILDING, NAVANAGER,\n HUBBALLI-580025\n ... RESPONDENTS\n\n(BY SRI. B. B. KANAVI, CGSC FOR R1 & R2;\n SRI. S. N. RAJENDRA, CGSC FOR R3)\n ---\n\n THIS PETITION IS FILED UNDER ARTICLES 226 AND\n227 OF THE CONSTITUTION OF INDIA PRAYING TO:\n\na. SET-ASIDE ORDER OF RESPONDENT NO.1 PASSED ON 15.06.2015 IN BEARING REFERRING NO.F.NO.01/92/171/ 23/AM-16/PC-VI/100 AT ANNEXURE-A AND, b. DIRECT THE RESPONDENT NO.2 TO CONSIDER THE APPLICATION DATED 27.07.2O15 PENDING BEFORE IT, WHICH IS PRODUCED AT ANNEXURE-F AND ETC, THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This writ petition is listed for consideration of I.A/2018 for vacating the interim order granted by this Court. As the writ petition lies in a narrow compass, with the consent of the counsels, it is taken up for disposal.\n Heard the learned counsel for the petitioner and learned counsel Sri. S. N. Rajendra for respondents No.1 to 3.\n 2. The petitioner is before this Court being aggrieved by the order dated 15.06.2015 passed in F.No.01/92/71/23/AM-16/PC-VI/100, whereby the Appellate Authority has been pleased to upheld the order in revision passed by the Development Commissioner, Chchin Special Economic Zone (CSEZ), Bengaluru dated 08.01.2013.\n 3. The facts in brief are that the petitioner was issued a letter of permission dated 08.10.2007, whereby the petitioner's unit was permitted to operate as an Export Oriented Unit in lieu of the scheme as envisaged under the Foreign Trade policy, 2004-09 in respect of the undertaking established by the petitioner in plot No.224-B, KIADB, Belur, Dharwad, Karnataka - 580 011 for the purpose of manufacturing 6-12\" Cups and Cones with an annual capacity of 1,05,000 numbers.\n 4. The Letter of Permission was granted subject to certain conditions imposed therein and the standard conditions as contained in the Annexure. Under the letter of permission, in paragraph 2, certain conditions were imposed and certain benefits were also extended and the unit was required to meet certain obligations in lieu of the benefits conferred upon it under the Letter of Permission. One of the conditions, more specifically the condition imposed under Clause-(i) of paragraph 2 mandates that the unit shall export its entire production, excluding rejects, for a period of five years from the date of commencement of commercial production. Though several other stipulations are imposed under the said letter of permission, this Court is of the considered opinion that the writ petition could be disposed of on the said short point alone, in other words the conditions referred above.\n 5. It is contended by the learned counsel for the respondents that the petitioner have not commenced production of their own and was merely carrying out job works for entities in the domestic tariff area or the local market and the petitioner had not met any of its export commitments or obligations, though it had availed of duty free imports and also exemption under Section 10(B) of the Income Tax Act. Under Clause (vi) of paragraph 2, the Letter of Permission was made valid for a period of three years and the petitioner was required to implement the project within that period and was also required to commence commercial production. Clause 6 reads as under: \"vi. This Letter of Permission is valid for 3 years from its date of issue within which you should implement the project and commence commercial production and would automatically lapse if an application for the extension of validity is not made before the end of the said period. Date of commencement of commercial production shall be intimated to the Development Commissioner, Cochin Special Economic Zone.\"\n 6. In view of the perceived non-compliance of the obligations arising under the Foreign Trade Policy and the obligations arising out of the Letter of Permission and the standard conditions, the Original Authority issued a show cause notice dated 25.04.2012.\nThe same was replied to by the petitioner vide reply dated 06.07.2012. In paragraph 2 of the reply it is contended as under: \"2. We wish to submit that the Cups and Cones in unfinished condition received from various manufacturers are inspected/checked, cleaned, pre-heated, carburized, washed, inspected, tested and thereafter dispatched to M/s. Timken India Manufacturers Private Limited, a SEZ Unit. The Cups and Cones are thus subjected to carburizing or heat treatment, through a series of processes, and the goods of specified quality after treatment and testing are cleared so that they could be used as a part/component in the bearings for automobiles. The SEZ Unit uses these components for manufacture of bearing falling under CHH 8482 0000 and exports the same.\"\n 7. From a bare reading of the reply and particularly paragraph 2 of the reply, it is apparent that the petitioner has not fulfilled it's export obligations as required under the Foreign Trade policy, under which the Letter of Permission came to be issued, thereby conferring upon the petitioner certain benefits in the form as that were available to an export oriented unit.\n 8. The Original Authority afforded an opportunity of personal hearing to the petitioner and thereafter in the light of all the records and material available was pleased to pass the order in original, whereby the Letter of Permission came to be cancelled with immediate effect and penalty of Rs.5,00,000/- was imposed on account of non-fulfillment of the obligations arising under the Letter of Permission and aggrieved by that, the petitioner has preferred an appeal. The Appellate Court after going through the finding of fact rendered by the order of the Original Authority has categorically held that the petitioner has not carried out any exports and the job works carried out by the petitioners do not amount to deemed export or that it cannot be construed to be deemed exports.\nAccordingly, it rejected the appeal. Hence, the petitioner is before this Court.\n 9. There is no denying fact that the petitioner has failed to comply with any of the obligations that have been imposed on it under the Letter of Permission.\nThe Letter of Permission, treating the unit as an Export Oriented Unit, being a conditional one subject to the condition imposed under Clause (vi) of paragraph 2 of the letter, this Court does not find any error or perversity in the reasoning assigned by the Original Authority or the Appellate Authority to arrive at the conclusion rendered by them. No material is demonstrated or placed before this Court by the petitioner for this Court to conclude contrary to the finding of fact rendered by the Original Authority as confirmed by the Appellate Authority.\n In that view of the matter, the petition being devoid of merit stands rejected.\n Sd/- JUDGE gab "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"type": null,
"value": {
"end": 96,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF THE SENIOR CIVIL JUDGE & JMFC\n AT T.NARASIPURA.\n\n "
}
},
{
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"id": "8a898e9946174f8d8968757cbd7645f8",
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"start": 96,
"text": "DATED THIS THE 29TH DAY OF FEBRUARY 2012"
}
},
{
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"id": "0ddc8ea862404d21a04630347a29a17d",
"to_name": null,
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"value": {
"end": 210,
"labels": [
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],
"start": 140,
"text": "PRESENT: Sri. M.G.Kudavakkaliger, B.Com., L.L.M.,\n "
}
},
{
"from_name": null,
"id": "a69f8b95244c42ed962c47c2e16b94fb",
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"value": {
"end": 250,
"labels": [
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],
"start": 210,
"text": "Senior Civil Judge & JMFC T. Narasipura."
}
},
{
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"id": "cb9542b62c7746f5bf60a7bbe6ce42e4",
"to_name": null,
"type": null,
"value": {
"end": 296,
"labels": [
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],
"start": 282,
"text": "O.S NO.17/2008"
}
},
{
"from_name": null,
"id": "60498a4c64804808b291ff0cf1414c68",
"to_name": null,
"type": null,
"value": {
"end": 516,
"labels": [
"PREAMBLE"
],
"start": 296,
"text": "\n\nPlaintiff : 1. Subbappa S/o Mahanthappa, Aged about\n 70 years, R/o Hosahalli village, Muguru\nDefendant : Hobli, T.Narasipura Taluk.\n "
}
},
{
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"id": "1b0118ed96334027b90d06414754fa48",
"to_name": null,
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"end": 534,
"labels": [
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"start": 516,
"text": "(By Adv. Sri.S.J.)"
}
},
{
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"type": null,
"value": {
"end": 582,
"labels": [
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],
"start": 534,
"text": "\n\n Vs.\n 1. Maramma D/o"
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 602,
"labels": [
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],
"start": 583,
"text": "Late Madappa, Major"
}
},
{
"from_name": null,
"id": "4298d6fba86e45aeb0591b17825f7ebd",
"to_name": null,
"type": null,
"value": {
"end": 641,
"labels": [
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],
"start": 602,
"text": ".\n\n 2. Parashivamurthy S/o"
}
},
{
"from_name": null,
"id": "66561f7a280f4737ab97c8acd1b376cb",
"to_name": null,
"type": null,
"value": {
"end": 655,
"labels": [
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],
"start": 642,
"text": "Late Madappa,"
}
},
{
"from_name": null,
"id": "cc066d422fe641c1b310aae8bf82c24d",
"to_name": null,
"type": null,
"value": {
"end": 683,
"labels": [
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"start": 655,
"text": "\n Major."
}
},
{
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"id": "0a7414f63ea04b51b38dd6125f9722b1",
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"value": {
"end": 792,
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],
"start": 683,
"text": "\n\n Both are R/o Hosahalli village, Muguru\n Hobli, T.Narasipura Taluk."
}
},
{
"from_name": null,
"id": "a1373cbcd2594b93bf15296f7f138ce7",
"to_name": null,
"type": null,
"value": {
"end": 909,
"labels": [
"PREAMBLE"
],
"start": 792,
"text": "\n\n (By Adv. Learned K.B.B.)\n\nDate of institution of the suit 03.12.2008."
}
},
{
"from_name": null,
"id": "be5aa87e1f3e453c8a41694d562ec8e5",
"to_name": null,
"type": null,
"value": {
"end": 943,
"labels": [
"PREAMBLE"
],
"start": 910,
"text": "Nature of the suit "
}
},
{
"from_name": null,
"id": "edf8a1f1d6d5411184bd1c7d0beea9c5",
"to_name": null,
"type": null,
"value": {
"end": 1140,
"labels": [
"PREAMBLE"
],
"start": 943,
"text": "For partition and separate possession\n\nDate of the commencement of 22.06.2010.\nrecording evidence\n\nDate on which the Judgement 29.02.2012.\nwas pronounced.\n Year"
}
},
{
"from_name": null,
"id": "9326a710b438426088201039f062b457",
"to_name": null,
"type": null,
"value": {
"end": 1158,
"labels": [
"PREAMBLE"
],
"start": 1140,
"text": "/s Month/s day/s"
}
},
{
"from_name": null,
"id": "10f1e5f1bcc84f93a57e048b753c5ab1",
"to_name": null,
"type": null,
"value": {
"end": 1195,
"labels": [
"PREAMBLE"
],
"start": 1158,
"text": "\nTotal Duration 03"
}
},
{
"from_name": null,
"id": "951eeaab8e244113baeac8c65edc1b67",
"to_name": null,
"type": null,
"value": {
"end": 1204,
"labels": [
"PREAMBLE"
],
"start": 1196,
"text": " 02"
}
},
{
"from_name": null,
"id": "1a5cbb6d4fc84fdabdea0580241fc38a",
"to_name": null,
"type": null,
"value": {
"end": 1211,
"labels": [
"PREAMBLE"
],
"start": 1205,
"text": " 26"
}
},
{
"from_name": null,
"id": "33d9ca73eb0744449b30f19c2eccb975",
"to_name": null,
"type": null,
"value": {
"end": 1267,
"labels": [
"PREAMBLE"
],
"start": 1211,
"text": "\n\n Senior Civil Judge & JMFC T. Narasipura."
}
},
{
"from_name": null,
"id": "72b60e5a02f6471ebc0d72e281b57e75",
"to_name": null,
"type": null,
"value": {
"end": 1280,
"labels": [
"PREAMBLE"
],
"start": 1270,
"text": "JUDGMENT\n "
}
},
{
"from_name": null,
"id": "4b486a61ddbf4424b48f088ebb87c65e",
"to_name": null,
"type": null,
"value": {
"end": 1425,
"labels": [
"FAC"
],
"start": 1280,
"text": "The plaintiff has filed this suit for partition and separate possession of share in the suit schedule properties with metes and bounds and cost."
}
},
{
"from_name": null,
"id": "ae59ba979b3b451f8be7c4f1e0fed3e4",
"to_name": null,
"type": null,
"value": {
"end": 1600,
"labels": [
"FAC"
],
"start": 1425,
"text": "\n 2. Following are the brief and relevant facts leading to the case of the plaintiff; That one Mahanthappa is the father of the plaintiff and one Madappa is his elder brother."
}
},
{
"from_name": null,
"id": "8c38b8529bb34d73b062b9c752a28f29",
"to_name": null,
"type": null,
"value": {
"end": 1739,
"labels": [
"FAC"
],
"start": 1601,
"text": "The suit schedule properties are ancestral properties of the plaintiff and his elder brother Madappa and their father by name Mahanthappa."
}
},
{
"from_name": null,
"id": "3a9de481ca2741f1a1fcd493cc5d34a7",
"to_name": null,
"type": null,
"value": {
"end": 1795,
"labels": [
"FAC"
],
"start": 1740,
"text": "All of them were the members of undivided Hindu family."
}
},
{
"from_name": null,
"id": "56fb492b57264dd4bd8c74f0488d1692",
"to_name": null,
"type": null,
"value": {
"end": 1868,
"labels": [
"FAC"
],
"start": 1796,
"text": "The plaintiff has vested right by birth in the suit schedule properties."
}
},
{
"from_name": null,
"id": "127cda5a6404447bb16e48120484617b",
"to_name": null,
"type": null,
"value": {
"end": 1992,
"labels": [
"FAC"
],
"start": 1869,
"text": "After the death of his father about years the plaintiff inherited right of his late father in the suit schedule properties."
}
},
{
"from_name": null,
"id": "bd666be7d8c04f5297dc4d189679a816",
"to_name": null,
"type": null,
"value": {
"end": 2274,
"labels": [
"FAC"
],
"start": 1992,
"text": "\nAs such the plaintiff became owner of half share in the suit schedule properties likewise Madappa who is father of defendants became owner of half right in the suit schedule properties and both of them continued to be the joint owners in possession of the suit schedule properties."
}
},
{
"from_name": null,
"id": "2ccb4f924c834a6a8e246c6e517dcffe",
"to_name": null,
"type": null,
"value": {
"end": 2403,
"labels": [
"FAC"
],
"start": 2275,
"text": "Madappa who is 1st son of late Mahanthappa has passed away about 10 years ago, these defendants are the only legal heirs of him."
}
},
{
"from_name": null,
"id": "7bc085757a054948b6a7f60a7286f8be",
"to_name": null,
"type": null,
"value": {
"end": 2514,
"labels": [
"FAC"
],
"start": 2404,
"text": "Since Madappa became kartha of undivided Hindu family katha of all the properties held in the name of Madappa."
}
},
{
"from_name": null,
"id": "5d5f0cc841c346439ff07dcc2050451a",
"to_name": null,
"type": null,
"value": {
"end": 2616,
"labels": [
"FAC"
],
"start": 2515,
"text": "After his death the plaintiff and the defendants became joint owners in possession of the properties."
}
},
{
"from_name": null,
"id": "20d77acaa61447d8982df1b03fb052dc",
"to_name": null,
"type": null,
"value": {
"end": 2793,
"labels": [
"FAC"
],
"start": 2617,
"text": "The defendant No.2 without the knowledge of the plaintiff has got held katha of the suit schedule properties in his name, as if all his properties are his exclusive properties."
}
},
{
"from_name": null,
"id": "f183e48af86547aa9e85c37eebf39ec7",
"to_name": null,
"type": null,
"value": {
"end": 2919,
"labels": [
"FAC"
],
"start": 2794,
"text": "On the basis of the illegal katha, the defendant No.2 attempted to alienate the suit schedule properties in favour of others."
}
},
{
"from_name": null,
"id": "cf9553a13d794a0db4f33c20d34326e4",
"to_name": null,
"type": null,
"value": {
"end": 3026,
"labels": [
"FAC"
],
"start": 2920,
"text": "But after the issue of legal notice dt:08.09.2008, the intending purchasers declined to purchase the same."
}
},
{
"from_name": null,
"id": "cb1098fc976f4cb2b1531ef3a7266601",
"to_name": null,
"type": null,
"value": {
"end": 3306,
"labels": [
"FAC"
],
"start": 3027,
"text": "The plaintiff after came to know about the illegal katha held in the name of the defendant No.2 about month ago demanded the defendants to make partition of the suit schedule properties and to deliver the possession of half share in the suit schedule properties to the plaintiff."
}
},
{
"from_name": null,
"id": "a06e0763eb394c8499fc129569a3dc38",
"to_name": null,
"type": null,
"value": {
"end": 3446,
"labels": [
"FAC"
],
"start": 3307,
"text": "But the defendants have given untenable reply, hence, the notice was issued by the plaintiff, the defendant No.2 has given untenable reply."
}
},
{
"from_name": null,
"id": "a45f68c97a154007b06f47532f5c83c7",
"to_name": null,
"type": null,
"value": {
"end": 3499,
"labels": [
"FAC"
],
"start": 3447,
"text": "Hence, the cause of action arouse about a month ago."
}
},
{
"from_name": null,
"id": "75b72977464e4c6fbc8a50895783d48c",
"to_name": null,
"type": null,
"value": {
"end": 3641,
"labels": [
"FAC"
],
"start": 3500,
"text": "Hence, plaintiff prayed to decree the suit in favour of the plaintiff, for partition and separate possession of the suit schedule properties."
}
},
{
"from_name": null,
"id": "f8043a1a98334c2ca6b0bd6c9e3ebf09",
"to_name": null,
"type": null,
"value": {
"end": 3724,
"labels": [
"FAC"
],
"start": 3641,
"text": "\nHence prayed to decree the suit in favour of the plaintiff against the defendants."
}
},
{
"from_name": null,
"id": "f1bc91c840e54a05a099e83d9000a2b2",
"to_name": null,
"type": null,
"value": {
"end": 3836,
"labels": [
"FAC"
],
"start": 3726,
"text": "3. After institution of the suit, as contemplated under law, suit summons came to be issued to the defendants."
}
},
{
"from_name": null,
"id": "b1f1efd712cd4132bd69403968aa7e33",
"to_name": null,
"type": null,
"value": {
"end": 3937,
"labels": [
"FAC"
],
"start": 3837,
"text": "Pursuant to the suit summons Defendants No. 1 & 2 have appeared through their counsel learned K.B.B."
}
},
{
"from_name": null,
"id": "4b9e8379bfaa46d08e25375fd22c355e",
"to_name": null,
"type": null,
"value": {
"end": 4026,
"labels": [
"FAC"
],
"start": 3938,
"text": "Defendant No.1 filed her written statement, defendant No.2 filing memo adopted the same."
}
},
{
"from_name": null,
"id": "33a62f9d416c40ddb57af23eb2b7e6ca",
"to_name": null,
"type": null,
"value": {
"end": 4321,
"labels": [
"ARG_RESPONDENT"
],
"start": 4026,
"text": "\n 4. The defendants No.1 & 2 have denied the averments made in para 1 of the plaint with regard to the facts that plaintiff's elder brother Madappa and their father by name Mahanthappa were the members of the undivided Hindu family as false and called the plaintiff for strict proof of the same."
}
},
{
"from_name": null,
"id": "c02a65b4c3f8406bb2ccb78b7460e6c1",
"to_name": null,
"type": null,
"value": {
"end": 4457,
"labels": [
"ARG_RESPONDENT"
],
"start": 4322,
"text": "These defendants contended that the genealogical tree dt:06.08.2008 is false and created for the purpose of this suit by the plaintiff."
}
},
{
"from_name": null,
"id": "14a5aa2f36544652b9e330d9d66bee67",
"to_name": null,
"type": null,
"value": {
"end": 5007,
"labels": [
"ARG_RESPONDENT"
],
"start": 4457,
"text": "\n 5. These defendants denied that the plaintiff had vested right in the suit schedule properties and contended that the plaintiff has inherited nothing in the suit schedule properties, all his claims are also totally barred by law of limitation since Mahanthappa died more than 30 years ago and since the time of death of late Mahanthappa, Madappa was in exclusive possession and enjoyment of the suit schedule properties having mutation katha changed to his name to the knowledge of the plaintiff who was and is living in his adoptive parents house."
}
},
{
"from_name": null,
"id": "5e0a07a62a4a4ca6841200bf1296cb2d",
"to_name": null,
"type": null,
"value": {
"end": 5294,
"labels": [
"ARG_RESPONDENT"
],
"start": 5008,
"text": "The plaintiff was given in adoption to one Smt.Girijamma who was childless through a registered adoption deed dt:29.06.1956 and late Madappa who died in the year 2002 was in exclusive possession and enjoyment of the suit schedule properties unquestioned by the plaintiff till his death."
}
},
{
"from_name": null,
"id": "1f874ff0364d44dfbaa2a9fa64cd9003",
"to_name": null,
"type": null,
"value": {
"end": 5453,
"labels": [
"ARG_RESPONDENT"
],
"start": 5294,
"text": "\n 6. These defendants have denied the averments made in para 2 and 3 of the plaint as false and baseless and called the plaintiff for strict proof of the same."
}
},
{
"from_name": null,
"id": "a8622f21c2c74222b58884139fee9fb3",
"to_name": null,
"type": null,
"value": {
"end": 5904,
"labels": [
"ARG_RESPONDENT"
],
"start": 5454,
"text": "These defendants have contended that the plaintiff has or had no right of any kind to question the change of mutation katha of the suit schedule properties which are absolutely belonged to late Madappa and the 2nd defendant and the mutation katha of the schedule properties were changed to the name of the 2nd defendant in the year 2002 itself as per INH No.3/2002-03 dt:09.05.2003 which the plaintiff is aware of from the date of change of mutation."
}
},
{
"from_name": null,
"id": "675ab698cd054f92acde6e4569ffa0b9",
"to_name": null,
"type": null,
"value": {
"end": 6087,
"labels": [
"ARG_RESPONDENT"
],
"start": 5905,
"text": "Hence, the allegation of the plaintiff that the defendant No.2 attempted to alienate the properties is totally wrong and the same is pleaded and averred for the purpose of this suit."
}
},
{
"from_name": null,
"id": "a0860ec4d08c469ea39b0416fa30d860",
"to_name": null,
"type": null,
"value": {
"end": 6313,
"labels": [
"ARG_RESPONDENT"
],
"start": 6089,
"text": "7. These defendants further contended that the averments made by the plaintiff that he came to know the illegal katha held in the name of 2nd defendant is total falsehood and concocted for the purpose of filing of this suit."
}
},
{
"from_name": null,
"id": "377afb38a6d6432b9186bd1237728525",
"to_name": null,
"type": null,
"value": {
"end": 6421,
"labels": [
"ARG_RESPONDENT"
],
"start": 6314,
"text": "The plaintiff never asked or demanded for any partition, as he had or has no right to demand for partition."
}
},
{
"from_name": null,
"id": "1c078163a90549529117a33dc09318db",
"to_name": null,
"type": null,
"value": {
"end": 6528,
"labels": [
"FAC"
],
"start": 6421,
"text": "\nHence, for the legal notice dt:08.09.2008 issued by the plaintiff, these defendants have replied properly."
}
},
{
"from_name": null,
"id": "481244959d8b4cc0b5994a55f214772d",
"to_name": null,
"type": null,
"value": {
"end": 6615,
"labels": [
"FAC"
],
"start": 6529,
"text": "The plaintiff has no cause of action to file this suit and the suit is only imaginary."
}
},
{
"from_name": null,
"id": "1df6825a784e4128b49ed398be06ccf2",
"to_name": null,
"type": null,
"value": {
"end": 6770,
"labels": [
"FAC"
],
"start": 6616,
"text": "The plaintiff has not right of any manner to seek or demand partition of the suit schedule properties as they exclusively belonged to the defendants only."
}
},
{
"from_name": null,
"id": "aed7940b33204074b820b353d076bb0c",
"to_name": null,
"type": null,
"value": {
"end": 6909,
"labels": [
"FAC"
],
"start": 6771,
"text": "The description of the suit schedule properties are not fully correct and hence, the properties mentioned in the schedule are not correct."
}
},
{
"from_name": null,
"id": "2e66d5ed94464492805b15ad7b74c403",
"to_name": null,
"type": null,
"value": {
"end": 7015,
"labels": [
"FAC"
],
"start": 6910,
"text": "The plaintiff has not properly valued the schedule properties and the value given is wrong and incorrect."
}
},
{
"from_name": null,
"id": "80bf53ef419e45fca67e8ce6220ebb5b",
"to_name": null,
"type": null,
"value": {
"end": 7151,
"labels": [
"FAC"
],
"start": 7016,
"text": "These defendants denied the all other allegations which are not specifically dealt within the written statement as false and untenable."
}
},
{
"from_name": null,
"id": "4128b6058b4d47cfba56cded3d01a893",
"to_name": null,
"type": null,
"value": {
"end": 7196,
"labels": [
"FAC"
],
"start": 7152,
"text": "Hence, prayed to dismiss the suit with cost."
}
},
{
"from_name": null,
"id": "c51ad18b5a7c4c319441db1f40f6a916",
"to_name": null,
"type": null,
"value": {
"end": 7340,
"labels": [
"ISSUE"
],
"start": 7196,
"text": "\n 8. On the basis of the rival contentions taken up by the respective parties following are the issues that would arise for my consideration: 1."
}
},
{
"from_name": null,
"id": "d47564840a684312b976e68ac8ecf1bf",
"to_name": null,
"type": null,
"value": {
"end": 7544,
"labels": [
"ISSUE"
],
"start": 7341,
"text": "Whether the plaintiff proves that he is the member of the joint Hindu family consisting of plaintiff and defendants and all the suit schedule properties are the joint Hindu family amenable for partition?"
}
},
{
"from_name": null,
"id": "f8bb1281895d42ed90811760a67d7d02",
"to_name": null,
"type": null,
"value": {
"end": 7635,
"labels": [
"ISSUE"
],
"start": 7544,
"text": "\n 2. Whether plaintiff proves that genealogical dt:06.08.2008 is genuine, true and correct?"
}
},
{
"from_name": null,
"id": "7025592f7e9e42688b736153780bf1c5",
"to_name": null,
"type": null,
"value": {
"end": 7706,
"labels": [
"ISSUE"
],
"start": 7635,
"text": "\n 3. Whether defendants prove that suit is barred by law of limitation?"
}
},
{
"from_name": null,
"id": "51f1839a42544f6895254b2ce2f7826e",
"to_name": null,
"type": null,
"value": {
"end": 7839,
"labels": [
"ISSUE"
],
"start": 7706,
"text": "\n 4. Whether defendants prove the plaintiff was given in adoption to one Smt.Girijamma through registered adopted deed dt:21.06.1956?"
}
},
{
"from_name": null,
"id": "39f111a0e225464f96c0ca8781a9beae",
"to_name": null,
"type": null,
"value": {
"end": 7974,
"labels": [
"ISSUE"
],
"start": 7841,
"text": "5. Whether the plaintiff is entitled for separate and possession of the suit schedule properties with metes and bounds as prayed for?"
}
},
{
"from_name": null,
"id": "38a05d7642b74a948a6d7efb739856c6",
"to_name": null,
"type": null,
"value": {
"end": 8000,
"labels": [
"ISSUE"
],
"start": 7974,
"text": "\n 6. What order or decree?"
}
},
{
"from_name": null,
"id": "eb34dd7595594a92abf0a239f743f80e",
"to_name": null,
"type": null,
"value": {
"end": 8253,
"labels": [
"ANALYSIS"
],
"start": 8002,
"text": "9. In order to substantiate the case made out by the plaintiff, the plaintiff Subbappa entered into witness box filed his affidavit evidence and got examined himself as PW1 and got marked as many as 9 documents as per Exs.P1 to P9 and closed her side."
}
},
{
"from_name": null,
"id": "5f45143e8fe4486a889eb9652f7e03bb",
"to_name": null,
"type": null,
"value": {
"end": 8440,
"labels": [
"ANALYSIS"
],
"start": 8254,
"text": "Defendant No.1 entered into witness box and filed her affidavit evidence and got examined herself as DW1 and got marked as many as 12 documents as per Ex.PD1 to 12 and closed their side."
}
},
{
"from_name": null,
"id": "dc9dca9e2534472d9e5e2e995932bc21",
"to_name": null,
"type": null,
"value": {
"end": 8467,
"labels": [
"NONE"
],
"start": 8441,
"text": "Case posted for arguments."
}
},
{
"from_name": null,
"id": "8954b38922ae4ff8acf39f78f64bfee8",
"to_name": null,
"type": null,
"value": {
"end": 8550,
"labels": [
"NONE"
],
"start": 8467,
"text": "\n 10. Heard the arguments on both sides and perused the materials placed on record."
}
},
{
"from_name": null,
"id": "60c7141ccf874c099d84413ef15a09ba",
"to_name": null,
"type": null,
"value": {
"end": 8661,
"labels": [
"ANALYSIS"
],
"start": 8550,
"text": "\n 11. On the basis of the materials placed on record, I record my findings to the above issues are as under; 1."
}
},
{
"from_name": null,
"id": "7f54b5f44a79453cb1790415e8e49f9b",
"to_name": null,
"type": null,
"value": {
"end": 8690,
"labels": [
"ANALYSIS"
],
"start": 8662,
"text": "Issue No.1: In the negative."
}
},
{
"from_name": null,
"id": "f17bccf6186740bcb047a44502871dae",
"to_name": null,
"type": null,
"value": {
"end": 8738,
"labels": [
"ANALYSIS"
],
"start": 8690,
"text": "\n 2. Issue No.2: In the negative."
}
},
{
"from_name": null,
"id": "6506fa415fb7457eb09fbeedae427a2a",
"to_name": null,
"type": null,
"value": {
"end": 8789,
"labels": [
"ANALYSIS"
],
"start": 8738,
"text": "\n 3. Issue No.3: In the affirmative."
}
},
{
"from_name": null,
"id": "4c9344ad51804868b31f9114fae9084d",
"to_name": null,
"type": null,
"value": {
"end": 8839,
"labels": [
"ANALYSIS"
],
"start": 8806,
"text": "4. Issue No.4: In the affirmative"
}
},
{
"from_name": null,
"id": "da30dca687e14ad8a9148210f1ff6b27",
"to_name": null,
"type": null,
"value": {
"end": 8872,
"labels": [
"ANALYSIS"
],
"start": 8840,
"text": "5. Issue No. 5: In the negative."
}
},
{
"from_name": null,
"id": "97132351d2934234a9f4782a1cde7b81",
"to_name": null,
"type": null,
"value": {
"end": 8960,
"labels": [
"ANALYSIS"
],
"start": 8889,
"text": "6. Issue No. 6: As per final order for the following; R E A S O N S 12."
}
},
{
"from_name": null,
"id": "7f91d550c4b740cbb09ff234071618a7",
"to_name": null,
"type": null,
"value": {
"end": 9004,
"labels": [
"ANALYSIS"
],
"start": 8961,
"text": "Issues No.1, 2 & 4:- As issues Nos.1, 2 & 4"
}
},
{
"from_name": null,
"id": "7d66d13f24b74e32bb5fbd97e706ee62",
"to_name": null,
"type": null,
"value": {
"end": 9259,
"labels": [
"ANALYSIS"
],
"start": 9005,
"text": "are inter- linked, the discussion of one issue has its direct bearing on the discussion of another issue, in order to avoid repetition of discussion of evidence and for the purpose of brevity and convenience, I would like to discuss these issues jointly."
}
},
{
"from_name": null,
"id": "00cd72db94f84e08a9ead07f96913d93",
"to_name": null,
"type": null,
"value": {
"end": 9595,
"labels": [
"ANALYSIS"
],
"start": 9259,
"text": "\n 13. On the basis of the rival contentions these issues No.1 & 2 have been framed placing the burden on the plaintiff to prove that plaintiff and defendants constitute a joint Hindu family and genuiness of the genealogical tree dt:06.08.2008 and all the suit schedule properties were the joint family properties amenable for partition."
}
},
{
"from_name": null,
"id": "dab726707516461cb0e27f94526d867e",
"to_name": null,
"type": null,
"value": {
"end": 9785,
"labels": [
"ARG_RESPONDENT"
],
"start": 9595,
"text": "\nThis contention has been denied by the defendants as utter false and contended that plaintiff has been given in adoption to one Smt.Girijamma through registered adoption deed dt:29.06.1956."
}
},
{
"from_name": null,
"id": "33a2f0947b414c2893791ca39fdb27b6",
"to_name": null,
"type": null,
"value": {
"end": 10013,
"labels": [
"ANALYSIS"
],
"start": 9785,
"text": "\nSince from the date of the adoption, the plaintiff lived along with the adoptive parents, hence, the relationship of the plaintiff with the joint family members defendants and other members of the joint family has been severed."
}
},
{
"from_name": null,
"id": "98b6b65c2e424a9396af5019abe68d5c",
"to_name": null,
"type": null,
"value": {
"end": 10133,
"labels": [
"ANALYSIS"
],
"start": 10014,
"text": "Hence, the plaintiff is no more member of the joint family, he cannot claim any partition in the joint family property."
}
},
{
"from_name": null,
"id": "afb58df56b234ab8b36331e179667e0f",
"to_name": null,
"type": null,
"value": {
"end": 10323,
"labels": [
"ANALYSIS"
],
"start": 10133,
"text": "\nHence, issue No.4 has been framed placing the burden on the defendants to prove the alleged adoption of the plaintiff to one Smt.Girijamma, through a registered adoption deed dt:29.06.1956."
}
},
{
"from_name": null,
"id": "78faf8d7b0f54430b21764c164dbc515",
"to_name": null,
"type": null,
"value": {
"end": 10393,
"labels": [
"ANALYSIS"
],
"start": 10323,
"text": "\n(The said Girijamma is none else than the sister of the Mahanthappa)."
}
},
{
"from_name": null,
"id": "33ffdf6ff6fd400792e3bd13db503cb5",
"to_name": null,
"type": null,
"value": {
"end": 10588,
"labels": [
"ANALYSIS"
],
"start": 10393,
"text": "\n 14. In order to substantiate the case made out by the plaintiff, the plaintiff has filed his affidavit reiterating the plaint averments and got marked as many as 9 documents as per Ex.P1 to P9."
}
},
{
"from_name": null,
"id": "8c7d3d5b2dae437787b9ae65ae9301a2",
"to_name": null,
"type": null,
"value": {
"end": 10740,
"labels": [
"ANALYSIS"
],
"start": 10589,
"text": "During the course of the cross-examination the plaintiff has admitted that one Mahathappa is the preposituos of the family who dies about 30 years ago."
}
},
{
"from_name": null,
"id": "ccfc5b1b9dca40c0b992ef8222b17552",
"to_name": null,
"type": null,
"value": {
"end": 10829,
"labels": [
"ANALYSIS"
],
"start": 10741,
"text": "This plaintiff Subbappa and Madappa were the children of the prepositus one Mahanthappa."
}
},
{
"from_name": null,
"id": "4b6d459987aa4538969726fde9f8fc1d",
"to_name": null,
"type": null,
"value": {
"end": 10938,
"labels": [
"ANALYSIS"
],
"start": 10830,
"text": "It has also been admitted that all the suit schedule properties were the ancestral properties of the family."
}
},
{
"from_name": null,
"id": "1116fec3aaf2493a8a553637af0f1ca0",
"to_name": null,
"type": null,
"value": {
"end": 11034,
"labels": [
"ANALYSIS"
],
"start": 10938,
"text": "\nBut this plaintiff has admitted that he was residing in the house of the Girijamma just to eat."
}
},
{
"from_name": null,
"id": "7f9b975e35b445608f2b7a4e62c6690c",
"to_name": null,
"type": null,
"value": {
"end": 11190,
"labels": [
"NONE"
],
"start": 11035,
"text": "For better appreciation I cull out the admissions; .... vAz ɸg ĺAv. Cg wjPAq 30 Vz.\n .... vAz 1984 EAiİ wjVzg. iz Ct.\n ....... Ī azAi vAV Vjd ģAiİ Vzã."
}
},
{
"from_name": null,
"id": "b76e5d7733824f88ba43e4ced30db14e",
"to_name": null,
"type": null,
"value": {
"end": 11223,
"labels": [
"NONE"
],
"start": 11192,
"text": "vAzAi vAVAi ģAiİ Hl iq Vz. ...."
}
},
{
"from_name": null,
"id": "27bda99a524b4e9fb5356b334717be94",
"to_name": null,
"type": null,
"value": {
"end": 11233,
"labels": [
"NONE"
],
"start": 11224,
"text": "VjdU P̽g."
}
},
{
"from_name": null,
"id": "2b59bd0cd5534c978140e94982a033c8",
"to_name": null,
"type": null,
"value": {
"end": 11352,
"labels": [
"ANALYSIS"
],
"start": 11233,
"text": "\n 15. But the plaintiff has denied that he had given in adoption to one Girijamma who is the sister of the Mahanthappa."
}
},
{
"from_name": null,
"id": "21280386fe524ef1a74bcb3f5e10f5b0",
"to_name": null,
"type": null,
"value": {
"end": 11761,
"labels": [
"ANALYSIS"
],
"start": 11353,
"text": "However, defendants have filed and marked certified copy of the adoption deed dt:29.06.1956 which clearly discloses that plaintiff has been given in adoption to Girijamma in the year 1956 itself through a registered adoption deed dt:29.06.1956 which is the 30 years old document it has its own presumptive value U/s.90 of the Indian Evidence Act, the contents of it can be believed without any further proof."
}
},
{
"from_name": null,
"id": "53456c6ac28040129e311a1c41e4c66a",
"to_name": null,
"type": null,
"value": {
"end": 11933,
"labels": [
"ANALYSIS"
],
"start": 11762,
"text": "The effect of the Registration of the Document has been explained by the author T.P.Gopalakrishna in his book Law of Wills which runs as under; 13. Effect of registration."
}
},
{
"from_name": null,
"id": "4267db14686e4043b752dfc4711d3c35",
"to_name": null,
"type": null,
"value": {
"end": 12129,
"labels": [
"ANALYSIS"
],
"start": 11934,
"text": " The registration of a document is a strong circumstances that proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identities."
}
},
{
"from_name": null,
"id": "b1a11854efbe418789b19e04a747f2c5",
"to_name": null,
"type": null,
"value": {
"end": 12268,
"labels": [
"ANALYSIS"
],
"start": 12131,
"text": "16. As per the provisions of the Indian Registration Act and Hindu Adoption Act, adoption deed is the compulsorily registerable document."
}
},
{
"from_name": null,
"id": "efe07e847c8540dab226a935ed5711d0",
"to_name": null,
"type": null,
"value": {
"end": 12403,
"labels": [
"ANALYSIS"
],
"start": 12269,
"text": "In the instant case, the adoption deed has been registered before the Sub-Registrar during the course of his ordinarily working hours."
}
},
{
"from_name": null,
"id": "9347cff337bc4ad6be551c853b29385f",
"to_name": null,
"type": null,
"value": {
"end": 12584,
"labels": [
"ANALYSIS"
],
"start": 12404,
"text": "Hence, it can be said that the adoption deed is to be validly executed and attested by the persons by whom it purports to be executed and attested, hence, it is the valid document."
}
},
{
"from_name": null,
"id": "881a422e6e314b1caa4aeb48c1efc172",
"to_name": null,
"type": null,
"value": {
"end": 12644,
"labels": [
"ANALYSIS"
],
"start": 12585,
"text": "The adoption deed dt:29.06.1956 is the registered document."
}
},
{
"from_name": null,
"id": "101391d7361f47e381871a9c44972e8d",
"to_name": null,
"type": null,
"value": {
"end": 12854,
"labels": [
"ANALYSIS"
],
"start": 12645,
"text": "With regard to the status of the plaintiff as adoptive son of the Girijamma, the plaintiff by suppressing the original adoption deed has filed this false suit claiming half share in the suit schedule property."
}
},
{
"from_name": null,
"id": "28acda7f186540d49c2249cc7c2ce88d",
"to_name": null,
"type": null,
"value": {
"end": 13129,
"labels": [
"ANALYSIS"
],
"start": 12855,
"text": "However, the defendants have produced few more documents such as on demand promissory note Ex.D2 executed by the plaintiff himself in favour of the father of the 1st defendant wherein there is a clear recital with regard to the plaintiff as the adopted son of the Girijamma."
}
},
{
"from_name": null,
"id": "0b1e3ddd429540db87c594b1b4c09dde",
"to_name": null,
"type": null,
"value": {
"end": 13301,
"labels": [
"ANALYSIS"
],
"start": 13130,
"text": "There is also a recital in Ex.D3, Ex.D3 is the Conversion deed executed by the Girijamma and her adopted son Subbappa in favour of one Patel Subbappa on 12.12.1959 itself."
}
},
{
"from_name": null,
"id": "7879f6bad37f4cd1ae0fd273a3faeaf1",
"to_name": null,
"type": null,
"value": {
"end": 13568,
"labels": [
"ANALYSIS"
],
"start": 13302,
"text": "On careful perusal of the entire evidence before this court, it is quite clear that plaintiff is the son prepositus Mahanthappa who has been given in adoption to the Girijamma who is the sister of the Mahanthappa through a registered adoption deed 29.06.1956 itself."
}
},
{
"from_name": null,
"id": "b28a04218c234c529897fa4a451a9e81",
"to_name": null,
"type": null,
"value": {
"end": 13773,
"labels": [
"ANALYSIS"
],
"start": 13569,
"text": "As per Hindu Adoption Act, if a child of Hindu joint family has been given in adoption, it ceases all relationship with the natural family so also all the rights over the properties of the natural family."
}
},
{
"from_name": null,
"id": "c73ce86e6ca94859afe87b0700a077aa",
"to_name": null,
"type": null,
"value": {
"end": 13962,
"labels": [
"ANALYSIS"
],
"start": 13774,
"text": "Therefore, all the properties of the joint family of the Mahanthappa have been got mutated in the name of the Madappa alone and kathas have been rightly changed in the name of the Madappa."
}
},
{
"from_name": null,
"id": "693a41c0c4c7427f8f692612af58d7a2",
"to_name": null,
"type": null,
"value": {
"end": 14082,
"labels": [
"ANALYSIS"
],
"start": 13963,
"text": "The Madappa and his successors were continued their possession and enjoyment over the suit schedule property as owners."
}
},
{
"from_name": null,
"id": "1288516a80b44d89b27241c3c26df6e9",
"to_name": null,
"type": null,
"value": {
"end": 14379,
"labels": [
"ANALYSIS"
],
"start": 14083,
"text": "Therefore, this court is of the opinion that though the plaintiff Subbappa was the son of the Mahanthappa, now he is not a member of the joint family consisting of the defendants and the suit schedule properties were not the properties amenable for partition between the plaintiff and defendants."
}
},
{
"from_name": null,
"id": "3e8ccc648ab34f45975de7b5dd70f904",
"to_name": null,
"type": null,
"value": {
"end": 14467,
"labels": [
"ANALYSIS"
],
"start": 14380,
"text": "Therefore, the plaintiff is not entitled for any share in the suit schedule properties."
}
},
{
"from_name": null,
"id": "81b4e810b8f7472da9027efc439de807",
"to_name": null,
"type": null,
"value": {
"end": 14511,
"labels": [
"ANALYSIS"
],
"start": 14468,
"text": "Hence, I answer issue No.1 in the negative."
}
},
{
"from_name": null,
"id": "341963b04c1640e1889122a3d9574e9b",
"to_name": null,
"type": null,
"value": {
"end": 14808,
"labels": [
"ANALYSIS"
],
"start": 14512,
"text": "The genealogical tree submitted by the plaintiff dt:06.08.2008 is not genuine, because it does not give complete picture about the existing members of the joint family headed by the prepositus Mahanthappa, it does not disclose the fact of giving of the plaintiff in adoption to one Smt.Girijamma."
}
},
{
"from_name": null,
"id": "b1e8ee275a3143998d6ff5d650f2a573",
"to_name": null,
"type": null,
"value": {
"end": 14921,
"labels": [
"ANALYSIS"
],
"start": 14809,
"text": "Hence, the genealogy dt:06.08.2008 is not genuine, true and correct, hence, I answer issue No.2 in the negative."
}
},
{
"from_name": null,
"id": "396756022f7b4524bf39aeb0adea4bd4",
"to_name": null,
"type": null,
"value": {
"end": 15090,
"labels": [
"ANALYSIS"
],
"start": 14922,
"text": "In view of my above discussion defendants have succeeded in proving the adoption of the plaintiff to one Smt.Girijamma through a registered adoption deed dt:29.06.1956."
}
},
{
"from_name": null,
"id": "1e927e4f1100462d8c21cc4368bef9ee",
"to_name": null,
"type": null,
"value": {
"end": 15128,
"labels": [
"ANALYSIS"
],
"start": 15090,
"text": "\nHence, issue No.4 in the affirmative."
}
},
{
"from_name": null,
"id": "3c92e88a11794e3c9794d88f3fff888b",
"to_name": null,
"type": null,
"value": {
"end": 15145,
"labels": [
"ANALYSIS"
],
"start": 15128,
"text": "\n 17. Issue No.3:"
}
},
{
"from_name": null,
"id": "bde356953f9d4e6db6c8d0b90a416657",
"to_name": null,
"type": null,
"value": {
"end": 15334,
"labels": [
"ANALYSIS"
],
"start": 15146,
"text": "On the basis of the rival contentions taken up by the defendants this issue No.3 has been framed placing the burden on the defendants to prove that the suit is barred by law of limitation."
}
},
{
"from_name": null,
"id": "68d16ab43bac445eb7d4d520ad86011e",
"to_name": null,
"type": null,
"value": {
"end": 15588,
"labels": [
"ANALYSIS"
],
"start": 15334,
"text": "\nIn order to substantiate their contention defendants have cross- examined DW1 wherein the plaintiff has admitted that father of the plaintiff died in the year 1994 itself as this suit is for partition, partition opens soon after the death of the father."
}
},
{
"from_name": null,
"id": "412b7a9de7b74c149fc8bc52a79abc5d",
"to_name": null,
"type": null,
"value": {
"end": 15890,
"labels": [
"ANALYSIS"
],
"start": 15589,
"text": "This suit has been filed by the plaintiff on 01.12.2008, as per the plaint averments plaintiff has been excluded from the joint family property since last 30 years, it has been deposed by the plaintiff that at the time of the marriage of his brother 30 years ago the plaintiff asked for the partition."
}
},
{
"from_name": null,
"id": "38b6c078e2dc44239ea5a61be98882aa",
"to_name": null,
"type": null,
"value": {
"end": 16025,
"labels": [
"ANALYSIS"
],
"start": 15891,
"text": "But he has not made partition and given any share to the plaintiff, in this way the plaintiff excluded from the joint family property."
}
},
{
"from_name": null,
"id": "f2a8026d4ee3444bbf72e98fe4212bd9",
"to_name": null,
"type": null,
"value": {
"end": 16204,
"labels": [
"ANALYSIS"
],
"start": 16026,
"text": "The plaintiff has also admitted during the course of the cross-examination with the consent of both the parties all the suit schedule properties have been mutated in the Madappa."
}
},
{
"from_name": null,
"id": "0462e5949cd0418fb746ba382b7f0286",
"to_name": null,
"type": null,
"value": {
"end": 16408,
"labels": [
"ANALYSIS"
],
"start": 16205,
"text": "But this plaintiff kept mum for all these days till the death of his elder brother Madappa in the year 2002 and thereafter kathas have been mutated in the name of the defendant No.2 on 09.05.2003 itself."
}
},
{
"from_name": null,
"id": "a4ca97cd8f554d68ace08b2eba4c55fd",
"to_name": null,
"type": null,
"value": {
"end": 16466,
"labels": [
"ANALYSIS"
],
"start": 16409,
"text": "In this way plaintiff kept mum till the death of Madappa."
}
},
{
"from_name": null,
"id": "35604162476447fa9ec24b20b350932e",
"to_name": null,
"type": null,
"value": {
"end": 16498,
"labels": [
"ANALYSIS"
],
"start": 16467,
"text": "Thereafter, he filed this suit."
}
},
{
"from_name": null,
"id": "abfd584527e84370917b9b4499040899",
"to_name": null,
"type": null,
"value": {
"end": 16623,
"labels": [
"NONE"
],
"start": 16499,
"text": "for better appreciation I cull out the evidence of the PW1 in his cross-examination Ctڣ UߪV 30 ïVz. tڣ UߪzU Pýz. Dzg Cg Pq."
}
},
{
"from_name": null,
"id": "bb086c3f16cf4b058f69ce6946643bb9",
"to_name": null,
"type": null,
"value": {
"end": 16661,
"labels": [
"NONE"
],
"start": 16624,
"text": "Avg zg Eg MnU EgĪ JAz gtU MAz irzã."
}
},
{
"from_name": null,
"id": "df8432b5233d4d13874a3315a187f493",
"to_name": null,
"type": null,
"value": {
"end": 16687,
"labels": [
"NONE"
],
"start": 16662,
"text": "Q vB üvg gtU DV g iv DVv."
}
},
{
"from_name": null,
"id": "3d439a31aca34c1d83179b0439203556",
"to_name": null,
"type": null,
"value": {
"end": 16749,
"labels": [
"NONE"
],
"start": 16688,
"text": "Sv Cg ɸjU zRzU K vPgg ir JAzg jAiĮ. Sv AiiU DVz JAz U Uwz.\n "
}
},
{
"from_name": null,
"id": "102a003be87246838c3c874bc5ca805f",
"to_name": null,
"type": null,
"value": {
"end": 16906,
"labels": [
"ANALYSIS"
],
"start": 16749,
"text": "18. In this way knowing fully well the plaintiff kept mum for about more than 30 years without taking any step to get partitioned the suit schedule property."
}
},
{
"from_name": null,
"id": "4eccce59d3bc49c39c76e483d2d57a4b",
"to_name": null,
"type": null,
"value": {
"end": 16985,
"labels": [
"ANALYSIS"
],
"start": 16907,
"text": "Now after the lapse of more than 32 years, this plaintiff has filed this suit."
}
},
{
"from_name": null,
"id": "3908a3fd3f2e4a73982571508d7bedcb",
"to_name": null,
"type": null,
"value": {
"end": 17048,
"labels": [
"ANALYSIS"
],
"start": 16986,
"text": "The plaintiff ought to have claimed partition within 12 years."
}
},
{
"from_name": null,
"id": "cc3321e7af644a77a1c44cf7bda43a3c",
"to_name": null,
"type": null,
"value": {
"end": 17263,
"labels": [
"ANALYSIS"
],
"start": 17049,
"text": "As per the article 110 of the Limitation Act any persons excluded from the joint family property to enforce right to share therein has to file suit within 12 years when the exclusion becomes known to the plaintiff."
}
},
{
"from_name": null,
"id": "5e4ffcf629e84379bf7617489f486b89",
"to_name": null,
"type": null,
"value": {
"end": 17351,
"labels": [
"ANALYSIS"
],
"start": 17264,
"text": "For better appreciation I cull out the provisions of Article 110 of the Limitation Act."
}
},
{
"from_name": null,
"id": "75d9418c9c5140479b8db78ef7fa0458",
"to_name": null,
"type": null,
"value": {
"end": 17547,
"labels": [
"ANALYSIS"
],
"start": 17353,
"text": "Article 110. By a Twelve years When the exclusion person excluded becomes known to the from a joint family plaintiff property to enforce a right to share therein 19."
}
},
{
"from_name": null,
"id": "84eafd5526d7442f81c290eae3a4c05c",
"to_name": null,
"type": null,
"value": {
"end": 17730,
"labels": [
"ANALYSIS"
],
"start": 17548,
"text": "Hence, on careful perusal of the materials before this court and the provisions of the Limitation Act, this court is of the opinion that the suit is barred by law of limitation also."
}
},
{
"from_name": null,
"id": "e59fe9f0d18a4ec28f356ec34fc1d2c4",
"to_name": null,
"type": null,
"value": {
"end": 17806,
"labels": [
"ANALYSIS"
],
"start": 17731,
"text": "Hence, defendants have proved that the suit is barred by law of limitation."
}
},
{
"from_name": null,
"id": "c86d2cdedf6f4ddb88ca311d33c6d4d3",
"to_name": null,
"type": null,
"value": {
"end": 17853,
"labels": [
"ANALYSIS"
],
"start": 17807,
"text": "Hence, I answer issue No.3 in the affirmative."
}
},
{
"from_name": null,
"id": "35f376ac1a944a48b50173b6dce227be",
"to_name": null,
"type": null,
"value": {
"end": 17870,
"labels": [
"ANALYSIS"
],
"start": 17853,
"text": "\n 20. Issue No.5:"
}
},
{
"from_name": null,
"id": "5cf9f0a6aebd40eda5ccd0c5e12f4436",
"to_name": null,
"type": null,
"value": {
"end": 18130,
"labels": [
"ANALYSIS"
],
"start": 17871,
"text": "On the basis of the rival contentions taken up by the respective this issue has been framed placing the burden on the plaintiff to prove his entitlement for partition and separate possession of the suit schedule properties with metes and bounds as prayed for."
}
},
{
"from_name": null,
"id": "cc8d06b925be4170ae39d538180ee404",
"to_name": null,
"type": null,
"value": {
"end": 18482,
"labels": [
"ANALYSIS"
],
"start": 18131,
"text": "In view of my above discussion and the reasons stated therein this court is of the opinion that this plaintiff has been given in adoption to one Girijamma through registered adoption deed dt:29.06.1956, hence, the plaintiff severe all the relationship with the natural family, the plaintiff is not entitled to claim any property in the natural family."
}
},
{
"from_name": null,
"id": "477384625dcb405487a219fdb16521df",
"to_name": null,
"type": null,
"value": {
"end": 18700,
"labels": [
"RATIO"
],
"start": 18483,
"text": "Hence, now the plaintiff cannot be regarded as the member of the joint family headed by the prepositus Mahanthappa and all the suit schedule properties are the properties of the joint family of prepositus Mahanthappa."
}
},
{
"from_name": null,
"id": "9d4b636f0b084c6a9050c085f1e24fe5",
"to_name": null,
"type": null,
"value": {
"end": 18809,
"labels": [
"RATIO"
],
"start": 18701,
"text": "Now the plaintiff is not entitled for any partition and separate possession of the suit schedule properties."
}
},
{
"from_name": null,
"id": "e279090a99d8426b980b966491db402d",
"to_name": null,
"type": null,
"value": {
"end": 18853,
"labels": [
"ANALYSIS"
],
"start": 18809,
"text": "\nHence, I answer issue No.5 in the negative."
}
},
{
"from_name": null,
"id": "679e9f3c12ae4e40b8689cf4470a2b4f",
"to_name": null,
"type": null,
"value": {
"end": 18870,
"labels": [
"RPC"
],
"start": 18853,
"text": "\n 21. Issue No.6:"
}
},
{
"from_name": null,
"id": "64ca6b2f2cc343ce8313319321a5aab2",
"to_name": null,
"type": null,
"value": {
"end": 18980,
"labels": [
"RPC"
],
"start": 18871,
"text": "In view of my above discussions and my answer to the above issues, I proceed to pass the following; O R D E R"
}
},
{
"from_name": null,
"id": "b951875a3be143b29a2f90ccc5b8db3a",
"to_name": null,
"type": null,
"value": {
"end": 19037,
"labels": [
"RPC"
],
"start": 18981,
"text": "The suit of the plaintiff is hereby dismissed with cost."
}
},
{
"from_name": null,
"id": "060f800d92a04a86848c436a44e96be7",
"to_name": null,
"type": null,
"value": {
"end": 19170,
"labels": [
"NONE"
],
"start": 19037,
"text": "\n(Dictated to the Stenographer, transcript corrected and then pronounced by me in open Court, on this the 29th day of February 2012.)"
}
},
{
"from_name": null,
"id": "fc3f403bd5024794a5d6bbe7488c6482",
"to_name": null,
"type": null,
"value": {
"end": 19233,
"labels": [
"NONE"
],
"start": 19171,
"text": "(M.G. Kudavakkaliger) Senior Civil Judge & JMFC T. Narasipura."
}
},
{
"from_name": null,
"id": "9d58c388918c4508ad9e2a532c34f7ca",
"to_name": null,
"type": null,
"value": {
"end": 19365,
"labels": [
"NONE"
],
"start": 19235,
"text": "ANNEXURE List of witnesses examined for the plaintiff: PW1: Subbappa.\n List of witnesses examined for the defendant: DW1: Maramma."
}
},
{
"from_name": null,
"id": "e2e3cd00fb4e42b286e89ee22b9191e7",
"to_name": null,
"type": null,
"value": {
"end": 19438,
"labels": [
"NONE"
],
"start": 19366,
"text": "List of documents exhibited for the plaintiff: Ex.P1: Genealogical tree."
}
},
{
"from_name": null,
"id": "25e954ede4184c1c8072ebef5af76acb",
"to_name": null,
"type": null,
"value": {
"end": 19462,
"labels": [
"NONE"
],
"start": 19438,
"text": "\nEx.P2 to 4: M.R.Copies."
}
},
{
"from_name": null,
"id": "5831d7719de04127add416dfe94b0d78",
"to_name": null,
"type": null,
"value": {
"end": 19484,
"labels": [
"NONE"
],
"start": 19463,
"text": "Ex.P5 to 7: 3 R.T.Cs."
}
},
{
"from_name": null,
"id": "a099df24d8074961ae6a51c1e4c6a317",
"to_name": null,
"type": null,
"value": {
"end": 19491,
"labels": [
"NONE"
],
"start": 19485,
"text": "Ex.P8:"
}
},
{
"from_name": null,
"id": "471f92cf929a45f78d59f6e71016fd01",
"to_name": null,
"type": null,
"value": {
"end": 19505,
"labels": [
"NONE"
],
"start": 19492,
"text": "Legal notice."
}
},
{
"from_name": null,
"id": "aeb718e2f4e644c4a654ceee9e4cc082",
"to_name": null,
"type": null,
"value": {
"end": 19526,
"labels": [
"NONE"
],
"start": 19506,
"text": "Ex.P9: Reply notice."
}
},
{
"from_name": null,
"id": "42418db5dd174f089f7db148ac0686b6",
"to_name": null,
"type": null,
"value": {
"end": 19578,
"labels": [
"NONE"
],
"start": 19527,
"text": "List of documents exhibited for the defendants: Ex."
}
},
{
"from_name": null,
"id": "301bc60417724aedb9507292fbe2d9f1",
"to_name": null,
"type": null,
"value": {
"end": 19628,
"labels": [
"NONE"
],
"start": 19578,
"text": "D1: Certified copy of Adoption deed dt:29.06.1956."
}
},
{
"from_name": null,
"id": "93e130350aef4c998d831219852138ba",
"to_name": null,
"type": null,
"value": {
"end": 19664,
"labels": [
"NONE"
],
"start": 19629,
"text": "Ex.D2: Original on demand pro-note."
}
},
{
"from_name": null,
"id": "85e590b424ff491799d25d992de09a9d",
"to_name": null,
"type": null,
"value": {
"end": 19720,
"labels": [
"NONE"
],
"start": 19665,
"text": "Ex.D3: Certified copy of conversion deed dt:12.12.1959."
}
},
{
"from_name": null,
"id": "2c5a14aef1c346e19176b7b1e9968f62",
"to_name": null,
"type": null,
"value": {
"end": 19757,
"labels": [
"NONE"
],
"start": 19721,
"text": "Ex.D4: Certified copy of MR 4/80-81."
}
},
{
"from_name": null,
"id": "46ae37db40704b31bf646124a1b4f399",
"to_name": null,
"type": null,
"value": {
"end": 19785,
"labels": [
"NONE"
],
"start": 19758,
"text": "Ex.D5 & 6: 12 Nos. of RTCs."
}
},
{
"from_name": null,
"id": "422525d22c67469a8e2273363c2acde3",
"to_name": null,
"type": null,
"value": {
"end": 19804,
"labels": [
"NONE"
],
"start": 19785,
"text": "\nEx.D7 to 11: RTCs."
}
},
{
"from_name": null,
"id": "64e81218fc534498bec47dbfe20974b0",
"to_name": null,
"type": null,
"value": {
"end": 19847,
"labels": [
"NONE"
],
"start": 19805,
"text": "Ex.D12: Certified copy of Lease Agreement."
}
},
{
"from_name": null,
"id": "4d35174168014f24a33c3f0f6f6f70a5",
"to_name": null,
"type": null,
"value": {
"end": 19889,
"labels": [
"NONE"
],
"start": 19847,
"text": "\n Senior Civil Judge & JMFC T. Narasipura."
}
}
]
}
] | 4,210 | {
"text": "IN THE COURT OF THE SENIOR CIVIL JUDGE & JMFC\n AT T.NARASIPURA.\n\n DATED THIS THE 29TH DAY OF FEBRUARY 2012\n\n PRESENT: Sri. M.G.Kudavakkaliger, B.Com., L.L.M.,\n Senior Civil Judge & JMFC T. Narasipura.\n O.S NO.17/2008\n\nPlaintiff : 1. Subbappa S/o Mahanthappa, Aged about\n 70 years, R/o Hosahalli village, Muguru\nDefendant : Hobli, T.Narasipura Taluk.\n (By Adv. Sri.S.J.)\n\n Vs.\n 1. Maramma D/o Late Madappa, Major.\n\n 2. Parashivamurthy S/o Late Madappa,\n Major.\n\n Both are R/o Hosahalli village, Muguru\n Hobli, T.Narasipura Taluk.\n\n (By Adv. Learned K.B.B.)\n\nDate of institution of the suit 03.12.2008.\nNature of the suit For partition and separate possession\n\nDate of the commencement of 22.06.2010.\nrecording evidence\n\nDate on which the Judgement 29.02.2012.\nwas pronounced.\n Year/s Month/s day/s\nTotal Duration 03 02 26\n\n Senior Civil Judge & JMFC T. Narasipura.\n\n\nJUDGMENT\n The plaintiff has filed this suit for partition and separate possession of share in the suit schedule properties with metes and bounds and cost.\n 2. Following are the brief and relevant facts leading to the case of the plaintiff; That one Mahanthappa is the father of the plaintiff and one Madappa is his elder brother. The suit schedule properties are ancestral properties of the plaintiff and his elder brother Madappa and their father by name Mahanthappa. All of them were the members of undivided Hindu family. The plaintiff has vested right by birth in the suit schedule properties. After the death of his father about years the plaintiff inherited right of his late father in the suit schedule properties.\nAs such the plaintiff became owner of half share in the suit schedule properties likewise Madappa who is father of defendants became owner of half right in the suit schedule properties and both of them continued to be the joint owners in possession of the suit schedule properties. Madappa who is 1st son of late Mahanthappa has passed away about 10 years ago, these defendants are the only legal heirs of him. Since Madappa became kartha of undivided Hindu family katha of all the properties held in the name of Madappa. After his death the plaintiff and the defendants became joint owners in possession of the properties. The defendant No.2 without the knowledge of the plaintiff has got held katha of the suit schedule properties in his name, as if all his properties are his exclusive properties. On the basis of the illegal katha, the defendant No.2 attempted to alienate the suit schedule properties in favour of others. But after the issue of legal notice dt:08.09.2008, the intending purchasers declined to purchase the same. The plaintiff after came to know about the illegal katha held in the name of the defendant No.2 about month ago demanded the defendants to make partition of the suit schedule properties and to deliver the possession of half share in the suit schedule properties to the plaintiff. But the defendants have given untenable reply, hence, the notice was issued by the plaintiff, the defendant No.2 has given untenable reply. Hence, the cause of action arouse about a month ago. Hence, plaintiff prayed to decree the suit in favour of the plaintiff, for partition and separate possession of the suit schedule properties.\nHence prayed to decree the suit in favour of the plaintiff against the defendants.\n 3. After institution of the suit, as contemplated under law, suit summons came to be issued to the defendants. Pursuant to the suit summons Defendants No. 1 & 2 have appeared through their counsel learned K.B.B. Defendant No.1 filed her written statement, defendant No.2 filing memo adopted the same.\n 4. The defendants No.1 & 2 have denied the averments made in para 1 of the plaint with regard to the facts that plaintiff's elder brother Madappa and their father by name Mahanthappa were the members of the undivided Hindu family as false and called the plaintiff for strict proof of the same. These defendants contended that the genealogical tree dt:06.08.2008 is false and created for the purpose of this suit by the plaintiff.\n 5. These defendants denied that the plaintiff had vested right in the suit schedule properties and contended that the plaintiff has inherited nothing in the suit schedule properties, all his claims are also totally barred by law of limitation since Mahanthappa died more than 30 years ago and since the time of death of late Mahanthappa, Madappa was in exclusive possession and enjoyment of the suit schedule properties having mutation katha changed to his name to the knowledge of the plaintiff who was and is living in his adoptive parents house. The plaintiff was given in adoption to one Smt.Girijamma who was childless through a registered adoption deed dt:29.06.1956 and late Madappa who died in the year 2002 was in exclusive possession and enjoyment of the suit schedule properties unquestioned by the plaintiff till his death.\n 6. These defendants have denied the averments made in para 2 and 3 of the plaint as false and baseless and called the plaintiff for strict proof of the same. These defendants have contended that the plaintiff has or had no right of any kind to question the change of mutation katha of the suit schedule properties which are absolutely belonged to late Madappa and the 2nd defendant and the mutation katha of the schedule properties were changed to the name of the 2nd defendant in the year 2002 itself as per INH No.3/2002-03 dt:09.05.2003 which the plaintiff is aware of from the date of change of mutation. Hence, the allegation of the plaintiff that the defendant No.2 attempted to alienate the properties is totally wrong and the same is pleaded and averred for the purpose of this suit.\n 7. These defendants further contended that the averments made by the plaintiff that he came to know the illegal katha held in the name of 2nd defendant is total falsehood and concocted for the purpose of filing of this suit. The plaintiff never asked or demanded for any partition, as he had or has no right to demand for partition.\nHence, for the legal notice dt:08.09.2008 issued by the plaintiff, these defendants have replied properly. The plaintiff has no cause of action to file this suit and the suit is only imaginary. The plaintiff has not right of any manner to seek or demand partition of the suit schedule properties as they exclusively belonged to the defendants only. The description of the suit schedule properties are not fully correct and hence, the properties mentioned in the schedule are not correct. The plaintiff has not properly valued the schedule properties and the value given is wrong and incorrect. These defendants denied the all other allegations which are not specifically dealt within the written statement as false and untenable. Hence, prayed to dismiss the suit with cost.\n 8. On the basis of the rival contentions taken up by the respective parties following are the issues that would arise for my consideration: 1. Whether the plaintiff proves that he is the member of the joint Hindu family consisting of plaintiff and defendants and all the suit schedule properties are the joint Hindu family amenable for partition?\n 2. Whether plaintiff proves that genealogical dt:06.08.2008 is genuine, true and correct?\n 3. Whether defendants prove that suit is barred by law of limitation?\n 4. Whether defendants prove the plaintiff was given in adoption to one Smt.Girijamma through registered adopted deed dt:21.06.1956?\n 5. Whether the plaintiff is entitled for separate and possession of the suit schedule properties with metes and bounds as prayed for?\n 6. What order or decree?\n 9. In order to substantiate the case made out by the plaintiff, the plaintiff Subbappa entered into witness box filed his affidavit evidence and got examined himself as PW1 and got marked as many as 9 documents as per Exs.P1 to P9 and closed her side. Defendant No.1 entered into witness box and filed her affidavit evidence and got examined herself as DW1 and got marked as many as 12 documents as per Ex.PD1 to 12 and closed their side. Case posted for arguments.\n 10. Heard the arguments on both sides and perused the materials placed on record.\n 11. On the basis of the materials placed on record, I record my findings to the above issues are as under; 1. Issue No.1: In the negative.\n 2. Issue No.2: In the negative.\n 3. Issue No.3: In the affirmative.\n 4. Issue No.4: In the affirmative 5. Issue No. 5: In the negative.\n 6. Issue No. 6: As per final order for the following; R E A S O N S 12. Issues No.1, 2 & 4:- As issues Nos.1, 2 & 4 are inter- linked, the discussion of one issue has its direct bearing on the discussion of another issue, in order to avoid repetition of discussion of evidence and for the purpose of brevity and convenience, I would like to discuss these issues jointly.\n 13. On the basis of the rival contentions these issues No.1 & 2 have been framed placing the burden on the plaintiff to prove that plaintiff and defendants constitute a joint Hindu family and genuiness of the genealogical tree dt:06.08.2008 and all the suit schedule properties were the joint family properties amenable for partition.\nThis contention has been denied by the defendants as utter false and contended that plaintiff has been given in adoption to one Smt.Girijamma through registered adoption deed dt:29.06.1956.\nSince from the date of the adoption, the plaintiff lived along with the adoptive parents, hence, the relationship of the plaintiff with the joint family members defendants and other members of the joint family has been severed. Hence, the plaintiff is no more member of the joint family, he cannot claim any partition in the joint family property.\nHence, issue No.4 has been framed placing the burden on the defendants to prove the alleged adoption of the plaintiff to one Smt.Girijamma, through a registered adoption deed dt:29.06.1956.\n(The said Girijamma is none else than the sister of the Mahanthappa).\n 14. In order to substantiate the case made out by the plaintiff, the plaintiff has filed his affidavit reiterating the plaint averments and got marked as many as 9 documents as per Ex.P1 to P9. During the course of the cross-examination the plaintiff has admitted that one Mahathappa is the preposituos of the family who dies about 30 years ago. This plaintiff Subbappa and Madappa were the children of the prepositus one Mahanthappa. It has also been admitted that all the suit schedule properties were the ancestral properties of the family.\nBut this plaintiff has admitted that he was residing in the house of the Girijamma just to eat. For better appreciation I cull out the admissions; .... vAz ɸg ĺAv. Cg wjPAq 30 Vz.\n .... vAz 1984 EAiİ wjVzg. iz Ct.\n ....... Ī azAi vAV Vjd ģAiİ Vzã. vAzAi vAVAi ģAiİ Hl iq Vz. .... VjdU P̽g.\n 15. But the plaintiff has denied that he had given in adoption to one Girijamma who is the sister of the Mahanthappa. However, defendants have filed and marked certified copy of the adoption deed dt:29.06.1956 which clearly discloses that plaintiff has been given in adoption to Girijamma in the year 1956 itself through a registered adoption deed dt:29.06.1956 which is the 30 years old document it has its own presumptive value U/s.90 of the Indian Evidence Act, the contents of it can be believed without any further proof. The effect of the Registration of the Document has been explained by the author T.P.Gopalakrishna in his book Law of Wills which runs as under; 13. Effect of registration. The registration of a document is a strong circumstances that proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identities.\n 16. As per the provisions of the Indian Registration Act and Hindu Adoption Act, adoption deed is the compulsorily registerable document. In the instant case, the adoption deed has been registered before the Sub-Registrar during the course of his ordinarily working hours. Hence, it can be said that the adoption deed is to be validly executed and attested by the persons by whom it purports to be executed and attested, hence, it is the valid document. The adoption deed dt:29.06.1956 is the registered document. With regard to the status of the plaintiff as adoptive son of the Girijamma, the plaintiff by suppressing the original adoption deed has filed this false suit claiming half share in the suit schedule property. However, the defendants have produced few more documents such as on demand promissory note Ex.D2 executed by the plaintiff himself in favour of the father of the 1st defendant wherein there is a clear recital with regard to the plaintiff as the adopted son of the Girijamma. There is also a recital in Ex.D3, Ex.D3 is the Conversion deed executed by the Girijamma and her adopted son Subbappa in favour of one Patel Subbappa on 12.12.1959 itself. On careful perusal of the entire evidence before this court, it is quite clear that plaintiff is the son prepositus Mahanthappa who has been given in adoption to the Girijamma who is the sister of the Mahanthappa through a registered adoption deed 29.06.1956 itself. As per Hindu Adoption Act, if a child of Hindu joint family has been given in adoption, it ceases all relationship with the natural family so also all the rights over the properties of the natural family. Therefore, all the properties of the joint family of the Mahanthappa have been got mutated in the name of the Madappa alone and kathas have been rightly changed in the name of the Madappa. The Madappa and his successors were continued their possession and enjoyment over the suit schedule property as owners. Therefore, this court is of the opinion that though the plaintiff Subbappa was the son of the Mahanthappa, now he is not a member of the joint family consisting of the defendants and the suit schedule properties were not the properties amenable for partition between the plaintiff and defendants. Therefore, the plaintiff is not entitled for any share in the suit schedule properties. Hence, I answer issue No.1 in the negative. The genealogical tree submitted by the plaintiff dt:06.08.2008 is not genuine, because it does not give complete picture about the existing members of the joint family headed by the prepositus Mahanthappa, it does not disclose the fact of giving of the plaintiff in adoption to one Smt.Girijamma. Hence, the genealogy dt:06.08.2008 is not genuine, true and correct, hence, I answer issue No.2 in the negative. In view of my above discussion defendants have succeeded in proving the adoption of the plaintiff to one Smt.Girijamma through a registered adoption deed dt:29.06.1956.\nHence, issue No.4 in the affirmative.\n 17. Issue No.3: On the basis of the rival contentions taken up by the defendants this issue No.3 has been framed placing the burden on the defendants to prove that the suit is barred by law of limitation.\nIn order to substantiate their contention defendants have cross- examined DW1 wherein the plaintiff has admitted that father of the plaintiff died in the year 1994 itself as this suit is for partition, partition opens soon after the death of the father. This suit has been filed by the plaintiff on 01.12.2008, as per the plaint averments plaintiff has been excluded from the joint family property since last 30 years, it has been deposed by the plaintiff that at the time of the marriage of his brother 30 years ago the plaintiff asked for the partition. But he has not made partition and given any share to the plaintiff, in this way the plaintiff excluded from the joint family property. The plaintiff has also admitted during the course of the cross-examination with the consent of both the parties all the suit schedule properties have been mutated in the Madappa. But this plaintiff kept mum for all these days till the death of his elder brother Madappa in the year 2002 and thereafter kathas have been mutated in the name of the defendant No.2 on 09.05.2003 itself. In this way plaintiff kept mum till the death of Madappa. Thereafter, he filed this suit. for better appreciation I cull out the evidence of the PW1 in his cross-examination Ctڣ UߪV 30 ïVz. tڣ UߪzU Pýz. Dzg Cg Pq. Avg zg Eg MnU EgĪ JAz gtU MAz irzã. Q vB üvg gtU DV g iv DVv. Sv Cg ɸjU zRzU K vPgg ir JAzg jAiĮ. Sv AiiU DVz JAz U Uwz.\n 18. In this way knowing fully well the plaintiff kept mum for about more than 30 years without taking any step to get partitioned the suit schedule property. Now after the lapse of more than 32 years, this plaintiff has filed this suit. The plaintiff ought to have claimed partition within 12 years. As per the article 110 of the Limitation Act any persons excluded from the joint family property to enforce right to share therein has to file suit within 12 years when the exclusion becomes known to the plaintiff. For better appreciation I cull out the provisions of Article 110 of the Limitation Act.\n Article 110. By a Twelve years When the exclusion person excluded becomes known to the from a joint family plaintiff property to enforce a right to share therein 19. Hence, on careful perusal of the materials before this court and the provisions of the Limitation Act, this court is of the opinion that the suit is barred by law of limitation also. Hence, defendants have proved that the suit is barred by law of limitation. Hence, I answer issue No.3 in the affirmative.\n 20. Issue No.5: On the basis of the rival contentions taken up by the respective this issue has been framed placing the burden on the plaintiff to prove his entitlement for partition and separate possession of the suit schedule properties with metes and bounds as prayed for. In view of my above discussion and the reasons stated therein this court is of the opinion that this plaintiff has been given in adoption to one Girijamma through registered adoption deed dt:29.06.1956, hence, the plaintiff severe all the relationship with the natural family, the plaintiff is not entitled to claim any property in the natural family. Hence, now the plaintiff cannot be regarded as the member of the joint family headed by the prepositus Mahanthappa and all the suit schedule properties are the properties of the joint family of prepositus Mahanthappa. Now the plaintiff is not entitled for any partition and separate possession of the suit schedule properties.\nHence, I answer issue No.5 in the negative.\n 21. Issue No.6: In view of my above discussions and my answer to the above issues, I proceed to pass the following; O R D E R The suit of the plaintiff is hereby dismissed with cost.\n(Dictated to the Stenographer, transcript corrected and then pronounced by me in open Court, on this the 29th day of February 2012.) (M.G. Kudavakkaliger) Senior Civil Judge & JMFC T. Narasipura.\n ANNEXURE List of witnesses examined for the plaintiff: PW1: Subbappa.\n List of witnesses examined for the defendant: DW1: Maramma.\nList of documents exhibited for the plaintiff: Ex.P1: Genealogical tree.\nEx.P2 to 4: M.R.Copies.\nEx.P5 to 7: 3 R.T.Cs.\nEx.P8: Legal notice.\nEx.P9: Reply notice.\nList of documents exhibited for the defendants: Ex.D1: Certified copy of Adoption deed dt:29.06.1956.\nEx.D2: Original on demand pro-note.\nEx.D3: Certified copy of conversion deed dt:12.12.1959.\nEx.D4: Certified copy of MR 4/80-81.\nEx.D5 & 6: 12 Nos. of RTCs.\nEx.D7 to 11: RTCs.\nEx.D12: Certified copy of Lease Agreement.\n Senior Civil Judge & JMFC T. Narasipura.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "274d551b5f9b49d5b944baa9da58c0b2",
"to_name": null,
"type": null,
"value": {
"end": 119,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA\n KALABURAGI BENCH\n\n DATED THIS THE 18TH DAY OF APRIL 2016"
}
},
{
"from_name": null,
"id": "57578c6baf2d43348833c55be9c394be",
"to_name": null,
"type": null,
"value": {
"end": 392,
"labels": [
"PREAMBLE"
],
"start": 119,
"text": "\n BEFORE\n\nTHE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n CRIMINAL PETITION No.200377/2016\n\nBetween: ... Petitioner\n ... Respondent\nAmbaji S/o Kondiba\nAge: Major, Occ: Labour\n"
}
},
{
"from_name": null,
"id": "0eacc45802bc488a93bc5cd6962990ab",
"to_name": null,
"type": null,
"value": {
"end": 587,
"labels": [
"PREAMBLE"
],
"start": 392,
"text": "R/o Vallepur Border Thanda\nTq. Aurad, Dist. Bidar\n\n(By Sri Anil Kumar Navadagi, Advocate)\n\nAnd:\n\nThe State through\nExcise Police, Sub-Range Aurad\nTq. Aurad, Dist. Bidar\n\n(By Sri P.S. Patil, HCGP)"
}
},
{
"from_name": null,
"id": "9ba0aed8fef94c07857bd221cca6f768",
"to_name": null,
"type": null,
"value": {
"end": 1262,
"labels": [
"PREAMBLE"
],
"start": 587,
"text": "\n\n This Criminal Petition is filed under Section 438 of\nCr.P.C., praying to allow the petition and give a direction to\nthe Police Excise Sub-Range Aurad, Tq. Aurad, Dist. Bidar,\nand the Jurisdictional Sessions Court to enlarge the\npetitioner on bail in the event of his arrest by the respondent\npolice station or on his surrendering before the\nJurisdictional Court in Crime No.9/1994-95 of Excise Police\nSub-Range Aurad, Dist. Bidar, which is now pending on the\n\nfile of Principal District and Sessions Judge, Bidar in Special\nC.C.No.28/1995.\n\n This petition coming on for Orders this day, the Court\nmade the following:\n\n O R D E R\n "
}
},
{
"from_name": null,
"id": "dbc8efede5314669838976b8aa5f8da1",
"to_name": null,
"type": null,
"value": {
"end": 1272,
"labels": [
"FAC"
],
"start": 1262,
"text": "Petitioner"
}
},
{
"from_name": null,
"id": "245e131c391141c3b278a3eff24a2180",
"to_name": null,
"type": null,
"value": {
"end": 1390,
"labels": [
"FAC"
],
"start": 1273,
"text": "has been arraigned as sole accused in Spl.C.C.No.28/1995 on the file of Principal District and Sessions Judge, Bidar."
}
},
{
"from_name": null,
"id": "42f637a1d6944f2aa82e851c2e13dfcd",
"to_name": null,
"type": null,
"value": {
"end": 1585,
"labels": [
"FAC"
],
"start": 1391,
"text": "It appears, the charge sheet has been filed against the petitioner for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `NDPS' Act)."
}
},
{
"from_name": null,
"id": "e31ca72313634f40acaff23a32bf0007",
"to_name": null,
"type": null,
"value": {
"end": 1973,
"labels": [
"FAC"
],
"start": 1587,
"text": "2. The brief allegations are that,- On 24.11.1994, on receipt of credible information that some ganja was kept illegally in the house at Vallepur Border Thanda, the Sub-Inspector of Excise, Aurad Sub-Range, along with his staff conducted raid on that house and searched the residential house and found two bags each weighing 20 Kgs., of ganja and totally 50 Kgs. of ganja was recovered."
}
},
{
"from_name": null,
"id": "04c1e75b37414256873a40f4dd23b192",
"to_name": null,
"type": null,
"value": {
"end": 2096,
"labels": [
"FAC"
],
"start": 1974,
"text": "A mahazar was drawn at the spot and thereafter, charge sheet appears to have been filed showing the accused as absconding."
}
},
{
"from_name": null,
"id": "47e3565465ea4a0bbdef6a646f12433f",
"to_name": null,
"type": null,
"value": {
"end": 2353,
"labels": [
"FAC"
],
"start": 2096,
"text": "\nThe Court inspite of making all its efforts to secure the presence of the accused, as the Court was not able to locate the whereabouts of the accused, it recorded the evidence under Section 299 of Cr.P.C., and transferred the case to long pending register."
}
},
{
"from_name": null,
"id": "592e242b52424ee5a3d91c8c6750a24e",
"to_name": null,
"type": null,
"value": {
"end": 2569,
"labels": [
"FAC"
],
"start": 2354,
"text": "Subsequently, it appears, this Court has directed all the Presiding Officers to open the cases which were transferred to Long Pending Register and to give two-three months time to secure the presence of the accused."
}
},
{
"from_name": null,
"id": "973e63caaffd4cc7b28cdf9e15a0f186",
"to_name": null,
"type": null,
"value": {
"end": 2691,
"labels": [
"FAC"
],
"start": 2570,
"text": "In that context, it appears, the Trial Court also re-opened the case and issued non-bailable warrant against the accused."
}
},
{
"from_name": null,
"id": "6d2c7a46b6e54dd9abb52d7047d0b1ca",
"to_name": null,
"type": null,
"value": {
"end": 2942,
"labels": [
"ARG_PETITIONER"
],
"start": 2691,
"text": "\n 3. It is contended by the learned counsel for the petitioner that absolutely there is no material to implicate the accused into the crime and there is no material to show that he was informed about the case registered against him under the NDPS Act."
}
},
{
"from_name": null,
"id": "e965efe68a5744b1a4bad967bde66dbe",
"to_name": null,
"type": null,
"value": {
"end": 3000,
"labels": [
"ARG_PETITIONER"
],
"start": 2943,
"text": "He was not at all aware of such case pending against him."
}
},
{
"from_name": null,
"id": "9238bf9191054de488eb17d43453aa76",
"to_name": null,
"type": null,
"value": {
"end": 3185,
"labels": [
"ARG_PETITIONER"
],
"start": 3000,
"text": "\nRecently, he came to know that police are searching for him in connection with the case, then he approached the Sessions Court for grant of anticipatory bail which came to be rejected."
}
},
{
"from_name": null,
"id": "ad7cb57508eb402ab962e2c010e79ee6",
"to_name": null,
"type": null,
"value": {
"end": 3400,
"labels": [
"ANALYSIS"
],
"start": 3187,
"text": "4. On careful perusal of the entire charge sheet papers, it is clear that the charge sheet does not disclose that the house in which the raid has been conducted by the Excise Department belonged to the petitioner."
}
},
{
"from_name": null,
"id": "ac6f3a93e8364defacca680c34f078bb",
"to_name": null,
"type": null,
"value": {
"end": 3582,
"labels": [
"ANALYSIS"
],
"start": 3401,
"text": "No witnesses have been examined by the police atleast to prima facie show to the Court that they have raided the house of the petitioner and recovered the said ganja from his house."
}
},
{
"from_name": null,
"id": "3cc7248322be4c3ead99069f9140105c",
"to_name": null,
"type": null,
"value": {
"end": 3701,
"labels": [
"ANALYSIS"
],
"start": 3583,
"text": "Even the charge sheet papers do not disclose the house number in which ganja has been seized by the Excise Department."
}
},
{
"from_name": null,
"id": "1beb302943eb4b4081dd9333d340f440",
"to_name": null,
"type": null,
"value": {
"end": 3928,
"labels": [
"ANALYSIS"
],
"start": 3702,
"text": "Even they have not made any attempt to obtain necessary documents from the village panchayat or Municipality of that village in order to show that the place where the ganja has been seized actually belonged to this petitioner."
}
},
{
"from_name": null,
"id": "2acbfceb21e5449999caf61bde65dd4a",
"to_name": null,
"type": null,
"value": {
"end": 4045,
"labels": [
"ANALYSIS"
],
"start": 3929,
"text": "The material does not show that the petitioner is a permanent resident of said village i.e., Vallepur Border Thanda."
}
},
{
"from_name": null,
"id": "105772377dc84c05b32fe82ccfcf19e8",
"to_name": null,
"type": null,
"value": {
"end": 4192,
"labels": [
"ANALYSIS"
],
"start": 4046,
"text": "The police also have not made any efforts to show that the said person is the resident of the said village and he has got any residential premise."
}
},
{
"from_name": null,
"id": "bdb56e2bcb2e43c885428a75aba668b3",
"to_name": null,
"type": null,
"value": {
"end": 4327,
"labels": [
"ANALYSIS"
],
"start": 4193,
"text": "The entire charge sheet discloses that the police have seized two gunny bags containing ganja from a house in Vallepure Border Thanda."
}
},
{
"from_name": null,
"id": "b5b6b8216cb445859cf8c22a3eaff084",
"to_name": null,
"type": null,
"value": {
"end": 4454,
"labels": [
"ANALYSIS"
],
"start": 4328,
"text": "Except that nothing could be made out from the charge sheet as to how the police are connecting the petitioner into the crime."
}
},
{
"from_name": null,
"id": "b3f6aec124e6406b9221d79499137088",
"to_name": null,
"type": null,
"value": {
"end": 4574,
"labels": [
"ARG_PETITIONER"
],
"start": 4454,
"text": "\n 5. The learned counsel for the petitioner strenuously submitted that petitioner never lived in Vallepur Border Thanda."
}
},
{
"from_name": null,
"id": "08b5649720544d449bfb9054d8bb052f",
"to_name": null,
"type": null,
"value": {
"end": 4738,
"labels": [
"ARG_PETITIONER"
],
"start": 4575,
"text": "He is a permanent resident of Venkatesh Nagar in Lathur District therefore, he was not in a position to know about the pendency of any case registered against him."
}
},
{
"from_name": null,
"id": "145fa42ffe474dcc868ed9c3b1a1c1b9",
"to_name": null,
"type": null,
"value": {
"end": 5056,
"labels": [
"ARG_PETITIONER"
],
"start": 4739,
"text": "In support of this, he has produced a certified copy of the judgment passed in M.A.C.P.No.34/2011 in the Court of Principal District Judge and Ex-Officio Member of MACT at Latur, wherein this petitioner has filed a petition under Section 166 of the Motor Vehicles Act seeking compensation for the accident met by him."
}
},
{
"from_name": null,
"id": "801e1e7f41cc46fbb1cbc02f16a2bead",
"to_name": null,
"type": null,
"value": {
"end": 5137,
"labels": [
"ARG_PETITIONER"
],
"start": 5057,
"text": "In the said judgment his address is shown as resident of Venkatesh Nagar, Latur."
}
},
{
"from_name": null,
"id": "aa7b50c474ee418e81e5e5775ca0c75a",
"to_name": null,
"type": null,
"value": {
"end": 5182,
"labels": [
"ARG_PETITIONER"
],
"start": 5138,
"text": "The said petition came to be partly allowed."
}
},
{
"from_name": null,
"id": "cd937725d7004e3e8efcc9aeca008679",
"to_name": null,
"type": null,
"value": {
"end": 5518,
"labels": [
"ANALYSIS"
],
"start": 5183,
"text": "In view of the above circumstances, as there is material to show that this petitioner was having knowledge about the registration of any case against him and he deliberately absconded himself without surrendering himself to the Court or the police, the anticipatory bail could have been accorded in favour of him by the Sessions Court."
}
},
{
"from_name": null,
"id": "ca0f6654a1864b3c803e46488a481a3c",
"to_name": null,
"type": null,
"value": {
"end": 5688,
"labels": [
"ANALYSIS"
],
"start": 5518,
"text": "\nHowever, the Sessions Court without appreciating the materials on record has simply swayed away by the registration of the case and quantity of ganja seized in the case."
}
},
{
"from_name": null,
"id": "f721f1ae5869431cb2a55b091c1e2d9b",
"to_name": null,
"type": null,
"value": {
"end": 5759,
"labels": [
"ANALYSIS"
],
"start": 5689,
"text": "In my opinion, petitioner has made out a ground for anticipatory bail."
}
},
{
"from_name": null,
"id": "921ab60bac0f4b0aa16163d3b25f50fc",
"to_name": null,
"type": null,
"value": {
"end": 5823,
"labels": [
"RPC"
],
"start": 5759,
"text": "\n 6. Hence, I pass the following: ORDER The petition is allowed."
}
},
{
"from_name": null,
"id": "e1b7e3aafac24dae9595607f96d7404a",
"to_name": null,
"type": null,
"value": {
"end": 6334,
"labels": [
"RPC"
],
"start": 5824,
"text": "Consequently, the petitioner shall be released on bail in connection with Spl.C.C.No.28/1995 pending on the file of Principal District and Sessions Judge, Bidar, subject to following conditions: i) The petitioner shall surrender himself before the learned Special Judge within one week from the date of receipt of a copy of this order and shall execute a personal bond for a sum of `50,000/- (Rupees Fifty Thousand Only) with one solvent surety for the likesum to the satisfaction of the learned Special Judge."
}
},
{
"from_name": null,
"id": "8b98f24e2b6f4d1f824d6f4878428fbf",
"to_name": null,
"type": null,
"value": {
"end": 6412,
"labels": [
"RPC"
],
"start": 6334,
"text": "\n ii) The petitioner shall not indulge in tampering the prosecution witnesses."
}
},
{
"from_name": null,
"id": "dbc68e3d31094704bcdb1e2467d1f74f",
"to_name": null,
"type": null,
"value": {
"end": 6533,
"labels": [
"RPC"
],
"start": 6412,
"text": "\n iii) The petitioner shall appear before the Court on all future dates of hearing unless prevented by any genuine cause."
}
},
{
"from_name": null,
"id": "f70c8a9149f04f6c9339062cc62df984",
"to_name": null,
"type": null,
"value": {
"end": 6549,
"labels": [
"NONE"
],
"start": 6535,
"text": "Sd/- JUDGE NB*"
}
}
]
}
] | 4,181 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n KALABURAGI BENCH\n\n DATED THIS THE 18TH DAY OF APRIL 2016\n BEFORE\n\nTHE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n CRIMINAL PETITION No.200377/2016\n\nBetween: ... Petitioner\n ... Respondent\nAmbaji S/o Kondiba\nAge: Major, Occ: Labour\nR/o Vallepur Border Thanda\nTq. Aurad, Dist. Bidar\n\n(By Sri Anil Kumar Navadagi, Advocate)\n\nAnd:\n\nThe State through\nExcise Police, Sub-Range Aurad\nTq. Aurad, Dist. Bidar\n\n(By Sri P.S. Patil, HCGP)\n\n This Criminal Petition is filed under Section 438 of\nCr.P.C., praying to allow the petition and give a direction to\nthe Police Excise Sub-Range Aurad, Tq. Aurad, Dist. Bidar,\nand the Jurisdictional Sessions Court to enlarge the\npetitioner on bail in the event of his arrest by the respondent\npolice station or on his surrendering before the\nJurisdictional Court in Crime No.9/1994-95 of Excise Police\nSub-Range Aurad, Dist. Bidar, which is now pending on the\n\nfile of Principal District and Sessions Judge, Bidar in Special\nC.C.No.28/1995.\n\n This petition coming on for Orders this day, the Court\nmade the following:\n\n O R D E R\n Petitioner has been arraigned as sole accused in Spl.C.C.No.28/1995 on the file of Principal District and Sessions Judge, Bidar. It appears, the charge sheet has been filed against the petitioner for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `NDPS' Act).\n 2. The brief allegations are that,- On 24.11.1994, on receipt of credible information that some ganja was kept illegally in the house at Vallepur Border Thanda, the Sub-Inspector of Excise, Aurad Sub-Range, along with his staff conducted raid on that house and searched the residential house and found two bags each weighing 20 Kgs., of ganja and totally 50 Kgs. of ganja was recovered. A mahazar was drawn at the spot and thereafter, charge sheet appears to have been filed showing the accused as absconding.\nThe Court inspite of making all its efforts to secure the presence of the accused, as the Court was not able to locate the whereabouts of the accused, it recorded the evidence under Section 299 of Cr.P.C., and transferred the case to long pending register. Subsequently, it appears, this Court has directed all the Presiding Officers to open the cases which were transferred to Long Pending Register and to give two-three months time to secure the presence of the accused. In that context, it appears, the Trial Court also re-opened the case and issued non-bailable warrant against the accused.\n 3. It is contended by the learned counsel for the petitioner that absolutely there is no material to implicate the accused into the crime and there is no material to show that he was informed about the case registered against him under the NDPS Act. He was not at all aware of such case pending against him.\nRecently, he came to know that police are searching for him in connection with the case, then he approached the Sessions Court for grant of anticipatory bail which came to be rejected.\n 4. On careful perusal of the entire charge sheet papers, it is clear that the charge sheet does not disclose that the house in which the raid has been conducted by the Excise Department belonged to the petitioner. No witnesses have been examined by the police atleast to prima facie show to the Court that they have raided the house of the petitioner and recovered the said ganja from his house. Even the charge sheet papers do not disclose the house number in which ganja has been seized by the Excise Department. Even they have not made any attempt to obtain necessary documents from the village panchayat or Municipality of that village in order to show that the place where the ganja has been seized actually belonged to this petitioner. The material does not show that the petitioner is a permanent resident of said village i.e., Vallepur Border Thanda. The police also have not made any efforts to show that the said person is the resident of the said village and he has got any residential premise. The entire charge sheet discloses that the police have seized two gunny bags containing ganja from a house in Vallepure Border Thanda. Except that nothing could be made out from the charge sheet as to how the police are connecting the petitioner into the crime.\n 5. The learned counsel for the petitioner strenuously submitted that petitioner never lived in Vallepur Border Thanda. He is a permanent resident of Venkatesh Nagar in Lathur District therefore, he was not in a position to know about the pendency of any case registered against him. In support of this, he has produced a certified copy of the judgment passed in M.A.C.P.No.34/2011 in the Court of Principal District Judge and Ex-Officio Member of MACT at Latur, wherein this petitioner has filed a petition under Section 166 of the Motor Vehicles Act seeking compensation for the accident met by him. In the said judgment his address is shown as resident of Venkatesh Nagar, Latur.\nThe said petition came to be partly allowed. In view of the above circumstances, as there is material to show that this petitioner was having knowledge about the registration of any case against him and he deliberately absconded himself without surrendering himself to the Court or the police, the anticipatory bail could have been accorded in favour of him by the Sessions Court.\nHowever, the Sessions Court without appreciating the materials on record has simply swayed away by the registration of the case and quantity of ganja seized in the case. In my opinion, petitioner has made out a ground for anticipatory bail.\n 6. Hence, I pass the following: ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in connection with Spl.C.C.No.28/1995 pending on the file of Principal District and Sessions Judge, Bidar, subject to following conditions: i) The petitioner shall surrender himself before the learned Special Judge within one week from the date of receipt of a copy of this order and shall execute a personal bond for a sum of `50,000/- (Rupees Fifty Thousand Only) with one solvent surety for the likesum to the satisfaction of the learned Special Judge.\n ii) The petitioner shall not indulge in tampering the prosecution witnesses.\n iii) The petitioner shall appear before the Court on all future dates of hearing unless prevented by any genuine cause.\n Sd/- JUDGE NB* "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "e1039f3daced4f089215f43d81684d25",
"to_name": null,
"type": null,
"value": {
"end": 130,
"labels": [
"PREAMBLE"
],
"start": 4,
"text": "IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n Present:\n\n "
}
},
{
"from_name": null,
"id": "a8fa7812a8d94aef8760af77a6be01d4",
"to_name": null,
"type": null,
"value": {
"end": 168,
"labels": [
"PREAMBLE"
],
"start": 130,
"text": "Miss Chinmayee Panda, B.A.LL.B.(Hons.)"
}
},
{
"from_name": null,
"id": "80bc708f536e4fe09999a1fe63e14e89",
"to_name": null,
"type": null,
"value": {
"end": 203,
"labels": [
"PREAMBLE"
],
"start": 168,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
"from_name": null,
"id": "c47e642e397a471eb0040ec515c3fc22",
"to_name": null,
"type": null,
"value": {
"end": 294,
"labels": [
"PREAMBLE"
],
"start": 219,
"text": "Date of Argument: - 21.03.2018\n Date of Judgment: - 03.04.2018"
}
},
{
"from_name": null,
"id": "da745c4b7f3a48218a629b23ad5d569f",
"to_name": null,
"type": null,
"value": {
"end": 478,
"labels": [
"PREAMBLE"
],
"start": 294,
"text": "\n\n 2(a)cc Case No.214/16\n Trial No.474/16\n\n State\n\n Vrs.\n\n "
}
},
{
"from_name": null,
"id": "610f7bd743a54233b659907304cffe2c",
"to_name": null,
"type": null,
"value": {
"end": 531,
"labels": [
"PREAMBLE"
],
"start": 478,
"text": "Tej Kumar Kujur, aged about 47 years,\n S"
}
},
{
"from_name": null,
"id": "3b19f45d2edb431ebb7a304ad3204aaf",
"to_name": null,
"type": null,
"value": {
"end": 566,
"labels": [
"PREAMBLE"
],
"start": 531,
"text": "/o- Late Josef Kujur\n "
}
},
{
"from_name": null,
"id": "390d84abfdbc4179856cdec515fbb2c5",
"to_name": null,
"type": null,
"value": {
"end": 574,
"labels": [
"PREAMBLE"
],
"start": 566,
"text": "resident"
}
},
{
"from_name": null,
"id": "d0984d66a9114402b4198664cffcab42",
"to_name": null,
"type": null,
"value": {
"end": 583,
"labels": [
"PREAMBLE"
],
"start": 575,
"text": "of vill-"
}
},
{
"from_name": null,
"id": "6a0254ad6aad4c438f8d21cc96980a88",
"to_name": null,
"type": null,
"value": {
"end": 594,
"labels": [
"PREAMBLE"
],
"start": 584,
"text": "Tilaikani,"
}
},
{
"from_name": null,
"id": "a5044ecf15f54bd48151fb6761f5dec3",
"to_name": null,
"type": null,
"value": {
"end": 624,
"labels": [
"PREAMBLE"
],
"start": 609,
"text": "Ps- Kinjirkela,"
}
},
{
"from_name": null,
"id": "6775dd2aa962498689bd83460fc75596",
"to_name": null,
"type": null,
"value": {
"end": 640,
"labels": [
"PREAMBLE"
],
"start": 625,
"text": "Dist-Sundargarh"
}
},
{
"from_name": null,
"id": "eb459272a07a4d9eb5e38f65b42e5461",
"to_name": null,
"type": null,
"value": {
"end": 731,
"labels": [
"PREAMBLE"
],
"start": 640,
"text": ".\n\n ........Accused\n\nCounsel for the State......."
}
},
{
"from_name": null,
"id": "28238166a77542258e95e6e0e61abcd9",
"to_name": null,
"type": null,
"value": {
"end": 754,
"labels": [
"PREAMBLE"
],
"start": 732,
"text": "Ld. A.P.P, Sundargarh."
}
},
{
"from_name": null,
"id": "068d95c4805743c7be95520087d49e8f",
"to_name": null,
"type": null,
"value": {
"end": 823,
"labels": [
"PREAMBLE"
],
"start": 755,
"text": "Counsel for the defence.....Shri R.N Panda & associates, Sundargarh."
}
},
{
"from_name": null,
"id": "5908822da17c40e79c483a91af33fec1",
"to_name": null,
"type": null,
"value": {
"end": 950,
"labels": [
"PREAMBLE"
],
"start": 833,
"text": "Status of the accused :On bail\n\n Offence U/S. 47 (a)(ii) B & O Excise Act\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "2a3b816319414201aa34e5e9c93ed561",
"to_name": null,
"type": null,
"value": {
"end": 960,
"labels": [
"FAC"
],
"start": 950,
"text": "\n 1. "
}
},
{
"from_name": null,
"id": "558a4ceea34e4db2a3c6be1c60f290f3",
"to_name": null,
"type": null,
"value": {
"end": 1110,
"labels": [
"FAC"
],
"start": 960,
"text": "The accused stands charged for allegedly committing offence u/s 47(a)(ii) of Bihar & Orissa Excise Act (hereinafter referred to as B & O Excise Act) ."
}
},
{
"from_name": null,
"id": "15f09d8ee38747319c9fcc0079987a1a",
"to_name": null,
"type": null,
"value": {
"end": 1384,
"labels": [
"FAC"
],
"start": 1112,
"text": "2. The case of the prosecution as unfolded from the PR is that on 07.08.16 at about 07.30 AM, while the then SI of Excise, Sadar Charge, Sundargarh Smt S.Pradhan was performing patrolling duty along with her staff at Tileikani area, on suspicion she detained the accused."
}
},
{
"from_name": null,
"id": "9549bc56098e45968cae5e0e154a9cc1",
"to_name": null,
"type": null,
"value": {
"end": 1584,
"labels": [
"FAC"
],
"start": 1385,
"text": "After observing all legal formalities of search, she searched the accused and recovered one white colour plastic jarkin containing some liquid substance which on measurement was found to be 3 liters."
}
},
{
"from_name": null,
"id": "37fc5b8482c64375918574c25805d3f2",
"to_name": null,
"type": null,
"value": {
"end": 1688,
"labels": [
"FAC"
],
"start": 1585,
"text": "The SI of Excise tested the contents of the plastic jarkin by blue litmus paper and it turned into red."
}
},
{
"from_name": null,
"id": "10e7eaedca7846df900bd05368d6f1a9",
"to_name": null,
"type": null,
"value": {
"end": 1736,
"labels": [
"FAC"
],
"start": 1689,
"text": "She also conducted hydrometer test of the same."
}
},
{
"from_name": null,
"id": "09f585c074d943e8b4e6f1d9c38af466",
"to_name": null,
"type": null,
"value": {
"end": 1905,
"labels": [
"FAC"
],
"start": 1737,
"text": "From such tests, from the color and odor of the liquid and from her departmental experience and distillery training, she confirmed the same to be nothing but ID liquor."
}
},
{
"from_name": null,
"id": "cdfdde9d94d1468aa944c7b29b7ca13e",
"to_name": null,
"type": null,
"value": {
"end": 1984,
"labels": [
"FAC"
],
"start": 1906,
"text": "Hence, she seized the same in presence of witnesses and prepared seizure list."
}
},
{
"from_name": null,
"id": "bfbf2e058d774bf6b9540c78a865bf53",
"to_name": null,
"type": null,
"value": {
"end": 2192,
"labels": [
"FAC"
],
"start": 1984,
"text": "\n On the basis of the P.R. submitted by the I.O., cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 47(a) of Bihar and Orissa Excise Act."
}
},
{
"from_name": null,
"id": "75a5163ba31c4ccb987a3dc10613da59",
"to_name": null,
"type": null,
"value": {
"end": 2210,
"labels": [
"FAC"
],
"start": 2192,
"text": "\nHence, this case."
}
},
{
"from_name": null,
"id": "e977b512f46b4d1c9e120d9d598aa76a",
"to_name": null,
"type": null,
"value": {
"end": 2275,
"labels": [
"FAC"
],
"start": 2212,
"text": "3. The plea of defence is one of denial and false implication ."
}
},
{
"from_name": null,
"id": "933d83a40cae4b4d864e3f3822ac6612",
"to_name": null,
"type": null,
"value": {
"end": 2533,
"labels": [
"ISSUE"
],
"start": 2276,
"text": "4. Points for determination : (i) Whether on 07.08.16 at about 07.30 AM at Tileikani area the Excise officials seized 3 liters of ID liquor from exclusive and conscious possession of the accused ?\n(ii) Whether the seized articles was nothing but ID liquor ?"
}
},
{
"from_name": null,
"id": "51276c236e3442fba52763ea5d92dcc4",
"to_name": null,
"type": null,
"value": {
"end": 2794,
"labels": [
"FAC"
],
"start": 2533,
"text": "\n 5. In order to substantiate its case prosecution has examined as many as three witnesses out of whom P.W.1 is the SI of Excise, P.W.2 is the Excise staff who had accompanied P.W.1 during the alleged patrolling duty and P.W.3 is an independent seizure witness."
}
},
{
"from_name": null,
"id": "4dd5d09d23de4a658ef9b40342facdcc",
"to_name": null,
"type": null,
"value": {
"end": 2891,
"labels": [
"FAC"
],
"start": 2795,
"text": "On the other hand the defence has preferred not to examine any witness on behalf of the accused."
}
},
{
"from_name": null,
"id": "aa3ea929fe564e1497e36ec619dcb6c6",
"to_name": null,
"type": null,
"value": {
"end": 3203,
"labels": [
"FAC"
],
"start": 2891,
"text": "\n 6. In order to establish seizure, P.W.1 has deposed that on 07.08.a6 at about 7.30 AM while conducting patrolling duty along with her staff at Tileiknai area on suspicion, she searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 3 liters."
}
},
{
"from_name": null,
"id": "36e631323946473ba55b5c20e3712459",
"to_name": null,
"type": null,
"value": {
"end": 3461,
"labels": [
"FAC"
],
"start": 3204,
"text": "As per her evidence she conducted blue litmus paper test and hydrometer test of the liquid and after being confirmed about the nature of the liquid to be ID liquor, she seized the same from the possession of the accused and prepared seizure list vide Ext.1."
}
},
{
"from_name": null,
"id": "440fbf5752ea4c12bdcd7fd37c0e478e",
"to_name": null,
"type": null,
"value": {
"end": 3520,
"labels": [
"FAC"
],
"start": 3462,
"text": "P.W.2 has also deposed in the same light as that of P.W.1."
}
},
{
"from_name": null,
"id": "e55bf28942574b6f9ca2f3ac30f69baf",
"to_name": null,
"type": null,
"value": {
"end": 3614,
"labels": [
"FAC"
],
"start": 3521,
"text": "On the other hand P.W.3 the independent witness, has not supported the seizure in any manner."
}
},
{
"from_name": null,
"id": "b694dbdf31ba4a549d29d27d2a1ac1d3",
"to_name": null,
"type": null,
"value": {
"end": 3747,
"labels": [
"FAC"
],
"start": 3614,
"text": "\n During course of cross-examination P.W.1 has admitted that the seized liquor has not been produced in court during course of trial."
}
},
{
"from_name": null,
"id": "380dbb496a914ae9b4ee0501b1fae7a1",
"to_name": null,
"type": null,
"value": {
"end": 3917,
"labels": [
"FAC"
],
"start": 3748,
"text": "P.W.1 has further admitted that the spot was a busy place many people had gathered on the spot and she was not able to say the name of the witnesses present at the spot."
}
},
{
"from_name": null,
"id": "2b9539e3ee984a529a503ef81d54da8d",
"to_name": null,
"type": null,
"value": {
"end": 3987,
"labels": [
"FAC"
],
"start": 3918,
"text": "She was also not able to say the names of the nearby house owners .It"
}
},
{
"from_name": null,
"id": "3fb0214926684ab0979400d842574345",
"to_name": null,
"type": null,
"value": {
"end": 4136,
"labels": [
"FAC"
],
"start": 3988,
"text": "appears from the evidence adduced that though the spot of seizure was a road but no independent corroboration is there to prove the fact of seizure."
}
},
{
"from_name": null,
"id": "b386b365e8d643299909a6b87aba0e3f",
"to_name": null,
"type": null,
"value": {
"end": 4257,
"labels": [
"FAC"
],
"start": 4137,
"text": "In the absence of independent corroboration to the evidence of the Excise personnel, the prosecution case is suspicious."
}
},
{
"from_name": null,
"id": "9f29d89dcc7746bbb0a6dff41d88bd11",
"to_name": null,
"type": null,
"value": {
"end": 4343,
"labels": [
"FAC"
],
"start": 4258,
"text": "The seized article was also not produced before the Court during the course of trial."
}
},
{
"from_name": null,
"id": "e65a5ee80c1f464a8715ca8cd662f221",
"to_name": null,
"type": null,
"value": {
"end": 4455,
"labels": [
"FAC"
],
"start": 4344,
"text": "Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article."
}
},
{
"from_name": null,
"id": "45e0139898c0444cb3d083736079ace0",
"to_name": null,
"type": null,
"value": {
"end": 4612,
"labels": [
"ANALYSIS"
],
"start": 4455,
"text": "\nIn view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful."
}
},
{
"from_name": null,
"id": "fb199d5e730f46f19d3ded5b7fce88d5",
"to_name": null,
"type": null,
"value": {
"end": 4787,
"labels": [
"ANALYSIS"
],
"start": 4612,
"text": "\nHence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts."
}
},
{
"from_name": null,
"id": "8d08408af5304bd68c6f705b19fc59b5",
"to_name": null,
"type": null,
"value": {
"end": 4802,
"labels": [
"ANALYSIS"
],
"start": 4789,
"text": "7. "
}
},
{
"from_name": null,
"id": "a52e0c279725474b8a4fe2416bc25601",
"to_name": null,
"type": null,
"value": {
"end": 5023,
"labels": [
"ANALYSIS"
],
"start": 4802,
"text": "So far as the nature of liquor is concerned though P.W.1 has deposed that she tested the contents of the plastic jarkin with the help of blue litmus paper and such paper turned into red and also conducted Hydrometer test."
}
},
{
"from_name": null,
"id": "87eb3bbbce4a4a80b3cb83890dfdc4bf",
"to_name": null,
"type": null,
"value": {
"end": 5213,
"labels": [
"ANALYSIS"
],
"start": 5024,
"text": "As per her evidence, from such tests, from the color and odor of the liquid and from her departmental experience and distillery training, she confirmed the same to be nothing but ID liquor."
}
},
{
"from_name": null,
"id": "60ea745b19e448058129d2697cc6d456",
"to_name": null,
"type": null,
"value": {
"end": 5282,
"labels": [
"ANALYSIS"
],
"start": 5214,
"text": "Law is well settled that chemical test is the surest test of liquor."
}
},
{
"from_name": null,
"id": "4fadd26279094104b4412456a636b484",
"to_name": null,
"type": null,
"value": {
"end": 5610,
"labels": [
"ANALYSIS"
],
"start": 5283,
"text": "Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc. has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test."
}
},
{
"from_name": null,
"id": "63e35ab7534340739a38dd0bb99f449f",
"to_name": null,
"type": null,
"value": {
"end": 5762,
"labels": [
"ANALYSIS"
],
"start": 5611,
"text": "In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W.1."
}
},
{
"from_name": null,
"id": "ee8a0717d4e44745801ca4d6a6f95381",
"to_name": null,
"type": null,
"value": {
"end": 5878,
"labels": [
"RATIO"
],
"start": 5763,
"text": "In view of the above discussion, the allegation that the seized article is nothing but ID liquor comes under cloud."
}
},
{
"from_name": null,
"id": "6e5959af356f4531b24ae84d0362d310",
"to_name": null,
"type": null,
"value": {
"end": 6016,
"labels": [
"RATIO"
],
"start": 5879,
"text": "Hence, it can be safely concluded that prosecution has failed to prove that the seized article is ID liquor beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "28a6d41d05ad401cbeb4480607cbd4a3",
"to_name": null,
"type": null,
"value": {
"end": 6218,
"labels": [
"RATIO"
],
"start": 6016,
"text": "\n 8. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself."
}
},
{
"from_name": null,
"id": "30a83dfaedb644f3a40acfda4ee0fcb7",
"to_name": null,
"type": null,
"value": {
"end": 6397,
"labels": [
"RPC"
],
"start": 6220,
"text": "In the result I hold the accused not guilty of offence u/s 47(a) (ii) of Bihar and Orissa Excise Act and is acquitted therefrom as per the provision of section 248(1) of Cr.P.C."
}
},
{
"from_name": null,
"id": "8482b901e95d467582a8eb05bf68901b",
"to_name": null,
"type": null,
"value": {
"end": 6509,
"labels": [
"RPC"
],
"start": 6398,
"text": "The accused be set at liberty forthwith and be discharged from her bail bond so far as this case is concerned ."
}
},
{
"from_name": null,
"id": "da47588be20e46b9addda929f84ba150",
"to_name": null,
"type": null,
"value": {
"end": 6683,
"labels": [
"RPC"
],
"start": 6511,
"text": "9. The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "ae5e6d940e21493d8111809bbe27c091",
"to_name": null,
"type": null,
"value": {
"end": 6745,
"labels": [
"RPC"
],
"start": 6685,
"text": "Enter this case as mistake of fact for statistical purpose ."
}
},
{
"from_name": null,
"id": "3545655b017449b09cd5b208f2047803",
"to_name": null,
"type": null,
"value": {
"end": 6767,
"labels": [
"NONE"
],
"start": 6745,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
"from_name": null,
"id": "934b1fa6e87a4a149237bdc2817cf0fb",
"to_name": null,
"type": null,
"value": {
"end": 6941,
"labels": [
"NONE"
],
"start": 6767,
"text": "\n Transcript is typed out, corrected by me and judgment is pronounced in the open court under my signature and seal on this the 3rd day of April , 2018.\n S.D.J.M.,Sundargarh."
}
},
{
"from_name": null,
"id": "efe7726c4f234d65b19b3b88e0715814",
"to_name": null,
"type": null,
"value": {
"end": 7114,
"labels": [
"NONE"
],
"start": 6943,
"text": "LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Sagarika Pradhan P.W. 2 Pradumn Kumar Pradhan P.W.3 Abzaham Kujur LIST OF WITNESSES EXAMINED FOR THE DEFENCE:"
}
},
{
"from_name": null,
"id": "7a438c1e5250437088ce1bd50385ad90",
"to_name": null,
"type": null,
"value": {
"end": 7368,
"labels": [
"NONE"
],
"start": 7115,
"text": "Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Tested blue litmus paper.\n Ext.1/2 Signature of P.W.1 Ext.1/3 Signature of P.W.2 Ext.1/4 Signature of P.W.3 Ext.2 Hydrometer chart Ext.2/1 Signature of P.W.1"
}
},
{
"from_name": null,
"id": "64df971a34fb438b86f0b1b076b007a8",
"to_name": null,
"type": null,
"value": {
"end": 7424,
"labels": [
"NONE"
],
"start": 7369,
"text": "LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil."
}
},
{
"from_name": null,
"id": "16e955183d8a4f8aae2cdde2f51bcb26",
"to_name": null,
"type": null,
"value": {
"end": 7475,
"labels": [
"NONE"
],
"start": 7426,
"text": "LIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION."
}
},
{
"from_name": null,
"id": "c6d24275a43c4c8aa149b92856f62748",
"to_name": null,
"type": null,
"value": {
"end": 7482,
"labels": [
"NONE"
],
"start": 7475,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "33078a0c1b184405bf2079f8bdd603f1",
"to_name": null,
"type": null,
"value": {
"end": 7529,
"labels": [
"NONE"
],
"start": 7484,
"text": "LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE."
}
},
{
"from_name": null,
"id": "15bd32fbb6064dc69dae0f564ec7fe13",
"to_name": null,
"type": null,
"value": {
"end": 7535,
"labels": [
"NONE"
],
"start": 7529,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "b0203cb3ee614306abbf6d5ede2ee74c",
"to_name": null,
"type": null,
"value": {
"end": 7557,
"labels": [
"NONE"
],
"start": 7535,
"text": "\n S.D.J.M.,Sundargarh."
}
}
]
}
] | 4,238 | {
"text": " IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n Present:\n\n Miss Chinmayee Panda, B.A.LL.B.(Hons.)\n S.D.J.M.,Sundargarh.\n\n Date of Argument: - 21.03.2018\n Date of Judgment: - 03.04.2018\n\n 2(a)cc Case No.214/16\n Trial No.474/16\n\n State\n\n Vrs.\n\n Tej Kumar Kujur, aged about 47 years,\n S/o- Late Josef Kujur\n resident of vill- Tilaikani,\n Ps- Kinjirkela, Dist-Sundargarh.\n\n ........Accused\n\nCounsel for the State....... Ld. A.P.P, Sundargarh.\nCounsel for the defence.....Shri R.N Panda & associates, Sundargarh.\n\n Status of the accused :On bail\n\n Offence U/S. 47 (a)(ii) B & O Excise Act\n\n J U D G M E N T\n 1. The accused stands charged for allegedly committing offence u/s 47(a)(ii) of Bihar & Orissa Excise Act (hereinafter referred to as B & O Excise Act) .\n 2. The case of the prosecution as unfolded from the PR is that on 07.08.16 at about 07.30 AM, while the then SI of Excise, Sadar Charge, Sundargarh Smt S.Pradhan was performing patrolling duty along with her staff at Tileikani area, on suspicion she detained the accused. After observing all legal formalities of search, she searched the accused and recovered one white colour plastic jarkin containing some liquid substance which on measurement was found to be 3 liters. The SI of Excise tested the contents of the plastic jarkin by blue litmus paper and it turned into red. She also conducted hydrometer test of the same. From such tests, from the color and odor of the liquid and from her departmental experience and distillery training, she confirmed the same to be nothing but ID liquor. Hence, she seized the same in presence of witnesses and prepared seizure list.\n On the basis of the P.R. submitted by the I.O., cognizance was taken and subsequently trial commenced against the accused for allegedly committing offence under section 47(a) of Bihar and Orissa Excise Act.\nHence, this case.\n 3. The plea of defence is one of denial and false implication .\n4. Points for determination : (i) Whether on 07.08.16 at about 07.30 AM at Tileikani area the Excise officials seized 3 liters of ID liquor from exclusive and conscious possession of the accused ?\n(ii) Whether the seized articles was nothing but ID liquor ?\n 5. In order to substantiate its case prosecution has examined as many as three witnesses out of whom P.W.1 is the SI of Excise, P.W.2 is the Excise staff who had accompanied P.W.1 during the alleged patrolling duty and P.W.3 is an independent seizure witness. On the other hand the defence has preferred not to examine any witness on behalf of the accused.\n 6. In order to establish seizure, P.W.1 has deposed that on 07.08.a6 at about 7.30 AM while conducting patrolling duty along with her staff at Tileiknai area on suspicion, she searched the accused and recovered one plastic jarkin containing some liquid substance which on measurement was found to be 3 liters. As per her evidence she conducted blue litmus paper test and hydrometer test of the liquid and after being confirmed about the nature of the liquid to be ID liquor, she seized the same from the possession of the accused and prepared seizure list vide Ext.1. P.W.2 has also deposed in the same light as that of P.W.1. On the other hand P.W.3 the independent witness, has not supported the seizure in any manner.\n During course of cross-examination P.W.1 has admitted that the seized liquor has not been produced in court during course of trial. P.W.1 has further admitted that the spot was a busy place many people had gathered on the spot and she was not able to say the name of the witnesses present at the spot. She was also not able to say the names of the nearby house owners .It appears from the evidence adduced that though the spot of seizure was a road but no independent corroboration is there to prove the fact of seizure. In the absence of independent corroboration to the evidence of the Excise personnel, the prosecution case is suspicious. The seized article was also not produced before the Court during the course of trial. Prosecution has also not adduced any evidence that the accused had dominion or control over the seized article.\nIn view of the above discussion, the fact that the seized article was recovered from the exclusive and conscious possession of the accused becomes doubtful.\nHence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused beyond all the reasonable doubts.\n 7. So far as the nature of liquor is concerned though P.W.1 has deposed that she tested the contents of the plastic jarkin with the help of blue litmus paper and such paper turned into red and also conducted Hydrometer test. As per her evidence, from such tests, from the color and odor of the liquid and from her departmental experience and distillery training, she confirmed the same to be nothing but ID liquor. Law is well settled that chemical test is the surest test of liquor. Where chemical test has not been done and other tests like blue litmus paper and hydrometer test etc. has been done,the burden lies on the prosecution to establish that the officer is specially trained and has long departmental experience so that his evidence can be accepted as expert opinion and can substitute chemical test. In absence of any chemical test so also any document to prove that the S.I can be regarded as expert, it is not safe to rely on the testimony of P.W.1. In view of the above discussion, the allegation that the seized article is nothing but ID liquor comes under cloud. Hence, it can be safely concluded that prosecution has failed to prove that the seized article is ID liquor beyond all reasonable doubts.\n 8. In the present case after analyzing the evidence on record, I find it fair enough to acquit the accused on the ground that prosecution has miserably failed to prove the occurrence itself.\n In the result I hold the accused not guilty of offence u/s 47(a) (ii) of Bihar and Orissa Excise Act and is acquitted therefrom as per the provision of section 248(1) of Cr.P.C. The accused be set at liberty forthwith and be discharged from her bail bond so far as this case is concerned .\n 9. The seized articles be destroyed after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court.\n Enter this case as mistake of fact for statistical purpose .\n S.D.J.M.,Sundargarh.\n Transcript is typed out, corrected by me and judgment is pronounced in the open court under my signature and seal on this the 3rd day of April , 2018.\n S.D.J.M.,Sundargarh.\n LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Sagarika Pradhan P.W. 2 Pradumn Kumar Pradhan P.W.3 Abzaham Kujur LIST OF WITNESSES EXAMINED FOR THE DEFENCE: Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Seizure list Ext.1/1 Tested blue litmus paper.\n Ext.1/2 Signature of P.W.1 Ext.1/3 Signature of P.W.2 Ext.1/4 Signature of P.W.3 Ext.2 Hydrometer chart Ext.2/1 Signature of P.W.1 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil.\n LIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION.\n Nil.\n LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE.\n Nil.\n S.D.J.M.,Sundargarh.\n "
} |
{
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{
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"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
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"text": "\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 202 OF 1993\n\nHarischandra Dadaji Jadhav ]\nAge:"
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"text": "33 Years, Resident of ]"
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"text": "\nMunjvad, Taluka- Satana, ]\nDistrict:"
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"start": 296,
"text": "Nasik. ]\n(At Present lodged at Malegaon Prison, ]\nNasik) ]...Appellant\n\n Versus ]...Respondents\nThe State of Maharashtra\n\n ALONG WITH\nCRIMINAL APPEAL NO. 334 OF 1993\n\nThe State of Maharashtra ...Appellant\n\n Versus ]\n ]\n1."
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"text": "Dadaji"
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"start": 791,
"text": "Dhodha Jadhav"
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"text": " ]\n Age-55 Years, Occ- Service"
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"text": " ]\n ]\n2."
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"text": "Parvatibai"
}
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"text": "Dadaji Jadhav"
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"text": "\n Age- 50 Years"
}
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"text": ", Occ- Housewife"
}
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"labels": [
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"start": 1045,
"text": "...Respondents\n Both R/o. Munjavad, Tq. Satana\n Dist. Nashik.\n\n ...\nAPPEARANCES-\n\nMs. Racheeta Rajendra Dhuru for Appellant in Criminal Appeal No. 202 of\n1993.\nMs. M.M. Deshmukh, APP for Respondent State in Criminal Appeal No.\n334 of 1993 and Respondent in Criminal Appeal No. 202 of 1993."
}
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{
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"text": "...\n\n\n "
}
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"text": "CORAM : S. S. SHINDE &"
}
},
{
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"labels": [
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],
"start": 1499,
"text": "\n N. B. SURYAWANSHI, JJ.\n\n RESERVED ON : 5th NOVEMBER 2019\n PRONOUNCED ON: 19th DECEMBER 2019"
}
},
{
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"text": "JUDGMENT: [PER S S SHINDE, J.] "
}
},
{
"from_name": null,
"id": "f2ffa37fe4b0430891492889ba0cc3f4",
"to_name": null,
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"value": {
"end": 1741,
"labels": [
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],
"start": 1728,
"text": "1 "
}
},
{
"from_name": null,
"id": "8eafc6f74dbd45e489d817cbfb09f823",
"to_name": null,
"type": null,
"value": {
"end": 2106,
"labels": [
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],
"start": 1741,
"text": "The Criminal Appeal No. 202 of 1993 has been filed by the Appellant who is original Accused No. 1 against the judgment and order dated 20th March 1993 passed by the learned Additional Sessions Judge, Malegaon, Dist- Nashik in Sessions Case No. 112 of 1991 thereby convicting Appellant-Accused No. 1 for the offence punishable under Section 302 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "4fd6a9846906456686b3b72365855f1d",
"to_name": null,
"type": null,
"value": {
"end": 2491,
"labels": [
"RLC"
],
"start": 2106,
"text": "\n 2 The Criminal Appeal No. 334 of 1993 has been filed by the State against the judgment and order dated 20th March 1993 passed by the learned Additional Sessions Judge, Malegaon, Dist- Nashik in Sessions Case No. 112 of 1991thereby acquitting original Accused No. 2 and 3 for the offence punishable under Section 302, 498-A, 324 and 304-B read with 34 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "0cbea645b0e143468dcf17e5bdd22ee3",
"to_name": null,
"type": null,
"value": {
"end": 2757,
"labels": [
"FAC"
],
"start": 2491,
"text": "\n 3 The appeal filed by original Accused No. 1 is against conviction and the appeal filed by the State is against acquittal of Accused No. 2 arising out of the same judgment and order passed by the learned Additional Sessions Judge, Malegaon, Dist. Nasik."
}
},
{
"from_name": null,
"id": "66bee2066012454f8d1bef0fa7dd35de",
"to_name": null,
"type": null,
"value": {
"end": 2826,
"labels": [
"NONE"
],
"start": 2758,
"text": "Hence, we are disposing of both the appeals by this common judgment."
}
},
{
"from_name": null,
"id": "56796165041e4c81bc91df09e7e5ee98",
"to_name": null,
"type": null,
"value": {
"end": 2905,
"labels": [
"FAC"
],
"start": 2826,
"text": "\n 4 Brief facts for filing these appeals can be summarized as under:-"
}
},
{
"from_name": null,
"id": "0703f8f0891a4133a671f0b0a200e313",
"to_name": null,
"type": null,
"value": {
"end": 3015,
"labels": [
"FAC"
],
"start": 2906,
"text": "The marriage of deceased Ushabai took place on 16.05.1985 with the Accused No. 1(Harischandra Dadaji Jadhav)."
}
},
{
"from_name": null,
"id": "6fc5b8e19d4d486e910d08a68c6e3590",
"to_name": null,
"type": null,
"value": {
"end": 3160,
"labels": [
"FAC"
],
"start": 3016,
"text": "Accused No. 2 (Dadaji Dhodhe Jadhav) is the father of Accused No. 1 and Accused No. 3 (Parvatabai Dadaji Jadhav) is the mother of Accused No. 1."
}
},
{
"from_name": null,
"id": "889718f37e4d4167b2adba73e77a84e3",
"to_name": null,
"type": null,
"value": {
"end": 3223,
"labels": [
"FAC"
],
"start": 3161,
"text": "Accused No. 1 was in service at Primary Health Centre, Satana."
}
},
{
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"id": "ac77f6fcdc5241b3a2bb93b26ae8aad3",
"to_name": null,
"type": null,
"value": {
"end": 3293,
"labels": [
"FAC"
],
"start": 3224,
"text": "Prior to that he was in service at Nagar and thereafter, at Chandori."
}
},
{
"from_name": null,
"id": "4a21b27ad58f4461b85c25f9920f4bf9",
"to_name": null,
"type": null,
"value": {
"end": 3413,
"labels": [
"FAC"
],
"start": 3294,
"text": "Jayvant (PW 2), brother of deceased Usha went to bring Usha when deceased Usha and Accused No. 1 were camping at Nagar."
}
},
{
"from_name": null,
"id": "9dd461ea2f914b21ac7f1253bb8e392b",
"to_name": null,
"type": null,
"value": {
"end": 3583,
"labels": [
"FAC"
],
"start": 3414,
"text": "It is alleged that all the accused told him that they were not ready to send Usha on the eve of Diwali festival as they wanted Rs. 1,00,000/- for constructing a bunglow."
}
},
{
"from_name": null,
"id": "93b25db3371846bb86a6a906e7a99b13",
"to_name": null,
"type": null,
"value": {
"end": 3663,
"labels": [
"FAC"
],
"start": 3584,
"text": "The accused further told him that she would be sent only if the amount is paid."
}
},
{
"from_name": null,
"id": "a14a56d8eb8c43fb98aca5ed94291065",
"to_name": null,
"type": null,
"value": {
"end": 3817,
"labels": [
"FAC"
],
"start": 3664,
"text": "At that time, deceased Usha told him that as the amount was not paid, accused were beating her and ill-treating her and also were not giving food to her."
}
},
{
"from_name": null,
"id": "72dcab5851ec48a581c53b50a16188f0",
"to_name": null,
"type": null,
"value": {
"end": 3872,
"labels": [
"FAC"
],
"start": 3818,
"text": "Jayvant (PW 2) then came back to his village Jaykheda."
}
},
{
"from_name": null,
"id": "122498d9b0a946a1b9c14a40200d594b",
"to_name": null,
"type": null,
"value": {
"end": 3913,
"labels": [
"FAC"
],
"start": 3873,
"text": "He narrated this incident to his father."
}
},
{
"from_name": null,
"id": "b40ec227688341c284d4414e03aab362",
"to_name": null,
"type": null,
"value": {
"end": 3998,
"labels": [
"FAC"
],
"start": 3915,
"text": "After Accused No 1 transferred to Chandori Jayvant (PW 2) again went to bring Usha."
}
},
{
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"id": "eb565431c7e7470281525e37bc312bb0",
"to_name": null,
"type": null,
"value": {
"end": 4034,
"labels": [
"FAC"
],
"start": 3999,
"text": "All the accused were present there."
}
},
{
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"id": "73cea2008680456193cf998f7227464c",
"to_name": null,
"type": null,
"value": {
"end": 4149,
"labels": [
"FAC"
],
"start": 4035,
"text": "That time also the accused told him that she should be sent only if the amount which was demanded by them is paid."
}
},
{
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"id": "da79bfc3b3624c7380a1fa54dac46e98",
"to_name": null,
"type": null,
"value": {
"end": 4242,
"labels": [
"FAC"
],
"start": 4150,
"text": "Deceased Usha complained Jayvant (PW 2) about ill treatment meted out to her by the accused."
}
},
{
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"id": "6e1ad308686d49a0b5783641b155cc01",
"to_name": null,
"type": null,
"value": {
"end": 4321,
"labels": [
"FAC"
],
"start": 4243,
"text": "After coming back to his house at Jaykheda he narrated incident to his father."
}
},
{
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"id": "de98d615b0364849a460287c04bb74ba",
"to_name": null,
"type": null,
"value": {
"end": 4480,
"labels": [
"FAC"
],
"start": 4323,
"text": "On the eve of coconut-day witness Jayvant went along with one Pratap to the house of accused at village Munjavad for tying `Rakhee' from Usha (now deceased)."
}
},
{
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"id": "68ffb1f87af740b7a6bd11b2482cf86e",
"to_name": null,
"type": null,
"value": {
"end": 4528,
"labels": [
"FAC"
],
"start": 4481,
"text": "They reached at about 11.00 a.m. on 25.08.1991."
}
},
{
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"id": "a760773d6fe949668c9ff8ac8ba5e126",
"to_name": null,
"type": null,
"value": {
"end": 4571,
"labels": [
"FAC"
],
"start": 4528,
"text": "\nAccused No. 1 and Usha were present there."
}
},
{
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"id": "8e903dbf1d8341a180a68989d6f3f010",
"to_name": null,
"type": null,
"value": {
"end": 4638,
"labels": [
"FAC"
],
"start": 4572,
"text": "On seeing them instead of welcoming them, Accused No. 1 went away."
}
},
{
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"id": "0d6aeb7c1cfb493ba09856ba1aed7791",
"to_name": null,
"type": null,
"value": {
"end": 4704,
"labels": [
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],
"start": 4639,
"text": "After tying `Rakhee' to Jayvant and Pratap, Usha started weeping."
}
},
{
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"id": "28a9a0510fa24d788c14e207af75af33",
"to_name": null,
"type": null,
"value": {
"end": 4845,
"labels": [
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],
"start": 4705,
"text": "When she was asked about the cause, she told them that, the accused were beating her and ill treating her as they were demanding the amount."
}
},
{
"from_name": null,
"id": "404927c68b1d462bba7a664ae92f3ed0",
"to_name": null,
"type": null,
"value": {
"end": 4933,
"labels": [
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],
"start": 4846,
"text": "She further told them that, an ill treatment given by the accused to her is unbearable."
}
},
{
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"id": "a95c796f8ae249c5b13cd8bcf8924767",
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"value": {
"end": 5000,
"labels": [
"FAC"
],
"start": 4934,
"text": "Accused then came and asked witness Jayvant as to why he had come."
}
},
{
"from_name": null,
"id": "d1efa2eb2fed43688d9cb12d0d162f69",
"to_name": null,
"type": null,
"value": {
"end": 5150,
"labels": [
"FAC"
],
"start": 5001,
"text": "Witness Jayvant told them that, he had come to take Usha as his father was not keeping well and furthermore, he had come on the eve of Rakshabandhan."
}
},
{
"from_name": null,
"id": "1d370131d09d40da997fa70cb5fdd1bc",
"to_name": null,
"type": null,
"value": {
"end": 5223,
"labels": [
"FAC"
],
"start": 5151,
"text": "He requested the accused to send Usha with him, but the accused refused."
}
},
{
"from_name": null,
"id": "011cb997b9224afa8d087241f8178249",
"to_name": null,
"type": null,
"value": {
"end": 5314,
"labels": [
"FAC"
],
"start": 5224,
"text": "Accused further told that, she would be sent only if the amount of Rs. 1,00,000/- is paid."
}
},
{
"from_name": null,
"id": "ed598b7a64c344dcbf1145db3614ac36",
"to_name": null,
"type": null,
"value": {
"end": 5328,
"labels": [
"FAC"
],
"start": 5316,
"text": "5 "
}
},
{
"from_name": null,
"id": "a3524de2fa2e42ecbdd8aeb47fd54f98",
"to_name": null,
"type": null,
"value": {
"end": 5503,
"labels": [
"FAC"
],
"start": 5328,
"text": "It is the case of the prosecution that, in presence of accused deceased Usha told Jayvant (PW 2) that, accused were beating her and therefore, he should take her to his house."
}
},
{
"from_name": null,
"id": "8c730af4a795439591a3d10874f733b7",
"to_name": null,
"type": null,
"value": {
"end": 5602,
"labels": [
"FAC"
],
"start": 5504,
"text": "Jayvant (PW 2) again requested Accused No. 2 to sent Usha, but Accused No. 2 refused to send Usha."
}
},
{
"from_name": null,
"id": "e8e7f1b365fb415c9c21f08a364d7a3f",
"to_name": null,
"type": null,
"value": {
"end": 5700,
"labels": [
"FAC"
],
"start": 5602,
"text": "\nAccused No. 2 further told that, nothing can be done against him as he is from police department."
}
},
{
"from_name": null,
"id": "a2270105ee6440d99cf62727756a8308",
"to_name": null,
"type": null,
"value": {
"end": 5753,
"labels": [
"FAC"
],
"start": 5701,
"text": "Witness Pratap also told Accused No. 2 to sent Usha."
}
},
{
"from_name": null,
"id": "18ebec2d58dd4f2592cc0455a9f347e4",
"to_name": null,
"type": null,
"value": {
"end": 5807,
"labels": [
"FAC"
],
"start": 5753,
"text": "\nHowever, Accused No. 2 denied to send Usha with them."
}
},
{
"from_name": null,
"id": "c7c813ace55e4e76852dfb463131808b",
"to_name": null,
"type": null,
"value": {
"end": 5942,
"labels": [
"FAC"
],
"start": 5808,
"text": "Therefore, they started from village Mujvad at 3.30 p.m. Witness Pratap halted at Satana and witness Jayvant came to village Jaykheda."
}
},
{
"from_name": null,
"id": "da4bd44ae228470fa836cbf35233ac07",
"to_name": null,
"type": null,
"value": {
"end": 6020,
"labels": [
"FAC"
],
"start": 5943,
"text": "On reaching the house, he narrated the incident to the members of his family."
}
},
{
"from_name": null,
"id": "7068619f465047a0b9f3ef356cc5566f",
"to_name": null,
"type": null,
"value": {
"end": 6111,
"labels": [
"FAC"
],
"start": 6021,
"text": "On the same day at about 8.30 p.m.\ntelephone message was received about the death of Usha."
}
},
{
"from_name": null,
"id": "299c5a0b9f2f4989b5ca17ee69fba8c6",
"to_name": null,
"type": null,
"value": {
"end": 6210,
"labels": [
"FAC"
],
"start": 6112,
"text": "Complainant, prosecution witness Jayvant, Pratap and members of his family went to village Mujvad."
}
},
{
"from_name": null,
"id": "dd40e652ebf5443f9e7dc655728c32e7",
"to_name": null,
"type": null,
"value": {
"end": 6267,
"labels": [
"FAC"
],
"start": 6211,
"text": "At that time, all the accused were present in the house."
}
},
{
"from_name": null,
"id": "d88071c8549e42f191e5ab5618f3a24e",
"to_name": null,
"type": null,
"value": {
"end": 6370,
"labels": [
"FAC"
],
"start": 6268,
"text": "On removing bed sheet from the body of deceased Usha they found injuries on the body of deceased Usha."
}
},
{
"from_name": null,
"id": "aba36711d4ed4df0aea837e4c31d3d21",
"to_name": null,
"type": null,
"value": {
"end": 6401,
"labels": [
"FAC"
],
"start": 6371,
"text": "Police wre also present there."
}
},
{
"from_name": null,
"id": "b0ed1de3d5634ba7a01ea293fc51d598",
"to_name": null,
"type": null,
"value": {
"end": 6609,
"labels": [
"FAC"
],
"start": 6402,
"text": "The informant, father of deceased Usha told police that, he want to give complaint first and as Accused No. 1 is serving at Satana, P.H.C., post-mortem should be carried out at any other place except Satana."
}
},
{
"from_name": null,
"id": "f2d75656b4b0450ca0768d8be312847a",
"to_name": null,
"type": null,
"value": {
"end": 6701,
"labels": [
"FAC"
],
"start": 6610,
"text": "Therefore, the dead body of deceased Usha was brought to Malegaon hospital for post mortem."
}
},
{
"from_name": null,
"id": "fa95a32d0e954e4b9d34f74eea4c9310",
"to_name": null,
"type": null,
"value": {
"end": 6755,
"labels": [
"FAC"
],
"start": 6702,
"text": "The complainant lodged his complaint with the police."
}
},
{
"from_name": null,
"id": "b635a7dfa06a42ea92efc21c8e90f69f",
"to_name": null,
"type": null,
"value": {
"end": 6837,
"labels": [
"FAC"
],
"start": 6756,
"text": "On the basis of complaint the offence was registered against the accused persons."
}
},
{
"from_name": null,
"id": "fcfed2239f344296a7c0a7f5e80a3fcf",
"to_name": null,
"type": null,
"value": {
"end": 6924,
"labels": [
"FAC"
],
"start": 6838,
"text": "Inquest panchnama was drawn, statements of witnesses were also recorded by the Police."
}
},
{
"from_name": null,
"id": "2ab9050826dc43999743744c3c0dafc9",
"to_name": null,
"type": null,
"value": {
"end": 7111,
"labels": [
"FAC"
],
"start": 6925,
"text": "The Medical Officer prepared post-mortem notes and noticed numerous injuries on the dead body of deceased Usha and, opined that, the cause of death was due to asphyxia due to throttling."
}
},
{
"from_name": null,
"id": "73892661a24a464d96a9b0553beaeda4",
"to_name": null,
"type": null,
"value": {
"end": 7179,
"labels": [
"RLC"
],
"start": 7111,
"text": "\n After investigation the accused were charge sheeted."
}
},
{
"from_name": null,
"id": "751a4196876b4fa5afdb4b749ebb47a3",
"to_name": null,
"type": null,
"value": {
"end": 7341,
"labels": [
"RLC"
],
"start": 7180,
"text": "The learned J.M.F.C. Satana, committed the case to the Court of Sessions as the offence under Section 302 of IPC is exclusively triable by the Court of Sessions."
}
},
{
"from_name": null,
"id": "ff9f93927f67428faa1457e96d748550",
"to_name": null,
"type": null,
"value": {
"end": 7462,
"labels": [
"FAC"
],
"start": 7341,
"text": "\nAccordingly, charge was framed against the accused for the offence punishable under Section 304 (B) read with 34 of IPC."
}
},
{
"from_name": null,
"id": "5e283a7c622f442fb7e5e30d8abfb265",
"to_name": null,
"type": null,
"value": {
"end": 7498,
"labels": [
"FAC"
],
"start": 7463,
"text": "All the accused pleaded not guilty."
}
},
{
"from_name": null,
"id": "cae59333f7074361b4f33dc91616903e",
"to_name": null,
"type": null,
"value": {
"end": 7635,
"labels": [
"RLC"
],
"start": 7498,
"text": "\nThe learned Sessions Court recorded the evidence of prosecution witnesses as also the statements of accused under Section 313 of Cr.P.C."
}
},
{
"from_name": null,
"id": "4af043e5bc424fae8915efafa0cc50d2",
"to_name": null,
"type": null,
"value": {
"end": 8076,
"labels": [
"RLC"
],
"start": 7636,
"text": "As indicated herein above, the learned Sessions Court after considering the evidence on record, the material and documents produced by the prosecution on record as also considering the evidence of medical officer, convicted Accused No. 1 Harischandra Dadaji Jadhav for the offences punishable under 302 and 498-A of IPC and acquitted Accused No. 2 and 3 of the offence punishable under Section 302, 498-A, 324 and 304-B read with 34 of IPC."
}
},
{
"from_name": null,
"id": "014df858276c45d2b5e03651b1a5c365",
"to_name": null,
"type": null,
"value": {
"end": 8190,
"labels": [
"ARG_PETITIONER"
],
"start": 8076,
"text": "\n 6 Learned counsel for the Appellant submits that, evidence of Dr.\n Shivaji Bhise (PW 5) is unreliable."
}
},
{
"from_name": null,
"id": "a5fde3a6ff1642528a5c9fc0d179c23c",
"to_name": null,
"type": null,
"value": {
"end": 8454,
"labels": [
"ARG_PETITIONER"
],
"start": 8191,
"text": "In his cross examination he has admitted that there were allegations against him in respect of not properly carrying out the post-mortem in the past, and that in said cases PW 5 has to obtain anticipatory bail by filing Criminal Misc. Application No. 178 of 1992."
}
},
{
"from_name": null,
"id": "cf7ba64f350148b9b87a5af20bed7a13",
"to_name": null,
"type": null,
"value": {
"end": 8537,
"labels": [
"ARG_PETITIONER"
],
"start": 8454,
"text": "\n Therefore, in the present case, post mortem done by him deserves to be discarded."
}
},
{
"from_name": null,
"id": "1a064cddaec24757b3eab614ce467447",
"to_name": null,
"type": null,
"value": {
"end": 8778,
"labels": [
"ARG_PETITIONER"
],
"start": 8538,
"text": "PW 5 has admitted in his cross examination that, there were allegations against him in respect of professional negligence and that such type of allegations are against Dr. Ansari also, who accompanied Dr. Bhise while performing post mortem."
}
},
{
"from_name": null,
"id": "19b6cb3d64b149c08de4f413096f8685",
"to_name": null,
"type": null,
"value": {
"end": 8934,
"labels": [
"ARG_PETITIONER"
],
"start": 8779,
"text": "However, there is no evidence to find out whether Usha has committee suicide as she had written on the wall that she is committing suicide by her own will."
}
},
{
"from_name": null,
"id": "30948b93c0bb4f6aa3d8a7ad93ddd3b5",
"to_name": null,
"type": null,
"value": {
"end": 9096,
"labels": [
"ARG_PETITIONER"
],
"start": 8935,
"text": "It is submitted that, the prosecution did not record the statement of the neighbors where the appellant-accused was residing with his wife at Nagar and Chandori."
}
},
{
"from_name": null,
"id": "06f6466adfb14f029689b6229715a86b",
"to_name": null,
"type": null,
"value": {
"end": 9180,
"labels": [
"ARG_PETITIONER"
],
"start": 9097,
"text": "The prosecution has also not recorded the statement of the Appellant-Accused's son."
}
},
{
"from_name": null,
"id": "8d805d675ee54849bcf7226b69344405",
"to_name": null,
"type": null,
"value": {
"end": 9399,
"labels": [
"ARG_PETITIONER"
],
"start": 9181,
"text": "He submits that, the learned judge erred in holding that, by not producing inquest panchnama by the prosecution itself is a suppression of best evidence on the part of the prosecution as regards cause of death of Usha."
}
},
{
"from_name": null,
"id": "116813cb9c0049fd88e11e5727be815d",
"to_name": null,
"type": null,
"value": {
"end": 9524,
"labels": [
"ARG_PETITIONER"
],
"start": 9400,
"text": "Further the prosecution has also not examined the constable who took the body of the Usha (deceased) to Satana from Munjvad."
}
},
{
"from_name": null,
"id": "7256aceaa13542ad80620c5cc5976ef6",
"to_name": null,
"type": null,
"value": {
"end": 9644,
"labels": [
"ARG_PETITIONER"
],
"start": 9525,
"text": "The prosecution witnesses are all interested witnesses and no independent witness has been examined by the prosecution."
}
},
{
"from_name": null,
"id": "3f5a70a6d2ad4f0f9ff1dc797a728916",
"to_name": null,
"type": null,
"value": {
"end": 9721,
"labels": [
"ARG_PETITIONER"
],
"start": 9645,
"text": "Therefore, their evidence is unreliable and should not have been considered."
}
},
{
"from_name": null,
"id": "012a2c7a96274cab9eead8e42dca6ef9",
"to_name": null,
"type": null,
"value": {
"end": 9845,
"labels": [
"ARG_PETITIONER"
],
"start": 9722,
"text": "Further the prosecution has not examined the panch witnesses relating to the inquest panchnama and also the spot panchnama."
}
},
{
"from_name": null,
"id": "bd429fd82aa844ca88a91eb0bdb19f69",
"to_name": null,
"type": null,
"value": {
"end": 9897,
"labels": [
"ARG_PETITIONER"
],
"start": 9846,
"text": "Krishna Jagtap (PW 1), father of the deceased Usha."
}
},
{
"from_name": null,
"id": "5141604e968d4b32a45b652addf7a28c",
"to_name": null,
"type": null,
"value": {
"end": 10024,
"labels": [
"ARG_PETITIONER"
],
"start": 9898,
"text": "Dadaji Jadhav (Accused No. 2) is a Police Inspector and has agricultural lands at Munjvad and having good financial condition."
}
},
{
"from_name": null,
"id": "b7ce7cfb9a5d48cd991e4b9e496c1583",
"to_name": null,
"type": null,
"value": {
"end": 10278,
"labels": [
"ARG_PETITIONER"
],
"start": 10024,
"text": "\n It is submitted that, if the financial condition of the father of the Appellant-Accused was good, then there was no reason for the Appellant to ask Usha to bring Rs. 1,00,000/- (Rupess One Lakh only) from her father's house for constructing a bungalow."
}
},
{
"from_name": null,
"id": "90bc9ee5accc481cb07122b1bcbb3924",
"to_name": null,
"type": null,
"value": {
"end": 10524,
"labels": [
"ARG_PETITIONER"
],
"start": 10279,
"text": "It is submitted that, in the cross- examination of Krishna Jagtap (P.W.1) one inland letter dated 01.06.1991 (two months prior to the incident) and a letter dated 09.10.1990 were produced to indicate that the deceased Usha had no ill-treatment."
}
},
{
"from_name": null,
"id": "79d87b5317a54fd291429ca4b5000c8a",
"to_name": null,
"type": null,
"value": {
"end": 10640,
"labels": [
"ARG_PETITIONER"
],
"start": 10525,
"text": "He has even admitted in his cross-examination that the accused were not ill-treating and beating the deceased Usha."
}
},
{
"from_name": null,
"id": "c1b8204fa2f74f3a87650ea09dbd2a24",
"to_name": null,
"type": null,
"value": {
"end": 10802,
"labels": [
"ARG_PETITIONER"
],
"start": 10641,
"text": "It is further submitted that, Krishan Jagtap (P.W.1) has admitted that he did not complain to the Police regarding ill- treatment meted out to the deceased Usha."
}
},
{
"from_name": null,
"id": "ff7a08791c044406b1ada1476a965b0f",
"to_name": null,
"type": null,
"value": {
"end": 11298,
"labels": [
"ARG_PETITIONER"
],
"start": 10803,
"text": "It is submitted that, Jaywant Jagtap (P.W. 2), brother of the deceased Usha, in his evidence states that on earlier occasions i.e. on the eve of Diwali Festival when the accused and his wife deceased Usha were staying at Nagar and later on, when the accused was transferred to Chandori, P.W. 2 went to bring deceased Usha to her paternal house, the deceased Usha told him that she was being beaten and ill-treated by the accused because they wanted rupees one lakh for constructing the bungalow."
}
},
{
"from_name": null,
"id": "8fef8c6ac1a5400ab3cf27dd117b774e",
"to_name": null,
"type": null,
"value": {
"end": 11312,
"labels": [
"ARG_PETITIONER"
],
"start": 11300,
"text": "7 "
}
},
{
"from_name": null,
"id": "9127d03f1f9b491db22e520c097d0770",
"to_name": null,
"type": null,
"value": {
"end": 11625,
"labels": [
"ARG_PETITIONER"
],
"start": 11312,
"text": "It is submitted that, it is surprising to note that Jaywant Jagtap (P.W. 2) did not give any complaint to the police when the deceased Usha told him that the accused were beating and ill-treating her and also when deceased Usha told him it was unbearable for her, then why did he not take her to village Munjavad."
}
},
{
"from_name": null,
"id": "d918b1cf7c7c478e8e5e00775178159d",
"to_name": null,
"type": null,
"value": {
"end": 11898,
"labels": [
"ARG_PETITIONER"
],
"start": 11626,
"text": "It is further submitted that, the learned Sessions Judge ought to have considered the fact that there were omissions in the statement of Pratap Khairnar P.W. 3 about the statement that Ushabai had told that something would go wrong and therefore she should be taken home."
}
},
{
"from_name": null,
"id": "8ca7671758de436d9ea869da36ed4c45",
"to_name": null,
"type": null,
"value": {
"end": 12075,
"labels": [
"ARG_PETITIONER"
],
"start": 11899,
"text": "It is submitted that, there is omission also in police statement of PW 3, about the father of the accused appellant coming to his house and ringing up on the phone at Jaikheda."
}
},
{
"from_name": null,
"id": "c6d6d9d112b74dcba42107ada63891cd",
"to_name": null,
"type": null,
"value": {
"end": 12302,
"labels": [
"ARG_PETITIONER"
],
"start": 12076,
"text": "It is further submitted that, learned Judge ought not to have relied upon the evidence of Pratap Khairnar (P.W. 3) who being a relative of Krishna Jagtap (P.W. 1) is obliging his relatives and thus, is an interested witnesses."
}
},
{
"from_name": null,
"id": "c4ee4395d66b43e59226a6a7ab6d5c94",
"to_name": null,
"type": null,
"value": {
"end": 12774,
"labels": [
"ARG_PETITIONER"
],
"start": 12304,
"text": "8 It is further submitted that, it is surprising to note that Bhagwan Khairnar (P.W. 4) photographer, in his evidence he denies that he saw any saree hanging or any writing on the wall when in fact he had clicked the photograph of the writing of the wall and the photograph was sent alongwith the handwriting of the accused to the handwriting expert, but the examiner of documents, CID could not give opinion for want of sufficient identifying characteristics."
}
},
{
"from_name": null,
"id": "c437791e676f458e98b0971587174aa4",
"to_name": null,
"type": null,
"value": {
"end": 12918,
"labels": [
"ARG_PETITIONER"
],
"start": 12775,
"text": "It is submitted that, there are omission in Bhagwan Khairnar's (P.W. 4) police statement about the writing on the wall or hanging of the saree."
}
},
{
"from_name": null,
"id": "36e48e1f29844033a24232768431d550",
"to_name": null,
"type": null,
"value": {
"end": 13095,
"labels": [
"ARG_PETITIONER"
],
"start": 12920,
"text": "It is submitted that, the learned Sessions Judge ought to have considered the fact that Bhagwan Khairnar (P.W. 4) had snapped the photographs for the police a number of times."
}
},
{
"from_name": null,
"id": "20246573eaf540a285d32d19e40c8134",
"to_name": null,
"type": null,
"value": {
"end": 13160,
"labels": [
"ARG_PETITIONER"
],
"start": 13096,
"text": "There is no eye witness to connect the Appellant with the crime."
}
},
{
"from_name": null,
"id": "2dee87f586aa480089b14e9b43c8840a",
"to_name": null,
"type": null,
"value": {
"end": 13438,
"labels": [
"ARG_RESPONDENT"
],
"start": 13160,
"text": "\n 9 Learned APP relying upon the findings recorded by the Trial Court submits that, the Trial Court has properly appreciated the evidence on record and convicted the Accused No. 1- Harischandra Dadaji Jadhav, however, wrongly acquitted Accused No. 2 and Accused No. 3."
}
},
{
"from_name": null,
"id": "37de30dfddf44501a7f87061e6b0d715",
"to_name": null,
"type": null,
"value": {
"end": 13572,
"labels": [
"ARG_RESPONDENT"
],
"start": 13439,
"text": "It is submitted that, the prosecution has brought on record sufficient evidence which would attract provisions of Section 498 of IPC."
}
},
{
"from_name": null,
"id": "85dfa24623284518ac36b4409411e7a7",
"to_name": null,
"type": null,
"value": {
"end": 13762,
"labels": [
"ARG_RESPONDENT"
],
"start": 13573,
"text": "There was continuous ill treatment and harassment by all the accused for not full filling the unlawful demand of Rs. 1,00,000/- (Rs. One lakh only) for construction of house of the accused."
}
},
{
"from_name": null,
"id": "b36951af68a84513809fb2cbfc5685f6",
"to_name": null,
"type": null,
"value": {
"end": 14068,
"labels": [
"ARG_RESPONDENT"
],
"start": 13763,
"text": "It is submitted that, evidence of PW 1, PW 2 and PW 3 unequivocally indicates the involvement of all the accused in alleged demand of Rs. 1,00,000/- (Rs.\n One lakh only) for construction of house, and upon non fulfillment of said demand, continuous ill treatment and harassment given to Usha (deceased).\n "
}
},
{
"from_name": null,
"id": "3d2957145c454024b937942464e56f34",
"to_name": null,
"type": null,
"value": {
"end": 14203,
"labels": [
"ARG_RESPONDENT"
],
"start": 14068,
"text": "Therefore, learned APP submits that, appeal filed by State against acquittal of Accused No. 2 and Accused No. 3 deserves to be allowed."
}
},
{
"from_name": null,
"id": "5394c0bceea347eab585b1e542e1ac26",
"to_name": null,
"type": null,
"value": {
"end": 14268,
"labels": [
"ANALYSIS"
],
"start": 14203,
"text": "\n 10 The prosecution has examined Krishna Jagtap (PW 1)."
}
},
{
"from_name": null,
"id": "7c05a1a57e6f4158be77d3d0c07c853a",
"to_name": null,
"type": null,
"value": {
"end": 14360,
"labels": [
"ANALYSIS"
],
"start": 14269,
"text": "In his deposition before the Court he stated details about how they approached the accused."
}
},
{
"from_name": null,
"id": "50f7af607ab84a2985c342cfef0b6b8e",
"to_name": null,
"type": null,
"value": {
"end": 14462,
"labels": [
"ANALYSIS"
],
"start": 14361,
"text": "Thereafter, how proposal of marriage was materialized and thereafter how the marriage was solemnized."
}
},
{
"from_name": null,
"id": "ee2dd03798914da4b92708c12ec7c9b6",
"to_name": null,
"type": null,
"value": {
"end": 14563,
"labels": [
"ANALYSIS"
],
"start": 14463,
"text": "He stated that, accused demanded Rs.\n1,00,000/- (Rupees One Lakh only) for construction of bungalow."
}
},
{
"from_name": null,
"id": "c8fa35fbadbb48d5b3f8fe5440de6c6d",
"to_name": null,
"type": null,
"value": {
"end": 14635,
"labels": [
"ANALYSIS"
],
"start": 14564,
"text": "He further stated the ill treatment given to the Usha by Accused No. 1."
}
},
{
"from_name": null,
"id": "e00ef1c9add5412cb25547c7bf537a00",
"to_name": null,
"type": null,
"value": {
"end": 14692,
"labels": [
"ANALYSIS"
],
"start": 14636,
"text": "He also stated information received about death of Usha."
}
},
{
"from_name": null,
"id": "0d65af4fc41b407bb4c563733c84e38f",
"to_name": null,
"type": null,
"value": {
"end": 14799,
"labels": [
"ANALYSIS"
],
"start": 14693,
"text": "He also stated in his deposition that, Jaiwant (PW 2) his son and Pratap (PW 3) visited the house of Usha."
}
},
{
"from_name": null,
"id": "b4b45a54a64d49f8ae35cc7068d0aed4",
"to_name": null,
"type": null,
"value": {
"end": 14877,
"labels": [
"ANALYSIS"
],
"start": 14799,
"text": "\nThat time Usha narrated ill treatment and harassment by Accused No. 1 to her."
}
},
{
"from_name": null,
"id": "f7874ba8583349e18f7f3bdb2943a48c",
"to_name": null,
"type": null,
"value": {
"end": 15038,
"labels": [
"ANALYSIS"
],
"start": 14877,
"text": "\n In his cross examination he stated that, Accused No. 2 is police inspector and has agricultural land at village Munjwad so also his financial position is good."
}
},
{
"from_name": null,
"id": "d23e5c87d6ba463191ec9cf24834310e",
"to_name": null,
"type": null,
"value": {
"end": 15085,
"labels": [
"ANALYSIS"
],
"start": 15039,
"text": "Both the sons of accused No. 1 are in service."
}
},
{
"from_name": null,
"id": "307827ba94df4da4bd9ab63cd837d082",
"to_name": null,
"type": null,
"value": {
"end": 15191,
"labels": [
"ANALYSIS"
],
"start": 15086,
"text": "He had seen mark on the front side of neck of Usha when he went upon receiving informant about her death."
}
},
{
"from_name": null,
"id": "7d6e7c54da884ee4834a90d323370787",
"to_name": null,
"type": null,
"value": {
"end": 15255,
"labels": [
"ANALYSIS"
],
"start": 15191,
"text": "\n 11 The prosecution has examined PW 2- Jaiwant Jagtap."
}
},
{
"from_name": null,
"id": "c0bc92a176784be3ab52c53e76504cd0",
"to_name": null,
"type": null,
"value": {
"end": 15322,
"labels": [
"ANALYSIS"
],
"start": 15256,
"text": "In his examination in chief he stated deceased Usha is his sister."
}
},
{
"from_name": null,
"id": "2836e8d7eacc4ab89f79b8a9e783712b",
"to_name": null,
"type": null,
"value": {
"end": 15365,
"labels": [
"ANALYSIS"
],
"start": 15323,
"text": "He married to accused No. 1 on 16.05.1985."
}
},
{
"from_name": null,
"id": "26c8c6bfe4e94d7592f19f78ee336bd3",
"to_name": null,
"type": null,
"value": {
"end": 15425,
"labels": [
"ANALYSIS"
],
"start": 15366,
"text": "The accused No. 1 now present before the Court is the same."
}
},
{
"from_name": null,
"id": "0662f364389c484c9215e19f4b482cff",
"to_name": null,
"type": null,
"value": {
"end": 15528,
"labels": [
"ANALYSIS"
],
"start": 15426,
"text": "The accused No. 2 is the father of accused No. 1 and the accused No. 3 is the mother of accused No. 1."
}
},
{
"from_name": null,
"id": "1fbac0ab91954297b8d439691b6fd3a9",
"to_name": null,
"type": null,
"value": {
"end": 15610,
"labels": [
"ANALYSIS"
],
"start": 15529,
"text": "On eve of Divali festival he went to the house of accused to bring Usha at Nagar."
}
},
{
"from_name": null,
"id": "0a2d9fdf87f142c69d7651db0d7f5360",
"to_name": null,
"type": null,
"value": {
"end": 15650,
"labels": [
"ANALYSIS"
],
"start": 15611,
"text": "They asked him as what for he had come."
}
},
{
"from_name": null,
"id": "a8e232b8d3bf401a848cb1e0daced510",
"to_name": null,
"type": null,
"value": {
"end": 15714,
"labels": [
"ANALYSIS"
],
"start": 15651,
"text": "He told them that he had come to take Usha for Divali Festival."
}
},
{
"from_name": null,
"id": "5d34993c7b1a4960b1b0835afb81bc94",
"to_name": null,
"type": null,
"value": {
"end": 15767,
"labels": [
"ANALYSIS"
],
"start": 15715,
"text": "They told him that, they were not ready to sent her."
}
},
{
"from_name": null,
"id": "323ce57c23ea4cb796f6766abe3eadb9",
"to_name": null,
"type": null,
"value": {
"end": 15929,
"labels": [
"ANALYSIS"
],
"start": 15768,
"text": "When he asked as to why , then they told him that they wanted Rs. 1,00,000/- for construction of a bungalow, and if the amount is given then they would sent her."
}
},
{
"from_name": null,
"id": "550f91befa444df6a9223807bbe131b7",
"to_name": null,
"type": null,
"value": {
"end": 15981,
"labels": [
"ANALYSIS"
],
"start": 15930,
"text": "He then told that his financial condition was weak."
}
},
{
"from_name": null,
"id": "e76b24b23bda44b99427f28251ee6612",
"to_name": null,
"type": null,
"value": {
"end": 16172,
"labels": [
"ANALYSIS"
],
"start": 15982,
"text": "At that time his sister Usha told him that, an amount as demanded by accused should be given to them, as accused were beating her, and ill-treating her, and they were not giving food to her."
}
},
{
"from_name": null,
"id": "08f5ee28f9ef47ea8f05c1b4b0a52ba1",
"to_name": null,
"type": null,
"value": {
"end": 16248,
"labels": [
"ANALYSIS"
],
"start": 16173,
"text": "The accused did not send Usha, hence he came back to his house as Jaikheda."
}
},
{
"from_name": null,
"id": "fdfa63b84b2e449886d395ab390f3ec1",
"to_name": null,
"type": null,
"value": {
"end": 16301,
"labels": [
"ANALYSIS"
],
"start": 16249,
"text": "He narrated her father about what happened at Nagar."
}
},
{
"from_name": null,
"id": "8148738188e94b7bbaf887445f4f2047",
"to_name": null,
"type": null,
"value": {
"end": 16406,
"labels": [
"ANALYSIS"
],
"start": 16301,
"text": "\n Again after transfer of accused No. 1 village Chandori, PW 2 went to Chandori to bring her sister Usha."
}
},
{
"from_name": null,
"id": "22b037dcd476435497a27ce57393d80a",
"to_name": null,
"type": null,
"value": {
"end": 16478,
"labels": [
"ANALYSIS"
],
"start": 16407,
"text": "The accused No. 2 and 3 to whom he told that, he had come to take Usha."
}
},
{
"from_name": null,
"id": "1ed5b016335f417fbe6732751f84d741",
"to_name": null,
"type": null,
"value": {
"end": 16611,
"labels": [
"ANALYSIS"
],
"start": 16479,
"text": "They told that, they would sent Usha on condition that an amount of Rs. One lakh is given to them as bungalow was to be constructed."
}
},
{
"from_name": null,
"id": "8dc3e4169b0b4709981942f3c44d0780",
"to_name": null,
"type": null,
"value": {
"end": 16724,
"labels": [
"ANALYSIS"
],
"start": 16612,
"text": "At that time also Usha told PW 2 to fulfill the demand of accused as they were beating her and ill treating her."
}
},
{
"from_name": null,
"id": "12326a438ac04f05958ee3daeedbebc9",
"to_name": null,
"type": null,
"value": {
"end": 16761,
"labels": [
"ANALYSIS"
],
"start": 16725,
"text": "He then came back alone to Jaikheda."
}
},
{
"from_name": null,
"id": "3118bfad8491407a9a620ac27b9ae7b9",
"to_name": null,
"type": null,
"value": {
"end": 16830,
"labels": [
"ANALYSIS"
],
"start": 16762,
"text": "He narrated the said facts to his father after coming from Chandori."
}
},
{
"from_name": null,
"id": "ce935c84246b4d75a700cdf7cf5fb47d",
"to_name": null,
"type": null,
"value": {
"end": 16916,
"labels": [
"ANALYSIS"
],
"start": 16831,
"text": "At the time of Rakshabandhan alongwith him, he took Pratap and they went to Munjawad."
}
},
{
"from_name": null,
"id": "ebeb99535d5743c3931b956bf83b3ac1",
"to_name": null,
"type": null,
"value": {
"end": 17003,
"labels": [
"ANALYSIS"
],
"start": 16917,
"text": "They reached there at about 11.30 a.m. Accused No.\n1 and Usha were there in the house."
}
},
{
"from_name": null,
"id": "c886f9773b3248c894188ce17eb067b8",
"to_name": null,
"type": null,
"value": {
"end": 17060,
"labels": [
"ANALYSIS"
],
"start": 17004,
"text": "Accused No. 1 did not accept his solution and went away."
}
},
{
"from_name": null,
"id": "1f47ec45e6ea40beb0f5b8a9ddb3a8be",
"to_name": null,
"type": null,
"value": {
"end": 17132,
"labels": [
"ANALYSIS"
],
"start": 17061,
"text": "Deceased Usha came alongwith water and for tying Rakhi to both of them."
}
},
{
"from_name": null,
"id": "724a8c3b48b2453099fb91e5d134c10d",
"to_name": null,
"type": null,
"value": {
"end": 17194,
"labels": [
"ANALYSIS"
],
"start": 17133,
"text": "She tied Raksha to both of them and then she started weeping."
}
},
{
"from_name": null,
"id": "088f1e3d43fa45838fd98a578c27fe6e",
"to_name": null,
"type": null,
"value": {
"end": 17234,
"labels": [
"ANALYSIS"
],
"start": 17194,
"text": "\nHe asked her as to, why she is weeping."
}
},
{
"from_name": null,
"id": "2c20aa07da7b4100933e8fc6417bda75",
"to_name": null,
"type": null,
"value": {
"end": 17404,
"labels": [
"ANALYSIS"
],
"start": 17235,
"text": "She told him that accused were beating her, ill treating her and they were not giving meals in time, and that accused were demanding money to be brought from her father."
}
},
{
"from_name": null,
"id": "f756589979de4154ae79847936f48556",
"to_name": null,
"type": null,
"value": {
"end": 17463,
"labels": [
"ANALYSIS"
],
"start": 17405,
"text": "She told him to take her as trouble was unbearable to her."
}
},
{
"from_name": null,
"id": "771ec4699fa54f81ac9f2c5687a7b8b3",
"to_name": null,
"type": null,
"value": {
"end": 17524,
"labels": [
"ANALYSIS"
],
"start": 17464,
"text": "At that time all the accused came in the house from outside."
}
},
{
"from_name": null,
"id": "91ca230deda64fdfbc2723695b231181",
"to_name": null,
"type": null,
"value": {
"end": 17567,
"labels": [
"ANALYSIS"
],
"start": 17525,
"text": "They asked him as to what for he had come."
}
},
{
"from_name": null,
"id": "4bdc380f281d4594b2abe4a12b02ed01",
"to_name": null,
"type": null,
"value": {
"end": 17697,
"labels": [
"ANALYSIS"
],
"start": 17568,
"text": "He told them that he had come to take Usha as her father was not feeling well, and that he had come on the eve of Raksha Bandhan."
}
},
{
"from_name": null,
"id": "be38dc23cfe0433cb5b6d5a2346e650f",
"to_name": null,
"type": null,
"value": {
"end": 17750,
"labels": [
"ANALYSIS"
],
"start": 17698,
"text": "He told them to send Usha with him but they refused."
}
},
{
"from_name": null,
"id": "62896968693e498e93d092990163bbd5",
"to_name": null,
"type": null,
"value": {
"end": 17886,
"labels": [
"ANALYSIS"
],
"start": 17751,
"text": "All the accused told him that they had already told three times for Rs. 1,00,000/- (Rupees One Lakh only) for construction of bungalow."
}
},
{
"from_name": null,
"id": "2bf9d79f8ad045ddb3a8d39a45667fee",
"to_name": null,
"type": null,
"value": {
"end": 18019,
"labels": [
"ANALYSIS"
],
"start": 17887,
"text": "He told them that, their financial condition is poor, and that they were unable to give money and, requested to send Usha with them."
}
},
{
"from_name": null,
"id": "144716a370b9492fbbadc8b39f9e4412",
"to_name": null,
"type": null,
"value": {
"end": 18190,
"labels": [
"ANALYSIS"
],
"start": 18020,
"text": "Usha (deceased) told in presence of accused that, accused were beating her and to take her to matrimonial house, PW 2 requested accused No. 2 to send Usha alonigwith him."
}
},
{
"from_name": null,
"id": "58e0ca2132b84a249471538ab426f947",
"to_name": null,
"type": null,
"value": {
"end": 18242,
"labels": [
"ANALYSIS"
],
"start": 18191,
"text": "Accused No. 2 told that, he is unable to send Usha."
}
},
{
"from_name": null,
"id": "b87e08002cbd4ad1a2a448c92bbf37cd",
"to_name": null,
"type": null,
"value": {
"end": 18312,
"labels": [
"ANALYSIS"
],
"start": 18242,
"text": "\nHe told him that, if the demand was fulfilled then he would send her."
}
},
{
"from_name": null,
"id": "46e7c99d1a7e4637a9f7f117f95f4965",
"to_name": null,
"type": null,
"value": {
"end": 18375,
"labels": [
"ANALYSIS"
],
"start": 18313,
"text": "He is from the department and nothing can be done against him."
}
},
{
"from_name": null,
"id": "2e8dd24050fc4fd18ce98d9d81867da1",
"to_name": null,
"type": null,
"value": {
"end": 18438,
"labels": [
"ANALYSIS"
],
"start": 18376,
"text": "At the same time, Pratap also told accused No. 2 to send Usha."
}
},
{
"from_name": null,
"id": "82d2beaf24cf453e90347cc03b783f03",
"to_name": null,
"type": null,
"value": {
"end": 18480,
"labels": [
"ANALYSIS"
],
"start": 18439,
"text": "Accused No. 2 gave same answer to Pratap."
}
},
{
"from_name": null,
"id": "a04995ebfcff49b59f3e1bac77f252f0",
"to_name": null,
"type": null,
"value": {
"end": 18528,
"labels": [
"ANALYSIS"
],
"start": 18481,
"text": "They started at 3.30 p.m. from village Mujawad."
}
},
{
"from_name": null,
"id": "e89ce9c98b1c4afea973a9eb1a5fba0c",
"to_name": null,
"type": null,
"value": {
"end": 18560,
"labels": [
"ANALYSIS"
],
"start": 18529,
"text": "From their they came to Satana."
}
},
{
"from_name": null,
"id": "bf403a23573143069fc83a15aaa2edc7",
"to_name": null,
"type": null,
"value": {
"end": 18619,
"labels": [
"ANALYSIS"
],
"start": 18561,
"text": "Pratap remained at Satana and he came to village Jaikheda."
}
},
{
"from_name": null,
"id": "8a67fdb342944f2b93427f6af37b9bf3",
"to_name": null,
"type": null,
"value": {
"end": 18667,
"labels": [
"ANALYSIS"
],
"start": 18619,
"text": "\nEverybody was waiting for his arrival in house."
}
},
{
"from_name": null,
"id": "d7002bf6422a4ffe8beae3ea28b87060",
"to_name": null,
"type": null,
"value": {
"end": 18708,
"labels": [
"ANALYSIS"
],
"start": 18668,
"text": "They asked him as why Usha was not sent."
}
},
{
"from_name": null,
"id": "f744f5c34e3147da8d9db1362942b0b4",
"to_name": null,
"type": null,
"value": {
"end": 18760,
"labels": [
"ANALYSIS"
],
"start": 18709,
"text": "He told them entire story that happened at Munjwad."
}
},
{
"from_name": null,
"id": "51b39181296a40cead053164bf5c29c3",
"to_name": null,
"type": null,
"value": {
"end": 18851,
"labels": [
"ANALYSIS"
],
"start": 18760,
"text": "\n 12 On 25.08.1991 at about 8.30 p.m. message was received through phone call at one shop."
}
},
{
"from_name": null,
"id": "eb1982dce428485e9c8c1d9bdcbb631f",
"to_name": null,
"type": null,
"value": {
"end": 18982,
"labels": [
"ANALYSIS"
],
"start": 18852,
"text": "His father received the phone, and after coming back he told us that, phone call has come from Satana informing that Usha expired."
}
},
{
"from_name": null,
"id": "ff3c2e75379a4280ba967043a4c42086",
"to_name": null,
"type": null,
"value": {
"end": 19057,
"labels": [
"ANALYSIS"
],
"start": 18982,
"text": "\n Thereafter all family members gathered and they went in Tempo to Munjwad."
}
},
{
"from_name": null,
"id": "d0a231db399c4d19af0a73c3392dfe7a",
"to_name": null,
"type": null,
"value": {
"end": 19099,
"labels": [
"ANALYSIS"
],
"start": 19057,
"text": "\n They reached there at about 10 to 11 pm."
}
},
{
"from_name": null,
"id": "fc2e16ecdcfc485bb95c40ffbd06f685",
"to_name": null,
"type": null,
"value": {
"end": 19144,
"labels": [
"ANALYSIS"
],
"start": 19100,
"text": "All the accused were present in their house."
}
},
{
"from_name": null,
"id": "8a0ef0b82fc84d609efaf04172ca68ba",
"to_name": null,
"type": null,
"value": {
"end": 19179,
"labels": [
"ANALYSIS"
],
"start": 19145,
"text": "Dead body of Usha was lying there."
}
},
{
"from_name": null,
"id": "4b5305319a0a4a719fd8fc3a3d08d1b1",
"to_name": null,
"type": null,
"value": {
"end": 19222,
"labels": [
"ANALYSIS"
],
"start": 19180,
"text": "Police were alredy there, doing panchnama."
}
},
{
"from_name": null,
"id": "7f1aaf325a48459b822af9650f6f012a",
"to_name": null,
"type": null,
"value": {
"end": 19313,
"labels": [
"ANALYSIS"
],
"start": 19223,
"text": "After removing the Chadar, PW 2 saw radish and greenish mark on the neck of deceased Usha."
}
},
{
"from_name": null,
"id": "77eff532e1934d5caeac12ec1e9311d9",
"to_name": null,
"type": null,
"value": {
"end": 19395,
"labels": [
"ANALYSIS"
],
"start": 19314,
"text": "They saw 7/8 wheel marks on the back, there was an injury on right hand shoulder."
}
},
{
"from_name": null,
"id": "d6809bd9e9474d9e95b73fd53fe0bf50",
"to_name": null,
"type": null,
"value": {
"end": 19471,
"labels": [
"ANALYSIS"
],
"start": 19396,
"text": "Police told that dead body will have to be taken to Satana for post-mortem."
}
},
{
"from_name": null,
"id": "2464af395a824b929f385249045dbf71",
"to_name": null,
"type": null,
"value": {
"end": 19595,
"labels": [
"ANALYSIS"
],
"start": 19472,
"text": "They told family members of PW 2 that they wanted to give complaint first, and post mortem should not be carried at Satana."
}
},
{
"from_name": null,
"id": "29c76d59a35848989f25b0c31916dd7a",
"to_name": null,
"type": null,
"value": {
"end": 19682,
"labels": [
"ANALYSIS"
],
"start": 19596,
"text": "They told police that, post mortem to be carried out at any other place except Satana."
}
},
{
"from_name": null,
"id": "6a88a5a8c329452ca820addbdfa06c7b",
"to_name": null,
"type": null,
"value": {
"end": 19733,
"labels": [
"ANALYSIS"
],
"start": 19683,
"text": "Dead body was brought to Malegaon for post mortem."
}
},
{
"from_name": null,
"id": "ce0abbdd0e4f41e1996b6a28f3a17cec",
"to_name": null,
"type": null,
"value": {
"end": 19794,
"labels": [
"ANALYSIS"
],
"start": 19734,
"text": "They went to Satana there his father lodged complaint.\n 13 "
}
},
{
"from_name": null,
"id": "9c536ce77cfb4f2992b6973c47279600",
"to_name": null,
"type": null,
"value": {
"end": 19887,
"labels": [
"ANALYSIS"
],
"start": 19794,
"text": "The evidence of Jaiwant (PW 2) in examination in chief is not shattered in cross examination."
}
},
{
"from_name": null,
"id": "bc239c7fbb434eb89567d22eadae92c8",
"to_name": null,
"type": null,
"value": {
"end": 20006,
"labels": [
"ANALYSIS"
],
"start": 19888,
"text": "Though suggestion was given by the defence that, he never visited the house of accused, he denied the said suggestion."
}
},
{
"from_name": null,
"id": "a696887d109844c9816a3c34ffc1c395",
"to_name": null,
"type": null,
"value": {
"end": 20101,
"labels": [
"ANALYSIS"
],
"start": 20006,
"text": "\n Further he denied the suggestion that, he did not notice radish mark around the neck of Usha."
}
},
{
"from_name": null,
"id": "7f67428c834b415088a9387d8292a76c",
"to_name": null,
"type": null,
"value": {
"end": 20267,
"labels": [
"ANALYSIS"
],
"start": 20103,
"text": "14 The prosecution has examined Pratap Khairnar (PW 3), who deposed in his examination in chief that, on 28.08.1991 witness Jaiwant came to him at 9.30 am."
}
},
{
"from_name": null,
"id": "0342424e9291490fb271df7ae7ffef66",
"to_name": null,
"type": null,
"value": {
"end": 20413,
"labels": [
"ANALYSIS"
],
"start": 20268,
"text": "He told him that the father was not feeling well and therefore Ushabai was to be taken to parental home and further it was day of Raksha Bandhan."
}
},
{
"from_name": null,
"id": "a8d18572a57f468dbd02cf7771d39f01",
"to_name": null,
"type": null,
"value": {
"end": 20456,
"labels": [
"ANALYSIS"
],
"start": 20414,
"text": "They reached to Munjwad at about 11.30 am."
}
},
{
"from_name": null,
"id": "518ad67e5151486f895a428866fdf7b4",
"to_name": null,
"type": null,
"value": {
"end": 20511,
"labels": [
"ANALYSIS"
],
"start": 20457,
"text": "Deceased Usha and the accused No. 1 were in the house."
}
},
{
"from_name": null,
"id": "13f49273b32c4fbca3bb562ceb41af67",
"to_name": null,
"type": null,
"value": {
"end": 20581,
"labels": [
"ANALYSIS"
],
"start": 20512,
"text": "They saluted accused No. 1 by saying `Ram Ram' but he did not accept."
}
},
{
"from_name": null,
"id": "fde6fc2bdc7241a78cafdb98e6d27aee",
"to_name": null,
"type": null,
"value": {
"end": 20600,
"labels": [
"ANALYSIS"
],
"start": 20582,
"text": "He then went away."
}
},
{
"from_name": null,
"id": "476c02b3758a40089967b01397020348",
"to_name": null,
"type": null,
"value": {
"end": 20787,
"labels": [
"ANALYSIS"
],
"start": 20601,
"text": "Usha prepared tea, brought a tat i.e. plate to perform Rakshabandhan, at that time she told that accused were ill treating her and beating and, they were not giving meals to her in time."
}
},
{
"from_name": null,
"id": "40904cafd55542088da0776f52a4125c",
"to_name": null,
"type": null,
"value": {
"end": 20804,
"labels": [
"ANALYSIS"
],
"start": 20788,
"text": "She was weeping."
}
},
{
"from_name": null,
"id": "258fa8ba3acd465eaff12df31cd8b6ba",
"to_name": null,
"type": null,
"value": {
"end": 20848,
"labels": [
"ANALYSIS"
],
"start": 20805,
"text": "She was further told to take her with them."
}
},
{
"from_name": null,
"id": "50932f15e9514b428e9940d9ab5877e1",
"to_name": null,
"type": null,
"value": {
"end": 20940,
"labels": [
"ANALYSIS"
],
"start": 20848,
"text": "\n She further told that something would go wrong and, therefore she should be taken by them."
}
},
{
"from_name": null,
"id": "19c3911a06a649558020edd3df0e09c9",
"to_name": null,
"type": null,
"value": {
"end": 20984,
"labels": [
"ANALYSIS"
],
"start": 20941,
"text": "All the accused came there after some time."
}
},
{
"from_name": null,
"id": "a542c89b9acd4fcc9f648635ed3d559a",
"to_name": null,
"type": null,
"value": {
"end": 21038,
"labels": [
"ANALYSIS"
],
"start": 20985,
"text": "They asked Jaiwant (PW 2) as to what for he had come."
}
},
{
"from_name": null,
"id": "4ef3ecaad4d243daa64815ea13df2fb4",
"to_name": null,
"type": null,
"value": {
"end": 21233,
"labels": [
"ANALYSIS"
],
"start": 21039,
"text": "He told them that it is a day of Raksha Bandhan, and that his father was not feeling well and that he was to be taken at hospital at Malegaon, and therefore they had come to take Usha with them."
}
},
{
"from_name": null,
"id": "fb21a2a4a5704fd3910e9811a27e5151",
"to_name": null,
"type": null,
"value": {
"end": 21297,
"labels": [
"ANALYSIS"
],
"start": 21234,
"text": "Thereafter, the accused told that they were unable to send her."
}
},
{
"from_name": null,
"id": "063d95ce96ab44448843d3dfad2312ae",
"to_name": null,
"type": null,
"value": {
"end": 21444,
"labels": [
"ANALYSIS"
],
"start": 21298,
"text": "They further told that if an amount of Rs. 1,00,000/- (Rupees One Lakh only) for construction of bungalow is given then only they would send Usha."
}
},
{
"from_name": null,
"id": "22090433a00a4995a3895c514cd21c63",
"to_name": null,
"type": null,
"value": {
"end": 21495,
"labels": [
"ANALYSIS"
],
"start": 21445,
"text": "He and Jaiwant (PW 2) requested them to send Usha."
}
},
{
"from_name": null,
"id": "02e6eff47a0742c890c08a3b834228a7",
"to_name": null,
"type": null,
"value": {
"end": 21592,
"labels": [
"ANALYSIS"
],
"start": 21496,
"text": "Even after their request, the accused did not sent Usha with them and, they came back to Satana."
}
},
{
"from_name": null,
"id": "8f96b0b9d05e4e85b8115b578fc48355",
"to_name": null,
"type": null,
"value": {
"end": 21625,
"labels": [
"ANALYSIS"
],
"start": 21593,
"text": "Jaiwant (PW 2) went to Jaikheda."
}
},
{
"from_name": null,
"id": "888efd6a3f0d45f8bb838e6c54913b1f",
"to_name": null,
"type": null,
"value": {
"end": 21735,
"labels": [
"ANALYSIS"
],
"start": 21627,
"text": "At about 8.30 to 9.00 pm accused No. 2 came to him and told him that Ushabai expired and he want to ring-up."
}
},
{
"from_name": null,
"id": "d49260d898d048b497345c58bbc7cc49",
"to_name": null,
"type": null,
"value": {
"end": 21803,
"labels": [
"ANALYSIS"
],
"start": 21736,
"text": "He told him to connect at Jaikheda on telephone, and he would talk."
}
},
{
"from_name": null,
"id": "8a029bb094434a35ad7fb3a9ddc78b9a",
"to_name": null,
"type": null,
"value": {
"end": 21845,
"labels": [
"ANALYSIS"
],
"start": 21804,
"text": "He sent his nephew to Munjwad to confirm."
}
},
{
"from_name": null,
"id": "a7a6613f37ab4865a67e7985ea037d24",
"to_name": null,
"type": null,
"value": {
"end": 21930,
"labels": [
"ANALYSIS"
],
"start": 21846,
"text": "On return his nephew confirmed the news, and then he made phone call to complainant."
}
},
{
"from_name": null,
"id": "7cd3095467de4be98b474b5b304e03b2",
"to_name": null,
"type": null,
"value": {
"end": 21983,
"labels": [
"ANALYSIS"
],
"start": 21931,
"text": "At about 11.00 pm complainant and all came by Tempo."
}
},
{
"from_name": null,
"id": "ecc0d13a5bbb4178a993a23ab82a4633",
"to_name": null,
"type": null,
"value": {
"end": 22010,
"labels": [
"ANALYSIS"
],
"start": 21983,
"text": "\nThey then went to Munjwad."
}
},
{
"from_name": null,
"id": "19b085470cb4486989bfd046b3bd2b61",
"to_name": null,
"type": null,
"value": {
"end": 22077,
"labels": [
"ANALYSIS"
],
"start": 22011,
"text": "Panchnama was going on at the house of accused, police were there."
}
},
{
"from_name": null,
"id": "c712de725c9740788b8b8fca57bc30ca",
"to_name": null,
"type": null,
"value": {
"end": 22119,
"labels": [
"ANALYSIS"
],
"start": 22078,
"text": "Police showed them the dead body of Usha."
}
},
{
"from_name": null,
"id": "9726fad3e1ba4cf7bffc9c19c6706ca5",
"to_name": null,
"type": null,
"value": {
"end": 22176,
"labels": [
"ANALYSIS"
],
"start": 22120,
"text": "They saw radish mark on the front neck of deceased usha."
}
},
{
"from_name": null,
"id": "f7e6f420c57b4511b96af77ec5b89b19",
"to_name": null,
"type": null,
"value": {
"end": 22220,
"labels": [
"ANALYSIS"
],
"start": 22177,
"text": "On the back of Usha there were wheel marks."
}
},
{
"from_name": null,
"id": "c361dd6090a04e9f85df4e36eec8374e",
"to_name": null,
"type": null,
"value": {
"end": 22313,
"labels": [
"ANALYSIS"
],
"start": 22221,
"text": "The father of Usha told that post mortem was to be performed at Malegaon, but not at Satana."
}
},
{
"from_name": null,
"id": "b9e9513148314b4f83c40275a892a76d",
"to_name": null,
"type": null,
"value": {
"end": 22383,
"labels": [
"ANALYSIS"
],
"start": 22314,
"text": "The reason was that the accused No. 1 was serving in Satana hospital."
}
},
{
"from_name": null,
"id": "30ed9ca0347f460c82e217ba9d28a2d1",
"to_name": null,
"type": null,
"value": {
"end": 22456,
"labels": [
"ANALYSIS"
],
"start": 22384,
"text": "All of them came at Satana police station and complaint was given there."
}
},
{
"from_name": null,
"id": "973b873ed5fc49b99cb22105d2aabb71",
"to_name": null,
"type": null,
"value": {
"end": 22548,
"labels": [
"ANALYSIS"
],
"start": 22456,
"text": "\n 15 Pratap Khairnar (PW 3) reiterated his contentions in the examination in chief."
}
},
{
"from_name": null,
"id": "1aa7b30fc596472d9d9fcab2598997d1",
"to_name": null,
"type": null,
"value": {
"end": 22625,
"labels": [
"ANALYSIS"
],
"start": 22549,
"text": "Nothing useful to the defence has been elucidate from his cross examination."
}
},
{
"from_name": null,
"id": "bbbea6c5b9994105b4e89f2a3b63a699",
"to_name": null,
"type": null,
"value": {
"end": 22687,
"labels": [
"ANALYSIS"
],
"start": 22625,
"text": "\n 16 We have carefully perused the notes of evidence."
}
},
{
"from_name": null,
"id": "f2db44af2a724b4aad24aa4d12088dda",
"to_name": null,
"type": null,
"value": {
"end": 22882,
"labels": [
"ANALYSIS"
],
"start": 22688,
"text": "At this juncture it would be appropriate to discuss the evidence of Medical Officer Shivaji Shrirangrao Bhise (PW 5), so as to find out, whether the death was homicidal, suicidal or accidental?."
}
},
{
"from_name": null,
"id": "83a39b57c3b84b528180b7f6a78afcef",
"to_name": null,
"type": null,
"value": {
"end": 23003,
"labels": [
"ANALYSIS"
],
"start": 22883,
"text": "The prosecution examined Medical Officer Shivaji Shrirangrao Bhise as PW 5 who had performed the post-mortem of Ushabai."
}
},
{
"from_name": null,
"id": "189791c497df4a09a0a5dda16bd54dfd",
"to_name": null,
"type": null,
"value": {
"end": 23081,
"labels": [
"ANALYSIS"
],
"start": 23003,
"text": "\nHe stated in his evidence that, he found injuries mentioned in Column no. 17."
}
},
{
"from_name": null,
"id": "5bb2959d04aa415987447e5438ec3344",
"to_name": null,
"type": null,
"value": {
"end": 23451,
"labels": [
"ANALYSIS"
],
"start": 23081,
"text": "\nThe injuries mentioned in Column No. 17 are as follows:- Throttling i.e. marks of pressure by thumb and fingers present on either side of the thyriod cartilage a depressed mark of thumb impression on right side of thyroid cartilage and bruising due to fingers pressing brownish on left side of the neck present, few abrasions on the angel of mandible left side present."
}
},
{
"from_name": null,
"id": "9e00b4088f354a9f88877dea0429a1d5",
"to_name": null,
"type": null,
"value": {
"end": 23491,
"labels": [
"ANALYSIS"
],
"start": 23451,
"text": "\n Fracture of thyroid cartilage present."
}
},
{
"from_name": null,
"id": "e9c3c7cd14244fc6bca872b570a9a20c",
"to_name": null,
"type": null,
"value": {
"end": 24225,
"labels": [
"ANALYSIS"
],
"start": 23507,
"text": "Marks of contusions on i) Left Shoulder- 2 1 ii) Left arm post near axille 1 1.\n iii) Oblige contusion over left scapula region region at 4 places about 3 1, 6 1, 9 1 and 3 1.\n iv) Contusion of right scapula region and right side of the neck at 4 sides about 4 1, 5 1, 31, 31.\n v) Contusion on right gluetal region, at 2 sites about 8 1, and 6 1 with diffuse blackening of skin on the gluetal region.\n vi) Contusion on left gluetal region about 4 1.\n vii) Contusion on left calf 4 1.\n vii) Contusion on lateral aspect of left thigh 5 1 and laternal aspect of left knee 3 1 and on left iliae crest 3 1.\n ix)"
}
},
{
"from_name": null,
"id": "94963040327a4a358bc8ec61b5eea469",
"to_name": null,
"type": null,
"value": {
"end": 24297,
"labels": [
"ANALYSIS"
],
"start": 24226,
"text": "Multiple contusions on right thigh at 8 places about 4 1 to 5 1 size."
}
},
{
"from_name": null,
"id": "b310609421f84dc2b4b6e944cbc6d208",
"to_name": null,
"type": null,
"value": {
"end": 24367,
"labels": [
"ANALYSIS"
],
"start": 24313,
"text": "x) Contusion on right arm laterally at upper and 3 1."
}
},
{
"from_name": null,
"id": "3b7131b29f404f84b0a8c077cc6c4509",
"to_name": null,
"type": null,
"value": {
"end": 24399,
"labels": [
"ANALYSIS"
],
"start": 24368,
"text": "These are ante-mortem injuries."
}
},
{
"from_name": null,
"id": "be49731decce41439617abd6384bda07",
"to_name": null,
"type": null,
"value": {
"end": 24507,
"labels": [
"ANALYSIS"
],
"start": 24399,
"text": "\n On internal examination there were no injuries under scalp and no injuries or fracture to the scull."
}
},
{
"from_name": null,
"id": "c3fe0986e1b946c8a08795e63d644c59",
"to_name": null,
"type": null,
"value": {
"end": 24587,
"labels": [
"ANALYSIS"
],
"start": 24508,
"text": "Brain meninges congested, philatelic, hemorrhages were present in brain matter."
}
},
{
"from_name": null,
"id": "608d4472cf5443a195e2b1dc9bbceccd",
"to_name": null,
"type": null,
"value": {
"end": 24667,
"labels": [
"ANALYSIS"
],
"start": 24588,
"text": "On examination of thorax pleura congested and mucase of passages was congested."
}
},
{
"from_name": null,
"id": "98c6661188424965a2cd64275ea56ecd",
"to_name": null,
"type": null,
"value": {
"end": 24741,
"labels": [
"ANALYSIS"
],
"start": 24668,
"text": "Both lungs were markedly congested, cut section exuding dark fluid blood."
}
},
{
"from_name": null,
"id": "5465c27ed5fa451b9459fc04f55bd4ed",
"to_name": null,
"type": null,
"value": {
"end": 24838,
"labels": [
"ANALYSIS"
],
"start": 24742,
"text": "On examination of the heart right chamber was full of dark fluid blood., left chamber was empty."
}
},
{
"from_name": null,
"id": "9c9a85c692ec4ccaad047bcefd3d2171",
"to_name": null,
"type": null,
"value": {
"end": 24974,
"labels": [
"ANALYSIS"
],
"start": 24839,
"text": "On examination of abdomen, the decomposition of peritoneum was initiated and little foul smelling gas escaped after opening the cavity."
}
},
{
"from_name": null,
"id": "10119ca9b3ab43dcba996dbb7442fbeb",
"to_name": null,
"type": null,
"value": {
"end": 25043,
"labels": [
"ANALYSIS"
],
"start": 24975,
"text": "Stomach was empty, destined with gas, mucous was slightly congested."
}
},
{
"from_name": null,
"id": "1dc97ec2211a40558442f600aa6efe8d",
"to_name": null,
"type": null,
"value": {
"end": 25113,
"labels": [
"ANALYSIS"
],
"start": 25044,
"text": "Similar findings were found in small and large intestine was present."
}
},
{
"from_name": null,
"id": "af7064c4c099450a977db5541bcffb3f",
"to_name": null,
"type": null,
"value": {
"end": 25172,
"labels": [
"ANALYSIS"
],
"start": 25114,
"text": "Liver, pancreas, spleen and kidneys were darkly congested."
}
},
{
"from_name": null,
"id": "4fe5b51b8f6b40c8ad3b3dddd071557d",
"to_name": null,
"type": null,
"value": {
"end": 25206,
"labels": [
"ANALYSIS"
],
"start": 25173,
"text": "Uterus was normal size and empty."
}
},
{
"from_name": null,
"id": "fa9d8355a98a46a28aca15cb1fa70fc0",
"to_name": null,
"type": null,
"value": {
"end": 25264,
"labels": [
"ANALYSIS"
],
"start": 25207,
"text": "The cause of death was due to asphyxia due to throttling."
}
},
{
"from_name": null,
"id": "9eef85b947ca40c788662680d79cd9c6",
"to_name": null,
"type": null,
"value": {
"end": 25314,
"labels": [
"ANALYSIS"
],
"start": 25265,
"text": "PW 5 stated that, P.M. notes bears his signature."
}
},
{
"from_name": null,
"id": "ef953e760548485c8aebd6ac2f96ce5b",
"to_name": null,
"type": null,
"value": {
"end": 25394,
"labels": [
"ANALYSIS"
],
"start": 25315,
"text": "He also stated that, doctor Ansari also signed on P.M. notes on separate sheet."
}
},
{
"from_name": null,
"id": "0dffc0185cfd46ada41b5ef25d82ac3f",
"to_name": null,
"type": null,
"value": {
"end": 25412,
"labels": [
"ANALYSIS"
],
"start": 25395,
"text": "It is at Exh. 61."
}
},
{
"from_name": null,
"id": "942897af099d426ebfa9bfc5a4fbe97d",
"to_name": null,
"type": null,
"value": {
"end": 25463,
"labels": [
"ANALYSIS"
],
"start": 25413,
"text": "Injuries by throttling would be pressing fingures."
}
},
{
"from_name": null,
"id": "c97bf3f9f5914f1e92bb4584258124af",
"to_name": null,
"type": null,
"value": {
"end": 25522,
"labels": [
"ANALYSIS"
],
"start": 25464,
"text": "Contusions would be by hard and blunt object like a stick."
}
},
{
"from_name": null,
"id": "a765d87ff10248309998820b8009f92f",
"to_name": null,
"type": null,
"value": {
"end": 25589,
"labels": [
"ANALYSIS"
],
"start": 25522,
"text": "\n 17 We perused the cross examination of Dr. Shivaji Bhise (PW 5)."
}
},
{
"from_name": null,
"id": "52bc9611c47b4899a6bf748c46459fa6",
"to_name": null,
"type": null,
"value": {
"end": 25723,
"labels": [
"ANALYSIS"
],
"start": 25589,
"text": "\n Though he admitted that, he applied for anticipatory bail in some other matter that itself cannot be ground to discard his evidence."
}
},
{
"from_name": null,
"id": "fe46e3dcf7704a5790a8fd8cdc5c4e05",
"to_name": null,
"type": null,
"value": {
"end": 25837,
"labels": [
"ANALYSIS"
],
"start": 25724,
"text": "Defence has tried to point out some minor discrepancies in his evidence, however, is evidence remain unshattered."
}
},
{
"from_name": null,
"id": "8ddf8931f9e14fa5917f4be0cc93d30b",
"to_name": null,
"type": null,
"value": {
"end": 25897,
"labels": [
"ANALYSIS"
],
"start": 25837,
"text": "\n 18 Prosecution further examined PW 6- Dr. Ganesh Trambak."
}
},
{
"from_name": null,
"id": "9eb9883e338b4d398189132fde324603",
"to_name": null,
"type": null,
"value": {
"end": 26029,
"labels": [
"ANALYSIS"
],
"start": 25898,
"text": "He stated in his examination in chief that, on 25.08.1991 at about in between 5 to 7.00 pm Harischandra (accused No. 1) called him."
}
},
{
"from_name": null,
"id": "286fdd1a097e4409ba1e1dd1a945d7a9",
"to_name": null,
"type": null,
"value": {
"end": 26119,
"labels": [
"ANALYSIS"
],
"start": 26030,
"text": "Accused No. 1 told him that, his wife was not keeping well hence he should accompany him."
}
},
{
"from_name": null,
"id": "0e8f05fbde8349d6ab318c1abdb28fb2",
"to_name": null,
"type": null,
"value": {
"end": 26147,
"labels": [
"ANALYSIS"
],
"start": 26120,
"text": "He went with accused No. 1."
}
},
{
"from_name": null,
"id": "aadae5f7860849448ef20c542f4dd035",
"to_name": null,
"type": null,
"value": {
"end": 26196,
"labels": [
"ANALYSIS"
],
"start": 26148,
"text": "He asked him on the way as to what had happened."
}
},
{
"from_name": null,
"id": "f21f75bf6b924947aad7aa8706be3121",
"to_name": null,
"type": null,
"value": {
"end": 26268,
"labels": [
"ANALYSIS"
],
"start": 26197,
"text": "He told him that there was pain in the chest, and that she became cold."
}
},
{
"from_name": null,
"id": "c7ceeb75452140ee95ccf3efd3b32e66",
"to_name": null,
"type": null,
"value": {
"end": 26309,
"labels": [
"ANALYSIS"
],
"start": 26269,
"text": "When he went the patient was on the cot."
}
},
{
"from_name": null,
"id": "40ce7e6e2fb04ef696323dedd847f44e",
"to_name": null,
"type": null,
"value": {
"end": 26334,
"labels": [
"ANALYSIS"
],
"start": 26310,
"text": "He examined the patient."
}
},
{
"from_name": null,
"id": "8a45a9edbc494fb08d72ed8fa2f94536",
"to_name": null,
"type": null,
"value": {
"end": 26390,
"labels": [
"ANALYSIS"
],
"start": 26335,
"text": "He could not get pulse and heart beat of deceased Usha."
}
},
{
"from_name": null,
"id": "7cd75b60d1e64ef1b0b8e65f4e2adfbf",
"to_name": null,
"type": null,
"value": {
"end": 26477,
"labels": [
"ANALYSIS"
],
"start": 26391,
"text": "He told them that Usha was 90% dead and for confirmation he should get another doctor."
}
},
{
"from_name": null,
"id": "631159301ac04e81b966249c427dac15",
"to_name": null,
"type": null,
"value": {
"end": 26553,
"labels": [
"ANALYSIS"
],
"start": 26477,
"text": "\n 19 Prosecution examined PW 7- Sharad Wagh, who is a medical practitioner."
}
},
{
"from_name": null,
"id": "81bf435ee49c4051a318e14a7ddb7555",
"to_name": null,
"type": null,
"value": {
"end": 26662,
"labels": [
"ANALYSIS"
],
"start": 26554,
"text": "He stated in his examination in chief that, from 1986, March, he was working as a medical officer at Satana."
}
},
{
"from_name": null,
"id": "4868b7be422744d39cff66bd04c14105",
"to_name": null,
"type": null,
"value": {
"end": 26685,
"labels": [
"ANALYSIS"
],
"start": 26663,
"text": "He know Accused No. 1."
}
},
{
"from_name": null,
"id": "50377a12db954e0b9537a8c5a83c6440",
"to_name": null,
"type": null,
"value": {
"end": 26746,
"labels": [
"ANALYSIS"
],
"start": 26686,
"text": "Accused No. 1 is working as Lab-technician at P.A.C. Satana."
}
},
{
"from_name": null,
"id": "8a02dd2c582047ed937f56f66aa1b050",
"to_name": null,
"type": null,
"value": {
"end": 26826,
"labels": [
"ANALYSIS"
],
"start": 26747,
"text": "On 26.08.1991 when he was at his residence at about 7.15 pm accused no. 1 came."
}
},
{
"from_name": null,
"id": "a752b68e18b643f9b6b9eb5027d03455",
"to_name": null,
"type": null,
"value": {
"end": 26914,
"labels": [
"ANALYSIS"
],
"start": 26827,
"text": "He told him that his wife had chest pain and she is serious, and he should examine her."
}
},
{
"from_name": null,
"id": "af4ef7f9bc054a5783215cc8bacfc9a3",
"to_name": null,
"type": null,
"value": {
"end": 26971,
"labels": [
"ANALYSIS"
],
"start": 26915,
"text": "He told him that Dr. Garud was already at his residence."
}
},
{
"from_name": null,
"id": "2cb7864dc99041d3b76f2cca69043e0c",
"to_name": null,
"type": null,
"value": {
"end": 27007,
"labels": [
"ANALYSIS"
],
"start": 26972,
"text": "He went alongwith him on his moped."
}
},
{
"from_name": null,
"id": "fc2b15cea7f64dac85c936761f4bb73d",
"to_name": null,
"type": null,
"value": {
"end": 27057,
"labels": [
"ANALYSIS"
],
"start": 27008,
"text": "He asked Dr. Garud if he had given any treatment."
}
},
{
"from_name": null,
"id": "7485075db2a7440ca33b7418eeea7bce",
"to_name": null,
"type": null,
"value": {
"end": 27142,
"labels": [
"ANALYSIS"
],
"start": 27058,
"text": "He told him that there was no heart beat and, also he was not getting pulse of Usha."
}
},
{
"from_name": null,
"id": "99c9bbb283ee433eab10f1d90550dda2",
"to_name": null,
"type": null,
"value": {
"end": 27276,
"labels": [
"ANALYSIS"
],
"start": 27143,
"text": "With the help of stethoscope he (PW 7) examined Usha and found that there was no sound of heart beat and no pulse and no respiration."
}
},
{
"from_name": null,
"id": "85c5f5ca45f74324bf8deb6d98b80208",
"to_name": null,
"type": null,
"value": {
"end": 27309,
"labels": [
"ANALYSIS"
],
"start": 27277,
"text": "He examined Usha for one minute."
}
},
{
"from_name": null,
"id": "8cf05030ec7e4e03a0023af4bdef8d5f",
"to_name": null,
"type": null,
"value": {
"end": 27366,
"labels": [
"ANALYSIS"
],
"start": 27310,
"text": "Thereafter, he told Accused No. 1 that Usha has expired."
}
},
{
"from_name": null,
"id": "5530524d57c941cba831e81ec797d1a6",
"to_name": null,
"type": null,
"value": {
"end": 27410,
"labels": [
"ANALYSIS"
],
"start": 27367,
"text": "He asked Accused No. 1 the name of patient."
}
},
{
"from_name": null,
"id": "a4906f4906674d879123d499b9baf6dc",
"to_name": null,
"type": null,
"value": {
"end": 27458,
"labels": [
"ANALYSIS"
],
"start": 27411,
"text": "He told him the name of the patient is Ushatai."
}
},
{
"from_name": null,
"id": "5e55ff29787240c9a00f39a7318465ab",
"to_name": null,
"type": null,
"value": {
"end": 27522,
"labels": [
"ANALYSIS"
],
"start": 27459,
"text": "He came outside the house and came to P.L.C. with doctor Garud."
}
},
{
"from_name": null,
"id": "4c1d842c489e4e39bb0e6398a7848602",
"to_name": null,
"type": null,
"value": {
"end": 27558,
"labels": [
"ANALYSIS"
],
"start": 27522,
"text": "\nHe then range-up to police station."
}
},
{
"from_name": null,
"id": "5e7d7023c08e4347b78ab3c8b532839d",
"to_name": null,
"type": null,
"value": {
"end": 27648,
"labels": [
"ANALYSIS"
],
"start": 27558,
"text": "\n 20 The prosecution examined Namdeo Thobare (PW 10) who is Police Sub Inspector."
}
},
{
"from_name": null,
"id": "c193410bac654731bfb5d4a5e516ea74",
"to_name": null,
"type": null,
"value": {
"end": 27749,
"labels": [
"ANALYSIS"
],
"start": 27649,
"text": "He deposed in his examination in chief that, he was attached to Satana Police Station on 26.08.1994."
}
},
{
"from_name": null,
"id": "dcd8e1e26fdd417dae711f29e5e066fc",
"to_name": null,
"type": null,
"value": {
"end": 27873,
"labels": [
"ANALYSIS"
],
"start": 27750,
"text": "On 25.08.1991 at about 8.00 pm, accidental death was registered by P.S.I. and further investigation was handed over to him."
}
},
{
"from_name": null,
"id": "4c147bef7ff449968149211215020e95",
"to_name": null,
"type": null,
"value": {
"end": 27907,
"labels": [
"ANALYSIS"
],
"start": 27874,
"text": "Immediately, he went to the spot."
}
},
{
"from_name": null,
"id": "611a8e1a3c6846dd9fb6e351b93dac60",
"to_name": null,
"type": null,
"value": {
"end": 27980,
"labels": [
"ANALYSIS"
],
"start": 27908,
"text": "In the drawing room of the house of the accused one dead body was there."
}
},
{
"from_name": null,
"id": "0f9fd26027f64625844d4d0724fe592d",
"to_name": null,
"type": null,
"value": {
"end": 28036,
"labels": [
"ANALYSIS"
],
"start": 27981,
"text": "The accused No. 2 showed him the place of the incident."
}
},
{
"from_name": null,
"id": "2b8f567499114d79ad1c06c3f6a0b62f",
"to_name": null,
"type": null,
"value": {
"end": 28079,
"labels": [
"ANALYSIS"
],
"start": 28037,
"text": "He then started drawing inquest panchnama."
}
},
{
"from_name": null,
"id": "400348467a6e4101a476d1294eb8c892",
"to_name": null,
"type": null,
"value": {
"end": 28168,
"labels": [
"ANALYSIS"
],
"start": 28080,
"text": "He found the fresh injury on the front side on the neck and also right side of the neck."
}
},
{
"from_name": null,
"id": "5265168cfa364219927f710c1162c2d8",
"to_name": null,
"type": null,
"value": {
"end": 28205,
"labels": [
"ANALYSIS"
],
"start": 28169,
"text": "He found injuries on the both hands."
}
},
{
"from_name": null,
"id": "c0ca76e43e6a4eb482dd562f6d44e301",
"to_name": null,
"type": null,
"value": {
"end": 28253,
"labels": [
"ANALYSIS"
],
"start": 28206,
"text": "There were marks of injuries on both the hands."
}
},
{
"from_name": null,
"id": "9608d5b01137415c83f0663eb5a3c7ea",
"to_name": null,
"type": null,
"value": {
"end": 28313,
"labels": [
"ANALYSIS"
],
"start": 28254,
"text": "There were marks of injuries on back side of the dead body."
}
},
{
"from_name": null,
"id": "b08ac305b2454b0291daa49036699313",
"to_name": null,
"type": null,
"value": {
"end": 28385,
"labels": [
"ANALYSIS"
],
"start": 28313,
"text": "\n Inquest panchnama was drawn and dead body was sent to Satana hospital."
}
},
{
"from_name": null,
"id": "219afcb611cb4ac09bcac3791ef04ca1",
"to_name": null,
"type": null,
"value": {
"end": 28579,
"labels": [
"ANALYSIS"
],
"start": 28385,
"text": "\nRelative of deceased told them that accused No. 1 serving at Satana hospital, and post mortem could not be performed at Satana and therefore, the dead body was sent to Malegaon for post mortem."
}
},
{
"from_name": null,
"id": "389659a79eb846878115b03c273d4485",
"to_name": null,
"type": null,
"value": {
"end": 28696,
"labels": [
"ANALYSIS"
],
"start": 28580,
"text": "Inqeust panchnama was shown to him during examination in chief which bears signatures of panchas and his signatures."
}
},
{
"from_name": null,
"id": "84874eb038314804a0873f4316890fb8",
"to_name": null,
"type": null,
"value": {
"end": 28756,
"labels": [
"ANALYSIS"
],
"start": 28697,
"text": "Photographs of dead body and place of incidence were taken."
}
},
{
"from_name": null,
"id": "a9223231aae548b6bac0edd5cb01e899",
"to_name": null,
"type": null,
"value": {
"end": 28805,
"labels": [
"ANALYSIS"
],
"start": 28756,
"text": "\nThere was padavi just adjoining to the bungalow."
}
},
{
"from_name": null,
"id": "22afe6db4c1a4478b063f2ac6aa9391b",
"to_name": null,
"type": null,
"value": {
"end": 28896,
"labels": [
"ANALYSIS"
],
"start": 28806,
"text": "He entered therein and saw one saree hanging on the sixth wooden rod attached to the roof."
}
},
{
"from_name": null,
"id": "dbda4c0fc38f4701bf6dba97c7786338",
"to_name": null,
"type": null,
"value": {
"end": 28998,
"labels": [
"ANALYSIS"
],
"start": 28897,
"text": "There was writing on the wall with the help of coal that \"she is committing suicide by her own will\"."
}
},
{
"from_name": null,
"id": "7a41038316bb436686031722bf93d5df",
"to_name": null,
"type": null,
"value": {
"end": 29030,
"labels": [
"ANALYSIS"
],
"start": 28999,
"text": "Bangle pieces were lying there."
}
},
{
"from_name": null,
"id": "8a90f8626b8e452ab58255dcbcc229ea",
"to_name": null,
"type": null,
"value": {
"end": 29070,
"labels": [
"ANALYSIS"
],
"start": 29031,
"text": "One piece of coal was lying on the cot."
}
},
{
"from_name": null,
"id": "026e3666e54b4c75843f769475b22563",
"to_name": null,
"type": null,
"value": {
"end": 29114,
"labels": [
"ANALYSIS"
],
"start": 29071,
"text": "In presence of panchas panchnama was drawn."
}
},
{
"from_name": null,
"id": "70e7ee2163804be3a36b0d6e9749e7aa",
"to_name": null,
"type": null,
"value": {
"end": 29142,
"labels": [
"ANALYSIS"
],
"start": 29115,
"text": "The articles were attached."
}
},
{
"from_name": null,
"id": "3a891877027b4294bc269753ccd055ea",
"to_name": null,
"type": null,
"value": {
"end": 29185,
"labels": [
"ANALYSIS"
],
"start": 29142,
"text": "\nPanchnama was shown to him which was same."
}
},
{
"from_name": null,
"id": "de8afe2301f347f89b8e965583681651",
"to_name": null,
"type": null,
"value": {
"end": 29261,
"labels": [
"ANALYSIS"
],
"start": 29186,
"text": "The father of Usha gave complaint and therefore the offence was registered."
}
},
{
"from_name": null,
"id": "8437496074334d0a9fa90059d5b6e085",
"to_name": null,
"type": null,
"value": {
"end": 29330,
"labels": [
"ANALYSIS"
],
"start": 29262,
"text": "He again started investigation and recorded statements of witnesses."
}
},
{
"from_name": null,
"id": "382428f6f3ec40698d8aac62905901dd",
"to_name": null,
"type": null,
"value": {
"end": 29401,
"labels": [
"ANALYSIS"
],
"start": 29331,
"text": "At the instance of accused No. 1 a stick was attached under panchnama."
}
},
{
"from_name": null,
"id": "0e21e41157474195ac51ac870bbd21b9",
"to_name": null,
"type": null,
"value": {
"end": 29466,
"labels": [
"ANALYSIS"
],
"start": 29402,
"text": "Advance certificate was received from Medical Officer, Malegaon."
}
},
{
"from_name": null,
"id": "f4e01624076b4cd987607aa5ceaeacdb",
"to_name": null,
"type": null,
"value": {
"end": 29502,
"labels": [
"ANALYSIS"
],
"start": 29467,
"text": "It bears signature of senior P.S.I."
}
},
{
"from_name": null,
"id": "f7fffbcf44c54840b16831731ecaadac",
"to_name": null,
"type": null,
"value": {
"end": 29559,
"labels": [
"ANALYSIS"
],
"start": 29503,
"text": "On 31.08.1991, he recorded statements of four witnesses."
}
},
{
"from_name": null,
"id": "1263ff1f06464634994dcfff7aa68851",
"to_name": null,
"type": null,
"value": {
"end": 29633,
"labels": [
"ANALYSIS"
],
"start": 29560,
"text": "On 06.09.1991 he obtained specimen of handwriting of accused No. 1 and 2."
}
},
{
"from_name": null,
"id": "1e30cd7dca894dab936ee138d0bde27c",
"to_name": null,
"type": null,
"value": {
"end": 29767,
"labels": [
"ANALYSIS"
],
"start": 29634,
"text": "He sent natural handwriting on the wall and photographs to the handwriting expert alongwith handwriting of accused and deceased Usha."
}
},
{
"from_name": null,
"id": "e53b6715dd4c4fdb8e5cea9b9e5358f6",
"to_name": null,
"type": null,
"value": {
"end": 29830,
"labels": [
"ANALYSIS"
],
"start": 29768,
"text": "Further investigation was carried out by S.D.P.O. Shri. Salve."
}
},
{
"from_name": null,
"id": "dd513042aa5b47efa9aea069407bf77d",
"to_name": null,
"type": null,
"value": {
"end": 29880,
"labels": [
"ANALYSIS"
],
"start": 29830,
"text": "\n 21 The Trial Court framed charge at Exhibit-19."
}
},
{
"from_name": null,
"id": "c2438a9edf374492921464be89ac4eb0",
"to_name": null,
"type": null,
"value": {
"end": 29969,
"labels": [
"ANALYSIS"
],
"start": 29881,
"text": "The said charge was for the offences punishable under Section 498-A read with 34 of IPC."
}
},
{
"from_name": null,
"id": "44ffb4b02516475886a9ec9acff46f45",
"to_name": null,
"type": null,
"value": {
"end": 30030,
"labels": [
"ANALYSIS"
],
"start": 29970,
"text": "The Trial Court also framed charge under Section 324 of IPC."
}
},
{
"from_name": null,
"id": "3d6efd3fc0d44569949d821cb3fc2f1e",
"to_name": null,
"type": null,
"value": {
"end": 30095,
"labels": [
"ANALYSIS"
],
"start": 30031,
"text": "There was separate charge under Section 302 read with 34 of IPC."
}
},
{
"from_name": null,
"id": "ceb40630e44e499685a1dae50a831517",
"to_name": null,
"type": null,
"value": {
"end": 30338,
"labels": [
"ANALYSIS"
],
"start": 30095,
"text": "\n 22 We have carefully perused the evidence of Krishna Jagtap (PW 1), Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3) and conjoin reading of their evidence would indicate that, there was ill treatment and harassment by Accused No. 1 to Usha."
}
},
{
"from_name": null,
"id": "dff9317b7e0f47228e8d96b9c269ba30",
"to_name": null,
"type": null,
"value": {
"end": 30496,
"labels": [
"ANALYSIS"
],
"start": 30339,
"text": "Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3) stated in their deposition that, they visited the house of the accused on the eve of Rakshabandhan festival."
}
},
{
"from_name": null,
"id": "717a91cdf2f04330ac0cccd95ce6912c",
"to_name": null,
"type": null,
"value": {
"end": 30537,
"labels": [
"ANALYSIS"
],
"start": 30497,
"text": "After some time Usha tied Rakhi to them."
}
},
{
"from_name": null,
"id": "d6f93c2035424480ba5536472e3e6d08",
"to_name": null,
"type": null,
"value": {
"end": 30571,
"labels": [
"ANALYSIS"
],
"start": 30537,
"text": "\n Thereafter Usha started weeping."
}
},
{
"from_name": null,
"id": "e087786764f746efaae48ca6ed2f702b",
"to_name": null,
"type": null,
"value": {
"end": 30747,
"labels": [
"ANALYSIS"
],
"start": 30572,
"text": "When they asked her, why she was weeping, she told that accused were beating her, ill treating her and they were not giving meals in time and also accused are demanding money."
}
},
{
"from_name": null,
"id": "109c34ac0f9e431f8fd908ec1a3dd55f",
"to_name": null,
"type": null,
"value": {
"end": 30889,
"labels": [
"ANALYSIS"
],
"start": 30748,
"text": "It is true that, Krishna Jagtap (PW 1) in his cross examination admitted that, the accused are wealthy person and possess immovable property."
}
},
{
"from_name": null,
"id": "6924dde7ce2940f592089fc2e7a10e81",
"to_name": null,
"type": null,
"value": {
"end": 31017,
"labels": [
"ANALYSIS"
],
"start": 30890,
"text": "Therefore, the Trial Court did not believe the prosecution case that there was demand of Rs. 1,00,000/- (Rupees One lakh only)."
}
},
{
"from_name": null,
"id": "4bc767a56df74fbc8d9f36b17a3ed57d",
"to_name": null,
"type": null,
"value": {
"end": 31221,
"labels": [
"ANALYSIS"
],
"start": 31018,
"text": "However, as already observed there was ill treatment and harassment by accused no. 1 to Usha as it is evident from the evidence of Krishna Jagtap (PW 1), Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3)."
}
},
{
"from_name": null,
"id": "2359e59cbdeb4cef97020a6a6f1fecfd",
"to_name": null,
"type": null,
"value": {
"end": 31315,
"labels": [
"ANALYSIS"
],
"start": 31221,
"text": "\n As already observed there is separate charge framed under Section 498-A read with 34 of IPC."
}
},
{
"from_name": null,
"id": "a2a04cefe9904612a8a860e9d111ce08",
"to_name": null,
"type": null,
"value": {
"end": 31388,
"labels": [
"ANALYSIS"
],
"start": 31316,
"text": "Even the case in hand would be squarely covered under 498- A (a) of IPC."
}
},
{
"from_name": null,
"id": "c88d87a381f8474ab87a6ddc016b64e9",
"to_name": null,
"type": null,
"value": {
"end": 31625,
"labels": [
"ANALYSIS"
],
"start": 31389,
"text": "The said provision in its sweep covers any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman."
}
},
{
"from_name": null,
"id": "1b70b927bb704202a6563cf7142457dd",
"to_name": null,
"type": null,
"value": {
"end": 32031,
"labels": [
"ANALYSIS"
],
"start": 31626,
"text": "Therefore, even if the prosecution is not able to prove the alleged demand of Rs. 1,00,000/- (Rupees One Lakh only) by accused, so as to attract explanation (b) of sub section (1) of Section 498-A of IPC., same is not fatal to the prosecution case when sufficient, cogent and clinching evidence of illtreatment (physical and mental) is brought on record to attract explanation (a) of Section 498-A of IPC."
}
},
{
"from_name": null,
"id": "551904b9855c4c5c92d699c4f12536a2",
"to_name": null,
"type": null,
"value": {
"end": 32165,
"labels": [
"ANALYSIS"
],
"start": 32032,
"text": "Therefore, the prosecution has proved beyond reasonable doubt the ill treatment and harassment at the hands of Accused No. 1 to Usha."
}
},
{
"from_name": null,
"id": "f74b66805ee943a0a3e3b28ddc93525b",
"to_name": null,
"type": null,
"value": {
"end": 32260,
"labels": [
"ANALYSIS"
],
"start": 32165,
"text": "\n 23 We have discussed the evidence of medical officer Shivaji Bhise (PW 5) at length."
}
},
{
"from_name": null,
"id": "a6b73d9ab69b4443a721187b75e60f01",
"to_name": null,
"type": null,
"value": {
"end": 32408,
"labels": [
"ANALYSIS"
],
"start": 32261,
"text": "His evidence unequivocally indicates that, Usha suffered number of injuries which are mentioned in his evidence, so also in the post mortem report."
}
},
{
"from_name": null,
"id": "0181d6c1bfdd4ef1b55a929dd5fa5626",
"to_name": null,
"type": null,
"value": {
"end": 32521,
"labels": [
"ANALYSIS"
],
"start": 32409,
"text": "He has described those injuries as ante-mortem and stated that, the cause of death of Usha is due to throttling."
}
},
{
"from_name": null,
"id": "aa2180d5d2a644268e4e047dc29e46de",
"to_name": null,
"type": null,
"value": {
"end": 32710,
"labels": [
"ANALYSIS"
],
"start": 32522,
"text": "Though, it is tried to suggest that, the death of Usha is suicidal, however, it is crystal clear from the evidence brought on record by the prosecution that, the Usha died homicidal death."
}
},
{
"from_name": null,
"id": "2cfb69e2fc9549ad81785761cc7fc7cd",
"to_name": null,
"type": null,
"value": {
"end": 32776,
"labels": [
"ANALYSIS"
],
"start": 32711,
"text": "The alleged incident had taken place in the house of the accused."
}
},
{
"from_name": null,
"id": "ad5490fc061c461c89e8a6e6c612ab93",
"to_name": null,
"type": null,
"value": {
"end": 32886,
"labels": [
"ANALYSIS"
],
"start": 32777,
"text": "The fact that, accused was present in the house at the relevant time is brought on record by the prosecution."
}
},
{
"from_name": null,
"id": "3897a9ad7cd54d17b8352429621aeec8",
"to_name": null,
"type": null,
"value": {
"end": 33011,
"labels": [
"ANALYSIS"
],
"start": 32886,
"text": "\n 24 Dr. Ganesh (PW 6) in his evidence stated that, on 25.08.1991 at about 5.00 to 7.00 pm accused No. 1 called him."
}
},
{
"from_name": null,
"id": "4cd72a7234294b5290a2590989147d5f",
"to_name": null,
"type": null,
"value": {
"end": 33102,
"labels": [
"ANALYSIS"
],
"start": 33012,
"text": "Accused No. 1 told him that, his wife is not keeping well, hence, he should accompany him."
}
},
{
"from_name": null,
"id": "a3ed8b67441147bfb05d74f98bd0d28c",
"to_name": null,
"type": null,
"value": {
"end": 33130,
"labels": [
"ANALYSIS"
],
"start": 33103,
"text": "He went with Accused No. 1."
}
},
{
"from_name": null,
"id": "91fb6ffd0d3e47b8a30b92588bf4dd3d",
"to_name": null,
"type": null,
"value": {
"end": 33220,
"labels": [
"ANALYSIS"
],
"start": 33131,
"text": "On the way while going to the house of Accused No. 1, he asked what happened to his wife."
}
},
{
"from_name": null,
"id": "5d2f3340298e42378364d15be409697f",
"to_name": null,
"type": null,
"value": {
"end": 33315,
"labels": [
"ANALYSIS"
],
"start": 33221,
"text": "Accused No. 1 told him that, there was pain in the chest of his wife and her body became cold."
}
},
{
"from_name": null,
"id": "963c4350b2054ab09ab4d0e8e6bf78c4",
"to_name": null,
"type": null,
"value": {
"end": 33370,
"labels": [
"ANALYSIS"
],
"start": 33316,
"text": "When he went to the patient, she was lying on the cot."
}
},
{
"from_name": null,
"id": "5de953624f2740c28032274a8506208c",
"to_name": null,
"type": null,
"value": {
"end": 33395,
"labels": [
"ANALYSIS"
],
"start": 33371,
"text": "He examined the patient."
}
},
{
"from_name": null,
"id": "dfc0d72e99d04e85acb9a759edbee72c",
"to_name": null,
"type": null,
"value": {
"end": 33443,
"labels": [
"ANALYSIS"
],
"start": 33396,
"text": "He could not get pulse and heart beats of Usha."
}
},
{
"from_name": null,
"id": "2b1c5ff4dff24a5ca0ffcd6faff04e17",
"to_name": null,
"type": null,
"value": {
"end": 33478,
"labels": [
"ANALYSIS"
],
"start": 33444,
"text": "He told that, Usha is almost dead."
}
},
{
"from_name": null,
"id": "66def60fed3840c6ad055a3020ffdf7e",
"to_name": null,
"type": null,
"value": {
"end": 33581,
"labels": [
"ANALYSIS"
],
"start": 33479,
"text": "However, he advised Accused No. 1 to bring another doctor, so as to confirm the fact of death of Usha."
}
},
{
"from_name": null,
"id": "ed3b0c4145f94ba4bc08130a212debc4",
"to_name": null,
"type": null,
"value": {
"end": 33666,
"labels": [
"ANALYSIS"
],
"start": 33582,
"text": "It appears that, Accused No. 1 approached Sharad (PW 7) who is medical practitioner."
}
},
{
"from_name": null,
"id": "2f17ff404e8e4827afb877a61be60323",
"to_name": null,
"type": null,
"value": {
"end": 33844,
"labels": [
"ANALYSIS"
],
"start": 33667,
"text": "In his cross examination he stated that, at the relevant time he was working as medical practitioner at Satana, and Accused No. 1 was working as lab technician at P.A.C. Satana."
}
},
{
"from_name": null,
"id": "dff39bd2a2a544c6b5d1d0df2fa08da2",
"to_name": null,
"type": null,
"value": {
"end": 33932,
"labels": [
"ANALYSIS"
],
"start": 33845,
"text": "On 26.08.1991 when he was at his residence at about 7.15 pm, Accused No. 1 came to him."
}
},
{
"from_name": null,
"id": "3d4ef7dc7a5f4e3cafc281c92295601d",
"to_name": null,
"type": null,
"value": {
"end": 34020,
"labels": [
"ANALYSIS"
],
"start": 33933,
"text": "He told him that his wife had chest pain and then he requested him to examine his wife."
}
},
{
"from_name": null,
"id": "6eba85c16d924061ab68f2af5d26bcf0",
"to_name": null,
"type": null,
"value": {
"end": 34096,
"labels": [
"ANALYSIS"
],
"start": 34021,
"text": "He also informed Sharad (PW 7) that, Dr. Ganesh is already at is residence."
}
},
{
"from_name": null,
"id": "f95c3af19e514c5b9e9f10053e6c27df",
"to_name": null,
"type": null,
"value": {
"end": 34153,
"labels": [
"ANALYSIS"
],
"start": 34097,
"text": "Sharad (PW 7) went alongwith Accused No. 1 on his moped."
}
},
{
"from_name": null,
"id": "2e85e5cebdc74680aee382f4a1fc6868",
"to_name": null,
"type": null,
"value": {
"end": 34327,
"labels": [
"ANALYSIS"
],
"start": 34154,
"text": "He asked Dr. Ganesh whether he has given any treatment to Usha, however, Dr. Ganesh (PW 6) told him that, there are no heart beats and also he was not getting pulse of Usha."
}
},
{
"from_name": null,
"id": "f29f97fa242041cc92bda11bb1bf8854",
"to_name": null,
"type": null,
"value": {
"end": 34458,
"labels": [
"ANALYSIS"
],
"start": 34328,
"text": "With the help of stethoscope he examined Usha and he found that there was no sound of heart beats and no pulse and no respiration."
}
},
{
"from_name": null,
"id": "349de5d8dfa7411f8fbf7eb25ff2d27a",
"to_name": null,
"type": null,
"value": {
"end": 34493,
"labels": [
"ANALYSIS"
],
"start": 34459,
"text": "Thereafter, informed Accused No. 1"
}
},
{
"from_name": null,
"id": "dbe6b12f0fdb464a89f9fb14e74b40b1",
"to_name": null,
"type": null,
"value": {
"end": 34513,
"labels": [
"ANALYSIS"
],
"start": 34494,
"text": "that, Usha is dead."
}
},
{
"from_name": null,
"id": "b65ae78204674cd0b7ef5f7045f86cd0",
"to_name": null,
"type": null,
"value": {
"end": 34698,
"labels": [
"ANALYSIS"
],
"start": 34515,
"text": "Upon reading evidence of Dr. Ganesh (PW 6) it is crystal clear that, accused was in his house and from his house he called both of them to visit his house for health check up of Usha."
}
},
{
"from_name": null,
"id": "d68c6bb0b07949b4868332ae7fafe39d",
"to_name": null,
"type": null,
"value": {
"end": 34812,
"labels": [
"ANALYSIS"
],
"start": 34699,
"text": "He did not tell them the fact that, Usha is almost dead, however, he said that Usha is suffering from chest pain."
}
},
{
"from_name": null,
"id": "f946159f49ef4e84bfd5fb80f014afb8",
"to_name": null,
"type": null,
"value": {
"end": 34881,
"labels": [
"ANALYSIS"
],
"start": 34812,
"text": "\nBoth of them visited the house of Accused No. 1 and found Usha dead."
}
},
{
"from_name": null,
"id": "f57037a19c824ef7ad5d0d8001aff85b",
"to_name": null,
"type": null,
"value": {
"end": 35004,
"labels": [
"ANALYSIS"
],
"start": 34881,
"text": "\nTherefore, it is abundantly clear that, Accused No. 1 was very much present at the time of incident and also in the house."
}
},
{
"from_name": null,
"id": "29f8a2cee31c471b92e71a557ab52ec9",
"to_name": null,
"type": null,
"value": {
"end": 35255,
"labels": [
"ANALYSIS"
],
"start": 35005,
"text": "It has come in the evidence of Shivaji Bhise (PW 5), so also Namdeo Thobare (PW 10) that, they noticed injuries on the body of Usha when they visited the house after receiving information about her death at 8.30 pm on the very same night of incident."
}
},
{
"from_name": null,
"id": "4ca0a11ddab3413e9cb15972275391f6",
"to_name": null,
"type": null,
"value": {
"end": 35390,
"labels": [
"ANALYSIS"
],
"start": 35255,
"text": "\nTherefore, it is abundantly clear that, Usha was assaulted by Accused No. 1 and thereafter she was throttled and as a result she died."
}
},
{
"from_name": null,
"id": "f72a0bf0e9334a499b3cbd0e64c27bf5",
"to_name": null,
"type": null,
"value": {
"end": 35657,
"labels": [
"ANALYSIS"
],
"start": 35392,
"text": "25 Harischandra (Accused No. 1) in his statement under Section 313 of Code of Criminal Procedure, when he was asked whether Dr. Sharad Wagh (PW 7) examined deceased Usha, and when he stated that she is dead, what he i.e. Accused No. 1, is to say about it ?"
}
},
{
"from_name": null,
"id": "14a4e6b2d6a1468482cb92898057822a",
"to_name": null,
"type": null,
"value": {
"end": 35685,
"labels": [
"ANALYSIS"
],
"start": 35658,
"text": "He stated that, it is true."
}
},
{
"from_name": null,
"id": "5add21f6f0984d58abdaa61e2d1176a1",
"to_name": null,
"type": null,
"value": {
"end": 35728,
"labels": [
"ANALYSIS"
],
"start": 35686,
"text": "He refused to examine any defence witness."
}
},
{
"from_name": null,
"id": "cbaf331dd21a450196c824b0132fb49c",
"to_name": null,
"type": null,
"value": {
"end": 35778,
"labels": [
"ANALYSIS"
],
"start": 35729,
"text": "He only stated that, he was doing well with Usha."
}
},
{
"from_name": null,
"id": "ad52d53e2b2244bc8c467f33ce9a1ab9",
"to_name": null,
"type": null,
"value": {
"end": 35915,
"labels": [
"ANALYSIS"
],
"start": 35779,
"text": "Even when it was asked to him that Dr. Ganesh Trimbak (PW 6) was called by him at the house, and PW 6 also stated that Usha almost died."
}
},
{
"from_name": null,
"id": "dfd84d6bb80f4365af09e0bcd899bc55",
"to_name": null,
"type": null,
"value": {
"end": 35963,
"labels": [
"ANALYSIS"
],
"start": 35916,
"text": "He stated that, it is true that he called PW 6."
}
},
{
"from_name": null,
"id": "5485c454add24a259ad478ac06681ff1",
"to_name": null,
"type": null,
"value": {
"end": 36093,
"labels": [
"ANALYSIS"
],
"start": 35964,
"text": "Therefore, it is abundantly clear that at the relevant time he was very much in the house and from house he called PW 6 and PW 7."
}
},
{
"from_name": null,
"id": "26ce661cfffe418fb3a29a6489ecbe77",
"to_name": null,
"type": null,
"value": {
"end": 36215,
"labels": [
"ANALYSIS"
],
"start": 36094,
"text": "As a matter of fact, he went to take them to house and both of them noticed that Usha is laying on cot in dead condition."
}
},
{
"from_name": null,
"id": "d2bb5420a7e94bfdaeb65ee46bcc6f0d",
"to_name": null,
"type": null,
"value": {
"end": 36328,
"labels": [
"ANALYSIS"
],
"start": 36216,
"text": "A suggestion was also given to him about visit of Jaiwant (PW 2) and Pratap (PW 3) on the date of Rakshabandhan."
}
},
{
"from_name": null,
"id": "60f47eda4b944c80bd1775f1453c8424",
"to_name": null,
"type": null,
"value": {
"end": 36364,
"labels": [
"ANALYSIS"
],
"start": 36329,
"text": "However, he denied that suggestion."
}
},
{
"from_name": null,
"id": "19e80fb7907042039111d99ce67d0006",
"to_name": null,
"type": null,
"value": {
"end": 36598,
"labels": [
"ANALYSIS"
],
"start": 36365,
"text": "When it is the case of the accused that, Usha committed suicide, at least it was expected from Harischandra (Accused No. 1) that, he should have explained/disclosed as to in what manner she has committed suicide when he was at house."
}
},
{
"from_name": null,
"id": "f89db0024e9c4775abe3200b2fb94436",
"to_name": null,
"type": null,
"value": {
"end": 36735,
"labels": [
"ANALYSIS"
],
"start": 36599,
"text": "It has come in the evidence of investigating officer that, he received information at Satana Police Station, since he was working there."
}
},
{
"from_name": null,
"id": "06ba2d9f653a4ad79b0596269eb6bc00",
"to_name": null,
"type": null,
"value": {
"end": 36772,
"labels": [
"ANALYSIS"
],
"start": 36736,
"text": "Munjwad is 3 Kilometers from Satana."
}
},
{
"from_name": null,
"id": "51e27996a1b4476db1580abf3ffa87b8",
"to_name": null,
"type": null,
"value": {
"end": 36974,
"labels": [
"ANALYSIS"
],
"start": 36773,
"text": "Immediately on receiving call he went to Munjwad and vistited the house of the Accused at about 8.30 pm and noticed fresh injuries on the frond side of the neck and also right side of the neck of Usha."
}
},
{
"from_name": null,
"id": "7ab4142981e04c4a92a03ec242a7bb99",
"to_name": null,
"type": null,
"value": {
"end": 37050,
"labels": [
"ANALYSIS"
],
"start": 36975,
"text": "He found injuries on both the hands and the back side of the deceased Usha."
}
},
{
"from_name": null,
"id": "3dd3c9ade71c4a7fad1c98982a29bc70",
"to_name": null,
"type": null,
"value": {
"end": 37184,
"labels": [
"ANALYSIS"
],
"start": 37052,
"text": "26 In the light of discussion in foregoing paragraphs, it is abundantly clear that, spot of incident is house of the Accused No. 1."
}
},
{
"from_name": null,
"id": "cea5f6cc686949cc8f60f8bf406eaad3",
"to_name": null,
"type": null,
"value": {
"end": 37211,
"labels": [
"ANALYSIS"
],
"start": 37185,
"text": "Usha died homicidal death."
}
},
{
"from_name": null,
"id": "8c07cbbd066449239353552af5452278",
"to_name": null,
"type": null,
"value": {
"end": 37330,
"labels": [
"ANALYSIS"
],
"start": 37212,
"text": "There was ill treatment and harassment at the hands of Harischandra (Accused No. 1) to Usha as stated by PW 1 to PW 3."
}
},
{
"from_name": null,
"id": "5fc41852b17149d19a387cb7d2df4fad",
"to_name": null,
"type": null,
"value": {
"end": 37482,
"labels": [
"ANALYSIS"
],
"start": 37331,
"text": "The investigating officer Namdeo Thobare (PW 10) noticed fresh injuries on body of Usha when he visited the house of accused which is spot of incident."
}
},
{
"from_name": null,
"id": "f82fea15241d4fedafb8607b7f577aa9",
"to_name": null,
"type": null,
"value": {
"end": 37633,
"labels": [
"ANALYSIS"
],
"start": 37483,
"text": "The evidence of PW 6 and PW 7 unequivocally indicates that Accused No. 1 called them from his house and requested to come for health check up of Usha."
}
},
{
"from_name": null,
"id": "46a9e37e83094225895d474932c8f461",
"to_name": null,
"type": null,
"value": {
"end": 37736,
"labels": [
"ANALYSIS"
],
"start": 37634,
"text": "While informing he stated that, Usha is suffering from chest pain, which was not the correct position."
}
},
{
"from_name": null,
"id": "c279c9c8ceba44ccabee048b25506ab1",
"to_name": null,
"type": null,
"value": {
"end": 37887,
"labels": [
"ANALYSIS"
],
"start": 37737,
"text": "The conduct of Accused No. 1 to tell lie to Dr. Ganesh (PW 6) and Sharad Wagh (PW 7) that, Usha is suffering from chest pain needs to be kept in view."
}
},
{
"from_name": null,
"id": "52f44500dd5447be8dc2cb98f7c67e1c",
"to_name": null,
"type": null,
"value": {
"end": 38162,
"labels": [
"ANALYSIS"
],
"start": 37888,
"text": "Merely because spot and inquest panchnama is not proved or there are minor lapses in the investigation would not nullify the sufficient evidence brought on record by the prosecution that, Usha died homicidal death and author of her injuries was Harischandra (Accused No. 1)."
}
},
{
"from_name": null,
"id": "76bcf655847446ee82753d72eb101d8a",
"to_name": null,
"type": null,
"value": {
"end": 38371,
"labels": [
"RATIO"
],
"start": 38162,
"text": "\n 27 In the light of above discussion the prosecution has proved beyond reasonable doubt that Harishchandra (Accused No. 1) has assaulted Usha in his residential house and thereafter throttled and killed her."
}
},
{
"from_name": null,
"id": "97a76d7d8f064138a37ceb58ddd43b21",
"to_name": null,
"type": null,
"value": {
"end": 38678,
"labels": [
"RATIO"
],
"start": 38371,
"text": "\n 28 So far appeal filed by State is concerned in the light of discussion made in foregoing paragraphs the prosecution is not able to prove the demand of Rs. 1,00,000/- (Rupees One Lakh only) by the accused, therefore, so far Accused No. 2 and 3 are concerned they are rightly acquitted by the Trial Court."
}
},
{
"from_name": null,
"id": "ed5bda9c5d634b1cac99cd8c7243173c",
"to_name": null,
"type": null,
"value": {
"end": 38891,
"labels": [
"RATIO"
],
"start": 38679,
"text": "We have also carefully perused the findings recorded by the Trial Court and we find that, the findings recorded by the Trial Court are in consonance with the evidence on record and there is no perversity as such."
}
},
{
"from_name": null,
"id": "b7fd4b35d75a4bd58196dc5a3d552aa1",
"to_name": null,
"type": null,
"value": {
"end": 39034,
"labels": [
"RPC"
],
"start": 38891,
"text": "\n 29 In the light of discussion in foregoing paragraphs Criminal Appeal No. 202 of 1993 filed by Harishchandra Dadaji Jadhav stands dismissed."
}
},
{
"from_name": null,
"id": "c71691c8854d4210ba9fb4a5ecbb3310",
"to_name": null,
"type": null,
"value": {
"end": 39072,
"labels": [
"RPC"
],
"start": 39035,
"text": "Bail granted to him stands cancelled."
}
},
{
"from_name": null,
"id": "d35b730e71ba43af84261535098ba2f7",
"to_name": null,
"type": null,
"value": {
"end": 39135,
"labels": [
"RPC"
],
"start": 39073,
"text": "Since his conviction is confirmed he is directed to surrender."
}
},
{
"from_name": null,
"id": "250e52b4c3c44aad88c6a32d508a1217",
"to_name": null,
"type": null,
"value": {
"end": 39205,
"labels": [
"RPC"
],
"start": 39135,
"text": "\n 30 Criminal Appeal No. 334 of 1993 filed by State stands dismissed."
}
},
{
"from_name": null,
"id": "651d117069134d028375e51d7eb40994",
"to_name": null,
"type": null,
"value": {
"end": 39267,
"labels": [
"RPC"
],
"start": 39205,
"text": "\n Bail bonds, if any, of Accused No. 2 and 3 stands cancelled."
}
},
{
"from_name": null,
"id": "42ae44cffd2b4a459971465c58d07489",
"to_name": null,
"type": null,
"value": {
"end": 39337,
"labels": [
"NONE"
],
"start": 39267,
"text": "\n (N. B. SURYAWANSHI, J.) (S. S. SHINDE, J.)"
}
}
]
}
] | 4,199 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 202 OF 1993\n\nHarischandra Dadaji Jadhav ]\nAge: 33 Years, Resident of ]\nMunjvad, Taluka- Satana, ]\nDistrict: Nasik. ]\n(At Present lodged at Malegaon Prison, ]\nNasik) ]...Appellant\n\n Versus ]...Respondents\nThe State of Maharashtra\n\n ALONG WITH\nCRIMINAL APPEAL NO. 334 OF 1993\n\nThe State of Maharashtra ...Appellant\n\n Versus ]\n ]\n1. Dadaji Dhodha Jadhav ]\n Age-55 Years, Occ- Service ]\n ]\n2. Parvatibai Dadaji Jadhav ]\n Age- 50 Years, Occ- Housewife ]...Respondents\n Both R/o. Munjavad, Tq. Satana\n Dist. Nashik.\n\n ...\nAPPEARANCES-\n\nMs. Racheeta Rajendra Dhuru for Appellant in Criminal Appeal No. 202 of\n1993.\nMs. M.M. Deshmukh, APP for Respondent State in Criminal Appeal No.\n334 of 1993 and Respondent in Criminal Appeal No. 202 of 1993.\n\n ...\n\n\n CORAM : S. S. SHINDE &\n N. B. SURYAWANSHI, JJ.\n\n RESERVED ON : 5th NOVEMBER 2019\n PRONOUNCED ON: 19th DECEMBER 2019\n\nJUDGMENT: [PER S S SHINDE, J.] 1 The Criminal Appeal No. 202 of 1993 has been filed by the Appellant who is original Accused No. 1 against the judgment and order dated 20th March 1993 passed by the learned Additional Sessions Judge, Malegaon, Dist- Nashik in Sessions Case No. 112 of 1991 thereby convicting Appellant-Accused No. 1 for the offence punishable under Section 302 of Indian Penal Code.\n 2 The Criminal Appeal No. 334 of 1993 has been filed by the State against the judgment and order dated 20th March 1993 passed by the learned Additional Sessions Judge, Malegaon, Dist- Nashik in Sessions Case No. 112 of 1991thereby acquitting original Accused No. 2 and 3 for the offence punishable under Section 302, 498-A, 324 and 304-B read with 34 of Indian Penal Code.\n 3 The appeal filed by original Accused No. 1 is against conviction and the appeal filed by the State is against acquittal of Accused No. 2 arising out of the same judgment and order passed by the learned Additional Sessions Judge, Malegaon, Dist. Nasik. Hence, we are disposing of both the appeals by this common judgment.\n 4 Brief facts for filing these appeals can be summarized as under:- The marriage of deceased Ushabai took place on 16.05.1985 with the Accused No. 1(Harischandra Dadaji Jadhav). Accused No. 2 (Dadaji Dhodhe Jadhav) is the father of Accused No. 1 and Accused No. 3 (Parvatabai Dadaji Jadhav) is the mother of Accused No. 1. Accused No. 1 was in service at Primary Health Centre, Satana. Prior to that he was in service at Nagar and thereafter, at Chandori. Jayvant (PW 2), brother of deceased Usha went to bring Usha when deceased Usha and Accused No. 1 were camping at Nagar. It is alleged that all the accused told him that they were not ready to send Usha on the eve of Diwali festival as they wanted Rs. 1,00,000/- for constructing a bunglow. The accused further told him that she would be sent only if the amount is paid. At that time, deceased Usha told him that as the amount was not paid, accused were beating her and ill-treating her and also were not giving food to her. Jayvant (PW 2) then came back to his village Jaykheda. He narrated this incident to his father.\n After Accused No 1 transferred to Chandori Jayvant (PW 2) again went to bring Usha. All the accused were present there. That time also the accused told him that she should be sent only if the amount which was demanded by them is paid. Deceased Usha complained Jayvant (PW 2) about ill treatment meted out to her by the accused. After coming back to his house at Jaykheda he narrated incident to his father.\n On the eve of coconut-day witness Jayvant went along with one Pratap to the house of accused at village Munjavad for tying `Rakhee' from Usha (now deceased). They reached at about 11.00 a.m. on 25.08.1991.\nAccused No. 1 and Usha were present there. On seeing them instead of welcoming them, Accused No. 1 went away. After tying `Rakhee' to Jayvant and Pratap, Usha started weeping. When she was asked about the cause, she told them that, the accused were beating her and ill treating her as they were demanding the amount. She further told them that, an ill treatment given by the accused to her is unbearable. Accused then came and asked witness Jayvant as to why he had come. Witness Jayvant told them that, he had come to take Usha as his father was not keeping well and furthermore, he had come on the eve of Rakshabandhan. He requested the accused to send Usha with him, but the accused refused. Accused further told that, she would be sent only if the amount of Rs. 1,00,000/- is paid.\n 5 It is the case of the prosecution that, in presence of accused deceased Usha told Jayvant (PW 2) that, accused were beating her and therefore, he should take her to his house. Jayvant (PW 2) again requested Accused No. 2 to sent Usha, but Accused No. 2 refused to send Usha.\nAccused No. 2 further told that, nothing can be done against him as he is from police department. Witness Pratap also told Accused No. 2 to sent Usha.\nHowever, Accused No. 2 denied to send Usha with them. Therefore, they started from village Mujvad at 3.30 p.m. Witness Pratap halted at Satana and witness Jayvant came to village Jaykheda. On reaching the house, he narrated the incident to the members of his family. On the same day at about 8.30 p.m.\ntelephone message was received about the death of Usha. Complainant, prosecution witness Jayvant, Pratap and members of his family went to village Mujvad. At that time, all the accused were present in the house. On removing bed sheet from the body of deceased Usha they found injuries on the body of deceased Usha. Police wre also present there. The informant, father of deceased Usha told police that, he want to give complaint first and as Accused No. 1 is serving at Satana, P.H.C., post-mortem should be carried out at any other place except Satana. Therefore, the dead body of deceased Usha was brought to Malegaon hospital for post mortem. The complainant lodged his complaint with the police. On the basis of complaint the offence was registered against the accused persons. Inquest panchnama was drawn, statements of witnesses were also recorded by the Police. The Medical Officer prepared post-mortem notes and noticed numerous injuries on the dead body of deceased Usha and, opined that, the cause of death was due to asphyxia due to throttling.\n After investigation the accused were charge sheeted. The learned J.M.F.C. Satana, committed the case to the Court of Sessions as the offence under Section 302 of IPC is exclusively triable by the Court of Sessions.\nAccordingly, charge was framed against the accused for the offence punishable under Section 304 (B) read with 34 of IPC. All the accused pleaded not guilty.\nThe learned Sessions Court recorded the evidence of prosecution witnesses as also the statements of accused under Section 313 of Cr.P.C. As indicated herein above, the learned Sessions Court after considering the evidence on record, the material and documents produced by the prosecution on record as also considering the evidence of medical officer, convicted Accused No. 1 Harischandra Dadaji Jadhav for the offences punishable under 302 and 498-A of IPC and acquitted Accused No. 2 and 3 of the offence punishable under Section 302, 498-A, 324 and 304-B read with 34 of IPC.\n 6 Learned counsel for the Appellant submits that, evidence of Dr.\n Shivaji Bhise (PW 5) is unreliable. In his cross examination he has admitted that there were allegations against him in respect of not properly carrying out the post-mortem in the past, and that in said cases PW 5 has to obtain anticipatory bail by filing Criminal Misc. Application No. 178 of 1992.\n Therefore, in the present case, post mortem done by him deserves to be discarded. PW 5 has admitted in his cross examination that, there were allegations against him in respect of professional negligence and that such type of allegations are against Dr. Ansari also, who accompanied Dr. Bhise while performing post mortem. However, there is no evidence to find out whether Usha has committee suicide as she had written on the wall that she is committing suicide by her own will. It is submitted that, the prosecution did not record the statement of the neighbors where the appellant-accused was residing with his wife at Nagar and Chandori. The prosecution has also not recorded the statement of the Appellant-Accused's son. He submits that, the learned judge erred in holding that, by not producing inquest panchnama by the prosecution itself is a suppression of best evidence on the part of the prosecution as regards cause of death of Usha. Further the prosecution has also not examined the constable who took the body of the Usha (deceased) to Satana from Munjvad. The prosecution witnesses are all interested witnesses and no independent witness has been examined by the prosecution. Therefore, their evidence is unreliable and should not have been considered. Further the prosecution has not examined the panch witnesses relating to the inquest panchnama and also the spot panchnama. Krishna Jagtap (PW 1), father of the deceased Usha. Dadaji Jadhav (Accused No. 2) is a Police Inspector and has agricultural lands at Munjvad and having good financial condition.\n It is submitted that, if the financial condition of the father of the Appellant-Accused was good, then there was no reason for the Appellant to ask Usha to bring Rs. 1,00,000/- (Rupess One Lakh only) from her father's house for constructing a bungalow. It is submitted that, in the cross- examination of Krishna Jagtap (P.W.1) one inland letter dated 01.06.1991 (two months prior to the incident) and a letter dated 09.10.1990 were produced to indicate that the deceased Usha had no ill-treatment. He has even admitted in his cross-examination that the accused were not ill-treating and beating the deceased Usha. It is further submitted that, Krishan Jagtap (P.W.1) has admitted that he did not complain to the Police regarding ill- treatment meted out to the deceased Usha. It is submitted that, Jaywant Jagtap (P.W. 2), brother of the deceased Usha, in his evidence states that on earlier occasions i.e. on the eve of Diwali Festival when the accused and his wife deceased Usha were staying at Nagar and later on, when the accused was transferred to Chandori, P.W. 2 went to bring deceased Usha to her paternal house, the deceased Usha told him that she was being beaten and ill-treated by the accused because they wanted rupees one lakh for constructing the bungalow.\n 7 It is submitted that, it is surprising to note that Jaywant Jagtap (P.W. 2) did not give any complaint to the police when the deceased Usha told him that the accused were beating and ill-treating her and also when deceased Usha told him it was unbearable for her, then why did he not take her to village Munjavad. It is further submitted that, the learned Sessions Judge ought to have considered the fact that there were omissions in the statement of Pratap Khairnar P.W. 3 about the statement that Ushabai had told that something would go wrong and therefore she should be taken home. It is submitted that, there is omission also in police statement of PW 3, about the father of the accused appellant coming to his house and ringing up on the phone at Jaikheda. It is further submitted that, learned Judge ought not to have relied upon the evidence of Pratap Khairnar (P.W. 3) who being a relative of Krishna Jagtap (P.W. 1) is obliging his relatives and thus, is an interested witnesses.\n 8 It is further submitted that, it is surprising to note that Bhagwan Khairnar (P.W. 4) photographer, in his evidence he denies that he saw any saree hanging or any writing on the wall when in fact he had clicked the photograph of the writing of the wall and the photograph was sent alongwith the handwriting of the accused to the handwriting expert, but the examiner of documents, CID could not give opinion for want of sufficient identifying characteristics. It is submitted that, there are omission in Bhagwan Khairnar's (P.W. 4) police statement about the writing on the wall or hanging of the saree.\n It is submitted that, the learned Sessions Judge ought to have considered the fact that Bhagwan Khairnar (P.W. 4) had snapped the photographs for the police a number of times. There is no eye witness to connect the Appellant with the crime.\n 9 Learned APP relying upon the findings recorded by the Trial Court submits that, the Trial Court has properly appreciated the evidence on record and convicted the Accused No. 1- Harischandra Dadaji Jadhav, however, wrongly acquitted Accused No. 2 and Accused No. 3. It is submitted that, the prosecution has brought on record sufficient evidence which would attract provisions of Section 498 of IPC. There was continuous ill treatment and harassment by all the accused for not full filling the unlawful demand of Rs. 1,00,000/- (Rs. One lakh only) for construction of house of the accused. It is submitted that, evidence of PW 1, PW 2 and PW 3 unequivocally indicates the involvement of all the accused in alleged demand of Rs. 1,00,000/- (Rs.\n One lakh only) for construction of house, and upon non fulfillment of said demand, continuous ill treatment and harassment given to Usha (deceased).\n Therefore, learned APP submits that, appeal filed by State against acquittal of Accused No. 2 and Accused No. 3 deserves to be allowed.\n 10 The prosecution has examined Krishna Jagtap (PW 1). In his deposition before the Court he stated details about how they approached the accused. Thereafter, how proposal of marriage was materialized and thereafter how the marriage was solemnized. He stated that, accused demanded Rs.\n1,00,000/- (Rupees One Lakh only) for construction of bungalow. He further stated the ill treatment given to the Usha by Accused No. 1. He also stated information received about death of Usha. He also stated in his deposition that, Jaiwant (PW 2) his son and Pratap (PW 3) visited the house of Usha.\nThat time Usha narrated ill treatment and harassment by Accused No. 1 to her.\n In his cross examination he stated that, Accused No. 2 is police inspector and has agricultural land at village Munjwad so also his financial position is good. Both the sons of accused No. 1 are in service. He had seen mark on the front side of neck of Usha when he went upon receiving informant about her death.\n 11 The prosecution has examined PW 2- Jaiwant Jagtap. In his examination in chief he stated deceased Usha is his sister. He married to accused No. 1 on 16.05.1985. The accused No. 1 now present before the Court is the same. The accused No. 2 is the father of accused No. 1 and the accused No. 3 is the mother of accused No. 1. On eve of Divali festival he went to the house of accused to bring Usha at Nagar. They asked him as what for he had come. He told them that he had come to take Usha for Divali Festival. They told him that, they were not ready to sent her. When he asked as to why , then they told him that they wanted Rs. 1,00,000/- for construction of a bungalow, and if the amount is given then they would sent her. He then told that his financial condition was weak. At that time his sister Usha told him that, an amount as demanded by accused should be given to them, as accused were beating her, and ill-treating her, and they were not giving food to her. The accused did not send Usha, hence he came back to his house as Jaikheda. He narrated her father about what happened at Nagar.\n Again after transfer of accused No. 1 village Chandori, PW 2 went to Chandori to bring her sister Usha. The accused No. 2 and 3 to whom he told that, he had come to take Usha. They told that, they would sent Usha on condition that an amount of Rs. One lakh is given to them as bungalow was to be constructed. At that time also Usha told PW 2 to fulfill the demand of accused as they were beating her and ill treating her. He then came back alone to Jaikheda. He narrated the said facts to his father after coming from Chandori. At the time of Rakshabandhan alongwith him, he took Pratap and they went to Munjawad. They reached there at about 11.30 a.m. Accused No.\n1 and Usha were there in the house. Accused No. 1 did not accept his solution and went away. Deceased Usha came alongwith water and for tying Rakhi to both of them. She tied Raksha to both of them and then she started weeping.\nHe asked her as to, why she is weeping. She told him that accused were beating her, ill treating her and they were not giving meals in time, and that accused were demanding money to be brought from her father. She told him to take her as trouble was unbearable to her. At that time all the accused came in the house from outside. They asked him as to what for he had come. He told them that he had come to take Usha as her father was not feeling well, and that he had come on the eve of Raksha Bandhan. He told them to send Usha with him but they refused. All the accused told him that they had already told three times for Rs. 1,00,000/- (Rupees One Lakh only) for construction of bungalow. He told them that, their financial condition is poor, and that they were unable to give money and, requested to send Usha with them. Usha (deceased) told in presence of accused that, accused were beating her and to take her to matrimonial house, PW 2 requested accused No. 2 to send Usha alonigwith him. Accused No. 2 told that, he is unable to send Usha.\nHe told him that, if the demand was fulfilled then he would send her. He is from the department and nothing can be done against him. At the same time, Pratap also told accused No. 2 to send Usha. Accused No. 2 gave same answer to Pratap. They started at 3.30 p.m. from village Mujawad. From their they came to Satana. Pratap remained at Satana and he came to village Jaikheda.\nEverybody was waiting for his arrival in house. They asked him as why Usha was not sent. He told them entire story that happened at Munjwad.\n 12 On 25.08.1991 at about 8.30 p.m. message was received through phone call at one shop. His father received the phone, and after coming back he told us that, phone call has come from Satana informing that Usha expired.\n Thereafter all family members gathered and they went in Tempo to Munjwad.\n They reached there at about 10 to 11 pm. All the accused were present in their house. Dead body of Usha was lying there. Police were alredy there, doing panchnama. After removing the Chadar, PW 2 saw radish and greenish mark on the neck of deceased Usha. They saw 7/8 wheel marks on the back, there was an injury on right hand shoulder. Police told that dead body will have to be taken to Satana for post-mortem. They told family members of PW 2 that they wanted to give complaint first, and post mortem should not be carried at Satana. They told police that, post mortem to be carried out at any other place except Satana. Dead body was brought to Malegaon for post mortem. They went to Satana there his father lodged complaint.\n 13 The evidence of Jaiwant (PW 2) in examination in chief is not shattered in cross examination. Though suggestion was given by the defence that, he never visited the house of accused, he denied the said suggestion.\n Further he denied the suggestion that, he did not notice radish mark around the neck of Usha.\n 14 The prosecution has examined Pratap Khairnar (PW 3), who deposed in his examination in chief that, on 28.08.1991 witness Jaiwant came to him at 9.30 am. He told him that the father was not feeling well and therefore Ushabai was to be taken to parental home and further it was day of Raksha Bandhan. They reached to Munjwad at about 11.30 am. Deceased Usha and the accused No. 1 were in the house. They saluted accused No. 1 by saying `Ram Ram' but he did not accept. He then went away. Usha prepared tea, brought a tat i.e. plate to perform Rakshabandhan, at that time she told that accused were ill treating her and beating and, they were not giving meals to her in time. She was weeping. She was further told to take her with them.\n She further told that something would go wrong and, therefore she should be taken by them. All the accused came there after some time. They asked Jaiwant (PW 2) as to what for he had come. He told them that it is a day of Raksha Bandhan, and that his father was not feeling well and that he was to be taken at hospital at Malegaon, and therefore they had come to take Usha with them. Thereafter, the accused told that they were unable to send her. They further told that if an amount of Rs. 1,00,000/- (Rupees One Lakh only) for construction of bungalow is given then only they would send Usha. He and Jaiwant (PW 2) requested them to send Usha. Even after their request, the accused did not sent Usha with them and, they came back to Satana. Jaiwant (PW 2) went to Jaikheda.\n At about 8.30 to 9.00 pm accused No. 2 came to him and told him that Ushabai expired and he want to ring-up. He told him to connect at Jaikheda on telephone, and he would talk. He sent his nephew to Munjwad to confirm. On return his nephew confirmed the news, and then he made phone call to complainant. At about 11.00 pm complainant and all came by Tempo.\nThey then went to Munjwad. Panchnama was going on at the house of accused, police were there. Police showed them the dead body of Usha. They saw radish mark on the front neck of deceased usha. On the back of Usha there were wheel marks. The father of Usha told that post mortem was to be performed at Malegaon, but not at Satana. The reason was that the accused No. 1 was serving in Satana hospital. All of them came at Satana police station and complaint was given there.\n 15 Pratap Khairnar (PW 3) reiterated his contentions in the examination in chief. Nothing useful to the defence has been elucidate from his cross examination.\n 16 We have carefully perused the notes of evidence. At this juncture it would be appropriate to discuss the evidence of Medical Officer Shivaji Shrirangrao Bhise (PW 5), so as to find out, whether the death was homicidal, suicidal or accidental?. The prosecution examined Medical Officer Shivaji Shrirangrao Bhise as PW 5 who had performed the post-mortem of Ushabai.\nHe stated in his evidence that, he found injuries mentioned in Column no. 17.\nThe injuries mentioned in Column No. 17 are as follows:- Throttling i.e. marks of pressure by thumb and fingers present on either side of the thyriod cartilage a depressed mark of thumb impression on right side of thyroid cartilage and bruising due to fingers pressing brownish on left side of the neck present, few abrasions on the angel of mandible left side present.\n Fracture of thyroid cartilage present.\n Marks of contusions on i) Left Shoulder- 2 1 ii) Left arm post near axille 1 1.\n iii) Oblige contusion over left scapula region region at 4 places about 3 1, 6 1, 9 1 and 3 1.\n iv) Contusion of right scapula region and right side of the neck at 4 sides about 4 1, 5 1, 31, 31.\n v) Contusion on right gluetal region, at 2 sites about 8 1, and 6 1 with diffuse blackening of skin on the gluetal region.\n vi) Contusion on left gluetal region about 4 1.\n vii) Contusion on left calf 4 1.\n vii) Contusion on lateral aspect of left thigh 5 1 and laternal aspect of left knee 3 1 and on left iliae crest 3 1.\n ix) Multiple contusions on right thigh at 8 places about 4 1 to 5 1 size.\n x) Contusion on right arm laterally at upper and 3 1. These are ante-mortem injuries.\n On internal examination there were no injuries under scalp and no injuries or fracture to the scull. Brain meninges congested, philatelic, hemorrhages were present in brain matter. On examination of thorax pleura congested and mucase of passages was congested. Both lungs were markedly congested, cut section exuding dark fluid blood. On examination of the heart right chamber was full of dark fluid blood., left chamber was empty. On examination of abdomen, the decomposition of peritoneum was initiated and little foul smelling gas escaped after opening the cavity. Stomach was empty, destined with gas, mucous was slightly congested. Similar findings were found in small and large intestine was present. Liver, pancreas, spleen and kidneys were darkly congested. Uterus was normal size and empty. The cause of death was due to asphyxia due to throttling. PW 5 stated that, P.M. notes bears his signature. He also stated that, doctor Ansari also signed on P.M. notes on separate sheet. It is at Exh. 61. Injuries by throttling would be pressing fingures. Contusions would be by hard and blunt object like a stick.\n 17 We perused the cross examination of Dr. Shivaji Bhise (PW 5).\n Though he admitted that, he applied for anticipatory bail in some other matter that itself cannot be ground to discard his evidence. Defence has tried to point out some minor discrepancies in his evidence, however, is evidence remain unshattered.\n 18 Prosecution further examined PW 6- Dr. Ganesh Trambak. He stated in his examination in chief that, on 25.08.1991 at about in between 5 to 7.00 pm Harischandra (accused No. 1) called him. Accused No. 1 told him that, his wife was not keeping well hence he should accompany him. He went with accused No. 1. He asked him on the way as to what had happened. He told him that there was pain in the chest, and that she became cold. When he went the patient was on the cot. He examined the patient. He could not get pulse and heart beat of deceased Usha. He told them that Usha was 90% dead and for confirmation he should get another doctor.\n 19 Prosecution examined PW 7- Sharad Wagh, who is a medical practitioner. He stated in his examination in chief that, from 1986, March, he was working as a medical officer at Satana. He know Accused No. 1. Accused No. 1 is working as Lab-technician at P.A.C. Satana. On 26.08.1991 when he was at his residence at about 7.15 pm accused no. 1 came. He told him that his wife had chest pain and she is serious, and he should examine her. He told him that Dr. Garud was already at his residence. He went alongwith him on his moped. He asked Dr. Garud if he had given any treatment. He told him that there was no heart beat and, also he was not getting pulse of Usha. With the help of stethoscope he (PW 7) examined Usha and found that there was no sound of heart beat and no pulse and no respiration. He examined Usha for one minute. Thereafter, he told Accused No. 1 that Usha has expired. He asked Accused No. 1 the name of patient. He told him the name of the patient is Ushatai. He came outside the house and came to P.L.C. with doctor Garud.\nHe then range-up to police station.\n 20 The prosecution examined Namdeo Thobare (PW 10) who is Police Sub Inspector. He deposed in his examination in chief that, he was attached to Satana Police Station on 26.08.1994. On 25.08.1991 at about 8.00 pm, accidental death was registered by P.S.I. and further investigation was handed over to him. Immediately, he went to the spot. In the drawing room of the house of the accused one dead body was there. The accused No. 2 showed him the place of the incident. He then started drawing inquest panchnama. He found the fresh injury on the front side on the neck and also right side of the neck. He found injuries on the both hands. There were marks of injuries on both the hands. There were marks of injuries on back side of the dead body.\n Inquest panchnama was drawn and dead body was sent to Satana hospital.\nRelative of deceased told them that accused No. 1 serving at Satana hospital, and post mortem could not be performed at Satana and therefore, the dead body was sent to Malegaon for post mortem. Inqeust panchnama was shown to him during examination in chief which bears signatures of panchas and his signatures. Photographs of dead body and place of incidence were taken.\nThere was padavi just adjoining to the bungalow. He entered therein and saw one saree hanging on the sixth wooden rod attached to the roof. There was writing on the wall with the help of coal that \"she is committing suicide by her own will\". Bangle pieces were lying there. One piece of coal was lying on the cot. In presence of panchas panchnama was drawn. The articles were attached.\nPanchnama was shown to him which was same. The father of Usha gave complaint and therefore the offence was registered. He again started investigation and recorded statements of witnesses. At the instance of accused No. 1 a stick was attached under panchnama. Advance certificate was received from Medical Officer, Malegaon. It bears signature of senior P.S.I. On 31.08.1991, he recorded statements of four witnesses. On 06.09.1991 he obtained specimen of handwriting of accused No. 1 and 2. He sent natural handwriting on the wall and photographs to the handwriting expert alongwith handwriting of accused and deceased Usha. Further investigation was carried out by S.D.P.O. Shri. Salve.\n 21 The Trial Court framed charge at Exhibit-19. The said charge was for the offences punishable under Section 498-A read with 34 of IPC. The Trial Court also framed charge under Section 324 of IPC. There was separate charge under Section 302 read with 34 of IPC.\n 22 We have carefully perused the evidence of Krishna Jagtap (PW 1), Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3) and conjoin reading of their evidence would indicate that, there was ill treatment and harassment by Accused No. 1 to Usha. Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3) stated in their deposition that, they visited the house of the accused on the eve of Rakshabandhan festival. After some time Usha tied Rakhi to them.\n Thereafter Usha started weeping. When they asked her, why she was weeping, she told that accused were beating her, ill treating her and they were not giving meals in time and also accused are demanding money. It is true that, Krishna Jagtap (PW 1) in his cross examination admitted that, the accused are wealthy person and possess immovable property. Therefore, the Trial Court did not believe the prosecution case that there was demand of Rs. 1,00,000/- (Rupees One lakh only). However, as already observed there was ill treatment and harassment by accused no. 1 to Usha as it is evident from the evidence of Krishna Jagtap (PW 1), Jaiwant Jagtap (PW 2) and Pratap Khairnar (PW 3).\n As already observed there is separate charge framed under Section 498-A read with 34 of IPC. Even the case in hand would be squarely covered under 498- A (a) of IPC. The said provision in its sweep covers any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Therefore, even if the prosecution is not able to prove the alleged demand of Rs. 1,00,000/- (Rupees One Lakh only) by accused, so as to attract explanation (b) of sub section (1) of Section 498-A of IPC., same is not fatal to the prosecution case when sufficient, cogent and clinching evidence of illtreatment (physical and mental) is brought on record to attract explanation (a) of Section 498-A of IPC. Therefore, the prosecution has proved beyond reasonable doubt the ill treatment and harassment at the hands of Accused No. 1 to Usha.\n 23 We have discussed the evidence of medical officer Shivaji Bhise (PW 5) at length. His evidence unequivocally indicates that, Usha suffered number of injuries which are mentioned in his evidence, so also in the post mortem report. He has described those injuries as ante-mortem and stated that, the cause of death of Usha is due to throttling. Though, it is tried to suggest that, the death of Usha is suicidal, however, it is crystal clear from the evidence brought on record by the prosecution that, the Usha died homicidal death. The alleged incident had taken place in the house of the accused. The fact that, accused was present in the house at the relevant time is brought on record by the prosecution.\n 24 Dr. Ganesh (PW 6) in his evidence stated that, on 25.08.1991 at about 5.00 to 7.00 pm accused No. 1 called him. Accused No. 1 told him that, his wife is not keeping well, hence, he should accompany him. He went with Accused No. 1. On the way while going to the house of Accused No. 1, he asked what happened to his wife. Accused No. 1 told him that, there was pain in the chest of his wife and her body became cold. When he went to the patient, she was lying on the cot. He examined the patient. He could not get pulse and heart beats of Usha. He told that, Usha is almost dead. However, he advised Accused No. 1 to bring another doctor, so as to confirm the fact of death of Usha. It appears that, Accused No. 1 approached Sharad (PW 7) who is medical practitioner. In his cross examination he stated that, at the relevant time he was working as medical practitioner at Satana, and Accused No. 1 was working as lab technician at P.A.C. Satana. On 26.08.1991 when he was at his residence at about 7.15 pm, Accused No. 1 came to him. He told him that his wife had chest pain and then he requested him to examine his wife. He also informed Sharad (PW 7) that, Dr. Ganesh is already at is residence. Sharad (PW 7) went alongwith Accused No. 1 on his moped. He asked Dr. Ganesh whether he has given any treatment to Usha, however, Dr. Ganesh (PW 6) told him that, there are no heart beats and also he was not getting pulse of Usha. With the help of stethoscope he examined Usha and he found that there was no sound of heart beats and no pulse and no respiration. Thereafter, informed Accused No. 1 that, Usha is dead.\n Upon reading evidence of Dr. Ganesh (PW 6) it is crystal clear that, accused was in his house and from his house he called both of them to visit his house for health check up of Usha. He did not tell them the fact that, Usha is almost dead, however, he said that Usha is suffering from chest pain.\nBoth of them visited the house of Accused No. 1 and found Usha dead.\nTherefore, it is abundantly clear that, Accused No. 1 was very much present at the time of incident and also in the house. It has come in the evidence of Shivaji Bhise (PW 5), so also Namdeo Thobare (PW 10) that, they noticed injuries on the body of Usha when they visited the house after receiving information about her death at 8.30 pm on the very same night of incident.\nTherefore, it is abundantly clear that, Usha was assaulted by Accused No. 1 and thereafter she was throttled and as a result she died.\n 25 Harischandra (Accused No. 1) in his statement under Section 313 of Code of Criminal Procedure, when he was asked whether Dr. Sharad Wagh (PW 7) examined deceased Usha, and when he stated that she is dead, what he i.e. Accused No. 1, is to say about it ? He stated that, it is true. He refused to examine any defence witness. He only stated that, he was doing well with Usha. Even when it was asked to him that Dr. Ganesh Trimbak (PW 6) was called by him at the house, and PW 6 also stated that Usha almost died. He stated that, it is true that he called PW 6. Therefore, it is abundantly clear that at the relevant time he was very much in the house and from house he called PW 6 and PW 7. As a matter of fact, he went to take them to house and both of them noticed that Usha is laying on cot in dead condition. A suggestion was also given to him about visit of Jaiwant (PW 2) and Pratap (PW 3) on the date of Rakshabandhan. However, he denied that suggestion. When it is the case of the accused that, Usha committed suicide, at least it was expected from Harischandra (Accused No. 1) that, he should have explained/disclosed as to in what manner she has committed suicide when he was at house. It has come in the evidence of investigating officer that, he received information at Satana Police Station, since he was working there. Munjwad is 3 Kilometers from Satana. Immediately on receiving call he went to Munjwad and vistited the house of the Accused at about 8.30 pm and noticed fresh injuries on the frond side of the neck and also right side of the neck of Usha. He found injuries on both the hands and the back side of the deceased Usha.\n 26 In the light of discussion in foregoing paragraphs, it is abundantly clear that, spot of incident is house of the Accused No. 1. Usha died homicidal death. There was ill treatment and harassment at the hands of Harischandra (Accused No. 1) to Usha as stated by PW 1 to PW 3. The investigating officer Namdeo Thobare (PW 10) noticed fresh injuries on body of Usha when he visited the house of accused which is spot of incident. The evidence of PW 6 and PW 7 unequivocally indicates that Accused No. 1 called them from his house and requested to come for health check up of Usha. While informing he stated that, Usha is suffering from chest pain, which was not the correct position. The conduct of Accused No. 1 to tell lie to Dr. Ganesh (PW 6) and Sharad Wagh (PW 7) that, Usha is suffering from chest pain needs to be kept in view. Merely because spot and inquest panchnama is not proved or there are minor lapses in the investigation would not nullify the sufficient evidence brought on record by the prosecution that, Usha died homicidal death and author of her injuries was Harischandra (Accused No. 1).\n 27 In the light of above discussion the prosecution has proved beyond reasonable doubt that Harishchandra (Accused No. 1) has assaulted Usha in his residential house and thereafter throttled and killed her.\n 28 So far appeal filed by State is concerned in the light of discussion made in foregoing paragraphs the prosecution is not able to prove the demand of Rs. 1,00,000/- (Rupees One Lakh only) by the accused, therefore, so far Accused No. 2 and 3 are concerned they are rightly acquitted by the Trial Court. We have also carefully perused the findings recorded by the Trial Court and we find that, the findings recorded by the Trial Court are in consonance with the evidence on record and there is no perversity as such.\n 29 In the light of discussion in foregoing paragraphs Criminal Appeal No. 202 of 1993 filed by Harishchandra Dadaji Jadhav stands dismissed. Bail granted to him stands cancelled. Since his conviction is confirmed he is directed to surrender.\n 30 Criminal Appeal No. 334 of 1993 filed by State stands dismissed.\n Bail bonds, if any, of Accused No. 2 and 3 stands cancelled.\n (N. B. SURYAWANSHI, J.) (S. S. SHINDE, J.) "
} |
{
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} | [
{
"result": [
{
"from_name": null,
"id": "c81e335b7eed4c6f973e892ef37f7519",
"to_name": null,
"type": null,
"value": {
"end": 56,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\n Vs."
}
},
{
"from_name": null,
"id": "6608ba46772b418f9521fe69565f0f45",
"to_name": null,
"type": null,
"value": {
"end": 108,
"labels": [
"PREAMBLE"
],
"start": 56,
"text": "\n\nRESPONDENT:\nRAI BAHADUR HARDUTROY MOTILAL CHAMARIA"
}
},
{
"from_name": null,
"id": "637ef8bb155c4c4a9e2614aefc5fac6a",
"to_name": null,
"type": null,
"value": {
"end": 160,
"labels": [
"PREAMBLE"
],
"start": 108,
"text": "\n\nDATE OF JUDGMENT:\n07/04/1967\n\nBENCH:\nRAMASWAMI, V."
}
},
{
"from_name": null,
"id": "a9232c38e3184f9494e5144804b5992b",
"to_name": null,
"type": null,
"value": {
"end": 537,
"labels": [
"PREAMBLE"
],
"start": 161,
"text": "BENCH:\nRAMASWAMI, V.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n\n1968 AIR 153 1967 SCR (3) 508\n\nCITATOR INFO :\n\nR 1978 SC 40 (5,6)\n\nACT:\nIndian Income-tax Act, 1922, s. 31-Powers of Appellate\nAssistant Commissioner in appeal-Whether can enhance income\nof assessee in respect of sources of income not considered\nby Income-tax Officer for purpose of taxation.\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "a94ed1ec9d5f48c9adcd3b33b6a09b2e",
"to_name": null,
"type": null,
"value": {
"end": 703,
"labels": [
"PREAMBLE"
],
"start": 537,
"text": "\nThe account books of the respondent for the assessment year\n1952-53 showed three sums of Rs. 2,50,000, Rs. 1,50,000 and\nRs. 30,000 as borrowed from parties in Nepal."
}
},
{
"from_name": null,
"id": "18bc9f0c5905412b8d4e878234e26342",
"to_name": null,
"type": null,
"value": {
"end": 824,
"labels": [
"PREAMBLE"
],
"start": 704,
"text": "The income-\ntax Officer added these amounts to the total income of the\nassessee as secret income falsely shown as loans."
}
},
{
"from_name": null,
"id": "11c793a54ed54f61854331085cadfea3",
"to_name": null,
"type": null,
"value": {
"end": 1101,
"labels": [
"PREAMBLE"
],
"start": 825,
"text": "The\nIncome-tax Officer noted that the assessee had withdrawn at\nCalcutta on March 31, 1952 a sum of Rs. 5,30,000 from a\nCalcutta Bank and had sent a sum of Rs. 5,85,000 to his\nForbesganj branch on the same day to enable that branch to\npay Rs. 2,50,000 to one of the creditors."
}
},
{
"from_name": null,
"id": "518fed84de7d4cbfbd57c30fb48e35f0",
"to_name": null,
"type": null,
"value": {
"end": 1244,
"labels": [
"PREAMBLE"
],
"start": 1102,
"text": "The transfer of\nthe money from Calcutta to Forbesganj on the same day was\nconsidered by the Income-tax Officer to be a physical\nimpossibility."
}
},
{
"from_name": null,
"id": "70f154cefebb431f91771d352ba35a71",
"to_name": null,
"type": null,
"value": {
"end": 1318,
"labels": [
"PREAMBLE"
],
"start": 1245,
"text": "When the matter was in appeal before the\nAppellate Assistant Commissioner"
}
},
{
"from_name": null,
"id": "5aad62c24dab4c59bd34093b3c2a0725",
"to_name": null,
"type": null,
"value": {
"end": 1340,
"labels": [
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],
"start": 1318,
"text": ", the latter not only\n"
}
},
{
"from_name": null,
"id": "beb91600c6c6462485ed9a933c453010",
"to_name": null,
"type": null,
"value": {
"end": 1708,
"labels": [
"PREAMBLE"
],
"start": 1340,
"text": "confirmed the addition of the -aforesaid loan amounts to the\nincome of the assessee but also held that the sum of Rs.\n5,85,000 transferred from Calcutta to the Forbesganj branch\nwas also unexplained income of the assessee and after making\nallowance for an earlier withdrawal added a further sum of\nRS. 4,05,000 on this account to the assessed income of the\nrespondent."
}
},
{
"from_name": null,
"id": "02e3027fb90b41e3b8ca02008bf14534",
"to_name": null,
"type": null,
"value": {
"end": 1855,
"labels": [
"PREAMBLE"
],
"start": 1709,
"text": "The Tribunal held that the Appellate Assistant\nCommissioner had power to enhance the income as he did but\nreduced the enhancement to Rs. 1,55,000."
}
},
{
"from_name": null,
"id": "51a6c744636b42c39b9f154c247cc250",
"to_name": null,
"type": null,
"value": {
"end": 2083,
"labels": [
"PREAMBLE"
],
"start": 1856,
"text": "The High Court\nhowever held, in -reference, that the Appellate Assistant\nCommissioner had no power to make the addition as the sum of\nRs. 5,85,000 had not been considered by the Income-tax\nOfficer for the purpose of assessment."
}
},
{
"from_name": null,
"id": "94fc1630dc614ac8b11c87fef36d4e99",
"to_name": null,
"type": null,
"value": {
"end": 2141,
"labels": [
"PREAMBLE"
],
"start": 2084,
"text": "In appeal to this\nCourt,\nHELD : The High Court was right."
}
},
{
"from_name": null,
"id": "2ec05701aca94098bf43ef2af258fd21",
"to_name": null,
"type": null,
"value": {
"end": 2252,
"labels": [
"PREAMBLE"
],
"start": 2142,
"text": "The power of enhancement\ngiven to the Appellate Assistant Commissioner by s. 31(3) of\nthe Income-tax Act, 1922"
}
},
{
"from_name": null,
"id": "33ea8e5c2ded434b9c1f325b9246058b",
"to_name": null,
"type": null,
"value": {
"end": 2408,
"labels": [
"PREAMBLE"
],
"start": 2253,
"text": "is restricted to the sources of\nincome which have been the subject-matter of consideration\n\nby the Income-tax Officer from the point of view of\ntaxability."
}
},
{
"from_name": null,
"id": "4e8396ab576f4ccab07d51d291a37b65",
"to_name": null,
"type": null,
"value": {
"end": 2566,
"labels": [
"PREAMBLE"
],
"start": 2409,
"text": "In this context 'consideration' does not mean\n'incidental' or 'collateral' examination of any matter by\nthe Income-tax Officer .in the process of assessment."
}
},
{
"from_name": null,
"id": "79af298eacde4439b2edf09e0881b003",
"to_name": null,
"type": null,
"value": {
"end": 2857,
"labels": [
"PREAMBLE"
],
"start": 2567,
"text": "[516G]\nIn the present case it was manifest that the Income-tax\nOfficer had not considered the entry of Rs. 5,85,000 from\nthe point of view of its taxability and therefore the\nAppellate Assistant Commissioner had no jurisdiction in an\nappeal under s. 31 of the Act to enhance the assessment."
}
},
{
"from_name": null,
"id": "10add34741014a169096092a0897b653",
"to_name": null,
"type": null,
"value": {
"end": 2953,
"labels": [
"PREAMBLE"
],
"start": 2857,
"text": "\n[516F]\nCommissioner of Income-tax, Bombay v. Shapoorji Pallonji\nMistry, 44 I.T.R. 891 followed."
}
},
{
"from_name": null,
"id": "f02a5c963a434d998ecdc5ef4e19bff8",
"to_name": null,
"type": null,
"value": {
"end": 3291,
"labels": [
"PREAMBLE"
],
"start": 2953,
"text": "\nNarrondas Manordass Bombay v. Commissioner of Income-tax,\nCentral, Bombay, 31 I.T.R. 909, Commissioner of Income tax\nv. M/s. Mc-Milan & Co., [1958] S.C.R. 689, Commissioner of\nIncome-tax, Punjab v. Nawab Shah Nawaz Khan, 6 I.T.R. 370\nand The King v. Income-tax Special Investigation\nCommissioner ,[1936] 1 K.B. 487, considered.\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "cc1d914be004482a8a8a1fe65140ff6c",
"to_name": null,
"type": null,
"value": {
"end": 3352,
"labels": [
"NONE"
],
"start": 3291,
"text": "\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 535 of 1966."
}
},
{
"from_name": null,
"id": "e77ea98538bd430999f209b10eb6d9b3",
"to_name": null,
"type": null,
"value": {
"end": 3492,
"labels": [
"NONE"
],
"start": 3353,
"text": "Appeal by special leave from the judgment and order dated March 26, 1964 of the Calcutta High Court in Income-tax Reference No. 29 of 1961."
}
},
{
"from_name": null,
"id": "7aba923edaf84f6c8392fb2f63f6cea3",
"to_name": null,
"type": null,
"value": {
"end": 3581,
"labels": [
"NONE"
],
"start": 3492,
"text": "\nT. V. Vishwanath lyer, A. N. Kirpal, S. P. Navyar for R.\nN. Sachthey, for the appellant."
}
},
{
"from_name": null,
"id": "da778d7baa2545c28eb4864e25dbebd1",
"to_name": null,
"type": null,
"value": {
"end": 3631,
"labels": [
"NONE"
],
"start": 3581,
"text": "\nS. T. Desai and R. C. Prasad, for the respondent."
}
},
{
"from_name": null,
"id": "8f4cc16907ef44929ba8a83e066e093f",
"to_name": null,
"type": null,
"value": {
"end": 3688,
"labels": [
"NONE"
],
"start": 3631,
"text": "\nThe Judgment of the Court was delivered by Ramaswami, J."
}
},
{
"from_name": null,
"id": "96bb8ec3c25d46d4adc1e7e84ef9efbe",
"to_name": null,
"type": null,
"value": {
"end": 3836,
"labels": [
"FAC"
],
"start": 3689,
"text": "This appeal is brought, by special leave, from the judgment of the Calcutta High Court dated March 26, 1964 in Income-tax Reference No. 29 of 1961."
}
},
{
"from_name": null,
"id": "30327b817fa74145a613231f25a4284d",
"to_name": null,
"type": null,
"value": {
"end": 3949,
"labels": [
"FAC"
],
"start": 3837,
"text": "The respondent (hereinafter called the assessee) is an individual carrying on business in Jute, Cloth and Films,"
}
},
{
"from_name": null,
"id": "e89cf1c2bb154a97bf969f85cab9188a",
"to_name": null,
"type": null,
"value": {
"end": 4187,
"labels": [
"FAC"
],
"start": 3950,
"text": "The assessment year is 1952-53, the corresponding accounting year being the, calendar year 1951 for all business except Katihar Cloth Importing Co. and the Jute Mills for which the accounting year is financial year ending March 31, 1952."
}
},
{
"from_name": null,
"id": "ab67013f56744aa49c2623cd5b1cfd1c",
"to_name": null,
"type": null,
"value": {
"end": 4422,
"labels": [
"FAC"
],
"start": 4187,
"text": "\nDuring the year of account the assessee claimed that he had borrowed three sums of Rs. 2,50,000, 1,50,000 and Rs. 30,000 from three parties from ,Nepal, Khara- Bahadur Nepali, Jiwanmal Santockchand and Sohanlal Subhkaran respectively."
}
},
{
"from_name": null,
"id": "785dd69da92a4e9285136bacd8ed52ad",
"to_name": null,
"type": null,
"value": {
"end": 4572,
"labels": [
"FAC"
],
"start": 4422,
"text": "\nThe Income-tax Officer added these amounts to the total income of the assessee on the ground that the assessee had inflated the purchase of raw jute."
}
},
{
"from_name": null,
"id": "e6ee8a804c8b4258a3f98ce1b92d3b62",
"to_name": null,
"type": null,
"value": {
"end": 4767,
"labels": [
"FAC"
],
"start": 4573,
"text": "The Income-tax Officer was not satisfied that these three loans were genuine loans but considered that they represented secret profits made by the assessee by inflating the purchase of raw jute."
}
},
{
"from_name": null,
"id": "94b5611c1d3f44b0a5886eab7deb77e4",
"to_name": null,
"type": null,
"value": {
"end": 5121,
"labels": [
"FAC"
],
"start": 4768,
"text": "The Income-tax Officer noted that die assessee had withdrawn at Calcutta on March 31, 1952, a sum of Rs. 5,30,000 from a Calcutta bank and had sent a sum of Rs. 5,95,000 to his Forbesganj branch on the same day to enable that branch to make payments including the repayment of Rs. 2,50,000 to Sri Kharag Bahadur one of the alleged creditors noted above."
}
},
{
"from_name": null,
"id": "88108260534c48d3bf5af475fe5f6983",
"to_name": null,
"type": null,
"value": {
"end": 5320,
"labels": [
"FAC"
],
"start": 5121,
"text": "\nThe Income-tax Officer discussed the impossibility of the amount having reached Forbesganj branch in Bihar on the very same day in order to enable discharge of the creditors there on March 31, 1952."
}
},
{
"from_name": null,
"id": "6ee20f67112a472988dddcac64c43a90",
"to_name": null,
"type": null,
"value": {
"end": 5795,
"labels": [
"FAC"
],
"start": 5321,
"text": "In regard to this amount of Rs. 5,85,000 the Income-tax Officer observed as follows \"On 31-3-1952 the Calcutta Office has withdrawn Rs. 5,30,000 from the Bank and has sent Rs. 5,95,000 to Forbesganj How the cash has reached Forbesganj (in remote corner in North Bihar) on the same day to enable the branch to make payments (including the sum of Rs. 2,50,000 to Kharag Bahadur) is something diffi- Cult to understand even in these days of fast travel."
}
},
{
"from_name": null,
"id": "e336aaf6e241414c9a9cfae3c5bddef3",
"to_name": null,
"type": null,
"value": {
"end": 5952,
"labels": [
"FAC"
],
"start": 5796,
"text": "Lloyds Bank in Calcutta would not have obliged the assessee by paying out cash before 10 A.M. on 31-3-1952 and the only available train leaves in the night."
}
},
{
"from_name": null,
"id": "680ad6a49d53419b843145d9ce699e36",
"to_name": null,
"type": null,
"value": {
"end": 6033,
"labels": [
"FAC"
],
"start": 5953,
"text": "The journey including the ferry trip o ver the broad ganges takes over 24 hours."
}
},
{
"from_name": null,
"id": "0360c89af50346f79e1e00ca943a364e",
"to_name": null,
"type": null,
"value": {
"end": 6096,
"labels": [
"FAC"
],
"start": 6034,
"text": "Hence the entries in the book cannot be taken to 'be genuine.\""
}
},
{
"from_name": null,
"id": "d0589be5693d442fbfb4f13d1e81356c",
"to_name": null,
"type": null,
"value": {
"end": 6333,
"labels": [
"FAC"
],
"start": 6096,
"text": "\nThe assessee took the matter in appeal to the Appellate Assistant Commissioner and contended that the Income-tax Officer should not have added the three items of Rs.\n2,50,000, Rs. 1,50,000 and 'Rs. 30,000 to the total assessable income."
}
},
{
"from_name": null,
"id": "271d79946c1f4d9dacbd2afd1773a40f",
"to_name": null,
"type": null,
"value": {
"end": 6449,
"labels": [
"FAC"
],
"start": 6334,
"text": "The Appellate Assistant Commissioner did not agree with this contention and confirmed the addition of Rs. 4,30,000."
}
},
{
"from_name": null,
"id": "3f45618579e444bfb7166b8831041ee8",
"to_name": null,
"type": null,
"value": {
"end": 6683,
"labels": [
"FAC"
],
"start": 6450,
"text": "At the same time, the Appellate Assistant Commissioner noticed the fact of the alleged transfer of Rs.\n5,85,000 from Calcutta to Forbesganj on March 31, 1952 and its credit in the accounts books of the latter branch on the same date."
}
},
{
"from_name": null,
"id": "67d944a2899f4d31bf521d3a12fb7201",
"to_name": null,
"type": null,
"value": {
"end": 7060,
"labels": [
"FAC"
],
"start": 6684,
"text": "The Appellate Assistant Commissioner considered that the amount of Rs. 5,85,000 should also be included in the total income of the assessee, but before doing so lie gave the assessee a deduction of Rs. 1,80,000 being the amount withdrawn earlier from the accounts of the two creditors, namely, Jiwanmal Santokchand and Sohanlal Subhkaran and added the balance of Rs. 4,05,000."
}
},
{
"from_name": null,
"id": "35cc0ffc170c4b75b96e79a8b51acbb2",
"to_name": null,
"type": null,
"value": {
"end": 7198,
"labels": [
"FAC"
],
"start": 7061,
"text": "This addition by the Appellate Assistant Commissioner amounted to an enhancement of the income which the Income-tax Officer had assessed."
}
},
{
"from_name": null,
"id": "12216113297b42d68c9b9381af224c6c",
"to_name": null,
"type": null,
"value": {
"end": 7579,
"labels": [
"FAC"
],
"start": 7199,
"text": "The assessee took the matter in further appeal to the Appellate Tribunal which held that the Appellate Assistant Commissioner was justified in coining to the conclusion that the cash credits in the accounts were not explained satisfactorily and some of the payments made at Forbesganj branch on March 31, 1952 were not made from the remittance from Calcutta but from secret funds."
}
},
{
"from_name": null,
"id": "d4585301a22c40d388116c76524da79c",
"to_name": null,
"type": null,
"value": {
"end": 7991,
"labels": [
"RLC"
],
"start": 7580,
"text": "The Appellate Tribunal pointed out that out of the payments claimed to have been made at Forbesganj payments to Kharag Bahadur Nepali amounting to Rs. 2,50,000 must also be excluded because it had been held by the Income-tax Office and the Appellate Assistant Commissioner that the loan was not genuine; and since the loan. was not genuine it was not logical to say that it required repayment from secret funds."
}
},
{
"from_name": null,
"id": "e6cf303e7dc04c12bd05f3c91caf4db1",
"to_name": null,
"type": null,
"value": {
"end": 8068,
"labels": [
"RLC"
],
"start": 7991,
"text": "\nThe Appellate 'tribunal accordingly reduced the enhancement to Rs. 1,55,000."
}
},
{
"from_name": null,
"id": "6f4ce6f64b964e529487d462e232c27b",
"to_name": null,
"type": null,
"value": {
"end": 8326,
"labels": [
"RLC"
],
"start": 8069,
"text": "In doing so the Appellate Tribunal re- jected the contention of the, assessee ,hat the Appellate Assistant commissioner had no authority to enhance the income on the ground that it was not the subject-matter of the assessment made by the Income-tax Officer."
}
},
{
"from_name": null,
"id": "38e9e82e9f384588b10844258065a534",
"to_name": null,
"type": null,
"value": {
"end": 8578,
"labels": [
"RLC"
],
"start": 8327,
"text": "The Appellate Tribunal took the view that the subject-matter in respect of which the enhancement was made was, in fact, considered by the Income Tax Officer and accordingly the Appellate Assistant Commissioner had jurisdiction to make the enhancement."
}
},
{
"from_name": null,
"id": "2054d56602594aaab3f7c44f18c1b7e2",
"to_name": null,
"type": null,
"value": {
"end": 9025,
"labels": [
"ISSUE"
],
"start": 8579,
"text": "At the instance of the assessee theAppellate Tribunal referred the following question of law for the opinion of the High Court under s. 66 ( 1) of the Income-tax Act, 1922 (hereinafter called the 'Act') : \"Whether on the facts and in the circumstances of the case the Appellate Assistant Commissioner was within his authority in enhancing the assessment of the assessee by Rs. 1,55,000 for the assessment year 1952-53 ?\"\n "
}
},
{
"from_name": null,
"id": "9b3b699dbddb4866951586bafffb4172",
"to_name": null,
"type": null,
"value": {
"end": 9146,
"labels": [
"RLC"
],
"start": 9025,
"text": "By its judgment dated March 26, 1964, the High Court answered the question in the negative and in favour of the assessee."
}
},
{
"from_name": null,
"id": "6954250d88d54252ba7df4008b73cc39",
"to_name": null,
"type": null,
"value": {
"end": 9225,
"labels": [
"STA"
],
"start": 9172,
"text": "Section 31 of the Act is to the following effect \"31."
}
},
{
"from_name": null,
"id": "9ba63f6ae1804eb49695ead300034bda",
"to_name": null,
"type": null,
"value": {
"end": 10177,
"labels": [
"STA"
],
"start": 9226,
"text": "(1) The Appellate Assistant Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing.\n (2) The Appellate Assistant Commissioner may, before disposing of any appeal, make such further inquiry as lie thinks fit, or cause further inquiry to be made by the Income-tax Officer......\n (3) In disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment,- (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further inquiry as the Income-tax Officer thinks fit or the Appellate Assistant Commissioner may direct', and the Income-tax Officer shall thereupon proceed to make such fresh assessment and determine where necessary the amount of tax payable on the basis of such fresh assessment........"
}
},
{
"from_name": null,
"id": "23fcb4b628f84d6e9d58cbb31a0b0107",
"to_name": null,
"type": null,
"value": {
"end": 10542,
"labels": [
"PRE_RELIED"
],
"start": 10177,
"text": "\nIn Commissioner of Income-tax, Bombay v. Shapiorji Pallonji Alistry(1) it was held by this Court that in an appeal filed by the assessee the Appellate Assistant Commissioner has no power to enhance the assessment by discovering new sources of income not mentioned in the return of the assessee or considered by the Income-tax Officer in the order appealed against."
}
},
{
"from_name": null,
"id": "60be5ec56bec4c00a493b1613f0e82ce",
"to_name": null,
"type": null,
"value": {
"end": 10600,
"labels": [
"PRE_RELIED"
],
"start": 10543,
"text": "In that case, the assesee had received sum of Rs.\n40,000."
}
},
{
"from_name": null,
"id": "f5cff9a63d7e48bc81a79b00b1c7c29c",
"to_name": null,
"type": null,
"value": {
"end": 10703,
"labels": [
"ANALYSIS"
],
"start": 10601,
"text": "In the proceedings for the assessment year 1946-47, this came to the notice of the Income-tax Officer."
}
},
{
"from_name": null,
"id": "95a1af14c1024992acc928f7412d1d85",
"to_name": null,
"type": null,
"value": {
"end": 10961,
"labels": [
"ANALYSIS"
],
"start": 10704,
"text": "Since the receipt fell within the accounting year relative to the assessment year 1947-48, the Income-tax (1)44 I.T. R. 89 1.Officer did not assess the amount, making a note, \"The question will however be considered again at the time of 1947-48 assessment.\""
}
},
{
"from_name": null,
"id": "d68bb36714fb45dcb7bbf15fc3233073",
"to_name": null,
"type": null,
"value": {
"end": 11051,
"labels": [
"ANALYSIS"
],
"start": 10962,
"text": "In the return for the assessment year 1947-48, this amount was not shown by the assessee."
}
},
{
"from_name": null,
"id": "9f7affd8c2ed4127a847292bef6a3ca0",
"to_name": null,
"type": null,
"value": {
"end": 11228,
"labels": [
"ANALYSIS"
],
"start": 11052,
"text": "The Income-tax Officer also overlooked the note at the end of his order in the previous year's assessment, with the result that this item was omitted from the assessment order."
}
},
{
"from_name": null,
"id": "382bb622734e45af8d2af17a0fd22a7d",
"to_name": null,
"type": null,
"value": {
"end": 11337,
"labels": [
"ANALYSIS"
],
"start": 11229,
"text": "The assessee appealed to the Appellate Assistant Commissioner against his assessment for the year 1947 - 48."
}
},
{
"from_name": null,
"id": "bee2839f2f204fe5b72b82539171c037",
"to_name": null,
"type": null,
"value": {
"end": 11496,
"labels": [
"ANALYSIS"
],
"start": 11338,
"text": "While the appeal was pending, the Income-tax Officer wrote a letter to the Appellate Assistant Commissioner requesting him to assess the amount of Rs. 40,000."
}
},
{
"from_name": null,
"id": "7593a5443b3344a9bb8505ceb6b2c182",
"to_name": null,
"type": null,
"value": {
"end": 11620,
"labels": [
"ANALYSIS"
],
"start": 11497,
"text": "The Appellate Assistant Commissioner, after issuing notice, assessed the amount and included it in the original assessment."
}
},
{
"from_name": null,
"id": "e477850a2b274980a94a53fe5eb73b5f",
"to_name": null,
"type": null,
"value": {
"end": 11897,
"labels": [
"ANALYSIS"
],
"start": 11621,
"text": "The question which was debated before this Court was whether in an appeal filed by an assessee, the Appellate Assistant Commissioner can find a new source of income not considered by the Income-tax Officer and assess it under his powers granted by s. 31 of the Income-tax Act."
}
},
{
"from_name": null,
"id": "00c8160c45a44c1cb628dcfb8abeb5fa",
"to_name": null,
"type": null,
"value": {
"end": 12247,
"labels": [
"ANALYSIS"
],
"start": 11898,
"text": "It was held by this Court that the powers of enhancement conferred on the Appellate Assistant Commissioner under s. 31 only extended to matters considered by the Income-tax Officer and if a new source has to be considered then the power of remand may be exercised and the Income-tax Officer should be required to deal with that new source of income."
}
},
{
"from_name": null,
"id": "0e3c5e0d7d464051a6a60961a10f7192",
"to_name": null,
"type": null,
"value": {
"end": 12622,
"labels": [
"PRE_RELIED"
],
"start": 12248,
"text": "At page 895 of the Report, Hidayatullah, J. speaking for the Court stated as follows : \"The only question is whether in enhancing the assessment for any year lie can travel outside the record, that is to say, the return made by the assessee and the assessment order passed by the Income-tax Officer with a view to finding out new sources of income, not disclosed in either.\n"
}
},
{
"from_name": null,
"id": "a0952583b00840d7be359cd01feb1bdc",
"to_name": null,
"type": null,
"value": {
"end": 12822,
"labels": [
"ANALYSIS"
],
"start": 12622,
"text": "It is contended by the Commissioner of Income-tax that the word 'assessment' here means the ultimate would it which an assessee must pay, regard being had to the charging section and his total income."
}
},
{
"from_name": null,
"id": "7b037259915a4d6d86cabd25a284f92c",
"to_name": null,
"type": null,
"value": {
"end": 13049,
"labels": [
"ANALYSIS"
],
"start": 12823,
"text": "In this view, it is said that the words 'enhance the assessment' are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found."
}
},
{
"from_name": null,
"id": "e510a6ed777144079eae41c9b151fe2f",
"to_name": null,
"type": null,
"value": {
"end": 13100,
"labels": [
"ANALYSIS"
],
"start": 13050,
"text": "There is no doubt that this view is also possible."
}
},
{
"from_name": null,
"id": "3494de63513f46f9a546a2dfba92ef60",
"to_name": null,
"type": null,
"value": {
"end": 13306,
"labels": [
"ANALYSIS"
],
"start": 13101,
"text": "On the other hand, it must not be overlooked that there are other provisions like sections 34 and 33B, which enable escaped income from new sources to be brought to tax after following a special procedure."
}
},
{
"from_name": null,
"id": "43da759db67742b887439d2ee0a53c58",
"to_name": null,
"type": null,
"value": {
"end": 13527,
"labels": [
"ANALYSIS"
],
"start": 13307,
"text": "The assessee contends that the powers of the Appellate Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new source is to be considered, then the power of remand should be exercised."
}
},
{
"from_name": null,
"id": "8aca4e6bf8d74e7c8d9c279cdea84c86",
"to_name": null,
"type": null,
"value": {
"end": 13672,
"labels": [
"ANALYSIS"
],
"start": 13528,
"text": "By the exercise of the power to assess fresh sources ofincome, the assessee is deprived of a finding by two tri- bunals and one right of appeal."
}
},
{
"from_name": null,
"id": "d40df9cded3f434f9fae45ecd3c634dd",
"to_name": null,
"type": null,
"value": {
"end": 13834,
"labels": [
"ANALYSIS"
],
"start": 13672,
"text": "\nThe question is whether we should accept the interpretation suggested by the Commissioner in preference to the one, which has held the field for nearly 37 years."
}
},
{
"from_name": null,
"id": "dfe4f1e0fe124747bdcca8098fcd3817",
"to_name": null,
"type": null,
"value": {
"end": 14176,
"labels": [
"ANALYSIS"
],
"start": 13835,
"text": "In view of the provisions of sections 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section.\""
}
},
{
"from_name": null,
"id": "a8c4ddc2980c4c0d8454a98318cad1e3",
"to_name": null,
"type": null,
"value": {
"end": 14445,
"labels": [
"PRE_RELIED"
],
"start": 14176,
"text": "\nReference may be made, in this connection, to the decision in Narrondas Manordass, Bombay v. Commissioner of Income- tax, Central, Bombay(1) in which the scope of the power of the Appellate Assistant Commissioner under s. 31(3) was considered by the Bombay High Court."
}
},
{
"from_name": null,
"id": "e29abfb219c04beda5db2cdfcf6cf32c",
"to_name": null,
"type": null,
"value": {
"end": 14576,
"labels": [
"PRE_RELIED"
],
"start": 14446,
"text": "In that case, the assessee carried on business at Rajkot and at Bombay, the accounting years at Rajkot and Bombay being different."
}
},
{
"from_name": null,
"id": "d454f5f2f78443a4bb96a852f54deb51",
"to_name": null,
"type": null,
"value": {
"end": 14685,
"labels": [
"PRE_RELIED"
],
"start": 14577,
"text": "With regard to the profits of Rajkot, the Income-tax Officer assessed them proportionately at R.,. 1,17,643."
}
},
{
"from_name": null,
"id": "b0efd7a6a87e4c1089af145559a7dc0c",
"to_name": null,
"type": null,
"value": {
"end": 14922,
"labels": [
"PRE_RELIED"
],
"start": 14686,
"text": "He also found that there were remittances to the extent of Rs.\n4,00,000 from Rajkot to Bombay, but in view of the concession allowed by the Part B States Taxation Concession Order he did not include this amount in the assessable income."
}
},
{
"from_name": null,
"id": "e4ae1e29ad1b48dfb993e8576161e733",
"to_name": null,
"type": null,
"value": {
"end": 15057,
"labels": [
"PRE_RELIED"
],
"start": 14923,
"text": "The assessee appealed with respect to the sum of Rs. 1,17,643 contending that the Rajkot business had no profits at all but only loss."
}
},
{
"from_name": null,
"id": "56c0b63a10e840488487140aa521da59",
"to_name": null,
"type": null,
"value": {
"end": 15262,
"labels": [
"PRE_RELIED"
],
"start": 15058,
"text": "The Appellate Assistant Commissioner thereupon set aside the assessment and remanded the matter to the Income-tax Officer for reassessment after enquiring into tile matters contained in the second report."
}
},
{
"from_name": null,
"id": "482be2b70e65423ebc10c18140c2db7f",
"to_name": null,
"type": null,
"value": {
"end": 15611,
"labels": [
"PRE_RELIED"
],
"start": 15262,
"text": "\nIt was held by the Bombay High Court that the power conferred upon the Appellate Assistant Commissioner was not confined to the matter of Rs. 1,17,643 in respect of which the assessee had appealed, but he had power to revise the whole process of assessment once an appeal had been preferred, and the order remanding the case was not invalid in law."
}
},
{
"from_name": null,
"id": "d8fbeef22233479daa2aa3aef14e8097",
"to_name": null,
"type": null,
"value": {
"end": 15726,
"labels": [
"PRE_RELIED"
],
"start": 15612,
"text": "The decision of this case was approved by this Court in The Commissioner of Income-tax v. M/s Mc-Millan & Co. (2 )"
}
},
{
"from_name": null,
"id": "c57125590fee45d88892062a6d818e84",
"to_name": null,
"type": null,
"value": {
"end": 16109,
"labels": [
"PRE_RELIED"
],
"start": 15727,
"text": "The question to be considered in that case was whether it was open to the Appellate Assistant Commissioner in exercise of his powers under s. 31(3) of the Act to reject the method of accounting followed by the assessee and accepted by the Income-tax Officer, under the proviso to s.\n13 of the Act, and compute the income, profits or gains of the assessee under Rule 33 of the Rules."
}
},
{
"from_name": null,
"id": "d3d3d986c102413ca8563995ae85bae2",
"to_name": null,
"type": null,
"value": {
"end": 16580,
"labels": [
"PRE_RELIED"
],
"start": 16110,
"text": "It was held by this Court that the question must be answered in the affirmative and there was nothing in s. 31 read (1) 31 I. T. R. 909.\nL7Sup .C.I./67-3 (2) [1958] S. C. R. 689.with the provisions of s. 13 of the Act which prevented the Appellate Assistant Commissioner, in an appeal preferred by the assessee from exercising the powers which the Income-tax Officer could exercise under the proviso to s. 13 of the Act and to enhance the taxable income of the assessee."
}
},
{
"from_name": null,
"id": "86ff3f42c32843198f2dd897b8e79183",
"to_name": null,
"type": null,
"value": {
"end": 17299,
"labels": [
"PRE_RELIED"
],
"start": 16581,
"text": "At page 701 of the Report, S. K. Das, J. quoted with approval the following passage from the judgment of Chagla, C.J. in Narronadas's case(1) \"It is clear that the Appellate Assistant Commissioner has been constituted a revising authority against the decisions of the Income- tax Officer; a revising authority not in the narrow sense of revising what is the subject- matter of the appeal, not in the sense of revising those matters about which the assessee makes a grievance, but a revising authority in the sense that once the appeal is before him he ran revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment."
}
},
{
"from_name": null,
"id": "59b7c025d30e4d968607c012e7724b81",
"to_name": null,
"type": null,
"value": {
"end": 17834,
"labels": [
"ANALYSIS"
],
"start": 17299,
"text": "\n In other words, what he can revise is not merely the ultimate amount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the course of the assessment and also the various incomes or deductions which came in for consideration of the Income-tax Officer.\"\nIt is necessary to bear in mind, in this connection, that it is the assessee who has a right conferred under s. 31 to prefer an appeal against the order of assessment made by the Income-tax Officer."
}
},
{
"from_name": null,
"id": "a7a859b968c848fc91b001b7dc2f5fc2",
"to_name": null,
"type": null,
"value": {
"end": 18004,
"labels": [
"ANALYSIS"
],
"start": 17835,
"text": "If the assessee does not choose to appeal, the order of assessment becomes final subject to any power of revision that the Commissioner may have under s.\n33B of the Act."
}
},
{
"from_name": null,
"id": "b8bff155818d4486b626a3cecb22786d",
"to_name": null,
"type": null,
"value": {
"end": 18186,
"labels": [
"ANALYSIS"
],
"start": 18005,
"text": "Therefore, it would be wholly erroneous to compare the powers of the Appellate Assistant Commissioner with the powers possessed by a court of appeal, under the Civil Procedure Code."
}
},
{
"from_name": null,
"id": "1a81fdd8a8ad4838a1b7339e1479b405",
"to_name": null,
"type": null,
"value": {
"end": 18259,
"labels": [
"ANALYSIS"
],
"start": 18187,
"text": "The Appellate Assistant Commissioner is not an ordinary court of appeal."
}
},
{
"from_name": null,
"id": "36209759fcc441899f51bb70b907edcf",
"to_name": null,
"type": null,
"value": {
"end": 18573,
"labels": [
"ANALYSIS"
],
"start": 18260,
"text": "It is impossible to talk- of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the Appellate Assistant Commissioner once an appeal is preferred to him by the assessee."
}
},
{
"from_name": null,
"id": "fa57222dbc7c47b69c58f0bae611294f",
"to_name": null,
"type": null,
"value": {
"end": 19138,
"labels": [
"ANALYSIS"
],
"start": 18574,
"text": "It is necessary also to emphasise that the statute provides that once an assessment comes before the Appellate Assistant Commissioner, his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct the Income-tax Officer not only with regard to a matter raised by the assessee but also with regard to a matter which has been considered by the (1) 31 I. T.R.909 Income-tax Officer and determined in the course of the assessment."
}
},
{
"from_name": null,
"id": "bf6f480ee48142c3aaa5a9928276f7f8",
"to_name": null,
"type": null,
"value": {
"end": 19231,
"labels": [
"ANALYSIS"
],
"start": 19139,
"text": "It is also well-established that an assessee having once filed an appeal cannot withdraw it."
}
},
{
"from_name": null,
"id": "21afacd1dd594ba58994b6fc2f6c4ee7",
"to_name": null,
"type": null,
"value": {
"end": 19494,
"labels": [
"ANALYSIS"
],
"start": 19232,
"text": "In other words, the Assessee having filed an appeal and brought the machinery of the Act into working, cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the, real sum to be assessed, by intimation of his withdrawal of the appeal."
}
},
{
"from_name": null,
"id": "22d81aace7414c8c8b0dccb46caaa0fa",
"to_name": null,
"type": null,
"value": {
"end": 19768,
"labels": [
"PRE_RELIED"
],
"start": 19495,
"text": "Even if the assessee refuses to appeal at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if he finds that there, has be-en an under-assessment, he can enhance the assessment Commissioner of Income-tax, Punjab v. Nawab Shah Nawaz Khan(1)."
}
},
{
"from_name": null,
"id": "aaba7e35bdb24150b4b708daa5f467e9",
"to_name": null,
"type": null,
"value": {
"end": 20039,
"labels": [
"PRE_RELIED"
],
"start": 19769,
"text": "In this context reference may be made to the decision of the Court of Appeal in The King v. Income Tax Special Commissioners(2) in which the taxpayer sought to withdraw a notice, of appeal which had been given on his behalf against an additional assessment under Sch. D."
}
},
{
"from_name": null,
"id": "51ae14bdd82c4c73af3f7d04d12dafab",
"to_name": null,
"type": null,
"value": {
"end": 20230,
"labels": [
"PRE_RELIED"
],
"start": 20040,
"text": "The Commissioners of Inland Revenue were not satisfied that the assessment was adequate The Special Commissioners then proposed to proceed with the hearing of the appeal in the ordinary way."
}
},
{
"from_name": null,
"id": "56e8c7fa2aa348d593e228fec22f089c",
"to_name": null,
"type": null,
"value": {
"end": 20349,
"labels": [
"PRE_RELIED"
],
"start": 20231,
"text": "At that stage the taxpayer sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal."
}
},
{
"from_name": null,
"id": "f2214ee9032f4d99a20f6581b19abe6c",
"to_name": null,
"type": null,
"value": {
"end": 20558,
"labels": [
"PRE_RELIED"
],
"start": 20350,
"text": "It was held by the Court of Appeal that notice of appeal having once been given, the Commissioners were bound to proceed in accordance with the Income Tax Acts and determine the true amount of the assessment."
}
},
{
"from_name": null,
"id": "bcf11d599b134a488949109a7654c7d5",
"to_name": null,
"type": null,
"value": {
"end": 20788,
"labels": [
"PRE_RELIED"
],
"start": 20559,
"text": "At page 493 of the Report Lord Wright observed as follows : \" -in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out."
}
},
{
"from_name": null,
"id": "1bab39d868914313acc3cbf1b4f7e34e",
"to_name": null,
"type": null,
"value": {
"end": 20877,
"labels": [
"PRE_RELIED"
],
"start": 20789,
"text": "They are not in the position of judges deciding an issue between two particular parties."
}
},
{
"from_name": null,
"id": "4c71d380fd9c49e9996821700f87fe1e",
"to_name": null,
"type": null,
"value": {
"end": 20914,
"labels": [
"PRE_RELIED"
],
"start": 20878,
"text": "Their obligation is wider than that."
}
},
{
"from_name": null,
"id": "f29586731f224c3396d9112685a2057d",
"to_name": null,
"type": null,
"value": {
"end": 21170,
"labels": [
"PRE_RELIED"
],
"start": 20915,
"text": "It is to exercise their judgment on such material as comes before them and to obtain any material which they think- is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make."
}
},
{
"from_name": null,
"id": "47d293c56e5f49ce886661b3a9d696ae",
"to_name": null,
"type": null,
"value": {
"end": 21346,
"labels": [
"PRE_RELIED"
],
"start": 21171,
"text": "They are not deciding a case interparties; they are assessing or estimating the amount on which, in the interests of the country at large, the tax- payer ought to be taxed.\"\n "
}
},
{
"from_name": null,
"id": "bbb53dc8e2c6435689cf0149b4963d00",
"to_name": null,
"type": null,
"value": {
"end": 21777,
"labels": [
"ANALYSIS"
],
"start": 21346,
"text": "The principle that emerges as a result of the authorities of this Court is that the Appellate Assistant Commissioner has no jurisdiction, under s. 31(3) of the Act, to assess a source of income which has not been processed by the Income- tax Officer and which is not disclosed either in the returns filed by the assessee (1) 6 T. T. R. 370. (2) [1936] 1.\n K. D. 487.\n or in the assessment order, and therefore."
}
},
{
"from_name": null,
"id": "6994826c3dc949a3b38ee580f67b2895",
"to_name": null,
"type": null,
"value": {
"end": 21874,
"labels": [
"ANALYSIS"
],
"start": 21778,
"text": "the Appellate Assistant Commissioner cannot travel beyond the subject- matter of the assessment."
}
},
{
"from_name": null,
"id": "0daeef49f5824422b29d0395c64445ac",
"to_name": null,
"type": null,
"value": {
"end": 22162,
"labels": [
"ANALYSIS"
],
"start": 21875,
"text": "In other words, the power of enhancement under s. 31 (3) of the Act is restricted to the subject-matter of assessment or the sources of income which have been considered expressly or by clear implication by the Income-tax Officer from the point of view of the taxability of die assessee."
}
},
{
"from_name": null,
"id": "ae15ba17e4ad4aee88bbe2a2160036d2",
"to_name": null,
"type": null,
"value": {
"end": 22382,
"labels": [
"ARG_PETITIONER"
],
"start": 22163,
"text": "It was argued by Mr. Vishwanath lyer on behalf of the appellant that by applying the principle to the present case, the Appellate Assistant Commissioner had jurisdiction to enhance the quantum of income of the assessee."
}
},
{
"from_name": null,
"id": "e881a3a941b34f21bf6611ed90556b50",
"to_name": null,
"type": null,
"value": {
"end": 22576,
"labels": [
"ARG_PETITIONER"
],
"start": 22383,
"text": "It was pointed out that the fact of alleged transfer of Rs. 5,85,000 to Forbesganj branch was noted by the Income-tax Officer and also the fact that it did not reach Forbesganj on the same day."
}
},
{
"from_name": null,
"id": "c9da9f1055f643d0961c7c97e49b94f5",
"to_name": null,
"type": null,
"value": {
"end": 22826,
"labels": [
"ARG_PETITIONER"
],
"start": 22577,
"text": "So, it was argued that in the appeal the Appellate Assistant Commissioner had jurisdiction to deal with the question of the taxability of the amount of Rs. 5,85,000 and to hold that it was taxable as undisclosed profits in the hands of the assessee."
}
},
{
"from_name": null,
"id": "522db1ac9a6040509dbb4f426d720c52",
"to_name": null,
"type": null,
"value": {
"end": 22914,
"labels": [
"ANALYSIS"
],
"start": 22827,
"text": "We are unable to accept the argument put forward on behalf of the appellant as correct."
}
},
{
"from_name": null,
"id": "861d9c90e4574c579c832adc47204fb5",
"to_name": null,
"type": null,
"value": {
"end": 23212,
"labels": [
"ANALYSIS"
],
"start": 22915,
"text": "It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch, but the Income-tax Officer considered the despatch of this amount only with a view to test the Genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch."
}
},
{
"from_name": null,
"id": "b1049a7d536346618b819a8fd185c21b",
"to_name": null,
"type": null,
"value": {
"end": 23375,
"labels": [
"ANALYSIS"
],
"start": 23213,
"text": "It is manifest that the Income-tax Officer did not consider the remittance of Rs.\n 5,85,000 in the process of assessment from the point of view of its taxability."
}
},
{
"from_name": null,
"id": "335efbf8c1044af2ac736ee03a8f2ba9",
"to_name": null,
"type": null,
"value": {
"end": 23566,
"labels": [
"ANALYSIS"
],
"start": 23376,
"text": "It is also manifest that the Appellate Assistant Commissioner has considered the, amount of remit- tance of Rs. 5,85,000 from a different aspect, namely, the point of view of its taxability."
}
},
{
"from_name": null,
"id": "f9616baf1bfb4228945367c92b451ce9",
"to_name": null,
"type": null,
"value": {
"end": 23923,
"labels": [
"ANALYSIS"
],
"start": 23567,
"text": "But since the Income-tax Officer has not applied his mind to the question of the taxability or nontaxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof."
}
},
{
"from_name": null,
"id": "bca1a0072146417ab52dafea9a403bd2",
"to_name": null,
"type": null,
"value": {
"end": 23950,
"labels": [
"ANALYSIS"
],
"start": 23924,
"text": "As we have already stated."
}
},
{
"from_name": null,
"id": "ce3a2dff4cd34e27b7caecca27d21f16",
"to_name": null,
"type": null,
"value": {
"end": 24380,
"labels": [
"ANALYSIS"
],
"start": 23951,
"text": "it is not open to the Appellate Assistant Commissioner to travel outside the record, i.e., the return made by the assessee or the assessment order of the Income- tax Officer with a view to find out new sources of income and the power of enhancement under s. 31(3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by the Income-tax Officer from the point of view of taxability."
}
},
{
"from_name": null,
"id": "b6a561a9a75a4d75addc3c712a23b23c",
"to_name": null,
"type": null,
"value": {
"end": 24538,
"labels": [
"ANALYSIS"
],
"start": 24381,
"text": "In this context \"consideration\" does not mean \"incidental\" or \"collateral\"\n examination of any matter by the Income-tax Officer in the process of assessment."
}
},
{
"from_name": null,
"id": "ade5448ef1cd4a6f872313beddb4a85c",
"to_name": null,
"type": null,
"value": {
"end": 24799,
"labels": [
"ANALYSIS"
],
"start": 24539,
"text": "There must be something in the assessment order to show that the Income-tax Officer applied Ms mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection."
}
},
{
"from_name": null,
"id": "4f49978e7968413db8edd4295e5452b5",
"to_name": null,
"type": null,
"value": {
"end": 25084,
"labels": [
"RATIO"
],
"start": 24800,
"text": "In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs.\n 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal unders. 31 of the Act, to enhance the assessment."
}
},
{
"from_name": null,
"id": "9bd74b1e33824b0ebedfd216890419c0",
"to_name": null,
"type": null,
"value": {
"end": 25233,
"labels": [
"RPC"
],
"start": 25084,
"text": "\n For these reasons we hold that the High Court rightly answered the question in favour of the assessee and this appeal must be dismissed with costs."
}
},
{
"from_name": null,
"id": "6e5be9fa78e047719bd5ae6048d83b5f",
"to_name": null,
"type": null,
"value": {
"end": 25239,
"labels": [
"NONE"
],
"start": 25233,
"text": "\n G.C."
}
},
{
"from_name": null,
"id": "bdfd163628ef4d8e8c5a6f4fd47ede59",
"to_name": null,
"type": null,
"value": {
"end": 25273,
"labels": [
"NONE"
],
"start": 25240,
"text": " Appeal dismissed."
}
}
]
}
] | 4,109 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\n Vs.\n\nRESPONDENT:\nRAI BAHADUR HARDUTROY MOTILAL CHAMARIA\n\nDATE OF JUDGMENT:\n07/04/1967\n\nBENCH:\nRAMASWAMI, V.\nBENCH:\nRAMASWAMI, V.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n\n1968 AIR 153 1967 SCR (3) 508\n\nCITATOR INFO :\n\nR 1978 SC 40 (5,6)\n\nACT:\nIndian Income-tax Act, 1922, s. 31-Powers of Appellate\nAssistant Commissioner in appeal-Whether can enhance income\nof assessee in respect of sources of income not considered\nby Income-tax Officer for purpose of taxation.\n\nHEADNOTE:\nThe account books of the respondent for the assessment year\n1952-53 showed three sums of Rs. 2,50,000, Rs. 1,50,000 and\nRs. 30,000 as borrowed from parties in Nepal. The income-\ntax Officer added these amounts to the total income of the\nassessee as secret income falsely shown as loans. The\nIncome-tax Officer noted that the assessee had withdrawn at\nCalcutta on March 31, 1952 a sum of Rs. 5,30,000 from a\nCalcutta Bank and had sent a sum of Rs. 5,85,000 to his\nForbesganj branch on the same day to enable that branch to\npay Rs. 2,50,000 to one of the creditors. The transfer of\nthe money from Calcutta to Forbesganj on the same day was\nconsidered by the Income-tax Officer to be a physical\nimpossibility. When the matter was in appeal before the\nAppellate Assistant Commissioner, the latter not only\nconfirmed the addition of the -aforesaid loan amounts to the\nincome of the assessee but also held that the sum of Rs.\n5,85,000 transferred from Calcutta to the Forbesganj branch\nwas also unexplained income of the assessee and after making\nallowance for an earlier withdrawal added a further sum of\nRS. 4,05,000 on this account to the assessed income of the\nrespondent. The Tribunal held that the Appellate Assistant\nCommissioner had power to enhance the income as he did but\nreduced the enhancement to Rs. 1,55,000. The High Court\nhowever held, in -reference, that the Appellate Assistant\nCommissioner had no power to make the addition as the sum of\nRs. 5,85,000 had not been considered by the Income-tax\nOfficer for the purpose of assessment. In appeal to this\nCourt,\nHELD : The High Court was right. The power of enhancement\ngiven to the Appellate Assistant Commissioner by s. 31(3) of\nthe Income-tax Act, 1922 is restricted to the sources of\nincome which have been the subject-matter of consideration\n\nby the Income-tax Officer from the point of view of\ntaxability. In this context 'consideration' does not mean\n'incidental' or 'collateral' examination of any matter by\nthe Income-tax Officer .in the process of assessment. [516G]\nIn the present case it was manifest that the Income-tax\nOfficer had not considered the entry of Rs. 5,85,000 from\nthe point of view of its taxability and therefore the\nAppellate Assistant Commissioner had no jurisdiction in an\nappeal under s. 31 of the Act to enhance the assessment.\n[516F]\nCommissioner of Income-tax, Bombay v. Shapoorji Pallonji\nMistry, 44 I.T.R. 891 followed.\nNarrondas Manordass Bombay v. Commissioner of Income-tax,\nCentral, Bombay, 31 I.T.R. 909, Commissioner of Income tax\nv. M/s. Mc-Milan & Co., [1958] S.C.R. 689, Commissioner of\nIncome-tax, Punjab v. Nawab Shah Nawaz Khan, 6 I.T.R. 370\nand The King v. Income-tax Special Investigation\nCommissioner ,[1936] 1 K.B. 487, considered.\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 535 of 1966.\nAppeal by special leave from the judgment and order dated March 26, 1964 of the Calcutta High Court in Income-tax Reference No. 29 of 1961.\nT. V. Vishwanath lyer, A. N. Kirpal, S. P. Navyar for R.\nN. Sachthey, for the appellant.\nS. T. Desai and R. C. Prasad, for the respondent.\nThe Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Calcutta High Court dated March 26, 1964 in Income-tax Reference No. 29 of 1961.\nThe respondent (hereinafter called the assessee) is an individual carrying on business in Jute, Cloth and Films, The assessment year is 1952-53, the corresponding accounting year being the, calendar year 1951 for all business except Katihar Cloth Importing Co. and the Jute Mills for which the accounting year is financial year ending March 31, 1952.\nDuring the year of account the assessee claimed that he had borrowed three sums of Rs. 2,50,000, 1,50,000 and Rs. 30,000 from three parties from ,Nepal, Khara- Bahadur Nepali, Jiwanmal Santockchand and Sohanlal Subhkaran respectively.\nThe Income-tax Officer added these amounts to the total income of the assessee on the ground that the assessee had inflated the purchase of raw jute. The Income-tax Officer was not satisfied that these three loans were genuine loans but considered that they represented secret profits made by the assessee by inflating the purchase of raw jute. The Income-tax Officer noted that die assessee had withdrawn at Calcutta on March 31, 1952, a sum of Rs. 5,30,000 from a Calcutta bank and had sent a sum of Rs. 5,95,000 to his Forbesganj branch on the same day to enable that branch to make payments including the repayment of Rs. 2,50,000 to Sri Kharag Bahadur one of the alleged creditors noted above.\nThe Income-tax Officer discussed the impossibility of the amount having reached Forbesganj branch in Bihar on the very same day in order to enable discharge of the creditors there on March 31, 1952. In regard to this amount of Rs. 5,85,000 the Income-tax Officer observed as follows \"On 31-3-1952 the Calcutta Office has withdrawn Rs. 5,30,000 from the Bank and has sent Rs. 5,95,000 to Forbesganj How the cash has reached Forbesganj (in remote corner in North Bihar) on the same day to enable the branch to make payments (including the sum of Rs. 2,50,000 to Kharag Bahadur) is something diffi- Cult to understand even in these days of fast travel. Lloyds Bank in Calcutta would not have obliged the assessee by paying out cash before 10 A.M. on 31-3-1952 and the only available train leaves in the night. The journey including the ferry trip o ver the broad ganges takes over 24 hours. Hence the entries in the book cannot be taken to 'be genuine.\"\nThe assessee took the matter in appeal to the Appellate Assistant Commissioner and contended that the Income-tax Officer should not have added the three items of Rs.\n2,50,000, Rs. 1,50,000 and 'Rs. 30,000 to the total assessable income. The Appellate Assistant Commissioner did not agree with this contention and confirmed the addition of Rs. 4,30,000. At the same time, the Appellate Assistant Commissioner noticed the fact of the alleged transfer of Rs.\n5,85,000 from Calcutta to Forbesganj on March 31, 1952 and its credit in the accounts books of the latter branch on the same date. The Appellate Assistant Commissioner considered that the amount of Rs. 5,85,000 should also be included in the total income of the assessee, but before doing so lie gave the assessee a deduction of Rs. 1,80,000 being the amount withdrawn earlier from the accounts of the two creditors, namely, Jiwanmal Santokchand and Sohanlal Subhkaran and added the balance of Rs. 4,05,000. This addition by the Appellate Assistant Commissioner amounted to an enhancement of the income which the Income-tax Officer had assessed. The assessee took the matter in further appeal to the Appellate Tribunal which held that the Appellate Assistant Commissioner was justified in coining to the conclusion that the cash credits in the accounts were not explained satisfactorily and some of the payments made at Forbesganj branch on March 31, 1952 were not made from the remittance from Calcutta but from secret funds. The Appellate Tribunal pointed out that out of the payments claimed to have been made at Forbesganj payments to Kharag Bahadur Nepali amounting to Rs. 2,50,000 must also be excluded because it had been held by the Income-tax Office and the Appellate Assistant Commissioner that the loan was not genuine; and since the loan. was not genuine it was not logical to say that it required repayment from secret funds.\nThe Appellate 'tribunal accordingly reduced the enhancement to Rs. 1,55,000. In doing so the Appellate Tribunal re- jected the contention of the, assessee ,hat the Appellate Assistant commissioner had no authority to enhance the income on the ground that it was not the subject-matter of the assessment made by the Income-tax Officer. The Appellate Tribunal took the view that the subject-matter in respect of which the enhancement was made was, in fact, considered by the Income Tax Officer and accordingly the Appellate Assistant Commissioner had jurisdiction to make the enhancement. At the instance of the assessee theAppellate Tribunal referred the following question of law for the opinion of the High Court under s. 66 ( 1) of the Income-tax Act, 1922 (hereinafter called the 'Act') : \"Whether on the facts and in the circumstances of the case the Appellate Assistant Commissioner was within his authority in enhancing the assessment of the assessee by Rs. 1,55,000 for the assessment year 1952-53 ?\"\n By its judgment dated March 26, 1964, the High Court answered the question in the negative and in favour of the assessee.\n Section 31 of the Act is to the following effect \"31. (1) The Appellate Assistant Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing.\n (2) The Appellate Assistant Commissioner may, before disposing of any appeal, make such further inquiry as lie thinks fit, or cause further inquiry to be made by the Income-tax Officer......\n (3) In disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment,- (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further inquiry as the Income-tax Officer thinks fit or the Appellate Assistant Commissioner may direct', and the Income-tax Officer shall thereupon proceed to make such fresh assessment and determine where necessary the amount of tax payable on the basis of such fresh assessment........\nIn Commissioner of Income-tax, Bombay v. Shapiorji Pallonji Alistry(1) it was held by this Court that in an appeal filed by the assessee the Appellate Assistant Commissioner has no power to enhance the assessment by discovering new sources of income not mentioned in the return of the assessee or considered by the Income-tax Officer in the order appealed against. In that case, the assesee had received sum of Rs.\n40,000. In the proceedings for the assessment year 1946-47, this came to the notice of the Income-tax Officer. Since the receipt fell within the accounting year relative to the assessment year 1947-48, the Income-tax (1)44 I.T. R. 89 1.Officer did not assess the amount, making a note, \"The question will however be considered again at the time of 1947-48 assessment.\" In the return for the assessment year 1947-48, this amount was not shown by the assessee. The Income-tax Officer also overlooked the note at the end of his order in the previous year's assessment, with the result that this item was omitted from the assessment order. The assessee appealed to the Appellate Assistant Commissioner against his assessment for the year 1947 - 48. While the appeal was pending, the Income-tax Officer wrote a letter to the Appellate Assistant Commissioner requesting him to assess the amount of Rs. 40,000. The Appellate Assistant Commissioner, after issuing notice, assessed the amount and included it in the original assessment. The question which was debated before this Court was whether in an appeal filed by an assessee, the Appellate Assistant Commissioner can find a new source of income not considered by the Income-tax Officer and assess it under his powers granted by s. 31 of the Income-tax Act. It was held by this Court that the powers of enhancement conferred on the Appellate Assistant Commissioner under s. 31 only extended to matters considered by the Income-tax Officer and if a new source has to be considered then the power of remand may be exercised and the Income-tax Officer should be required to deal with that new source of income. At page 895 of the Report, Hidayatullah, J. speaking for the Court stated as follows : \"The only question is whether in enhancing the assessment for any year lie can travel outside the record, that is to say, the return made by the assessee and the assessment order passed by the Income-tax Officer with a view to finding out new sources of income, not disclosed in either.\nIt is contended by the Commissioner of Income-tax that the word 'assessment' here means the ultimate would it which an assessee must pay, regard being had to the charging section and his total income. In this view, it is said that the words 'enhance the assessment' are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found. There is no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like sections 34 and 33B, which enable escaped income from new sources to be brought to tax after following a special procedure. The assessee contends that the powers of the Appellate Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new source is to be considered, then the power of remand should be exercised. By the exercise of the power to assess fresh sources ofincome, the assessee is deprived of a finding by two tri- bunals and one right of appeal.\nThe question is whether we should accept the interpretation suggested by the Commissioner in preference to the one, which has held the field for nearly 37 years. In view of the provisions of sections 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section.\"\nReference may be made, in this connection, to the decision in Narrondas Manordass, Bombay v. Commissioner of Income- tax, Central, Bombay(1) in which the scope of the power of the Appellate Assistant Commissioner under s. 31(3) was considered by the Bombay High Court. In that case, the assessee carried on business at Rajkot and at Bombay, the accounting years at Rajkot and Bombay being different. With regard to the profits of Rajkot, the Income-tax Officer assessed them proportionately at R.,. 1,17,643. He also found that there were remittances to the extent of Rs.\n4,00,000 from Rajkot to Bombay, but in view of the concession allowed by the Part B States Taxation Concession Order he did not include this amount in the assessable income. The assessee appealed with respect to the sum of Rs. 1,17,643 contending that the Rajkot business had no profits at all but only loss. The Appellate Assistant Commissioner thereupon set aside the assessment and remanded the matter to the Income-tax Officer for reassessment after enquiring into tile matters contained in the second report.\nIt was held by the Bombay High Court that the power conferred upon the Appellate Assistant Commissioner was not confined to the matter of Rs. 1,17,643 in respect of which the assessee had appealed, but he had power to revise the whole process of assessment once an appeal had been preferred, and the order remanding the case was not invalid in law. The decision of this case was approved by this Court in The Commissioner of Income-tax v. M/s Mc-Millan & Co. (2 ) The question to be considered in that case was whether it was open to the Appellate Assistant Commissioner in exercise of his powers under s. 31(3) of the Act to reject the method of accounting followed by the assessee and accepted by the Income-tax Officer, under the proviso to s.\n13 of the Act, and compute the income, profits or gains of the assessee under Rule 33 of the Rules. It was held by this Court that the question must be answered in the affirmative and there was nothing in s. 31 read (1) 31 I. T. R. 909.\nL7Sup .C.I./67-3 (2) [1958] S. C. R. 689.with the provisions of s. 13 of the Act which prevented the Appellate Assistant Commissioner, in an appeal preferred by the assessee from exercising the powers which the Income-tax Officer could exercise under the proviso to s. 13 of the Act and to enhance the taxable income of the assessee. At page 701 of the Report, S. K. Das, J. quoted with approval the following passage from the judgment of Chagla, C.J. in Narronadas's case(1) \"It is clear that the Appellate Assistant Commissioner has been constituted a revising authority against the decisions of the Income- tax Officer; a revising authority not in the narrow sense of revising what is the subject- matter of the appeal, not in the sense of revising those matters about which the assessee makes a grievance, but a revising authority in the sense that once the appeal is before him he ran revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment.\n In other words, what he can revise is not merely the ultimate amount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the course of the assessment and also the various incomes or deductions which came in for consideration of the Income-tax Officer.\"\nIt is necessary to bear in mind, in this connection, that it is the assessee who has a right conferred under s. 31 to prefer an appeal against the order of assessment made by the Income-tax Officer. If the assessee does not choose to appeal, the order of assessment becomes final subject to any power of revision that the Commissioner may have under s.\n33B of the Act. Therefore, it would be wholly erroneous to compare the powers of the Appellate Assistant Commissioner with the powers possessed by a court of appeal, under the Civil Procedure Code. The Appellate Assistant Commissioner is not an ordinary court of appeal. It is impossible to talk- of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the Appellate Assistant Commissioner once an appeal is preferred to him by the assessee. It is necessary also to emphasise that the statute provides that once an assessment comes before the Appellate Assistant Commissioner, his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct the Income-tax Officer not only with regard to a matter raised by the assessee but also with regard to a matter which has been considered by the (1) 31 I. T.R.909 Income-tax Officer and determined in the course of the assessment. It is also well-established that an assessee having once filed an appeal cannot withdraw it. In other words, the Assessee having filed an appeal and brought the machinery of the Act into working, cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the, real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appeal at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if he finds that there, has be-en an under-assessment, he can enhance the assessment Commissioner of Income-tax, Punjab v. Nawab Shah Nawaz Khan(1). In this context reference may be made to the decision of the Court of Appeal in The King v. Income Tax Special Commissioners(2) in which the taxpayer sought to withdraw a notice, of appeal which had been given on his behalf against an additional assessment under Sch. D. The Commissioners of Inland Revenue were not satisfied that the assessment was adequate The Special Commissioners then proposed to proceed with the hearing of the appeal in the ordinary way. At that stage the taxpayer sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal. It was held by the Court of Appeal that notice of appeal having once been given, the Commissioners were bound to proceed in accordance with the Income Tax Acts and determine the true amount of the assessment. At page 493 of the Report Lord Wright observed as follows : \" -in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out. They are not in the position of judges deciding an issue between two particular parties. Their obligation is wider than that. It is to exercise their judgment on such material as comes before them and to obtain any material which they think- is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case interparties; they are assessing or estimating the amount on which, in the interests of the country at large, the tax- payer ought to be taxed.\"\n The principle that emerges as a result of the authorities of this Court is that the Appellate Assistant Commissioner has no jurisdiction, under s. 31(3) of the Act, to assess a source of income which has not been processed by the Income- tax Officer and which is not disclosed either in the returns filed by the assessee (1) 6 T. T. R. 370. (2) [1936] 1.\n K. D. 487.\n or in the assessment order, and therefore. the Appellate Assistant Commissioner cannot travel beyond the subject- matter of the assessment. In other words, the power of enhancement under s. 31 (3) of the Act is restricted to the subject-matter of assessment or the sources of income which have been considered expressly or by clear implication by the Income-tax Officer from the point of view of the taxability of die assessee. It was argued by Mr. Vishwanath lyer on behalf of the appellant that by applying the principle to the present case, the Appellate Assistant Commissioner had jurisdiction to enhance the quantum of income of the assessee. It was pointed out that the fact of alleged transfer of Rs. 5,85,000 to Forbesganj branch was noted by the Income-tax Officer and also the fact that it did not reach Forbesganj on the same day. So, it was argued that in the appeal the Appellate Assistant Commissioner had jurisdiction to deal with the question of the taxability of the amount of Rs. 5,85,000 and to hold that it was taxable as undisclosed profits in the hands of the assessee. We are unable to accept the argument put forward on behalf of the appellant as correct. It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch, but the Income-tax Officer considered the despatch of this amount only with a view to test the Genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch. It is manifest that the Income-tax Officer did not consider the remittance of Rs.\n 5,85,000 in the process of assessment from the point of view of its taxability. It is also manifest that the Appellate Assistant Commissioner has considered the, amount of remit- tance of Rs. 5,85,000 from a different aspect, namely, the point of view of its taxability. But since the Income-tax Officer has not applied his mind to the question of the taxability or nontaxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof. As we have already stated. it is not open to the Appellate Assistant Commissioner to travel outside the record, i.e., the return made by the assessee or the assessment order of the Income- tax Officer with a view to find out new sources of income and the power of enhancement under s. 31(3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by the Income-tax Officer from the point of view of taxability. In this context \"consideration\" does not mean \"incidental\" or \"collateral\"\n examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied Ms mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection. In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs.\n 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal unders. 31 of the Act, to enhance the assessment.\n For these reasons we hold that the High Court rightly answered the question in favour of the assessee and this appeal must be dismissed with costs.\n G.C. Appeal dismissed.\n "
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"text": "\n\n PRESENT\n\nTHE HON'BLE MRS. JUSTICE S. SUJATHA\n\n AND\n\nTHE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA\n\nSALES TAX REVISION PETITION NO.100006/2016\n\nBETWEEN:\n\nMUKAND LIMITED,\nHOSPET ROAD, GINIGERA-583 228,\nKOPPAL TALUQ, KOPPAL DISTIRICT,\nREPRESENTED HEREIN\nBY ITS DEPUTY GENERAL\nMANGAER (F & A),\nMR.DEBABRATA DAS,\nAGE 48 YEARS.\n\n ... PETITIONER"
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"text": "(BY SRI.M.KUMAR, AGA.)\n\n\n THIS STRP FILED U/SEC.65(1) OF THE KARNATAKA VALUE\nADDED TAX ACT, 2003, AGAINST THE ORDER DATED:30.07.2015 PASSED IN STA NO.1516-1527/2013 ON THE FILE OF THE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 63 OF THE KARNATAKA VALUE ADDED TAX ACT, 2003."
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"text": "This revision petition is filed by the assessee under Section 65(1) of the Karnataka Value Added Tax Act, 2003 (for short the `Act') relating to the assessment year 2005- 06.\n 2."
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"text": "The facts in brief are that, the petitioner/assessee is a dealer registered under the provisions of the Act and is engaged in the business of manufacture and sale of steel blooms, billets and rounds."
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"text": "\nIt transpires that during the tax periods April 2005 to March 2006, the petitioner effected purchases of iron ore, scrap, ferro alloys, refractory bricks, gases, etc. for use in the course of its business."
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"text": "In respect of the said purchases, the selling dealers raised tax invoices as prescribed under Section 29 of the Act on the petitioner and it was contended by the assessee that the applicable tax amount was collected by the selling dealers under the provisions of the Act on such sales."
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"text": "It was the contention of the petitioner that those goods purchased by it were used in the manufacture of goods and both local and interstate sales of goods of the manufactured goods were effected."
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"text": "On further appeal before the Joint Commissioner of Commercial Taxes (Appeals), Davangere Division, Davangere, the first appellate authority partly allowed the appeals confirming the denial of input tax credit on the ground that the selling dealers have not discharged the tax collected by the petitioner."
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"text": "\nHowever, the levy of penalty under Section 72(2) of the Act was set aside."
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"end": 3457,
"labels": [
"FAC"
],
"start": 3371,
"text": "Aggrieved by the same, appeals were preferred before the Karnataka Appellate Tribunal."
}
},
{
"from_name": null,
"id": "1f9565b94f084f2aba3516c516b21053",
"to_name": null,
"type": null,
"value": {
"end": 3779,
"labels": [
"RLC"
],
"start": 3458,
"text": "The Tribunal dismissed the appeals confirming the order of the Assessing Authority and the First Appellate Authority insofar as disallowing the input tax credit claimed by the petitioner on the ground that seven dealers had not paid tax amounting to Rs.15,05,332/- said to have been collected by them from the petitioner."
}
},
{
"from_name": null,
"id": "ee9a9ebe2d184d7bbad5d7d7219bbcb1",
"to_name": null,
"type": null,
"value": {
"end": 3834,
"labels": [
"FAC"
],
"start": 3780,
"text": "Being aggrieved, the assessee is in revision petition."
}
},
{
"from_name": null,
"id": "4c1d0f30460741f18fe457ee78a075dc",
"to_name": null,
"type": null,
"value": {
"end": 4152,
"labels": [
"ARG_PETITIONER"
],
"start": 3834,
"text": "\n 3. Learned counsel, Sri.T.Suryanarayana appearing for the petitioner would contend that no provision under the Act authorises the authorities to disallow the input tax credit at the hands of purchasing dealer, wherein the selling dealer has failed to file the sales tax returns and discharge its sales tax liability."
}
},
{
"from_name": null,
"id": "9e2ad060f2c448d5b1c413715db34f9e",
"to_name": null,
"type": null,
"value": {
"end": 4269,
"labels": [
"ARG_PETITIONER"
],
"start": 4152,
"text": "\nDenial of input tax credit is not supported by any statutory provision and is contrary to the provisions of the Act."
}
},
{
"from_name": null,
"id": "69d0382672024ef68c827cd397e6e8ed",
"to_name": null,
"type": null,
"value": {
"end": 4652,
"labels": [
"ARG_PETITIONER"
],
"start": 4270,
"text": "It is contended that input tax credit was supported by valid tax invoices raised by the selling dealers in accordance with the provisions of Section 29 of the Act, the petitioner is entitled to claim input tax credit based on the invoices raised by the selling dealers, the same having been used in the manufacture of goods and being effected with sales both locally and interstate."
}
},
{
"from_name": null,
"id": "fcedb12031f048028a3749a8df3f2d08",
"to_name": null,
"type": null,
"value": {
"end": 4958,
"labels": [
"ARG_PETITIONER"
],
"start": 4653,
"text": "It is contended that the Assessing Officer while passing the reassessment order has observed that tax invoices are genuine, however, denied the input tax credit only for the reason that VAT- 100 returns for the year 2005-06 of the selling dealers is not forthcoming in Electronics Filing System (EFS).\n 4."
}
},
{
"from_name": null,
"id": "f0b034476f694db9be0410a12a2e59cc",
"to_name": null,
"type": null,
"value": {
"end": 5107,
"labels": [
"FAC"
],
"start": 4959,
"text": "In compliance with the order passed by this Court on 27.02.2017, the respondent State has filed statement of objections on behalf of the respondent."
}
},
{
"from_name": null,
"id": "f1da122bf4264b2790cb94663430186c",
"to_name": null,
"type": null,
"value": {
"end": 5475,
"labels": [
"ARG_PETITIONER"
],
"start": 5107,
"text": "\nPlacing reliance on this statement of objections, the learned counsel for the assessee would contend that the respondent has admitted the input tax credit claim allowable in respect of the selling dealer Nos.1 to 3 except for the month of August-2005 in respect of M/s. High-tech industrial gases, whereas, the same is disallowed in respect of the other four dealers."
}
},
{
"from_name": null,
"id": "582b8c95d76140b9bf7192852015e621",
"to_name": null,
"type": null,
"value": {
"end": 5636,
"labels": [
"ARG_PETITIONER"
],
"start": 5476,
"text": "As far as dealer No.4 is concerned, it is observed that invoices are dated November-2005, hence the input tax credit claimed after four months is not allowable."
}
},
{
"from_name": null,
"id": "967cf1f5968d42bb8a6fcccb1daa754c",
"to_name": null,
"type": null,
"value": {
"end": 5711,
"labels": [
"ARG_PETITIONER"
],
"start": 5637,
"text": "No reasons are assigned as far as selling dealers No.5 and 6 are concerned"
}
},
{
"from_name": null,
"id": "208d9d3fe9f6480b8723e15a8b1754db",
"to_name": null,
"type": null,
"value": {
"end": 5953,
"labels": [
"ARG_PETITIONER"
],
"start": 5711,
"text": ".\n 5. The learned counsel for the assessee has placed a memo on record along with the returns in Form VAT-100 filed by M/s. Dalini Enterprises (selling dealer No.7) for the tax period April 2005 to March 2006 and the relevant bank statements."
}
},
{
"from_name": null,
"id": "647f0f6af54243ca8acc0c801c0d1e3e",
"to_name": null,
"type": null,
"value": {
"end": 6291,
"labels": [
"ARG_PETITIONER"
],
"start": 5954,
"text": "Based on the said returns, learned counsel would point out that major portion of the input tax credit claimed was for the purchases made from the said selling dealer No.7 who has filed the monthly returns for the tax period 2005-06 and remitted tax to the treasury which is manifest from the statement of accounts of the selling dealers."
}
},
{
"from_name": null,
"id": "c8d5d2c13ce24041a968cbc8ce99dd04",
"to_name": null,
"type": null,
"value": {
"end": 6410,
"labels": [
"ARG_PETITIONER"
],
"start": 6292,
"text": "On these grounds, the learned counsel seeks to set aside the order impugned herein, by allowing the revision petition."
}
},
{
"from_name": null,
"id": "68c7cfff6c5141a0b21518e578b1b638",
"to_name": null,
"type": null,
"value": {
"end": 6596,
"labels": [
"ARG_RESPONDENT"
],
"start": 6410,
"text": "\n 6. Learned AGA appearing for the respondent would emphasize that the burden lies on the assessee to prove that the tax collected was deposited by the selling dealers to the Government."
}
},
{
"from_name": null,
"id": "ecdd9eb9c3a84316a1aa3455624324dd",
"to_name": null,
"type": null,
"value": {
"end": 6869,
"labels": [
"ARG_RESPONDENT"
],
"start": 6597,
"text": "Reliance is placed on Section 70 of the Act to contend that, for the purposes of any claim to input tax under the Act, the burden of proving that any transaction of a dealer is not liable to tax, or any claim to deduction of input tax is correct, shall lie on such dealer."
}
},
{
"from_name": null,
"id": "ec9ea050da0643a8b8851acc534acd58",
"to_name": null,
"type": null,
"value": {
"end": 7340,
"labels": [
"ARG_RESPONDENT"
],
"start": 6870,
"text": "It is pointed out that in pursuance of the directions issued by this Court, the department has examined the matter in detail and on verification it was found that some of the selling dealers had filed the returns, hence it is decided to extend the benefit of input tax credit as claimed in respect of selling dealer Nos.1 to 3 and the same is denied in respect of selling dealer Nos.4 to 7, as mentioned in the table appended to Para No.3 of the statement of objections."
}
},
{
"from_name": null,
"id": "9ca25b9f14a144b0ba3f43253a2e0b62",
"to_name": null,
"type": null,
"value": {
"end": 7434,
"labels": [
"ARG_RESPONDENT"
],
"start": 7341,
"text": "It is submitted that the dispute has been reduced to Rs.6,14,200/- as against Rs.15,05,332/-."
}
},
{
"from_name": null,
"id": "58414d3b28794579aaf63ea1cc50b537",
"to_name": null,
"type": null,
"value": {
"end": 7680,
"labels": [
"ARG_RESPONDENT"
],
"start": 7435,
"text": "The learned AGA would submit that the returns filed by the selling dealers No.4 to 7 has not been traced to locate the factual position as regards the payment of tax made by these dealers as the relevant period in question is beyond eight years."
}
},
{
"from_name": null,
"id": "341de9c3f2634892bd0451ad5a5f5301",
"to_name": null,
"type": null,
"value": {
"end": 7959,
"labels": [
"ARG_RESPONDENT"
],
"start": 7681,
"text": "Thus, it is submitted that the authorities are justified in rejecting the claim of input tax credit in respect of selling dealer Nos.4 to 7, since no relevant material was placed on record by the assessee to prove the tax being remitted to the Government by the selling dealers."
}
},
{
"from_name": null,
"id": "fe4d8912c1094943af57d42f6f3fc01c",
"to_name": null,
"type": null,
"value": {
"end": 8125,
"labels": [
"NONE"
],
"start": 7959,
"text": "\n 7. We have given our anxious consideration to the arguments advanced by the learned counsel for the respective parties and carefully perused the material on record."
}
},
{
"from_name": null,
"id": "7cd8ea7901db465f9ea0423ea8915f01",
"to_name": null,
"type": null,
"value": {
"end": 8341,
"labels": [
"ISSUE"
],
"start": 8127,
"text": "8. The question involved herein mainly relates to the denial of input tax credit claimed by the assessee for the reason that no VAT-100 returns were filed by the selling dealers for the relevant period in question."
}
},
{
"from_name": null,
"id": "fd814effadb64fafa58945a3d150b58b",
"to_name": null,
"type": null,
"value": {
"end": 8472,
"labels": [
"ANALYSIS"
],
"start": 8342,
"text": "To answer the issue involved in this revision petition, it is apt to consider the statement of objections filed by the respondent."
}
},
{
"from_name": null,
"id": "d50d16cfacc64129819259cfaacae49c",
"to_name": null,
"type": null,
"value": {
"end": 8515,
"labels": [
"ANALYSIS"
],
"start": 8473,
"text": "Table in para No.3 is extracted hereunder:"
}
},
{
"from_name": null,
"id": "cf4566585505478288a606707e7f827e",
"to_name": null,
"type": null,
"value": {
"end": 8546,
"labels": [
"ANALYSIS"
],
"start": 8516,
"text": "Sl Party Name TIN Number Month"
}
},
{
"from_name": null,
"id": "78c74b2d5e694fb6bfb6c9a13d480817",
"to_name": null,
"type": null,
"value": {
"end": 8687,
"labels": [
"ANALYSIS"
],
"start": 8582,
"text": "ITC Output Remarks No as"
}
},
{
"from_name": null,
"id": "96bb4df8c0dd4115bf5cdc0b9725af0c",
"to_name": null,
"type": null,
"value": {
"end": 9780,
"labels": [
"ANALYSIS"
],
"start": 8688,
"text": "Per 66612 Returns ITC Claim allowable B.VRAJLAL Feb-06 4740 66724 ITC Claim allowable 71352 4740 AND CO 29170120926 2375 71464 ITC Claim allowable 1 Mar-06 18790 80760 ITC Claim allowable 3733 138231 ITC Claim allowable Total 24898 264005 3003 482996 ITC Claim allowable B.K.AUTO 29320098291 May-05 1035 4220 ITC Claim allowable CENTER 29320098291 Jul-05 1035 3347 ITC Claim allowable 2 5175 4299 ITC Claim Not 5128 allowable 29320098291 Jan-06 2070 ITC Claim allowable 3002 3103 ITC Claim allowable Total 3595 3166 ITC Claim allowable 3106 4065 ITC Claim allowable HI-TECH May-05 "
}
},
{
"from_name": null,
"id": "4cb4e5dc3437452fb04af9f015856b03",
"to_name": null,
"type": null,
"value": {
"end": 10031,
"labels": [
"ANALYSIS"
],
"start": 9780,
"text": "1035 4155 ITC Claim allowable 2070 2097 ITC Claim allowable INDUSTRIA 29780052351 2070 4378 ITC Claim allowable 3 L GASES Jun-05 27196 6586"
}
},
{
"from_name": null,
"id": "72af9ff65fb24b589d5881baaddcca06",
"to_name": null,
"type": null,
"value": {
"end": 10125,
"labels": [
"ANALYSIS"
],
"start": 10032,
"text": "14969 Invoices are dated Jul-05 53834 Nov-2005."
}
},
{
"from_name": null,
"id": "11ec44abf08040a987b6d2b72c1c75f2",
"to_name": null,
"type": null,
"value": {
"end": 10138,
"labels": [
"ANALYSIS"
],
"start": 10126,
"text": "Hence 261670"
}
},
{
"from_name": null,
"id": "cc75c966f81349afb8ae4e54fe2f7253",
"to_name": null,
"type": null,
"value": {
"end": 10366,
"labels": [
"ANALYSIS"
],
"start": 10139,
"text": " the ITC is claimed Aug-05 53834 after 4 months.\n 855 261670 Sep-05 NIL ITC Claim Not Oct-05 9443"
}
},
{
"from_name": null,
"id": "4d509b652a80410b87fc86acaafbc766",
"to_name": null,
"type": null,
"value": {
"end": 10394,
"labels": [
"ANALYSIS"
],
"start": 10367,
"text": " Allowable Nov-05"
}
},
{
"from_name": null,
"id": "b7535795ef1746a899371a3cb08c2cbf",
"to_name": null,
"type": null,
"value": {
"end": 11451,
"labels": [
"ANALYSIS"
],
"start": 10395,
"text": " NIL ITC Claim Not Dec-05 37794 Allowable Jan-06 NIL ITC Claim Not Feb-06 5125 Allowable Mar-06 4577 ITC Claim Not Total 45572 Allowable ACE NIL ITC Claim Not REFRACTO 29700454266 Feb-06 1650 Allowable 4 RIES 1056 ITC Claim Not 2475 Allowable Total 264 ITC Claim Not 102914 Allowable NAVODAYA Jun-05 5897 5 TRADING 29150487694 CO Jul-05 Aug-05 Oct-05 Nov-05 Dec-05 Jan-06 Total ES 58839 35667 ITC Claim Not 6 ELECTRONI 29560307388 JAN-05 Allowable CS (INDIA)P Total 58839 35667 DALINI Apr-05 "
}
},
{
"from_name": null,
"id": "59bbd09fb67846e7bde0397d2dde0a81",
"to_name": null,
"type": null,
"value": {
"end": 11457,
"labels": [
"ANALYSIS"
],
"start": 11451,
"text": "122493"
}
},
{
"from_name": null,
"id": "97167180670d4c58a75e21d49b5cf6f1",
"to_name": null,
"type": null,
"value": {
"end": 11573,
"labels": [
"ANALYSIS"
],
"start": 11467,
"text": "The case has been 142747 de-registered in 7 ENTERPRIS 29780239173 May-05 108175 2007."
}
},
{
"from_name": null,
"id": "ff394967a154450a85104e469c4b1611",
"to_name": null,
"type": null,
"value": {
"end": 11650,
"labels": [
"ANALYSIS"
],
"start": 11574,
"text": "Returns are not traced & ITC ES "
}
},
{
"from_name": null,
"id": "c29b97fdf4314bcc8395ae18fd65bc1f",
"to_name": null,
"type": null,
"value": {
"end": 11714,
"labels": [
"ANALYSIS"
],
"start": 11650,
"text": "Claim Not Allowable Jun-05 Jul-05 137027 Aug-05 91735 Sep-05 "
}
},
{
"from_name": null,
"id": "b02842b63d3147ceb4df5dee667d22db",
"to_name": null,
"type": null,
"value": {
"end": 11837,
"labels": [
"ANALYSIS"
],
"start": 11714,
"text": "53096 Oct-05 80980 Nov-05 116473 Dec-05 45206 Jan-06 108696 Feb-06 44579 Mar-06 115392 Total 1166599"
}
},
{
"from_name": null,
"id": "b4cd35cd06134fa79fde2287c0602cf5",
"to_name": null,
"type": null,
"value": {
"end": 12214,
"labels": [
"ANALYSIS"
],
"start": 11838,
"text": "Thus, it is categorically admitted that in respect of selling dealer Nos.1 to 3, assessee is entitled to the input tax credit; as regards the selling dealer No.7 is concerned, now the assessee has filed the income tax returns filed by the said dealer along with bank statements, which prima facie shows that the selling dealer has remitted the collected tax from the assessee."
}
},
{
"from_name": null,
"id": "d6d465af01bd4607b0d85fa11d9f51d0",
"to_name": null,
"type": null,
"value": {
"end": 12355,
"labels": [
"ANALYSIS"
],
"start": 12215,
"text": "The assessee has utilized the goods purchased from the selling dealers for the manufacture of goods and effected local and interstate sales."
}
},
{
"from_name": null,
"id": "527d4b32b23548a1a2d598865f83a007",
"to_name": null,
"type": null,
"value": {
"end": 12566,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12357,
"text": "9. The Tribunal mainly relied upon the judgment of this Court in the case of State of Karnataka Vs.\nCentum Industries Private Limited, Bangalore [2014 (80) Kar.L.J.65] to confirm the orders of the authorities."
}
},
{
"from_name": null,
"id": "3cec5f8042ad4979ad1f1d855555f13e",
"to_name": null,
"type": null,
"value": {
"end": 12789,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12567,
"text": "The said judgment of Centum (supra) was held in a different context, wherein the issue was failure to claim input tax credit in the tax periods in which purchases were effected and the claim made in the subsequent periods."
}
},
{
"from_name": null,
"id": "a86fc8ba06db459cbef79c0a5a679087",
"to_name": null,
"type": null,
"value": {
"end": 12970,
"labels": [
"ANALYSIS"
],
"start": 12790,
"text": "In that context, it was held by the co-ordinate bench of this Court that the claim cannot be made subsequently, but in the instant case, the issue involved is altogether different."
}
},
{
"from_name": null,
"id": "5668b55e73c14ada940889c7013c8e92",
"to_name": null,
"type": null,
"value": {
"end": 13105,
"labels": [
"ANALYSIS"
],
"start": 12971,
"text": "The main ground for denying the input tax credit is that the VAT-100 returns filed by the selling dealers are not traceable under EFS."
}
},
{
"from_name": null,
"id": "556520b8ddaf49a09beac052005f67c9",
"to_name": null,
"type": null,
"value": {
"end": 13239,
"labels": [
"ANALYSIS"
],
"start": 13106,
"text": "It is not in dispute that the returns/invoices filed by the assessee are genuine and the same are accounted in his books of accounts."
}
},
{
"from_name": null,
"id": "4bcd742124a34761b6d500df257c1213",
"to_name": null,
"type": null,
"value": {
"end": 13457,
"labels": [
"ANALYSIS"
],
"start": 13240,
"text": "Even if we assume the burden of proof lies on the asseessee to establish the proof of the tax deposited by his selling dealer, the same is not contemplated under Section 70 of the Act, as contended by the learned AGA."
}
},
{
"from_name": null,
"id": "e51f223c8d114476b15cb4adba87ab2e",
"to_name": null,
"type": null,
"value": {
"end": 13755,
"labels": [
"ANALYSIS"
],
"start": 13459,
"text": "What is contemplated under Section 70 of the Act is, for the purposes of payment or assessment of tax or any claim to input tax under the Act, the burden of proving that any transaction of a dealer is not liable to tax, or any claim to deduction of input tax is correct, shall lie on such dealer."
}
},
{
"from_name": null,
"id": "8488d4b211e4449ba58483110eef552a",
"to_name": null,
"type": null,
"value": {
"end": 13842,
"labels": [
"ANALYSIS"
],
"start": 13756,
"text": "Be that as it may, it is not relevant to consider the issue on this aspect at present."
}
},
{
"from_name": null,
"id": "1213dc5bf9c6413e8f5f251b85fa4214",
"to_name": null,
"type": null,
"value": {
"end": 14104,
"labels": [
"ISSUE"
],
"start": 13842,
"text": "\n 10. The limited ground on which we have to examine the issue on hand is, whether the respondent was justified in denying input tax credit benefits to the assessee, on the ground that the VAT-100 returns filed by the selling dealers are not traceable under EFS."
}
},
{
"from_name": null,
"id": "cd4c7f51c1e740d389f162804378feff",
"to_name": null,
"type": null,
"value": {
"end": 14553,
"labels": [
"RATIO"
],
"start": 14105,
"text": "It is trite that the revenue can be at a loss in allowing the input tax credit to a dealer, who deals with a bogus transaction, for example, a selling dealer who is not in existence or a de- registered dealer, in such circumstances, it is not in doubt that unless the purchasing dealer establishes the genuineness of the invoices issued by the selling dealer, no input tax credit can be allowed but that is not the case in the present set of facts."
}
},
{
"from_name": null,
"id": "c28d3d734f154c72a1f5bbc05e36734f",
"to_name": null,
"type": null,
"value": {
"end": 14821,
"labels": [
"RATIO"
],
"start": 14554,
"text": "The Assessing Officer while passing reassessment order has categorically observed that the invoices are genuine and in view of the material placed before this Court with respect to the selling dealer No.7, the matter requires reconsideration by the Assessing Officer."
}
},
{
"from_name": null,
"id": "bd83c5caa125477dbb5239db3970134c",
"to_name": null,
"type": null,
"value": {
"end": 14944,
"labels": [
"RATIO"
],
"start": 14822,
"text": "Even as regards the selling dealer Nos.4 to 6, no reasons are assigned by the respondent for denying the input tax credit."
}
},
{
"from_name": null,
"id": "435036877a5a452eaa75aafb4ff111c7",
"to_name": null,
"type": null,
"value": {
"end": 15100,
"labels": [
"RATIO"
],
"start": 14945,
"text": "It is also trite that no input tax credit can be disallowed on the premise that the selling dealer is de-registered subsequent to the relevant tax periods."
}
},
{
"from_name": null,
"id": "e622e2457830429db5230b227b30f6d1",
"to_name": null,
"type": null,
"value": {
"end": 15294,
"labels": [
"RATIO"
],
"start": 15101,
"text": "The cause shown for disallowance with respect to selling dealer No.7 is that the said concern has been de-registered in 2007, returns are not traced and input tax credit claim is not allowable."
}
},
{
"from_name": null,
"id": "be3df4569ca84508a29a9931f4704a5d",
"to_name": null,
"type": null,
"value": {
"end": 15368,
"labels": [
"RATIO"
],
"start": 15295,
"text": "The same is contrary to the returns now made available before this Court."
}
},
{
"from_name": null,
"id": "4bf4df27713e4e6b95f38deff8f3020d",
"to_name": null,
"type": null,
"value": {
"end": 15591,
"labels": [
"RATIO"
],
"start": 15369,
"text": "The tax period involved in the present case is relating to 2005-06, if any de- registration is made subsequently, the same would not disentitle the purchasing dealer to claim input tax credit for the tax period of 2005-06."
}
},
{
"from_name": null,
"id": "e3216bcd46f54f7184a78ee4815c43dc",
"to_name": null,
"type": null,
"value": {
"end": 15726,
"labels": [
"RPC"
],
"start": 15591,
"text": "\n 11. In the circumstances, based on the objections filed by the respondent as aforesaid, the factual aspects requires reconsideration."
}
},
{
"from_name": null,
"id": "d0677782a2b24fe4a26703529b598575",
"to_name": null,
"type": null,
"value": {
"end": 15806,
"labels": [
"RPC"
],
"start": 15727,
"text": "Hence, we allow this revision petition and set-aside the order impugned herein."
}
},
{
"from_name": null,
"id": "17bce6137c9f4ae282aec4710514d2c7",
"to_name": null,
"type": null,
"value": {
"end": 16008,
"labels": [
"RPC"
],
"start": 15807,
"text": "The matter is remanded to the Assessing Officer to reconsider the issue afresh in the light of the observations made aforesaid, and pass appropriate orders in accordance with law in an expedite manner."
}
},
{
"from_name": null,
"id": "928cd6ee0aa74ade986216ed16d8d631",
"to_name": null,
"type": null,
"value": {
"end": 16038,
"labels": [
"NONE"
],
"start": 16008,
"text": "\n Sd/- JUDGE Sd/- JUDGE Sh/JTR"
}
}
]
}
] | 4,172 | {
"text": " R\n\n IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\nDATED THIS THE 22ND DAY OF JANUARY, 2018\n\n PRESENT\n\nTHE HON'BLE MRS. JUSTICE S. SUJATHA\n\n AND\n\nTHE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA\n\nSALES TAX REVISION PETITION NO.100006/2016\n\nBETWEEN:\n\nMUKAND LIMITED,\nHOSPET ROAD, GINIGERA-583 228,\nKOPPAL TALUQ, KOPPAL DISTIRICT,\nREPRESENTED HEREIN\nBY ITS DEPUTY GENERAL\nMANGAER (F & A),\nMR.DEBABRATA DAS,\nAGE 48 YEARS.\n\n ... PETITIONER\n\n(BY SRIYUTHS T.SURYANARAYANA, H.R.KAMBIYAVAR, VIKRAM\nHUILGOL, TANMAYEE RAJKUMAR, VEDANTH ANAND AND\nSANDEEP HUILGOL, ADVS.)\n\nAND: ...RESPONDENT\n\nTHE STATE OF KARNATAKA,\nREPRESENTED BY THE\nCOMMISSIONER OF COMMERCIAL\nTAXES, VANIJYA THERIGE KARYALAYA,\nKALIDASA ROAD, GANDHINAGAR,\nBANGALORE-560 009.\n\n(BY SRI.M.KUMAR, AGA.)\n\n\n THIS STRP FILED U/SEC.65(1) OF THE KARNATAKA VALUE\nADDED TAX ACT, 2003, AGAINST THE ORDER DATED:30.07.2015 PASSED IN STA NO.1516-1527/2013 ON THE FILE OF THE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 63 OF THE KARNATAKA VALUE ADDED TAX ACT, 2003.\n THIS PETITION COMING ON FOR ADMISSION THIS DAY, S.SUJATHA J., MADE THE FOLLOWING: ORDER This revision petition is filed by the assessee under Section 65(1) of the Karnataka Value Added Tax Act, 2003 (for short the `Act') relating to the assessment year 2005- 06.\n 2. The facts in brief are that, the petitioner/assessee is a dealer registered under the provisions of the Act and is engaged in the business of manufacture and sale of steel blooms, billets and rounds.\nIt transpires that during the tax periods April 2005 to March 2006, the petitioner effected purchases of iron ore, scrap, ferro alloys, refractory bricks, gases, etc. for use in the course of its business. In respect of the said purchases, the selling dealers raised tax invoices as prescribed under Section 29 of the Act on the petitioner and it was contended by the assessee that the applicable tax amount was collected by the selling dealers under the provisions of the Act on such sales. It was the contention of the petitioner that those goods purchased by it were used in the manufacture of goods and both local and interstate sales of goods of the manufactured goods were effected. Accordingly, input tax credit claim was made by the assessee for the tax periods in question. The Assessing Officer invoking the provisions of Section 39(1) of the Act proposed to disallow the input tax credit amounting to Rs.15,05,332/- claimed by the petitioner on the ground that the said input tax related to purchases effected from seven dealers, whose returns were not traceable. It was the grievance of the petitioner that even before filing the objections to the said notice, the Assessing Officer proceeded to pass a reassessment order confirming its proposal to disallow the input tax credit claimed by the petitioner. On further appeal before the Joint Commissioner of Commercial Taxes (Appeals), Davangere Division, Davangere, the first appellate authority partly allowed the appeals confirming the denial of input tax credit on the ground that the selling dealers have not discharged the tax collected by the petitioner.\nHowever, the levy of penalty under Section 72(2) of the Act was set aside. Aggrieved by the same, appeals were preferred before the Karnataka Appellate Tribunal. The Tribunal dismissed the appeals confirming the order of the Assessing Authority and the First Appellate Authority insofar as disallowing the input tax credit claimed by the petitioner on the ground that seven dealers had not paid tax amounting to Rs.15,05,332/- said to have been collected by them from the petitioner. Being aggrieved, the assessee is in revision petition.\n 3. Learned counsel, Sri.T.Suryanarayana appearing for the petitioner would contend that no provision under the Act authorises the authorities to disallow the input tax credit at the hands of purchasing dealer, wherein the selling dealer has failed to file the sales tax returns and discharge its sales tax liability.\nDenial of input tax credit is not supported by any statutory provision and is contrary to the provisions of the Act. It is contended that input tax credit was supported by valid tax invoices raised by the selling dealers in accordance with the provisions of Section 29 of the Act, the petitioner is entitled to claim input tax credit based on the invoices raised by the selling dealers, the same having been used in the manufacture of goods and being effected with sales both locally and interstate. It is contended that the Assessing Officer while passing the reassessment order has observed that tax invoices are genuine, however, denied the input tax credit only for the reason that VAT- 100 returns for the year 2005-06 of the selling dealers is not forthcoming in Electronics Filing System (EFS).\n 4. In compliance with the order passed by this Court on 27.02.2017, the respondent State has filed statement of objections on behalf of the respondent.\nPlacing reliance on this statement of objections, the learned counsel for the assessee would contend that the respondent has admitted the input tax credit claim allowable in respect of the selling dealer Nos.1 to 3 except for the month of August-2005 in respect of M/s. High-tech industrial gases, whereas, the same is disallowed in respect of the other four dealers. As far as dealer No.4 is concerned, it is observed that invoices are dated November-2005, hence the input tax credit claimed after four months is not allowable. No reasons are assigned as far as selling dealers No.5 and 6 are concerned.\n 5. The learned counsel for the assessee has placed a memo on record along with the returns in Form VAT-100 filed by M/s. Dalini Enterprises (selling dealer No.7) for the tax period April 2005 to March 2006 and the relevant bank statements. Based on the said returns, learned counsel would point out that major portion of the input tax credit claimed was for the purchases made from the said selling dealer No.7 who has filed the monthly returns for the tax period 2005-06 and remitted tax to the treasury which is manifest from the statement of accounts of the selling dealers. On these grounds, the learned counsel seeks to set aside the order impugned herein, by allowing the revision petition.\n 6. Learned AGA appearing for the respondent would emphasize that the burden lies on the assessee to prove that the tax collected was deposited by the selling dealers to the Government. Reliance is placed on Section 70 of the Act to contend that, for the purposes of any claim to input tax under the Act, the burden of proving that any transaction of a dealer is not liable to tax, or any claim to deduction of input tax is correct, shall lie on such dealer. It is pointed out that in pursuance of the directions issued by this Court, the department has examined the matter in detail and on verification it was found that some of the selling dealers had filed the returns, hence it is decided to extend the benefit of input tax credit as claimed in respect of selling dealer Nos.1 to 3 and the same is denied in respect of selling dealer Nos.4 to 7, as mentioned in the table appended to Para No.3 of the statement of objections. It is submitted that the dispute has been reduced to Rs.6,14,200/- as against Rs.15,05,332/-. The learned AGA would submit that the returns filed by the selling dealers No.4 to 7 has not been traced to locate the factual position as regards the payment of tax made by these dealers as the relevant period in question is beyond eight years. Thus, it is submitted that the authorities are justified in rejecting the claim of input tax credit in respect of selling dealer Nos.4 to 7, since no relevant material was placed on record by the assessee to prove the tax being remitted to the Government by the selling dealers.\n 7. We have given our anxious consideration to the arguments advanced by the learned counsel for the respective parties and carefully perused the material on record.\n 8. The question involved herein mainly relates to the denial of input tax credit claimed by the assessee for the reason that no VAT-100 returns were filed by the selling dealers for the relevant period in question. To answer the issue involved in this revision petition, it is apt to consider the statement of objections filed by the respondent. Table in para No.3 is extracted hereunder: Sl Party Name TIN Number Month ITC Output Remarks No as Per 66612 Returns ITC Claim allowable B.VRAJLAL Feb-06 4740 66724 ITC Claim allowable 71352 4740 AND CO 29170120926 2375 71464 ITC Claim allowable 1 Mar-06 18790 80760 ITC Claim allowable 3733 138231 ITC Claim allowable Total 24898 264005 3003 482996 ITC Claim allowable B.K.AUTO 29320098291 May-05 1035 4220 ITC Claim allowable CENTER 29320098291 Jul-05 1035 3347 ITC Claim allowable 2 5175 4299 ITC Claim Not 5128 allowable 29320098291 Jan-06 2070 ITC Claim allowable 3002 3103 ITC Claim allowable Total 3595 3166 ITC Claim allowable 3106 4065 ITC Claim allowable HI-TECH May-05 1035 4155 ITC Claim allowable 2070 2097 ITC Claim allowable INDUSTRIA 29780052351 2070 4378 ITC Claim allowable 3 L GASES Jun-05 27196 6586 14969 Invoices are dated Jul-05 53834 Nov-2005. Hence 261670 the ITC is claimed Aug-05 53834 after 4 months.\n 855 261670 Sep-05 NIL ITC Claim Not Oct-05 9443 Allowable Nov-05 NIL ITC Claim Not Dec-05 37794 Allowable Jan-06 NIL ITC Claim Not Feb-06 5125 Allowable Mar-06 4577 ITC Claim Not Total 45572 Allowable ACE NIL ITC Claim Not REFRACTO 29700454266 Feb-06 1650 Allowable 4 RIES 1056 ITC Claim Not 2475 Allowable Total 264 ITC Claim Not 102914 Allowable NAVODAYA Jun-05 5897 5 TRADING 29150487694 CO Jul-05 Aug-05 Oct-05 Nov-05 Dec-05 Jan-06 Total ES 58839 35667 ITC Claim Not 6 ELECTRONI 29560307388 JAN-05 Allowable CS (INDIA)P Total 58839 35667 DALINI Apr-05 122493 The case has been 142747 de-registered in 7 ENTERPRIS 29780239173 May-05 108175 2007. Returns are not traced & ITC ES Claim Not Allowable Jun-05 Jul-05 137027 Aug-05 91735 Sep-05 53096 Oct-05 80980 Nov-05 116473 Dec-05 45206 Jan-06 108696 Feb-06 44579 Mar-06 115392 Total 1166599 Thus, it is categorically admitted that in respect of selling dealer Nos.1 to 3, assessee is entitled to the input tax credit; as regards the selling dealer No.7 is concerned, now the assessee has filed the income tax returns filed by the said dealer along with bank statements, which prima facie shows that the selling dealer has remitted the collected tax from the assessee. The assessee has utilized the goods purchased from the selling dealers for the manufacture of goods and effected local and interstate sales.\n 9. The Tribunal mainly relied upon the judgment of this Court in the case of State of Karnataka Vs.\nCentum Industries Private Limited, Bangalore [2014 (80) Kar.L.J.65] to confirm the orders of the authorities.\nThe said judgment of Centum (supra) was held in a different context, wherein the issue was failure to claim input tax credit in the tax periods in which purchases were effected and the claim made in the subsequent periods. In that context, it was held by the co-ordinate bench of this Court that the claim cannot be made subsequently, but in the instant case, the issue involved is altogether different. The main ground for denying the input tax credit is that the VAT-100 returns filed by the selling dealers are not traceable under EFS. It is not in dispute that the returns/invoices filed by the assessee are genuine and the same are accounted in his books of accounts. Even if we assume the burden of proof lies on the asseessee to establish the proof of the tax deposited by his selling dealer, the same is not contemplated under Section 70 of the Act, as contended by the learned AGA.\n What is contemplated under Section 70 of the Act is, for the purposes of payment or assessment of tax or any claim to input tax under the Act, the burden of proving that any transaction of a dealer is not liable to tax, or any claim to deduction of input tax is correct, shall lie on such dealer. Be that as it may, it is not relevant to consider the issue on this aspect at present.\n 10. The limited ground on which we have to examine the issue on hand is, whether the respondent was justified in denying input tax credit benefits to the assessee, on the ground that the VAT-100 returns filed by the selling dealers are not traceable under EFS. It is trite that the revenue can be at a loss in allowing the input tax credit to a dealer, who deals with a bogus transaction, for example, a selling dealer who is not in existence or a de- registered dealer, in such circumstances, it is not in doubt that unless the purchasing dealer establishes the genuineness of the invoices issued by the selling dealer, no input tax credit can be allowed but that is not the case in the present set of facts. The Assessing Officer while passing reassessment order has categorically observed that the invoices are genuine and in view of the material placed before this Court with respect to the selling dealer No.7, the matter requires reconsideration by the Assessing Officer. Even as regards the selling dealer Nos.4 to 6, no reasons are assigned by the respondent for denying the input tax credit. It is also trite that no input tax credit can be disallowed on the premise that the selling dealer is de-registered subsequent to the relevant tax periods. The cause shown for disallowance with respect to selling dealer No.7 is that the said concern has been de-registered in 2007, returns are not traced and input tax credit claim is not allowable. The same is contrary to the returns now made available before this Court. The tax period involved in the present case is relating to 2005-06, if any de- registration is made subsequently, the same would not disentitle the purchasing dealer to claim input tax credit for the tax period of 2005-06.\n 11. In the circumstances, based on the objections filed by the respondent as aforesaid, the factual aspects requires reconsideration. Hence, we allow this revision petition and set-aside the order impugned herein. The matter is remanded to the Assessing Officer to reconsider the issue afresh in the light of the observations made aforesaid, and pass appropriate orders in accordance with law in an expedite manner.\n Sd/- JUDGE Sd/- JUDGE Sh/JTR "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": "label",
"id": "cccc0974f52f48eaac45d37c89dfb480",
"to_name": "text",
"type": "labels",
"value": {
"end": 122,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nBIKANER GYPSUMS LTD.\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, RAJASTHAN\n\nDATE OF JUDGMENT23/10/1990"
}
},
{
"from_name": "label",
"id": "24becb2c73e54c4aa9c8c92ce9b9e4b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 553,
"labels": [
"PREAMBLE"
],
"start": 124,
"text": "BENCH:\nSINGH, K.N. (J)\nBENCH:\nSINGH, K.N. (J)\nSAIKIA, K.N. (J)\nKULDIP SINGH (J)\n\nCITATION: 1990 SCR Supl. (2) 313\n 1991 AIR 227 JT 1990 (4) 481\n 1991 SCC (1) 328\n 1990 SCALE (2)876\n\nACT:\n\nIncome Tax Act 1922/Income Tax Act 1961--Section\n\n10(2)(xv)/ Section 37(1)--Capital or revenue\n\nexpenditure--Determination of in the case of mining\n\nleases--Factors to be considered What are.\n\nHEADNOTE:\n "
}
},
{
"from_name": "label",
"id": "9851c436c3b846fca86c523d4d2ffc34",
"to_name": "text",
"type": "labels",
"value": {
"end": 618,
"labels": [
"PREAMBLE"
],
"start": 553,
"text": "The appellant-assessee carried on the business of mining\n\ngypsum."
}
},
{
"from_name": "label",
"id": "124849d262be4633a168dec9e7d1fd1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 852,
"labels": [
"PREAMBLE"
],
"start": 619,
"text": "The predecessor-in-interest of the assessee acquired\na lease from the Maharaja of one of the erstwhile princely\nState on September 29, 1948 for mining of gypsum for a\nperiod of 20 years over an area of 4.27 square miles in the\nState."
}
},
{
"from_name": "label",
"id": "32395bad455c436b90ece00fb9545b17",
"to_name": "text",
"type": "labels",
"value": {
"end": 917,
"labels": [
"PREAMBLE"
],
"start": 853,
"text": "The lease was liable to be renewed after the expiry\nof 20 years."
}
},
{
"from_name": "label",
"id": "a613fe2ffe3040c88947eca1bdd07b51",
"to_name": "text",
"type": "labels",
"value": {
"end": 1079,
"labels": [
"PREAMBLE"
],
"start": 918,
"text": "By a deed of assignment dated December 11, 1948\nthe rights under the lease were assigned to the assessee\ncompany, in which the State Government owned 45% shares."
}
},
{
"from_name": "label",
"id": "f2d34d9872674a24b0fefd74082da8df",
"to_name": "text",
"type": "labels",
"value": {
"end": 1226,
"labels": [
"PREAMBLE"
],
"start": 1079,
"text": "\n\n The assessee entered into an agreement with a Government\nof India Public Undertaking for the supply of gypsum of\nminimum of 83.5% quality."
}
},
{
"from_name": "label",
"id": "ac5b6db18535424bae4a0d0b00e426b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 1261,
"labels": [
"PREAMBLE"
],
"start": 1227,
"text": "Under the lease, the assessee was\n"
}
},
{
"from_name": "label",
"id": "54ae241511254d888470a65b7b312b4c",
"to_name": "text",
"type": "labels",
"value": {
"end": 1540,
"labels": [
"PREAMBLE"
],
"start": 1261,
"text": "conferred the liberties and powers to enter upon the entire\nleased land and to search for win, work, get, raise, convert\nand carry away the gypsum for its own benefits in the most\neconomic convenient and beneficial manner and to treat the\nsame by calcination and other processes."
}
},
{
"from_name": "label",
"id": "fde3cb61cdf2453e8bac5778a0416373",
"to_name": "text",
"type": "labels",
"value": {
"end": 1628,
"labels": [
"PREAMBLE"
],
"start": 1541,
"text": "The lease agreement\nconsisted of several parts and each part contained several\nclauses."
}
},
{
"from_name": "label",
"id": "aea03ddc6628489ea4a797584d87ace9",
"to_name": "text",
"type": "labels",
"value": {
"end": 1770,
"labels": [
"PREAMBLE"
],
"start": 1629,
"text": "Clause 3 of part Iii prescribed restrictions on\nmining operation within 100 yards from any railway, reser-\nvoir, canal or other public works."
}
},
{
"from_name": "label",
"id": "698e19f91a3e4d92bafce4432ec0eb7d",
"to_name": "text",
"type": "labels",
"value": {
"end": 1792,
"labels": [
"PREAMBLE"
],
"start": 1771,
"text": "This clause had been\n"
}
},
{
"from_name": "label",
"id": "f17bc29057594f65bdd1e4890fadc14a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1924,
"labels": [
"PREAMBLE"
],
"start": 1792,
"text": "incorporated in the lease to protect the railway track and\nrailway station which was situated within the area demised\nto the lessee."
}
},
{
"from_name": "label",
"id": "0d9234bfc5f5405fbc1688b0bb8a3ad0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2023,
"labels": [
"PREAMBLE"
],
"start": 1924,
"text": "\n\n The assessee exclusively carried on the mining of gypsum\nin the entire area demised to it."
}
},
{
"from_name": "label",
"id": "cba75af48ac245b689904c813e2f9577",
"to_name": "text",
"type": "labels",
"value": {
"end": 2224,
"labels": [
"PREAMBLE"
],
"start": 2024,
"text": "The Railway Authorities\nextended the railway area by laying down fresh track, pro-\nviding for railway siding and further constructed quarters\nin the leased area without the permission of the assessee."
}
},
{
"from_name": "label",
"id": "b8e774f9eb144476840f130cebbb85a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2350,
"labels": [
"PREAMBLE"
],
"start": 2224,
"text": "\n\n The assessee company filed a civil suit for ejecting the\nrailways from the encroached area but it failed in the suit."
}
},
{
"from_name": "label",
"id": "0f7e90a56f434c07ae5c9aaf47676858",
"to_name": "text",
"type": "labels",
"value": {
"end": 2841,
"labels": [
"PREAMBLE"
],
"start": 2350,
"text": "\n314\n\n As the assessee company on research and survey found\n\n\nthat under the railway area a high quality of gypsum was\navailable, which was required as raw material by the Public\nSector Company, all the parties (Public Sector Company, the\nRailway Board and the assessee company) negotiated the\nmatter, the Railway Board agreeing to shift the railway\nstation, track and yards to an alternative area offered by\nthe assessee, the parties equally bearing the cost of the\nshifting.\n\n "
}
},
{
"from_name": "label",
"id": "382b032ada9148c3924a25fa37124e02",
"to_name": "text",
"type": "labels",
"value": {
"end": 3080,
"labels": [
"PREAMBLE"
],
"start": 2841,
"text": "Under the aforesaid agreement, the assessee company paid\na sum of Rs.3 lakhs as its share towards the cost of shift-\ning of the Railway Station and other constructions, and\nclaimed deduction of the said sum for the assessment year\n1964-65."
}
},
{
"from_name": "label",
"id": "6f0a73363b354331bd48e8e47b166920",
"to_name": "text",
"type": "labels",
"value": {
"end": 3182,
"labels": [
"PREAMBLE"
],
"start": 3081,
"text": "The Income Tax Officer rejected the assessee's\nclaim on the ground that it was a capital expenditure."
}
},
{
"from_name": "label",
"id": "292fee7bf2d24716bd67203d1e0c7668",
"to_name": "text",
"type": "labels",
"value": {
"end": 3257,
"labels": [
"PREAMBLE"
],
"start": 3183,
"text": "The\norder was confirmed on appeal by the Appellate Assistant\nCommissioner."
}
},
{
"from_name": "label",
"id": "a8b5f6907a3742288acab0daaaf01210",
"to_name": "text",
"type": "labels",
"value": {
"end": 3446,
"labels": [
"PREAMBLE"
],
"start": 3257,
"text": "\n\n On appeal by the assessee, the Income Tax Appellate\nTribunal held that the payment of Rs.3 lakhs by the assessee\ncompany was not a capital expenditure, but a revenue expend-\niture."
}
},
{
"from_name": "label",
"id": "8760789e2edc4bf2bd12224edd517a84",
"to_name": "text",
"type": "labels",
"value": {
"end": 3824,
"labels": [
"PREAMBLE"
],
"start": 3447,
"text": "The Tribunal referred the question to the High Court\nunder section 256 of the Income Tax Act, 1961, on an appli-\ncation by the revenue, which held that since on payment of\nRs.3 lakhs to the Railways the assessee acquired a new asset\nwhich was attributable to capital of enduring nature, the\nsum of Rs.3 lakhs was a capital expenditure and it could not\nbe a revenue expenditure."
}
},
{
"from_name": "label",
"id": "1172236c48f844519770f519c1448abd",
"to_name": "text",
"type": "labels",
"value": {
"end": 4023,
"labels": [
"PREAMBLE"
],
"start": 3824,
"text": "\n\n In the appeal to this Court on the question whether the\npayment of Rs.3 lakhs to the Northern Railway was a revenue\nexpenditure and was a deduction allowable under the Income\nTax Act, 1961.\n"
}
},
{
"from_name": "label",
"id": "feda33cbbb5b49c299d27dd493c6860a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4363,
"labels": [
"PREAMBLE"
],
"start": 4023,
"text": "Allowing the appeal, this Court,\n\n HELD: 1(a) Where the assessee has an existing right to\ncarry on a business, any expenditure made by it during the\ncourse of business for the purpose of removal of any re-\nstriction or obstruction or disability would be on revenue\naccount, provided the expenditure does not acquire any\ncapital asset."
}
},
{
"from_name": "label",
"id": "50639ca32b43473b9e823ad4613fe5ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 4558,
"labels": [
"PREAMBLE"
],
"start": 4364,
"text": "[326A]\n\n (b) Payments made for removal of restriction, obstruc-\ntion or disability may result in acquiring benefits to the\nbusiness, but that by itself would not acquire any capital\nasset."
}
},
{
"from_name": "label",
"id": "1d09e31bbdb949f2be65795461856742",
"to_name": "text",
"type": "labels",
"value": {
"end": 4875,
"labels": [
"PREAMBLE"
],
"start": 4559,
"text": "[326B]\n\n Gotan Lime Syndicate v. C.I.T., Rajasthan & Delhi,\n[1966] 59 ITR 718; M.A. Jabbar v. C.I.T., Andhra Pradesh,\nHyderabad, [1968]\n315\n2 SCR 413 and Commissioner of Inland Revenue v. Carron\nCompany, [1966-69] 45 Tax Cases 18, referred.\nEmpire Jute Company v. C. I. T., [1980] 124 ITR 1, affirmed.\n\n "
}
},
{
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"id": "c009beabeadb45959fc31ffbe444fbcc",
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"value": {
"end": 5150,
"labels": [
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],
"start": 4875,
"text": "In the instant case, the assessee have been granted\nmining lease in respect of 4.27 square miles under which he\nhad right to sink, dig, drive, quarry and extract mineral\ni.e. the gypsum and in that process he had right to dig the\nsurface of the entire area leased out to him."
}
},
{
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"type": "labels",
"value": {
"end": 5405,
"labels": [
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],
"start": 5151,
"text": "The payment of\nRs.3 lakhs was not made by the assessee for the grant of\npermission to carry on mining operations within the railway\narea, instead the payment was made towards the cost of\nremoving the construction which obstructed the mining opera-\ntions."
}
},
{
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"id": "166ae2b8f1d64b118bbb619842d53541",
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"value": {
"end": 5719,
"labels": [
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],
"start": 5406,
"text": "On the payment made to the Railway Authorities the\nassessee did not acquire any fresh right to any mineral nor\nhe acquired any capital asset instead, the payment was made\nby it for shifting the Railway Station and track which\noperated as hindrance and obstruction to the business of\nmining in a profitable manner."
}
},
{
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"end": 5727,
"labels": [
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],
"start": 5720,
"text": "[326C-E"
}
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"end": 5739,
"labels": [
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],
"start": 5727,
"text": "]\n\n 2."
}
},
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"to_name": "text",
"type": "labels",
"value": {
"end": 5889,
"labels": [
"PREAMBLE"
],
"start": 5740,
"text": "There may be circumstances where expenditure, even if\nincurred for obtaining advantage of enduring benefit would\n\nnot amount to acquisition of asset."
}
},
{
"from_name": "label",
"id": "0458093ae8694c42b7d344d29c6a341b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6075,
"labels": [
"PREAMBLE"
],
"start": 5890,
"text": "The facts of each case\nhave to be borne in mind in considering the question having\nregard to the nature of business, its requirement and the\nnature of the advantage in commercial sense."
}
},
{
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"id": "c546ac064c1b4333b02bcfd79c4ebd19",
"to_name": "text",
"type": "labels",
"value": {
"end": 6093,
"labels": [
"PREAMBLE"
],
"start": 6076,
"text": "[326F-G]\n\n "
}
},
{
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"id": "33cfdd35e73742ada9e79de420f80123",
"to_name": "text",
"type": "labels",
"value": {
"end": 6278,
"labels": [
"PREAMBLE"
],
"start": 6093,
"text": "3(a) The test for considering the expenditure for the\npurposes of bringing into existence an asset or an advantage\nfor the enduring benefit of a trade is not always true and\nconclusive."
}
},
{
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"id": "c65d639f018542cd90afc919975e52dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 6502,
"labels": [
"PREAMBLE"
],
"start": 6279,
"text": "[327B]\n\n 3(b) In considering the cases of mining business the\nnature of the lease the purpose for which expenditure is\nmade, its relation to the carrying on of the business in a\nprofitable manner should be considered."
}
},
{
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"id": "e1b2459f4dcc47dea71df52df51129f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 6687,
"labels": [
"PREAMBLE"
],
"start": 6503,
"text": "[326H]\n\n In the instant case, existence of Railway Station, yard\nand buildings on the surface of the demised land operated as\nan obstruction to the assessee's business of mining."
}
},
{
"from_name": "label",
"id": "445431c4d3994bd1b3b42700145e1b63",
"to_name": "text",
"type": "labels",
"value": {
"end": 6890,
"labels": [
"PREAMBLE"
],
"start": 6688,
"text": "The\nRailway Authorities agreed to shift the Railway establish-\nment to facilitate the assessee to carry on his business in\na profitable manner and for that purpose the assessee paid a\nsum of Rs.3 lakhs."
}
},
{
"from_name": "label",
"id": "8a3136733d6c4ace9f1617972a3ed158",
"to_name": "text",
"type": "labels",
"value": {
"end": 7039,
"labels": [
"PREAMBLE"
],
"start": 6891,
"text": "The payment made by the assessee was for\nremoval of disability and obstacle and it did not bring into\nexistence any advantage of an enduring nature."
}
},
{
"from_name": "label",
"id": "f7ca7db03f7b43e89714c2f54d63d2eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7060,
"labels": [
"PREAMBLE"
],
"start": 7040,
"text": "There was\ntherefore."
}
},
{
"from_name": "label",
"id": "538daea85ec84e579cc278bc994897bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7097,
"labels": [
"PREAMBLE"
],
"start": 7061,
"text": "no acquisition of any capital asset."
}
},
{
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"id": "db87d93581104d85943534b94dbbd40d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7152,
"labels": [
"PREAMBLE"
],
"start": 7098,
"text": "[326H; 327A]\n316\n\n British Insulated and Helsby."
}
},
{
"from_name": "label",
"id": "3a565d6a67094cf0a27f8cd11e7b1231",
"to_name": "text",
"type": "labels",
"value": {
"end": 7319,
"labels": [
"PREAMBLE"
],
"start": 7153,
"text": "Cables Ltd. v. Atherton,\n[1926] AC 205, explained.\n\n Assam Bengal Cement Co. Ltd. v. The Commissioner of\nIncome Tax, West Bengal, [1955] 1 SCR 972, referred to."
}
},
{
"from_name": "label",
"id": "796dfd53ae5c44b98c9e3f672d395346",
"to_name": "text",
"type": "labels",
"value": {
"end": 7445,
"labels": [
"PREAMBLE"
],
"start": 7328,
"text": "R.B. Seth Moolchand Suganchand v. Commissioner of Income\nTax, New Delhi, [1972] 86 ITR 647, distinguished.\n\n 4."
}
},
{
"from_name": "label",
"id": "2b764e8d50dc4ad183facd3bb920b467",
"to_name": "text",
"type": "labels",
"value": {
"end": 7510,
"labels": [
"PREAMBLE"
],
"start": 7446,
"text": "The Tribunal rightly allowed the expenditure on\nrevenue account."
}
},
{
"from_name": "label",
"id": "eabe1b2bebb34fb5bfe488a927703899",
"to_name": "text",
"type": "labels",
"value": {
"end": 7582,
"labels": [
"PREAMBLE"
],
"start": 7511,
"text": "The High Court failed to appreciate the\ntrue nature of the expenditure."
}
},
{
"from_name": "label",
"id": "6b41889b061249f1846ebc61666430ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 7684,
"labels": [
"PREAMBLE"
],
"start": 7583,
"text": "It committed an error in\ninterfering with the findings recorded by the Income Tax\nAppellate Tribunal."
}
},
{
"from_name": "label",
"id": "df07a32879314f92a883c0cea214adff",
"to_name": "text",
"type": "labels",
"value": {
"end": 7740,
"labels": [
"NONE"
],
"start": 7685,
"text": "[327B-C]\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION:"
}
},
{
"from_name": "label",
"id": "a0c5caf68e3844199294c35cb52ad47a",
"to_name": "text",
"type": "labels",
"value": {
"end": 7775,
"labels": [
"NONE"
],
"start": 7741,
"text": "Civil Appeal No. 262 (NC) of 1976."
}
},
{
"from_name": "label",
"id": "8f3a8606dfa746fda4b7c7b89e8f5da9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7891,
"labels": [
"NONE"
],
"start": 7783,
"text": "From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969."
}
},
{
"from_name": "label",
"id": "e2a461d51a2947d09006cd089acd9e7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7964,
"labels": [
"FAC"
],
"start": 7891,
"text": "\n Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant."
}
},
{
"from_name": "label",
"id": "c69c89b89db549b691e9586f2f16258f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8065,
"labels": [
"FAC"
],
"start": 7964,
"text": "\n O.P. Vaish, S. Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents."
}
},
{
"from_name": "label",
"id": "9499b4046ef1416ebd73f3fce85fd48d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8118,
"labels": [
"FAC"
],
"start": 8065,
"text": "\nThe Judgment of the Court was delivered by SINGH, J."
}
},
{
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"id": "fa0910eab3154004a338cb2730f384e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 8363,
"labels": [
"FAC"
],
"start": 8119,
"text": "This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee."
}
},
{
"from_name": "label",
"id": "356eff2e31894bc2a8e86abccc75b45f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8648,
"labels": [
"FAC"
],
"start": 8364,
"text": "The question referred to the High Court was as under: \"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act."
}
},
{
"from_name": "label",
"id": "fb6c0845b4e04ec481e1e53647f50704",
"to_name": "text",
"type": "labels",
"value": {
"end": 8655,
"labels": [
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],
"start": 8649,
"text": "1961?\""
}
},
{
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"id": "57babf3afe814ce8bad47f89e4d8d298",
"to_name": "text",
"type": "labels",
"value": {
"end": 8741,
"labels": [
"FAC"
],
"start": 8656,
"text": "The circumstances leading to the reference and the appeal was necessary to be stated."
}
},
{
"from_name": "label",
"id": "1eb5373465c748ffaae54ac77e780a25",
"to_name": "text",
"type": "labels",
"value": {
"end": 8996,
"labels": [
"FAC"
],
"start": 8742,
"text": "The Natural Science (India) Ltd.\npredecessor-ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar."
}
},
{
"from_name": "label",
"id": "ea831b0ea85747d29eaeeb97525253a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9059,
"labels": [
"FAC"
],
"start": 8997,
"text": "The lease was liable to be renewed after expiring of 20 years."
}
},
{
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"id": "40ec31e912da428e8d90bfe29e02a69d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9271,
"labels": [
"FAC"
],
"start": 9060,
"text": "The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa- ny wherein the State Government owned 45 per cent share."
}
},
{
"from_name": "label",
"id": "a2cd8f4500784d7d9f5ba98281bd5039",
"to_name": "text",
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"value": {
"end": 9445,
"labels": [
"FAC"
],
"start": 9272,
"text": "The Bikaner Gypsums Ltd. (hereinafter referred to as the asses- see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease."
}
},
{
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"id": "aa32825b8ce74a61adf34340309bbd50",
"to_name": "text",
"type": "labels",
"value": {
"end": 9614,
"labels": [
"FAC"
],
"start": 9446,
"text": "The asses- see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality."
}
},
{
"from_name": "label",
"id": "d83fd054825947dab72adc2b0d2cb9b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 9931,
"labels": [
"FAC"
],
"start": 9615,
"text": "Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc- esses."
}
},
{
"from_name": "label",
"id": "bee929c74e51455fb9be9393e44f15f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10325,
"labels": [
"FAC"
],
"start": 9932,
"text": "Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in- clines, drifts, tunnels, trenches, levels, water-ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral.\n"
}
},
{
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"id": "93cbee7016f847efb869ff7816f3f5db",
"to_name": "text",
"type": "labels",
"value": {
"end": 10514,
"labels": [
"FAC"
],
"start": 10325,
"text": "Clause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc."
}
},
{
"from_name": "label",
"id": "4deacc8e0e07416a88df31fd123d01c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10611,
"labels": [
"FAC"
],
"start": 10515,
"text": "Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways."
}
},
{
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"id": "3d32ea7b337843cd902a81cef4b3a846",
"to_name": "text",
"type": "labels",
"value": {
"end": 10913,
"labels": [
"FAC"
],
"start": 10612,
"text": "Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers."
}
},
{
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"id": "725e839169984dc3b32b5c05ee35fe1d",
"to_name": "text",
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"value": {
"end": 11125,
"labels": [
"FAC"
],
"start": 10914,
"text": "Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards."
}
},
{
"from_name": "label",
"id": "12cb4f468a0349bba156267c21796ed2",
"to_name": "text",
"type": "labels",
"value": {
"end": 11531,
"labels": [
"FAC"
],
"start": 11126,
"text": "Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee's cost."
}
},
{
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"id": "09eccb9c9ec645cea96778ed8d096a6d",
"to_name": "text",
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"value": {
"end": 11768,
"labels": [
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],
"start": 11532,
"text": "Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac- turing, converting and making merchantable."
}
},
{
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"id": "1d691dfe267741abb1ef8174daab9136",
"to_name": "text",
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"value": {
"end": 11933,
"labels": [
"FAC"
],
"start": 11768,
"text": "\n318 Part III of the lease contained restrictions and condi- tions to the exercise of the liberties and powers and privi- leges as contained in Part II of the lease."
}
},
{
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"id": "a04d7ef873d3404dbe19ec9cdcdaa21f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12141,
"labels": [
"FAC"
],
"start": 11934,
"text": "Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier."
}
},
{
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"id": "0888f9afca074973aa38469856a0b19a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12270,
"labels": [
"FAC"
],
"start": 12142,
"text": "Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser- voir, canal or other public works."
}
},
{
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"id": "5f7bbec5d8fd4a5da7f0d0e7e672a3af",
"to_name": "text",
"type": "labels",
"value": {
"end": 12867,
"labels": [
"FAC"
],
"start": 12271,
"text": "It reads as under: \"Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ- ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in- structions, restrictions and conditions either general or special which may be attached to such permission."
}
},
{
"from_name": "label",
"id": "df6ef4992613414da9c6481f598ba06d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13120,
"labels": [
"FAC"
],
"start": 12868,
"text": "The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof.\""
}
},
{
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"id": "dcae215e698b4429a152d6560cecfb7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13278,
"labels": [
"FAC"
],
"start": 13120,
"text": "\nThe above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee."
}
},
{
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"id": "7febb5aa698341f99d93b61a8f1717c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 13955,
"labels": [
"FAC"
],
"start": 13279,
"text": "Clause 5 of Part VIII of the agreement stated as under: \"Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir- dar' 'Pattedar', 'Talukdar', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such \"Jagir- dar\", 'Pattedar', 'Talukdar', tenant or other person claim- ing to have any underground or mineral rights shall be paid by the Government.\""
}
},
{
"from_name": "label",
"id": "a632ad4c98ed4e4db4fe900d468f64d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14058,
"labels": [
"FAC"
],
"start": 13955,
"text": "\nThe assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it."
}
},
{
"from_name": "label",
"id": "75455061744843728b199c1948b9b1f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 14168,
"labels": [
"FAC"
],
"start": 14059,
"text": "The Railway author- ities extended the railway area by laying down fresh track, providing for railway siding."
}
},
{
"from_name": "label",
"id": "c88ec40ee92d452d9515f576f88fb055",
"to_name": "text",
"type": "labels",
"value": {
"end": 14278,
"labels": [
"FAC"
],
"start": 14169,
"text": "The Railways further con- structed quarters in the lease area without the permission of the assessee company."
}
},
{
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"id": "8b304708db9d4beaa22412ee9284b693",
"to_name": "text",
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"value": {
"end": 14404,
"labels": [
"FAC"
],
"start": 14279,
"text": "The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit."
}
},
{
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"id": "cf1c428a70fc4e0eb98fdba6779867d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14741,
"labels": [
"FAC"
],
"start": 14405,
"text": "The assessee company, there- upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses- see to carry out the mining operation under the land occu- pied by the Railways (hereinafter referred to as the 'Rail- way Area')."
}
},
{
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"id": "61bc4ef1e25d4e7da1bdbbd0687ff438",
"to_name": "text",
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"value": {
"end": 14928,
"labels": [
"FAC"
],
"start": 14742,
"text": "Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers."
}
},
{
"from_name": "label",
"id": "c30a73bbc2214750a7b6fa961eb93c0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15199,
"labels": [
"FAC"
],
"start": 14929,
"text": "All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee."
}
},
{
"from_name": "label",
"id": "6b30b465095e4fe591820040c454067b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15631,
"labels": [
"FAC"
],
"start": 15200,
"text": "Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern- ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in- curred by the Railways in shifting the railway station, yards and the quarters."
}
},
{
"from_name": "label",
"id": "29a036c73a9d4fa7b69cd4e19f6185f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15818,
"labels": [
"FAC"
],
"start": 15632,
"text": "Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions."
}
},
{
"from_name": "label",
"id": "8d1bc3c21add4210a713aa35fe4903ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 15965,
"labels": [
"FAC"
],
"start": 15819,
"text": "In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land."
}
},
{
"from_name": "label",
"id": "c64bd7d7dadd441c917980cf891363af",
"to_name": "text",
"type": "labels",
"value": {
"end": 16177,
"labels": [
"FAC"
],
"start": 15966,
"text": "On the shifting of the Railway track and Sta- tion the assessee carried out mining in the erstwhile Rail- way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers."
}
},
{
"from_name": "label",
"id": "e88f82e130fc400fb83d7939cc696622",
"to_name": "text",
"type": "labels",
"value": {
"end": 16333,
"labels": [
"FAC"
],
"start": 16179,
"text": "The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964-65."
}
},
{
"from_name": "label",
"id": "9f7f997f50d84658b093e852b0a75070",
"to_name": "text",
"type": "labels",
"value": {
"end": 16435,
"labels": [
"FAC"
],
"start": 16334,
"text": "The Income-Tax Officer rejected the assessee's claim on the ground that it was a capital expenditure."
}
},
{
"from_name": "label",
"id": "5a66f4bd41bf48a0b4784e7cfeb73aae",
"to_name": "text",
"type": "labels",
"value": {
"end": 16546,
"labels": [
"FAC"
],
"start": 16436,
"text": "On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income-Tax Officer."
}
},
{
"from_name": "label",
"id": "fe685640301646a3a2d51c28ac0c01b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 16743,
"labels": [
"FAC"
],
"start": 16547,
"text": "On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure."
}
},
{
"from_name": "label",
"id": "c19695055c5e465e9c24a02edaf3c982",
"to_name": "text",
"type": "labels",
"value": {
"end": 16957,
"labels": [
"FAC"
],
"start": 16744,
"text": "On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf- ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under s. 256 of the Income Tax Act, 1961."
}
},
{
"from_name": "label",
"id": "b526ab4e6d0b4636afda5e30124e4db0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17212,
"labels": [
"RLC"
],
"start": 16958,
"text": "The High Court held that since on payment of Rs.3 lakhs to the Rail- way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi- ture."
}
},
{
"from_name": "label",
"id": "845dbcb4f7b14041bcdefd70c2eaf633",
"to_name": "text",
"type": "labels",
"value": {
"end": 17399,
"labels": [
"RLC"
],
"start": 17213,
"text": "On these findings the High Court answered the question in the negative in favour of the Revenue against the asses- see and it set aside the order of the Tribunal by the im- pugned order."
}
},
{
"from_name": "label",
"id": "41a06a9ee87c4bf4a692b1c074ce27c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 17656,
"labels": [
"ARG_PETITIONER"
],
"start": 17401,
"text": "Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised."
}
},
{
"from_name": "label",
"id": "3901c36b1adb4d4f9b30f1b81e637165",
"to_name": "text",
"type": "labels",
"value": {
"end": 17673,
"labels": [
"ARG_PETITIONER"
],
"start": 17657,
"text": "to the assessee."
}
},
{
"from_name": "label",
"id": "3c8edebf404f40e99697ab16e726f29a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17882,
"labels": [
"ARG_PETITIONER"
],
"start": 17674,
"text": "Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount-of Rs.3 lakhs for removal of the same with a view to carry on its business profitably."
}
},
{
"from_name": "label",
"id": "ce1bf813966345eb9ded7f86adbc3b75",
"to_name": "text",
"type": "labels",
"value": {
"end": 18036,
"labels": [
"ARG_PETITIONER"
],
"start": 17883,
"text": "The assessee did not acquire any new asset, instead, it merely spent money in removing the ob- struction to facilitate the mining in a profitable manner."
}
},
{
"from_name": "label",
"id": "0158d30a87014cb0bb773da81550ab6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18250,
"labels": [
"ARG_RESPONDENT"
],
"start": 18036,
"text": "\nOn the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways."
}
},
{
"from_name": "label",
"id": "e6c4100eea5c4f6ca14cb2ed40757f5b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18351,
"labels": [
"ARG_RESPONDENT"
],
"start": 18251,
"text": "The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it."
}
},
{
"from_name": "label",
"id": "69d5fa97b53541949300c09fd0c520b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 18381,
"labels": [
"ARG_RESPONDENT"
],
"start": 18352,
"text": "It was a capital expenditure."
}
},
{
"from_name": "label",
"id": "1833bebcd298410baa0959af12078a3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 18465,
"labels": [
"NONE"
],
"start": 18382,
"text": "Both the counsel referred to a number of decisions in support of their submissions."
}
},
{
"from_name": "label",
"id": "f46a11c84d4248ffb17fc152446d5696",
"to_name": "text",
"type": "labels",
"value": {
"end": 18646,
"labels": [
"ANALYSIS"
],
"start": 18465,
"text": "\n The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts."
}
},
{
"from_name": "label",
"id": "c1b2ce48071549ef8f6cb786afada097",
"to_name": "text",
"type": "labels",
"value": {
"end": 18786,
"labels": [
"ANALYSIS"
],
"start": 18647,
"text": "There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi- tal from revenue expenditure."
}
},
{
"from_name": "label",
"id": "a22c124d16484530844937b5e2b5ba6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 18966,
"labels": [
"ANALYSIS"
],
"start": 18787,
"text": "But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances."
}
},
{
"from_name": "label",
"id": "880e90e8bc514bb38fc0e04aeec4b036",
"to_name": "text",
"type": "labels",
"value": {
"end": 19132,
"labels": [
"ANALYSIS"
],
"start": 18967,
"text": "Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions."
}
},
{
"from_name": "label",
"id": "a21ac4fbb29b48afb5bd12ca8234d11e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19310,
"labels": [
"ANALYSIS"
],
"start": 19133,
"text": "However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter- mining the question."
}
},
{
"from_name": "label",
"id": "7fa224e75fc84d47866a27b8023d6eae",
"to_name": "text",
"type": "labels",
"value": {
"end": 19597,
"labels": [
"ANALYSIS"
],
"start": 19311,
"text": "In Assam Bengal Cement Co. Ltd. v. The Commissioner of Income Tax, West Bengal, [1955] 1 SCR 972,'this Court observed that in the great diversity of human affairs and the complicated nature of business opera- tion, it is difficult to lay down a test which would apply to all situations."
}
},
{
"from_name": "label",
"id": "d872c390f7d4493ba169ecc4b11a1e3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19866,
"labels": [
"ANALYSIS"
],
"start": 19598,
"text": "One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci- ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure."
}
},
{
"from_name": "label",
"id": "99d4597a09a64aa6b93a9fb522d735e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 19947,
"labels": [
"ANALYSIS"
],
"start": 19867,
"text": "The Court laid down a simple test for determining the nature of the expenditure."
}
},
{
"from_name": "label",
"id": "529ba2b0b18945288e6316c94f9afd0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 20174,
"labels": [
"ANALYSIS"
],
"start": 19948,
"text": "It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene- fit of the business it is properly attributable to capital and is of the nature of capital expenditure."
}
},
{
"from_name": "label",
"id": "47acfdf6c8d4465bb0633629727bce9a",
"to_name": "text",
"type": "labels",
"value": {
"end": 20392,
"labels": [
"ANALYSIS"
],
"start": 20175,
"text": "If on the other hand it is made not for the purpose of bringing into exist- ence any such asset or advantage but for running the busi- ness or working it with a view to produce the profits it is a revenue expenditure."
}
},
{
"from_name": "label",
"id": "f7f3ed6507504c239f8a721e2ed1315c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20684,
"labels": [
"ANALYSIS"
],
"start": 20393,
"text": "If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically."
}
},
{
"from_name": "label",
"id": "08be9a56b4e4403e991372106558d977",
"to_name": "text",
"type": "labels",
"value": {
"end": 20834,
"labels": [
"ANALYSIS"
],
"start": 20685,
"text": "The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.\""
}
},
{
"from_name": "label",
"id": "95f0722106704524be01bf27a680b3c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 21181,
"labels": [
"ANALYSIS"
],
"start": 20836,
"text": "In K.T.M.T.M. Abdul Kayoom and Another v. Commissioner of Income Tax, [1962] 44 ITR 589, this Court after consider- ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect."
}
},
{
"from_name": "label",
"id": "a2de81ec17374473ad64d7382bd082d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 21467,
"labels": [
"ANALYSIS"
],
"start": 21182,
"text": "The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases."
}
},
{
"from_name": "label",
"id": "0e2b58c76fc34ccf82a8dce683d2fd42",
"to_name": "text",
"type": "labels",
"value": {
"end": 21765,
"labels": [
"ANALYSIS"
],
"start": 21468,
"text": "In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years."
}
},
{
"from_name": "label",
"id": "a7ad6bf52c514dc6a490cc6bc1fafec4",
"to_name": "text",
"type": "labels",
"value": {
"end": 22032,
"labels": [
"ANALYSIS"
],
"start": 21766,
"text": "The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin-trade."
}
},
{
"from_name": "label",
"id": "6d698e193984422eac95cca4db7a5b46",
"to_name": "text",
"type": "labels",
"value": {
"end": 22087,
"labels": [
"ANALYSIS"
],
"start": 22033,
"text": "It was, therefore, an expenditure of a capital nature."
}
},
{
"from_name": "label",
"id": "6f951d139afc43deb16a7481ac68eeb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22368,
"labels": [
"ANALYSIS"
],
"start": 22087,
"text": "\n In Bombay Steam Navigation Co. Pvt. Ltd. v. Commissioner of Income Tax, Bombay, [1965] 1 SCR 770, the assessee pur- chased. the 321 assets of another Company for purposes of carrying on pas- senger and ferry services, it paid part of the consideration leaving the balance unpaid."
}
},
{
"from_name": "label",
"id": "51f7f118a27545509a39958ab8080c2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22461,
"labels": [
"ANALYSIS"
],
"start": 22369,
"text": "Under the agreement of sale the assessee-had to pay interest on the unpaid balance of money."
}
},
{
"from_name": "label",
"id": "22988544d32648a5ae05d693cdc29d01",
"to_name": "text",
"type": "labels",
"value": {
"end": 22577,
"labels": [
"ANALYSIS"
],
"start": 22461,
"text": "\nThe assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income."
}
},
{
"from_name": "label",
"id": "fe6c54d4d4f04109976f37cc63c55372",
"to_name": "text",
"type": "labels",
"value": {
"end": 22686,
"labels": [
"ANALYSIS"
],
"start": 22577,
"text": "\nThe court held that the claim for deduction of amount of interest as revenue expenditure was not admissible."
}
},
{
"from_name": "label",
"id": "50a8bb22e9fa4fdeb764d32c6743b36b",
"to_name": "text",
"type": "labels",
"value": {
"end": 22871,
"labels": [
"ANALYSIS"
],
"start": 22687,
"text": "The Court observed that while considering the question the Court. should con-.. sider the nature and ordinary course of business and the object for which the expenditure is in- curred."
}
},
{
"from_name": "label",
"id": "651708852a514ee9b6af038c67b3b308",
"to_name": "text",
"type": "labels",
"value": {
"end": 23244,
"labels": [
"ANALYSIS"
],
"start": 22872,
"text": "If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-earning process and not for acquisition of an asset or a right of a perma- nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure."
}
},
{
"from_name": "label",
"id": "d2de254fe4894cfbaafebec971116afd",
"to_name": "text",
"type": "labels",
"value": {
"end": 23506,
"labels": [
"ANALYSIS"
],
"start": 23245,
"text": "But, on the facts of the case, the Court held that the assessee's claim was not admissible, as the expenditure was related to the acquisi- tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi- ness."
}
},
{
"from_name": "label",
"id": "23fb4fcc85f24447beb2fd6c35ba8446",
"to_name": "text",
"type": "labels",
"value": {
"end": 23700,
"labels": [
"PRE_NOT_RELIED"
],
"start": 23506,
"text": "\n The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand v. Commissioner of Income Tax, New Delhi, [1972] 86 ITR 647, in rejecting the assessee's contention."
}
},
{
"from_name": "label",
"id": "1d6d6e2bde9a4224bd4f01269ac54f01",
"to_name": "text",
"type": "labels",
"value": {
"end": 23884,
"labels": [
"PRE_NOT_RELIED"
],
"start": 23701,
"text": "In Suganchand's case the assessee was carrying on a mining business, he had paid a sum of Rs.\n1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years."
}
},
{
"from_name": "label",
"id": "5f33b12bd0814a9faf397973fdb10e2d",
"to_name": "text",
"type": "labels",
"value": {
"end": 23951,
"labels": [
"PRE_NOT_RELIED"
],
"start": 23885,
"text": "Those areas had already been worked for 15 years by other lessees."
}
},
{
"from_name": "label",
"id": "6145ae393953417687b52f7407aea04a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24066,
"labels": [
"PRE_NOT_RELIED"
],
"start": 23952,
"text": "The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year."
}
},
{
"from_name": "label",
"id": "b2c2b8d871764ba88e1020e941a16e64",
"to_name": "text",
"type": "labels",
"value": {
"end": 24157,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24067,
"text": "In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold."
}
},
{
"from_name": "label",
"id": "e9ef11d6751c4ffaa846e0e94ee2ef6c",
"to_name": "text",
"type": "labels",
"value": {
"end": 24290,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24158,
"text": "The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure."
}
},
{
"from_name": "label",
"id": "11c37b20fabb4d72ab63a5beb1eea7a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 24426,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24291,
"text": "The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow-able as revenue expenditure."
}
},
{
"from_name": "label",
"id": "1172ccbe7dfc4fce859c431d3226cd67",
"to_name": "text",
"type": "labels",
"value": {
"end": 24704,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24427,
"text": "The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature."
}
},
{
"from_name": "label",
"id": "0fb30219f5474324872c58862476f274",
"to_name": "text",
"type": "labels",
"value": {
"end": 24888,
"labels": [
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],
"start": 24705,
"text": "But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure."
}
},
{
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"id": "3696bcceaa05498e9a397bcb161beb30",
"to_name": "text",
"type": "labels",
"value": {
"end": 25036,
"labels": [
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],
"start": 24889,
"text": "The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure."
}
},
{
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"id": "0ea923a83e6a405ea534ca63bcf1a028",
"to_name": "text",
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"value": {
"end": 25311,
"labels": [
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],
"start": 25037,
"text": "As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business."
}
},
{
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"id": "f5150ce0b8774fda88767bf4d82000a7",
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"end": 25639,
"labels": [
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],
"start": 25312,
"text": "The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business."
}
},
{
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"id": "50c791aa48fc4d92bc13f839f7881422",
"to_name": "text",
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"value": {
"end": 25718,
"labels": [
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],
"start": 25640,
"text": "The facts involved in that case are totally dif- ferent from the instant case."
}
},
{
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"end": 26068,
"labels": [
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],
"start": 25719,
"text": "The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct- ed the carrying of the business of mining within a particu- lar area in respect of which the assessee had already ac- quired mining rights."
}
},
{
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"end": 26331,
"labels": [
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],
"start": 26069,
"text": "The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir- ing any right, instead the payment was made to remove ob- struction to facilitate the business of mining."
}
},
{
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"id": "e9ff84c3b9bb4e4a8bf266cf235e43ef",
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"value": {
"end": 26413,
"labels": [
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],
"start": 26332,
"text": "The princi- ples laid down in Suganchand's case do not apply to the instant case."
}
},
{
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"id": "3b887fc9ad814fe88376ffc964a1a75c",
"to_name": "text",
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"value": {
"end": 26556,
"labels": [
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],
"start": 26413,
"text": "\n In British Insulated and Helsby Cables Ltd. v. Atherton, [1926] AC 205, Lord Cave laid down a test which has almost universely been accepted."
}
},
{
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"id": "8aed737da070409aa6b52143afd922c1",
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"end": 26949,
"labels": [
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],
"start": 26557,
"text": "Lord Cave observed: \"... when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum- stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital.\""
}
},
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"value": {
"end": 27153,
"labels": [
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],
"start": 26950,
"text": "This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court."
}
},
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"end": 27599,
"labels": [
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],
"start": 27154,
"text": "But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion."
}
},
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"id": "7760235386a249ce8b07e00833ef8d89",
"to_name": "text",
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"value": {
"end": 27831,
"labels": [
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],
"start": 27600,
"text": "Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum- stances might very well lead to an opposite conclusion."
}
},
{
"from_name": "label",
"id": "352d39d71aa6455fa986dae4feaea6f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 28067,
"labels": [
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],
"start": 27831,
"text": "\n In Gotan Lime Syndicate v. C. I. T., Rajasthan & Delhi, [1966] 59 ITR 7 18, the assessee which carried on the busi- ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease."
}
},
{
"from_name": "label",
"id": "7c07437d09b74c929e3847e3de5cf713",
"to_name": "text",
"type": "labels",
"value": {
"end": 28139,
"labels": [
"ANALYSIS"
],
"start": 28067,
"text": "\nUnder the lease the assessee had to pay royalty of Rs.96,000 per annum."
}
},
{
"from_name": "label",
"id": "b90add60df5f49b390df7aa493bedeca",
"to_name": "text",
"type": "labels",
"value": {
"end": 28229,
"labels": [
"ANALYSIS"
],
"start": 28140,
"text": "The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure."
}
},
{
"from_name": "label",
"id": "b0a0a94760a743caae21917bb9c1f2bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 28532,
"labels": [
"ANALYSIS"
],
"start": 28230,
"text": "This Court after considering its earlier decision in Abdul Kayoom's case (supra) and also the decision of Lord Cave in British Insu- lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted."
}
},
{
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"id": "d7eb1b8349214d238317b9de1ae76673",
"to_name": "text",
"type": "labels",
"value": {
"end": 28635,
"labels": [
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],
"start": 28533,
"text": "The Court observed that the royalty payment including the dead rent had relation to the lime deposits."
}
},
{
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"id": "273958dc63ac4838a1f07752e83f0eff",
"to_name": "text",
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"end": 28822,
"labels": [
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],
"start": 28636,
"text": "The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all."
}
},
{
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"id": "d99247d44ffb4137928fc74829576509",
"to_name": "text",
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"value": {
"end": 28918,
"labels": [
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],
"start": 28823,
"text": "No lump sum payment was ever settled, instead, only an annual royal- ty and dead rent was paid."
}
},
{
"from_name": "label",
"id": "ae16e9b4471347238ed623265c8195d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 29070,
"labels": [
"ANALYSIS"
],
"start": 28919,
"text": "The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained."
}
},
{
"from_name": "label",
"id": "bc017b4b15564d7db6af0a32936bde28",
"to_name": "text",
"type": "labels",
"value": {
"end": 29221,
"labels": [
"PRE_RELIED"
],
"start": 29070,
"text": "\nIn this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit."
}
},
{
"from_name": "label",
"id": "a73fb3a9ec684a92b0b58310a681c6dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 29492,
"labels": [
"PRE_RELIED"
],
"start": 29222,
"text": "In M.A. Jabbar v. C.I.T.\nAndhra Pradesh, Hyderabad, [1968] 2 SCR 413, the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months."
}
},
{
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"id": "19f1bd6870ef4e319615f5ce27e06dd1",
"to_name": "text",
"type": "labels",
"value": {
"end": 29637,
"labels": [
"PRE_RELIED"
],
"start": 29493,
"text": "Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land."
}
},
{
"from_name": "label",
"id": "f63629b1e67d42368d9b552914be7ae5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29758,
"labels": [
"PRE_RELIED"
],
"start": 29638,
"text": "The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money."
}
},
{
"from_name": "label",
"id": "616f02fb172a4a5a9ffe281c212d58be",
"to_name": "text",
"type": "labels",
"value": {
"end": 30127,
"labels": [
"PRE_RELIED"
],
"start": 29759,
"text": "The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena- bling the assessee to remove the sand lying on the surface of the land which was stock-in-trade of the business, there- fore, the expenditure was a revenue expenditure."
}
},
{
"from_name": "label",
"id": "221ad80f71c242f68207958dce6882a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 30315,
"labels": [
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],
"start": 30129,
"text": "Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid- ered by courts."
}
},
{
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"id": "a7a73e0a797e460290c15b3e24da1c05",
"to_name": "text",
"type": "labels",
"value": {
"end": 30513,
"labels": [
"PRE_RELIED"
],
"start": 30316,
"text": "In Commissioner of Inland Revenue v. Carron Company, [1966-69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor- 325 porated by a Charter granted to it in 1773."
}
},
{
"from_name": "label",
"id": "4bfa8147805544be9d28852e0cb33f10",
"to_name": "text",
"type": "labels",
"value": {
"end": 30684,
"labels": [
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],
"start": 30514,
"text": "By passage of time many of its features had become archaic and unsuited to modern conditions and the company's commercial performance was suffering a progressive decline."
}
},
{
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"id": "9f4e67f587f34dbbb3b4d81430899c23",
"to_name": "text",
"type": "labels",
"value": {
"end": 30829,
"labels": [
"PRE_RELIED"
],
"start": 30685,
"text": "The Charter of the company placed restriction on the company's borrowing powers and it placed restriction on voting rights of certain mem- bers."
}
},
{
"from_name": "label",
"id": "693698a38fd04def9a723588806ae417",
"to_name": "text",
"type": "labels",
"value": {
"end": 31079,
"labels": [
"PRE_RELIED"
],
"start": 30830,
"text": "The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa- ny's borrowing powers and restrictions on the issue and transfer of shares."
}
},
{
"from_name": "label",
"id": "b1e6cf172dc1406f97c6cdfa9a2133fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 31154,
"labels": [
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],
"start": 31080,
"text": "The company's petition was contested by dissenting share-holders in court."
}
},
{
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"id": "f01a36d8c11842c6affd66ff94e21c67",
"to_name": "text",
"type": "labels",
"value": {
"end": 31360,
"labels": [
"PRE_RELIED"
],
"start": 31155,
"text": "The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share- holders and in pursuance thereof a supplementary Charter was granted."
}
},
{
"from_name": "label",
"id": "2b190952f9ef4734b601074d0a27f21c",
"to_name": "text",
"type": "labels",
"value": {
"end": 31563,
"labels": [
"PRE_RELIED"
],
"start": 31361,
"text": "In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain- ing the Charter, the amounts paid to the dissenting share- holders and expensed in the action."
}
},
{
"from_name": "label",
"id": "d53e619cd4b84afab23f6aced177378b",
"to_name": "text",
"type": "labels",
"value": {
"end": 31642,
"labels": [
"PRE_RELIED"
],
"start": 31564,
"text": "The Special Commissioner held that the company was entitled to the deductions."
}
},
{
"from_name": "label",
"id": "371d7994ccd147c6ae92a4a31e3a88e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 31950,
"labels": [
"PRE_RELIED"
],
"start": 31643,
"text": "On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day-to-day trading operation of the company, the expenditure was on income account."
}
},
{
"from_name": "label",
"id": "f72a2217ba1d44debd39a8f8a8d3933c",
"to_name": "text",
"type": "labels",
"value": {
"end": 32213,
"labels": [
"PRE_RELIED"
],
"start": 31951,
"text": "The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation."
}
},
{
"from_name": "label",
"id": "cd0a5828180a4c0d94dc3d37a1093340",
"to_name": "text",
"type": "labels",
"value": {
"end": 32346,
"labels": [
"PRE_RELIED"
],
"start": 32214,
"text": "This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity."
}
},
{
"from_name": "label",
"id": "4c0801a6dc5341e9a64ad919f50757da",
"to_name": "text",
"type": "labels",
"value": {
"end": 32463,
"labels": [
"PRE_RELIED"
],
"start": 32347,
"text": "From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved."
}
},
{
"from_name": "label",
"id": "fb6f257d2ca14a1aa8aa9c7a54bae612",
"to_name": "text",
"type": "labels",
"value": {
"end": 32700,
"labels": [
"PRE_RELIED"
],
"start": 32464,
"text": "The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment."
}
},
{
"from_name": "label",
"id": "cd432ee0cc2e460dabb577bd00110424",
"to_name": "text",
"type": "labels",
"value": {
"end": 32906,
"labels": [
"PRE_RELIED"
],
"start": 32700,
"text": "\nSince, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi- ture was on revenue account."
}
},
{
"from_name": "label",
"id": "ee6f68646eb44fbc85a5bbce74f9a8f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 33165,
"labels": [
"PRE_RELIED"
],
"start": 32907,
"text": "In Empire Jute Company v. C.I.\nT, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure."
}
},
{
"from_name": "label",
"id": "570d8bda71c7484ca073fada61e98c0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 33548,
"labels": [
"PRE_RELIED"
],
"start": 33166,
"text": "The Court observed that if the advantage consists merely in facilitat- ing the assessee's trading operations of enabling the man- agement and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future."
}
},
{
"from_name": "label",
"id": "9fd40a28862643d883f0e717b78eb857",
"to_name": "text",
"type": "labels",
"value": {
"end": 33609,
"labels": [
"ANALYSIS"
],
"start": 33549,
"text": "We agree with the view taken in the aforesaid two decisions."
}
},
{
"from_name": "label",
"id": "29de72c84fce4ad59bf655acf624dde1",
"to_name": "text",
"type": "labels",
"value": {
"end": 33917,
"labels": [
"ANALYSIS"
],
"start": 33610,
"text": "In our opinion where the assessee has an existing right to carry on a business, any expendi- ture made by it during the course of business for the pur- pose of removal of any restriction or obstruction or disa- bility would be on revenue account, provided the expenditure does not acquire any capital asset."
}
},
{
"from_name": "label",
"id": "0649a8e92e4b402596fda62be633ebc6",
"to_name": "text",
"type": "labels",
"value": {
"end": 34093,
"labels": [
"ANALYSIS"
],
"start": 33918,
"text": "Payments made for remov- al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset."
}
},
{
"from_name": "label",
"id": "02808a2349234003aabf0e5f9cff16e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 34537,
"labels": [
"ANALYSIS"
],
"start": 34093,
"text": "\n In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner- als under the Railway Area."
}
},
{
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"id": "19a72336fb5a420e8c4597518e1263fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 34651,
"labels": [
"ANALYSIS"
],
"start": 34538,
"text": "The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature."
}
},
{
"from_name": "label",
"id": "1d5573a740f149d5a043ce76b7925a91",
"to_name": "text",
"type": "labels",
"value": {
"end": 34818,
"labels": [
"ANALYSIS"
],
"start": 34652,
"text": "The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee's right to the minerals found under the Railway Area."
}
},
{
"from_name": "label",
"id": "a7da7c4e2742498890db4aa0247f2b41",
"to_name": "text",
"type": "labels",
"value": {
"end": 34929,
"labels": [
"ANALYSIS"
],
"start": 34819,
"text": "The restriction operated as an obstacle to the assessee's right to carry on business in a profitable man- ner."
}
},
{
"from_name": "label",
"id": "ae5d4783209042e4827b90279d6f5836",
"to_name": "text",
"type": "labels",
"value": {
"end": 35145,
"labels": [
"ANALYSIS"
],
"start": 34930,
"text": "The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose."
}
},
{
"from_name": "label",
"id": "f98a631d1e0c43a79654bac8848d8403",
"to_name": "text",
"type": "labels",
"value": {
"end": 35206,
"labels": [
"RATIO"
],
"start": 35146,
"text": "There was, there- fore, no acquisition of any capital asset."
}
},
{
"from_name": "label",
"id": "503ebb8025f348daa83f7f6117a21b72",
"to_name": "text",
"type": "labels",
"value": {
"end": 35525,
"labels": [
"RATIO"
],
"start": 35207,
"text": "here is no dis- pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain- able in law."
}
},
{
"from_name": "label",
"id": "05ba22ee00c045ec8601389f7390ccf5",
"to_name": "text",
"type": "labels",
"value": {
"end": 35693,
"labels": [
"RATIO"
],
"start": 35526,
"text": "As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset."
}
},
{
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"id": "4f7d21074feb47a7aca8c45b67b3567e",
"to_name": "text",
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"value": {
"end": 35881,
"labels": [
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],
"start": 35693,
"text": "\n The facts of each case have to be borne in mind in consider- ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense."
}
},
{
"from_name": "label",
"id": "ea430cc0ed634d668dafb3e4be6f0084",
"to_name": "text",
"type": "labels",
"value": {
"end": 36086,
"labels": [
"ANALYSIS"
],
"start": 35883,
"text": "In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered."
}
},
{
"from_name": "label",
"id": "22a4358922b14530918067d20fabad92",
"to_name": "text",
"type": "labels",
"value": {
"end": 36259,
"labels": [
"ANALYSIS"
],
"start": 36087,
"text": "In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee's business of mining."
}
},
{
"from_name": "label",
"id": "03fe53e19f47417aa73b21ba0d949137",
"to_name": "text",
"type": "labels",
"value": {
"end": 36514,
"labels": [
"ANALYSIS"
],
"start": 36260,
"text": "The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction."
}
},
{
"from_name": "label",
"id": "4eae731300b64b87b9865fff8ca91130",
"to_name": "text",
"type": "labels",
"value": {
"end": 36665,
"labels": [
"ANALYSIS"
],
"start": 36515,
"text": "The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan- tage of an enduring nature."
}
},
{
"from_name": "label",
"id": "37141a92ae994876a6ff49b753fa9b4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 36730,
"labels": [
"ANALYSIS"
],
"start": 36666,
"text": "The Tribunal rightly allowed the expenditure on revenue account."
}
},
{
"from_name": "label",
"id": "6772505dfbe040b1b5acba4c183587dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 36819,
"labels": [
"ANALYSIS"
],
"start": 36731,
"text": "The High Court in our opin- ion failed to appreciate the true nature of the expenditure."
}
},
{
"from_name": "label",
"id": "faebaa4d871b443e9dcfd901d45bd3dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 36970,
"labels": [
"ANALYSIS"
],
"start": 36819,
"text": "\n We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal."
}
},
{
"from_name": "label",
"id": "75ac326b71664f2cb9ed52073389ca10",
"to_name": "text",
"type": "labels",
"value": {
"end": 37084,
"labels": [
"RPC"
],
"start": 36971,
"text": "We, accordingly, allow the appeal, set aside the order of the High Court and re- store the order of the Tribunal."
}
},
{
"from_name": "label",
"id": "d8609bb3d6f94f9aa48ed02ed6fba773",
"to_name": "text",
"type": "labels",
"value": {
"end": 37124,
"labels": [
"RPC"
],
"start": 37085,
"text": "The appellant is entitled to its costs."
}
},
{
"from_name": "label",
"id": "0536882da7a442e2b52eccdd14202bdf",
"to_name": "text",
"type": "labels",
"value": {
"end": 37162,
"labels": [
"NONE"
],
"start": 37124,
"text": "\n N.V.K. Appeal allowed."
}
}
]
}
] | 1,721 | {
"text": "PETITIONER:\nBIKANER GYPSUMS LTD.\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, RAJASTHAN\n\nDATE OF JUDGMENT23/10/1990\n\nBENCH:\nSINGH, K.N. (J)\nBENCH:\nSINGH, K.N. (J)\nSAIKIA, K.N. (J)\nKULDIP SINGH (J)\n\nCITATION: 1990 SCR Supl. (2) 313\n 1991 AIR 227 JT 1990 (4) 481\n 1991 SCC (1) 328\n 1990 SCALE (2)876\n\nACT:\n\nIncome Tax Act 1922/Income Tax Act 1961--Section\n\n10(2)(xv)/ Section 37(1)--Capital or revenue\n\nexpenditure--Determination of in the case of mining\n\nleases--Factors to be considered What are.\n\nHEADNOTE:\n The appellant-assessee carried on the business of mining\n\ngypsum. The predecessor-in-interest of the assessee acquired\na lease from the Maharaja of one of the erstwhile princely\nState on September 29, 1948 for mining of gypsum for a\nperiod of 20 years over an area of 4.27 square miles in the\nState. The lease was liable to be renewed after the expiry\nof 20 years. By a deed of assignment dated December 11, 1948\nthe rights under the lease were assigned to the assessee\ncompany, in which the State Government owned 45% shares.\n\n The assessee entered into an agreement with a Government\nof India Public Undertaking for the supply of gypsum of\nminimum of 83.5% quality. Under the lease, the assessee was\nconferred the liberties and powers to enter upon the entire\nleased land and to search for win, work, get, raise, convert\nand carry away the gypsum for its own benefits in the most\neconomic convenient and beneficial manner and to treat the\nsame by calcination and other processes. The lease agreement\nconsisted of several parts and each part contained several\nclauses. Clause 3 of part Iii prescribed restrictions on\nmining operation within 100 yards from any railway, reser-\nvoir, canal or other public works. This clause had been\nincorporated in the lease to protect the railway track and\nrailway station which was situated within the area demised\nto the lessee.\n\n The assessee exclusively carried on the mining of gypsum\nin the entire area demised to it. The Railway Authorities\nextended the railway area by laying down fresh track, pro-\nviding for railway siding and further constructed quarters\nin the leased area without the permission of the assessee.\n\n The assessee company filed a civil suit for ejecting the\nrailways from the encroached area but it failed in the suit.\n314\n\n As the assessee company on research and survey found\n\n\nthat under the railway area a high quality of gypsum was\navailable, which was required as raw material by the Public\nSector Company, all the parties (Public Sector Company, the\nRailway Board and the assessee company) negotiated the\nmatter, the Railway Board agreeing to shift the railway\nstation, track and yards to an alternative area offered by\nthe assessee, the parties equally bearing the cost of the\nshifting.\n\n Under the aforesaid agreement, the assessee company paid\na sum of Rs.3 lakhs as its share towards the cost of shift-\ning of the Railway Station and other constructions, and\nclaimed deduction of the said sum for the assessment year\n1964-65. The Income Tax Officer rejected the assessee's\nclaim on the ground that it was a capital expenditure. The\norder was confirmed on appeal by the Appellate Assistant\nCommissioner.\n\n On appeal by the assessee, the Income Tax Appellate\nTribunal held that the payment of Rs.3 lakhs by the assessee\ncompany was not a capital expenditure, but a revenue expend-\niture. The Tribunal referred the question to the High Court\nunder section 256 of the Income Tax Act, 1961, on an appli-\ncation by the revenue, which held that since on payment of\nRs.3 lakhs to the Railways the assessee acquired a new asset\nwhich was attributable to capital of enduring nature, the\nsum of Rs.3 lakhs was a capital expenditure and it could not\nbe a revenue expenditure.\n\n In the appeal to this Court on the question whether the\npayment of Rs.3 lakhs to the Northern Railway was a revenue\nexpenditure and was a deduction allowable under the Income\nTax Act, 1961.\nAllowing the appeal, this Court,\n\n HELD: 1(a) Where the assessee has an existing right to\ncarry on a business, any expenditure made by it during the\ncourse of business for the purpose of removal of any re-\nstriction or obstruction or disability would be on revenue\naccount, provided the expenditure does not acquire any\ncapital asset. [326A]\n\n (b) Payments made for removal of restriction, obstruc-\ntion or disability may result in acquiring benefits to the\nbusiness, but that by itself would not acquire any capital\nasset. [326B]\n\n Gotan Lime Syndicate v. C.I.T., Rajasthan & Delhi,\n[1966] 59 ITR 718; M.A. Jabbar v. C.I.T., Andhra Pradesh,\nHyderabad, [1968]\n315\n2 SCR 413 and Commissioner of Inland Revenue v. Carron\nCompany, [1966-69] 45 Tax Cases 18, referred.\nEmpire Jute Company v. C. I. T., [1980] 124 ITR 1, affirmed.\n\n In the instant case, the assessee have been granted\nmining lease in respect of 4.27 square miles under which he\nhad right to sink, dig, drive, quarry and extract mineral\ni.e. the gypsum and in that process he had right to dig the\nsurface of the entire area leased out to him. The payment of\nRs.3 lakhs was not made by the assessee for the grant of\npermission to carry on mining operations within the railway\narea, instead the payment was made towards the cost of\nremoving the construction which obstructed the mining opera-\ntions. On the payment made to the Railway Authorities the\nassessee did not acquire any fresh right to any mineral nor\nhe acquired any capital asset instead, the payment was made\nby it for shifting the Railway Station and track which\noperated as hindrance and obstruction to the business of\nmining in a profitable manner. [326C-E]\n\n 2. There may be circumstances where expenditure, even if\nincurred for obtaining advantage of enduring benefit would\n\nnot amount to acquisition of asset. The facts of each case\nhave to be borne in mind in considering the question having\nregard to the nature of business, its requirement and the\nnature of the advantage in commercial sense. [326F-G]\n\n 3(a) The test for considering the expenditure for the\npurposes of bringing into existence an asset or an advantage\nfor the enduring benefit of a trade is not always true and\nconclusive. [327B]\n\n 3(b) In considering the cases of mining business the\nnature of the lease the purpose for which expenditure is\nmade, its relation to the carrying on of the business in a\nprofitable manner should be considered. [326H]\n\n In the instant case, existence of Railway Station, yard\nand buildings on the surface of the demised land operated as\nan obstruction to the assessee's business of mining. The\nRailway Authorities agreed to shift the Railway establish-\nment to facilitate the assessee to carry on his business in\na profitable manner and for that purpose the assessee paid a\nsum of Rs.3 lakhs. The payment made by the assessee was for\nremoval of disability and obstacle and it did not bring into\nexistence any advantage of an enduring nature. There was\ntherefore. no acquisition of any capital asset. [326H; 327A]\n316\n\n British Insulated and Helsby. Cables Ltd. v. Atherton,\n[1926] AC 205, explained.\n\n Assam Bengal Cement Co. Ltd. v. The Commissioner of\nIncome Tax, West Bengal, [1955] 1 SCR 972, referred to.\n\n R.B. Seth Moolchand Suganchand v. Commissioner of Income\nTax, New Delhi, [1972] 86 ITR 647, distinguished.\n\n 4. The Tribunal rightly allowed the expenditure on\nrevenue account. The High Court failed to appreciate the\ntrue nature of the expenditure. It committed an error in\ninterfering with the findings recorded by the Income Tax\nAppellate Tribunal. [327B-C]\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 262 (NC) of 1976.\n From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969.\n Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant.\n O.P. Vaish, S. Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents.\nThe Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee. The question referred to the High Court was as under: \"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act. 1961?\"\nThe circumstances leading to the reference and the appeal was necessary to be stated. The Natural Science (India) Ltd.\npredecessor-ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar. The lease was liable to be renewed after expiring of 20 years. The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa- ny wherein the State Government owned 45 per cent share. The Bikaner Gypsums Ltd. (hereinafter referred to as the asses- see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease. The asses- see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality. Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc- esses. Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in- clines, drifts, tunnels, trenches, levels, water-ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral.\nClause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc. Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways. Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers. Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards. Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee's cost. Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac- turing, converting and making merchantable.\n318 Part III of the lease contained restrictions and condi- tions to the exercise of the liberties and powers and privi- leges as contained in Part II of the lease. Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier. Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser- voir, canal or other public works. It reads as under: \"Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ- ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in- structions, restrictions and conditions either general or special which may be attached to such permission. The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof.\"\nThe above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee. Clause 5 of Part VIII of the agreement stated as under: \"Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir- dar' 'Pattedar', 'Talukdar', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such \"Jagir- dar\", 'Pattedar', 'Talukdar', tenant or other person claim- ing to have any underground or mineral rights shall be paid by the Government.\"\nThe assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it. The Railway author- ities extended the railway area by laying down fresh track, providing for railway siding. The Railways further con- structed quarters in the lease area without the permission of the assessee company. The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit. The assessee company, there- upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses- see to carry out the mining operation under the land occu- pied by the Railways (hereinafter referred to as the 'Rail- way Area'). Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers. All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee.\nUnder the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern- ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in- curred by the Railways in shifting the railway station, yards and the quarters. Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions. In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land. On the shifting of the Railway track and Sta- tion the assessee carried out mining in the erstwhile Rail- way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers.\n The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964-65. The Income-Tax Officer rejected the assessee's claim on the ground that it was a capital expenditure. On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income-Tax Officer. On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure. On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf- ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under s. 256 of the Income Tax Act, 1961. The High Court held that since on payment of Rs.3 lakhs to the Rail- way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi- ture. On these findings the High Court answered the question in the negative in favour of the Revenue against the asses- see and it set aside the order of the Tribunal by the im- pugned order.\n Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised. to the assessee. Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount-of Rs.3 lakhs for removal of the same with a view to carry on its business profitably. The assessee did not acquire any new asset, instead, it merely spent money in removing the ob- struction to facilitate the mining in a profitable manner.\nOn the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways. The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it. It was a capital expenditure. Both the counsel referred to a number of decisions in support of their submissions.\n The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts. There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi- tal from revenue expenditure. But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances. Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions. However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter- mining the question. In Assam Bengal Cement Co. Ltd. v. The Commissioner of Income Tax, West Bengal, [1955] 1 SCR 972,'this Court observed that in the great diversity of human affairs and the complicated nature of business opera- tion, it is difficult to lay down a test which would apply to all situations. One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci- ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure. The Court laid down a simple test for determining the nature of the expenditure. It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene- fit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into exist- ence any such asset or advantage but for running the busi- ness or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.\"\n In K.T.M.T.M. Abdul Kayoom and Another v. Commissioner of Income Tax, [1962] 44 ITR 589, this Court after consider- ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases. In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years. The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin-trade. It was, therefore, an expenditure of a capital nature.\n In Bombay Steam Navigation Co. Pvt. Ltd. v. Commissioner of Income Tax, Bombay, [1965] 1 SCR 770, the assessee pur- chased. the 321 assets of another Company for purposes of carrying on pas- senger and ferry services, it paid part of the consideration leaving the balance unpaid. Under the agreement of sale the assessee-had to pay interest on the unpaid balance of money.\nThe assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income.\nThe court held that the claim for deduction of amount of interest as revenue expenditure was not admissible. The Court observed that while considering the question the Court. should con-.. sider the nature and ordinary course of business and the object for which the expenditure is in- curred. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-earning process and not for acquisition of an asset or a right of a perma- nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure. But, on the facts of the case, the Court held that the assessee's claim was not admissible, as the expenditure was related to the acquisi- tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi- ness.\n The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand v. Commissioner of Income Tax, New Delhi, [1972] 86 ITR 647, in rejecting the assessee's contention. In Suganchand's case the assessee was carrying on a mining business, he had paid a sum of Rs.\n1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years. Those areas had already been worked for 15 years by other lessees. The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year. In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold. The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure. The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow-able as revenue expenditure. The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature. But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure. The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure. As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business. The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business. The facts involved in that case are totally dif- ferent from the instant case. The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct- ed the carrying of the business of mining within a particu- lar area in respect of which the assessee had already ac- quired mining rights. The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir- ing any right, instead the payment was made to remove ob- struction to facilitate the business of mining. The princi- ples laid down in Suganchand's case do not apply to the instant case.\n In British Insulated and Helsby Cables Ltd. v. Atherton, [1926] AC 205, Lord Cave laid down a test which has almost universely been accepted. Lord Cave observed: \"... when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum- stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital.\"\nThis dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court. But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion. Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum- stances might very well lead to an opposite conclusion.\n In Gotan Lime Syndicate v. C. I. T., Rajasthan & Delhi, [1966] 59 ITR 7 18, the assessee which carried on the busi- ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease.\nUnder the lease the assessee had to pay royalty of Rs.96,000 per annum. The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure. This Court after considering its earlier decision in Abdul Kayoom's case (supra) and also the decision of Lord Cave in British Insu- lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted. The Court observed that the royalty payment including the dead rent had relation to the lime deposits. The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all. No lump sum payment was ever settled, instead, only an annual royal- ty and dead rent was paid. The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained.\nIn this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit. In M.A. Jabbar v. C.I.T.\nAndhra Pradesh, Hyderabad, [1968] 2 SCR 413, the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months. Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land. The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money. The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena- bling the assessee to remove the sand lying on the surface of the land which was stock-in-trade of the business, there- fore, the expenditure was a revenue expenditure.\n Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid- ered by courts. In Commissioner of Inland Revenue v. Carron Company, [1966-69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor- 325 porated by a Charter granted to it in 1773. By passage of time many of its features had become archaic and unsuited to modern conditions and the company's commercial performance was suffering a progressive decline. The Charter of the company placed restriction on the company's borrowing powers and it placed restriction on voting rights of certain mem- bers. The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa- ny's borrowing powers and restrictions on the issue and transfer of shares. The company's petition was contested by dissenting share-holders in court. The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share- holders and in pursuance thereof a supplementary Charter was granted. In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain- ing the Charter, the amounts paid to the dissenting share- holders and expensed in the action. The Special Commissioner held that the company was entitled to the deductions. On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day-to-day trading operation of the company, the expenditure was on income account. The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation. This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity. From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved. The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment.\nSince, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi- ture was on revenue account. In Empire Jute Company v. C.I.\nT, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure. The Court observed that if the advantage consists merely in facilitat- ing the assessee's trading operations of enabling the man- agement and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future. We agree with the view taken in the aforesaid two decisions. In our opinion where the assessee has an existing right to carry on a business, any expendi- ture made by it during the course of business for the pur- pose of removal of any restriction or obstruction or disa- bility would be on revenue account, provided the expenditure does not acquire any capital asset. Payments made for remov- al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.\n In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner- als under the Railway Area. The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature. The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee's right to the minerals found under the Railway Area. The restriction operated as an obstacle to the assessee's right to carry on business in a profitable man- ner. The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose. There was, there- fore, no acquisition of any capital asset. here is no dis- pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain- able in law. As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset.\n The facts of each case have to be borne in mind in consider- ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense.\n In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered. In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee's business of mining. The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction. The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan- tage of an enduring nature. The Tribunal rightly allowed the expenditure on revenue account. The High Court in our opin- ion failed to appreciate the true nature of the expenditure.\n We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal. We, accordingly, allow the appeal, set aside the order of the High Court and re- store the order of the Tribunal. The appellant is entitled to its costs.\n N.V.K. Appeal allowed.\n 328 "
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{
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"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
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"labels": [
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],
"start": 41,
"text": "\n ORDINARY ORIGINAL CIVIL JURISDICTION\n\n INCOME TAX APPEAL NO.1196 OF 2013\n WITH\n\n INCOME TAX APPEAL NO.1175 OF 2013\n\nThe Commissioner of Income TaxLTU ... Appellant\n V/s. ... Respondent\n\nUnion Bank of India\n\n WITH\n INCOME TAX APPEAL NO.59 OF 2017\n\nCommissioner of Income Tax(IT)3 ... Appellant\n V/s. ... Respondent\n\nMashreq Bank psc\n\n WITH\n INCOME TAX APPEAL NO.1567 OF 2016\n\n WITH\n INCOME TAX APPEAL NO.1309 OF 2016\n\n WITH\n INCOME TAX APPEAL NO.143 OF 2018\n\n WITH\n INCOME TAX APPEAL NO.1907 OF 2017\n\n WITH\n INCOME TAX APPEAL NO.1878 OF 2017\n\n WITH\n INCOME TAX APPEAL NO.182 OF 2015\n\nPr. Commissioner of Income Tax2 ... Appellant\n V/s. ... Respondent\n\nBank of India\n\n WITH\n "
}
},
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"text": "INCOME"
}
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],
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"text": "TAX APPEAL NO.1108 OF 2015"
}
},
{
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],
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"text": "Pr. Commissioner of Income Tax3"
}
},
{
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"id": "1a274b0ec9804b17abaae51f6e4d88b9",
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"labels": [
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"start": 1368,
"text": "... Appellant\n\n\n V/s. ... Respondent\n"
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},
{
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"value": {
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"labels": [
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],
"start": 1436,
"text": "M/s The New India Assurance Co.Ltd."
}
},
{
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"id": "6da2356b917d45b3afe7ed4d9c5d6c07",
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"value": {
"end": 1668,
"labels": [
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],
"start": 1509,
"text": "WITH\n INCOME TAX APPEAL NO.27 OF 2016\n\nCommissioner of Income Tax(IT)2 ... Appellant\n\nV/s.\nCredit Agricole Corporate and Investment Bank..."
}
},
{
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"id": "0e575bf48769452e8ee87599fa737500",
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"text": "Respondent"
}
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{
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"type": null,
"value": {
"end": 1848,
"labels": [
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],
"start": 1721,
"text": "Mr.Suresh Kumar for the Appellant in ITXA Nos.1196/13,\n1175/13, 1108/15, 1309/16, 1567/16, 182/15, 1878/17,\n1907/17 and 143/18."
}
},
{
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"value": {
"end": 2072,
"labels": [
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],
"start": 1848,
"text": "\nMr.Percy Pardiwalla, Senior Counsel with Ms.Nupur Awasthi with\nMs.Usha K.Srivastava i/by M/s Consulta Juris for the Respondent\nin ITXA Nos.1196/13 and 1175/13.\nMr.Tejveer Singh for the Appellant in ITXA Nos.59/17 and 27/16."
}
},
{
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"value": {
"end": 2199,
"labels": [
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],
"start": 2072,
"text": "\nMr.Percy Pardiwalla, Senior Counsel with Mr.Madhur Agrawal\ni/by Mr.Atul Jsani for the Respondent in ITXA Nos. 59/17 and\n27/16."
}
},
{
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"end": 2253,
"labels": [
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],
"start": 2199,
"text": "\nMr.Atul Jasani for the Respondent in ITXA No.1108/15."
}
},
{
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"id": "a4008598cfd74c8a9f2dc0200241cd82",
"to_name": null,
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"value": {
"end": 2350,
"labels": [
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],
"start": 2253,
"text": "\nMr.Subhash Shetty for the respondent in ITXA Nos. 1309/16,\n1567/16, 1878/17, 1907/17 and 143/18."
}
},
{
"from_name": null,
"id": "da005c5ad6e941518399b7521ac0d4f8",
"to_name": null,
"type": null,
"value": {
"end": 2465,
"labels": [
"PREAMBLE"
],
"start": 2351,
"text": "Mr.Sanjiv Shah for the Respondent in ITXA 182/15.\n\n \n\n CORAM :"
}
},
{
"from_name": null,
"id": "12566c81c99448488819959463965b98",
"to_name": null,
"type": null,
"value": {
"end": 2482,
"labels": [
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],
"start": 2466,
"text": "AKIL KURESHI AND"
}
},
{
"from_name": null,
"id": "4dc3382bdb834af08c0579e170e3ad80",
"to_name": null,
"type": null,
"value": {
"end": 2574,
"labels": [
"PREAMBLE"
],
"start": 2482,
"text": "\n SARANG V. KOTWAL, JJ.\n\n DATE : APRIL 16, 2019."
}
},
{
"from_name": null,
"id": "45760bb5a9a147f9a25fccb68c10eb1b",
"to_name": null,
"type": null,
"value": {
"end": 2594,
"labels": [
"PREAMBLE"
],
"start": 2576,
"text": "ORAL JUDGMENT : 1."
}
},
{
"from_name": null,
"id": "803f9d9582c948a6b973fa7b84a8eb31",
"to_name": null,
"type": null,
"value": {
"end": 2642,
"labels": [
"FAC"
],
"start": 2595,
"text": "In these appeals common questions of law arise."
}
},
{
"from_name": null,
"id": "cf063fddd6ed4c0a89fb1c9ee37776bf",
"to_name": null,
"type": null,
"value": {
"end": 2682,
"labels": [
"FAC"
],
"start": 2643,
"text": "Some of the appeals have been admitted."
}
},
{
"from_name": null,
"id": "84691312c06546abaeaa11a6040bf7be",
"to_name": null,
"type": null,
"value": {
"end": 2779,
"labels": [
"FAC"
],
"start": 2683,
"text": "Some have been tagged on account of similarity of issues though they are at the admission stage."
}
},
{
"from_name": null,
"id": "99a8f32f98424d8fa047d397a69ce4a2",
"to_name": null,
"type": null,
"value": {
"end": 2856,
"labels": [
"NONE"
],
"start": 2780,
"text": "For convenience, we may record facts from Income Tax Appeal No.1196 of 2013."
}
},
{
"from_name": null,
"id": "eff791fb7941435dbe9ca89e698182bd",
"to_name": null,
"type": null,
"value": {
"end": 3409,
"labels": [
"ISSUE"
],
"start": 2857,
"text": "This appeal was admitted for consideration of following questions of law: \"(i) Whether on the facts and in the circumstances of the case and in law, the ITAT is correct is reversing the order of Assessing Officer confirmed by the CIT(A), exercising the jurisdiction u/s.154 of the Income Tax Act, 1961, determining the Book Profits as per the amendment to Section 115JB?\n(ii) Whether on the facts and in the circumstances of the case and in law the ITAT is correct in holding that the provision of Section 115JB are not applicable to the assesseeBank?\""
}
},
{
"from_name": null,
"id": "24c6de8e2dfd474283aa733687807207",
"to_name": null,
"type": null,
"value": {
"end": 3508,
"labels": [
"NONE"
],
"start": 3411,
"text": "2. For all the appeals we would adopt the above quoted questions as substantial questions of law."
}
},
{
"from_name": null,
"id": "e2ca33f343e34ba3bc12941fb44b2bb9",
"to_name": null,
"type": null,
"value": {
"end": 3601,
"labels": [
"FAC"
],
"start": 3508,
"text": "\n 3. RespondentUnion Bank of India had filed return of income for the assessment year 200506."
}
},
{
"from_name": null,
"id": "b4e2891f6fd8479695f598e83e8c9ccd",
"to_name": null,
"type": null,
"value": {
"end": 3911,
"labels": [
"FAC"
],
"start": 3602,
"text": "The Assessing Officer passed order of assessment under Section 143(3) of the Income Tax Act, 1961 (\"the Act\" for short) on 23rd March, 2007 computing the assessee's taxable income at Rs.412.41 crores (rounded off) under the normal provisions and Rs.431.15 crores as book profit under Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "4cc6db1f4f8f495ca4d1eef460352109",
"to_name": null,
"type": null,
"value": {
"end": 4073,
"labels": [
"FAC"
],
"start": 3912,
"text": "The Assessing Officer thereafter passed an order dated 25th March, 2010 of rectification to give effect to a retrospective amendment in Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "e77b742dde474d87bfc2e409fff27233",
"to_name": null,
"type": null,
"value": {
"end": 4142,
"labels": [
"FAC"
],
"start": 4073,
"text": "\n He computed the assessee's revised book profit at Rs.374.21 crores."
}
},
{
"from_name": null,
"id": "ad6c6a6dcd6c46109fd4a73fd6384512",
"to_name": null,
"type": null,
"value": {
"end": 4189,
"labels": [
"FAC"
],
"start": 4144,
"text": "4. The assessee carried the matter in appeal."
}
},
{
"from_name": null,
"id": "0d0ad58b7a6a43ccad1cec02e3271752",
"to_name": null,
"type": null,
"value": {
"end": 4343,
"labels": [
"FAC"
],
"start": 4190,
"text": "In such appeal, the assessee opposed the assessment order on merits, including the order passed by the Assessing Officer exercising rectification powers."
}
},
{
"from_name": null,
"id": "80f85adca17c45bea7c640f24e16d704",
"to_name": null,
"type": null,
"value": {
"end": 4417,
"labels": [
"FAC"
],
"start": 4344,
"text": "CIT (Appeals) granted partial relief by his order dated 27th March, 2012."
}
},
{
"from_name": null,
"id": "ee6a1bcce9a54010893d1db7c7deb28a",
"to_name": null,
"type": null,
"value": {
"end": 4570,
"labels": [
"FAC"
],
"start": 4419,
"text": "5. Against such order of the Commissioner (Appeals), the assessee preferred further appeal before Income Tax Appellate Tribunal (\"Tribunal\" for short)."
}
},
{
"from_name": null,
"id": "db8bc4d996bc4f508ca830625f00f514",
"to_name": null,
"type": null,
"value": {
"end": 4683,
"labels": [
"FAC"
],
"start": 4571,
"text": "In such appeal, the assessee contended that the Assessing Officer could not have exercised rectification powers."
}
},
{
"from_name": null,
"id": "0ea768158e7a4e19b5b3e83ab12ef084",
"to_name": null,
"type": null,
"value": {
"end": 4822,
"labels": [
"FAC"
],
"start": 4684,
"text": "The assessee raised an additional ground that being a banking company, the provisions of Section 115JB of the Act would not be applicable."
}
},
{
"from_name": null,
"id": "5cf7d3f4775f4d019ae4dad23f32c9a9",
"to_name": null,
"type": null,
"value": {
"end": 4904,
"labels": [
"FAC"
],
"start": 4823,
"text": "The Tribunal allowed such appeal by the impugned judgment dated 22nd March, 2012."
}
},
{
"from_name": null,
"id": "b52e6cd7a9994480a16a6ca5fde0efdf",
"to_name": null,
"type": null,
"value": {
"end": 5006,
"labels": [
"RLC"
],
"start": 4905,
"text": "The Tribunal was of the opinion that the Assessing Officer wrongly exercised powers of rectification."
}
},
{
"from_name": null,
"id": "55522e8fdf2d4f65b9d31c63c535aaa3",
"to_name": null,
"type": null,
"value": {
"end": 5216,
"labels": [
"RLC"
],
"start": 5007,
"text": "The Tribunal further noted that the coordinate bench in the assessee's own case for the assessment year 200607 had held that the provisions of Section 115JB of the Act, were not applicable to the assesseebank."
}
},
{
"from_name": null,
"id": "f5fa6504345f424eb27c707f869cc70d",
"to_name": null,
"type": null,
"value": {
"end": 5249,
"labels": [
"RLC"
],
"start": 5217,
"text": "The Tribunal held as under : \"7."
}
},
{
"from_name": null,
"id": "91a59598f75d4e76aa8f8206792d1c01",
"to_name": null,
"type": null,
"value": {
"end": 5279,
"labels": [
"RLC"
],
"start": 5250,
"text": "We have considered the issue."
}
},
{
"from_name": null,
"id": "9ec7b6e3133b4eee9aba79201aa82426",
"to_name": null,
"type": null,
"value": {
"end": 5491,
"labels": [
"RLC"
],
"start": 5280,
"text": "There is no doubt that the assessment orders under section 143(3) were passed in these years under which total income was determined under normal provisions and book provisions of section 115JB were not invoked."
}
},
{
"from_name": null,
"id": "6a98cc7f8af345c7a1560f251a5a1c06",
"to_name": null,
"type": null,
"value": {
"end": 5710,
"labels": [
"RLC"
],
"start": 5492,
"text": "The issues which are considered in normal assessment are still pending before the ITAT for adjudication,whereas the Assessing Officer under the guise of section 154 disallowed certain amounts revising the book profits."
}
},
{
"from_name": null,
"id": "bbdb215d2ddc4fe880b83de531346c58",
"to_name": null,
"type": null,
"value": {
"end": 6080,
"labels": [
"RLC"
],
"start": 5711,
"text": "However, even after making these adjustments, the tax under normal provisions was determined at Rs.328.07 cores, whereas the tax under section 115JB was determined at Rs.72.02 crores for assessment years 200405 and tax under normal provisions was determined at Rs.150.91 crores under normal provisions and tax under section 115JB at Rs.28.06 crores under section 115JB."
}
},
{
"from_name": null,
"id": "8a65b99e06d94f238fa2a68bf2ba9e24",
"to_name": null,
"type": null,
"value": {
"end": 6193,
"labels": [
"RLC"
],
"start": 6081,
"text": "Ultimately the taxes were determined under normal provisions without exercising the provisions of section 115JB."
}
},
{
"from_name": null,
"id": "cbb13d6f332a41c6aeb678a22542946d",
"to_name": null,
"type": null,
"value": {
"end": 6426,
"labels": [
"RLC"
],
"start": 6193,
"text": "\nIn that view, the entire exercises of modifying the orders is redundant as even after such adjustment, the tax determined under the normal provisions is more than the tax that are being determined by this order under section 154.\n8."
}
},
{
"from_name": null,
"id": "3841a21dd4244103bfec1ef6ce3daac0",
"to_name": null,
"type": null,
"value": {
"end": 6632,
"labels": [
"RLC"
],
"start": 6427,
"text": "Be that as it may, just because a retrospective amendment has been carried out on the statue, the assessment cannot be modified without examining whether the provisions so made are to be disallowed or not."
}
},
{
"from_name": null,
"id": "788056e46d414b8789bc2e2bd96a9a6b",
"to_name": null,
"type": null,
"value": {
"end": 6855,
"labels": [
"RLC"
],
"start": 6633,
"text": "This requires detailed examination and in fact as for the submissions made before the authorities, the assessee had appeared before the Assessing Officer furnishing various details and how the amounts cannot be disallowed."
}
},
{
"from_name": null,
"id": "aa046286b6404d49a934f7206930702c",
"to_name": null,
"type": null,
"value": {
"end": 7020,
"labels": [
"RLC"
],
"start": 6856,
"text": "Since this requires claborate examination on a long run process, we are of the opinion that the orders cannot be modified by invoking the provisions of section 154."
}
},
{
"from_name": null,
"id": "15e26a4a598640e49be1a8f61a760e10",
"to_name": null,
"type": null,
"value": {
"end": 7191,
"labels": [
"RLC"
],
"start": 7021,
"text": "Not only that the Coordinate Bench in assessee's own case in assessment year 200607 has held that the provisions of section 115JB are not applicable to the assessee Bank."
}
},
{
"from_name": null,
"id": "c0439fa1833140a4988fb07bc056a0c7",
"to_name": null,
"type": null,
"value": {
"end": 7335,
"labels": [
"RLC"
],
"start": 7192,
"text": "In view of this, we hold that the order under section 154 passed by the Assessing Officer is not correct and therefore, the same was set aside."
}
},
{
"from_name": null,
"id": "64bdf544e2fa4684b2b2adc258552f15",
"to_name": null,
"type": null,
"value": {
"end": 7401,
"labels": [
"RLC"
],
"start": 7336,
"text": "Accordingly assessee's grounds in the above 2 years are allowed.\""
}
},
{
"from_name": null,
"id": "45a21319740b4f7db9e167804b8303f2",
"to_name": null,
"type": null,
"value": {
"end": 7463,
"labels": [
"FAC"
],
"start": 7401,
"text": "\n 6. Against this judgment, the revenue has filed this appeal."
}
},
{
"from_name": null,
"id": "08769bc7fb0b4983a9f69dec8a62bb3a",
"to_name": null,
"type": null,
"value": {
"end": 7582,
"labels": [
"ARG_PETITIONER"
],
"start": 7464,
"text": "Appearing for the revenue learned counsel submitted that the view expressed by the Tribunal is not sustainable in law."
}
},
{
"from_name": null,
"id": "cc34bdd3d90d4960acd75828da0cb0a9",
"to_name": null,
"type": null,
"value": {
"end": 7665,
"labels": [
"ARG_PETITIONER"
],
"start": 7583,
"text": "The provisions of Section 115JB are sufficiently clear and apply to all companies."
}
},
{
"from_name": null,
"id": "51994f00a1194347b4631e76958daa44",
"to_name": null,
"type": null,
"value": {
"end": 7706,
"labels": [
"ARG_PETITIONER"
],
"start": 7666,
"text": "Admittedly, respondentbank is a company."
}
},
{
"from_name": null,
"id": "f4b298a900b943638e3205529d0f36ec",
"to_name": null,
"type": null,
"value": {
"end": 7778,
"labels": [
"ARG_PETITIONER"
],
"start": 7707,
"text": "Provisions of Section 115JB would be applicable to such companies also."
}
},
{
"from_name": null,
"id": "a3c4bbb6e9c04c768a5d69d78632875a",
"to_name": null,
"type": null,
"value": {
"end": 7913,
"labels": [
"ARG_PETITIONER"
],
"start": 7779,
"text": "He submitted that the amendments made in Section 115JB of the Act under Finance Act, 2012 would have no effect on this legal position."
}
},
{
"from_name": null,
"id": "fbf49130193a4fe2b37ab942144f27ee",
"to_name": null,
"type": null,
"value": {
"end": 8098,
"labels": [
"ARG_PETITIONER"
],
"start": 7914,
"text": "These amendments have been made only to alien the position of the special companies such as the banking companies, electricity companies etc. with the provisions of the Income Tax Act."
}
},
{
"from_name": null,
"id": "047fb6467f0e4df4a9130a262ac38e16",
"to_name": null,
"type": null,
"value": {
"end": 8295,
"labels": [
"ARG_PETITIONER"
],
"start": 8099,
"text": "These amendments in no way suggest that prior to such legislative changes, the provisions of Section 115JB of the Act were not applicable to the banking companies and such other special companies."
}
},
{
"from_name": null,
"id": "b7d9ecb83e1b4fa1aaf9b91128689d2d",
"to_name": null,
"type": null,
"value": {
"end": 8391,
"labels": [
"ARG_RESPONDENT"
],
"start": 8295,
"text": "\n 7. On the other hand, learned counsel Shri Pardiwalla led arguments on behalf of the assessee."
}
},
{
"from_name": null,
"id": "1546bfd309d84753a49e7e12d54ed3bd",
"to_name": null,
"type": null,
"value": {
"end": 8564,
"labels": [
"ARG_RESPONDENT"
],
"start": 8392,
"text": "He submitted that the mechanism provided for computing book profit in terms of sub section (2) of Section 115JB of the Act would be wholly unworkable for a banking company."
}
},
{
"from_name": null,
"id": "32212cb860aa42f8ac32df860b8ce884",
"to_name": null,
"type": null,
"value": {
"end": 8679,
"labels": [
"ARG_RESPONDENT"
],
"start": 8565,
"text": "He submitted that this anomaly was removed by the legislature only by amending Section 115JB by Finance Act, 2012."
}
},
{
"from_name": null,
"id": "fcca9e5b058e4277a3e04ab2d707bfb3",
"to_name": null,
"type": null,
"value": {
"end": 8765,
"labels": [
"ARG_RESPONDENT"
],
"start": 8680,
"text": "Till then the banking companies were not within the fold of Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "8e0f2b14af7e49cfb4b9c7141ee2ac3a",
"to_name": null,
"type": null,
"value": {
"end": 8869,
"labels": [
"ARG_RESPONDENT"
],
"start": 8765,
"text": "\nHe submitted that when the machinery provision fails, the charging section shall have no applicability."
}
},
{
"from_name": null,
"id": "15212dcc41ff450888beddd536cec647",
"to_name": null,
"type": null,
"value": {
"end": 8960,
"labels": [
"ARG_RESPONDENT"
],
"start": 8870,
"text": "Counsel relied on certain decisions, reference to which will be made at appropriate stage."
}
},
{
"from_name": null,
"id": "669b55f14d654c2a8e915385a5615636",
"to_name": null,
"type": null,
"value": {
"end": 9075,
"labels": [
"ANALYSIS"
],
"start": 8960,
"text": "\n 8. In order to resolve the controversy, we may take note of the statutory provisions and the legislative history."
}
},
{
"from_name": null,
"id": "49a9d5c2aa80452e9268eee6cfecd064",
"to_name": null,
"type": null,
"value": {
"end": 9382,
"labels": [
"STA"
],
"start": 9076,
"text": "As is well known, Section 115JB of the Act, pertains to special provisions for payment of tax by certain companies and provides a formula for payment of minimum tax in case of companies, whose tax payable on the total income works out to be below a certain minimum threshhold percentage of its book profit."
}
},
{
"from_name": null,
"id": "efc44931149745ceb867c23560140330",
"to_name": null,
"type": null,
"value": {
"end": 9489,
"labels": [
"STA"
],
"start": 9383,
"text": "This provision is a successor to Section 115JA of the Act, which was also introduced for the same purpose."
}
},
{
"from_name": null,
"id": "cf9e40fd22d74f5797dbab6815fd8aab",
"to_name": null,
"type": null,
"value": {
"end": 9656,
"labels": [
"ANALYSIS"
],
"start": 9490,
"text": "In fact, the first legislative introduction of the provisions pertaining to what is popularly referred to as MAT companies (Minimum Alternative Tax) was Section 115J."
}
},
{
"from_name": null,
"id": "9c51c366541a4f00b1e71b0c165a7d3e",
"to_name": null,
"type": null,
"value": {
"end": 9824,
"labels": [
"ANALYSIS"
],
"start": 9657,
"text": "The Circular No.762 dated 18th February, 1998 issued by the Central Board of Direct Tax (\"CBDT\" for short) explains the object for introduction of such MAT provisions."
}
},
{
"from_name": null,
"id": "8a42ab36f2114328a22871e8b13091b7",
"to_name": null,
"type": null,
"value": {
"end": 10026,
"labels": [
"ANALYSIS"
],
"start": 9825,
"text": "The circular clarifies that new Section 115JA has been inserted by the Finance Act, so as to levy a minimum tax on companies, who are having book profits and paying dividends, but not paying any taxes."
}
},
{
"from_name": null,
"id": "653fbc352698441f8b5b9194f67cdc31",
"to_name": null,
"type": null,
"value": {
"end": 10726,
"labels": [
"ANALYSIS"
],
"start": 10027,
"text": "Relevant portion of Section 115JB as is stood at the relevant time reads as under: \"Special provision for payment of tax by certain companies 115JB.(1)Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the incometax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, (2007) is less than (ten percent) of its book profit, (such) book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of incometax at the rate of (ten percent)."
}
},
{
"from_name": null,
"id": "63a08c686cc349dbbeb84ac33cdcfde4",
"to_name": null,
"type": null,
"value": {
"end": 12209,
"labels": [
"ANALYSIS"
],
"start": 10726,
"text": "\n(2) Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956 (1 of 1956) Provided that while preparing the annual accounts including profit and loss account, (i) the accounting polices, (ii) the accounting standards adopted for preparing such accounts including profit and loss account; (iii) the method and rates adopted for calculating the depreciation, shall be the same as have been adopted for the purpose of preparing such accounts including profit and loss account and laid before the company at its annual general meeting in accordance with the provisions of section 210 of the Companies Act, 1956(1 of 1956): Provided further that where the company has adopted or adopts the financial year under the Companies Act, 1956(1 of 1956), which is different from the previous year under this Act, (i) the account policies; (ii) the accounting standards adopted for preparing such accounts including profit and loss account; (iii) the method and rates adopted for calculating the depreciation, shall correspond to the accounting policies, accounting standards and the method and rates for calculating the depreciation which have been adopted for preparing such accounts including profit and loss account for financial year or part of such financial year falling within the relevant previous year.\"\n 9."
}
},
{
"from_name": null,
"id": "3150f6c16c894700a4aee9fb3873f5a4",
"to_name": null,
"type": null,
"value": {
"end": 12583,
"labels": [
"ANALYSIS"
],
"start": 12210,
"text": "In terms of subsection (1) of Section 115JB of the Act thus notwithstanding anything contained in any of the provisions of the Act in case of an assessee being a company where the income tax payable on the total income as computed under the Act, is less than prescribed percentage of its book profit, such book profit shall be deemed to be the total income of the assessee."
}
},
{
"from_name": null,
"id": "c00303ab870e401d8b50fb9ef5aab7b8",
"to_name": null,
"type": null,
"value": {
"end": 12696,
"labels": [
"ANALYSIS"
],
"start": 12584,
"text": "In so far as the language used under subsection (1) of Section 115JB is concerned, the same pauses no challenge."
}
},
{
"from_name": null,
"id": "010df436c3c449d9869139c43463b343",
"to_name": null,
"type": null,
"value": {
"end": 12827,
"labels": [
"ANALYSIS"
],
"start": 12697,
"text": "Sub section (1) of Section 115JB takes within its swip all companies with no further bifurcation or distinction between companies."
}
},
{
"from_name": null,
"id": "d83413077bb34fc59aa48911abf42df6",
"to_name": null,
"type": null,
"value": {
"end": 13093,
"labels": [
"ANALYSIS"
],
"start": 12827,
"text": "\nHowever, the question that calls for our consideration is whether the machinery provision provided under subsection (2) of Section 115 JB of the Act is workable when it comes to the banking companies and such other special companies governed by the respective Acts."
}
},
{
"from_name": null,
"id": "a77d920cc0ca48a0bedf749a4e7cfad2",
"to_name": null,
"type": null,
"value": {
"end": 13231,
"labels": [
"ANALYSIS"
],
"start": 13094,
"text": "In the context, the question would also be of the legislative intent to cover such companies within the swip of Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "4015c50ae90b4dd2b1b96ebe89571396",
"to_name": null,
"type": null,
"value": {
"end": 13318,
"labels": [
"ANALYSIS"
],
"start": 13232,
"text": "These questions arise because of the language used in subsection (2) of Section 115JB."
}
},
{
"from_name": null,
"id": "a9c47e1859154eaabcad6f996ce61b50",
"to_name": null,
"type": null,
"value": {
"end": 13364,
"labels": [
"ANALYSIS"
],
"start": 13319,
"text": "These provisions we may peruse more minutely."
}
},
{
"from_name": null,
"id": "421336876f3042d59ff09b43a593ac35",
"to_name": null,
"type": null,
"value": {
"end": 13642,
"labels": [
"ANALYSIS"
],
"start": 13365,
"text": "As per subsection (2) of Section 115JB, every assessee being a company would for the purposes of the said section prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "478b3b7184b041ccb8d3b32bbfe9d24d",
"to_name": null,
"type": null,
"value": {
"end": 13833,
"labels": [
"ANALYSIS"
],
"start": 13643,
"text": "It is undisputed that the respondenta banking company is not required to prepare its accounts in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "fea2d5f3b44f4b95a1e85db2dd70fe7c",
"to_name": null,
"type": null,
"value": {
"end": 13947,
"labels": [
"ANALYSIS"
],
"start": 13834,
"text": "The accounts of the banking company are prepared as per the provisions contained in Banking Regulation Act, 1949."
}
},
{
"from_name": null,
"id": "ee115496a0c9440b8e450f09865839a9",
"to_name": null,
"type": null,
"value": {
"end": 14289,
"labels": [
"ANALYSIS"
],
"start": 13948,
"text": "The counsel for the revenue may still argue that irrespective of such requirements, for the purposes of the said Act and special requirements of Section 115JB of the Act, a banking company is obliged to prepare its profit and loss account as per the provisions of the Companies Act, as mandated by subsection (2) of Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "51281f3709c847ef8c9994f388d67211",
"to_name": null,
"type": null,
"value": {
"end": 14365,
"labels": [
"ANALYSIS"
],
"start": 14290,
"text": "His contention would be that such legislative mandate is not impermissible."
}
},
{
"from_name": null,
"id": "9cb663acfd914e18b18070ec51df7fff",
"to_name": null,
"type": null,
"value": {
"end": 14422,
"labels": [
"ANALYSIS"
],
"start": 14367,
"text": "10. At the first blush, this argument seems attractive."
}
},
{
"from_name": null,
"id": "a7f898b9066545968ebb6942164058f9",
"to_name": null,
"type": null,
"value": {
"end": 14522,
"labels": [
"ANALYSIS"
],
"start": 14422,
"text": "\nHowever, when we read subsection (2) further, certain complications arise in this line of argument."
}
},
{
"from_name": null,
"id": "98f316717f0145b1921c17584a6de7bd",
"to_name": null,
"type": null,
"value": {
"end": 15016,
"labels": [
"ANALYSIS"
],
"start": 14523,
"text": "The first proviso to subsection (2) of Section 115JB provides that while preparing annual accounts including profit and loss account the accounting policies and accounting standards adopted for preparing the account and the method and rules adopted in calculating the depreciation shall be the same as have been adopted for the purpose of preparing such accounts and laid before the company at its Annual General Meeting in accordance with provisions of Section 210 of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "3f9a3d54568a44aa9a2f2541bb14e67e",
"to_name": null,
"type": null,
"value": {
"end": 15183,
"labels": [
"ANALYSIS"
],
"start": 15017,
"text": "There is no dispute that the respondentbank in terms of Section 210 of the Companies Act, 1956 is also required to lay its accounts before the Annual General Meeting."
}
},
{
"from_name": null,
"id": "f83e79d7c51946649f35251818b17265",
"to_name": null,
"type": null,
"value": {
"end": 15448,
"labels": [
"ANALYSIS"
],
"start": 15184,
"text": "However, such accounts would necessarily be prepared in accordance with the provisions of Banking Regulation Act, 1949 and never be those which even had it been possible to be prepared, in accordance with Parts II and III of Schedule VI of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "749bd60f24e640eaa0467485a5279f81",
"to_name": null,
"type": null,
"value": {
"end": 15570,
"labels": [
"ANALYSIS"
],
"start": 15449,
"text": "The applicability of this proviso therefore, in case of a banking company would immediately create complications."
}
},
{
"from_name": null,
"id": "58307be1b4634abc80f061a7c6af5f2b",
"to_name": null,
"type": null,
"value": {
"end": 15769,
"labels": [
"ANALYSIS"
],
"start": 15571,
"text": "On one hand, in terms of Section 210 of the Companies Act, 1956, the bank would be under an obligation to lay before Annual General Meeting its annual accounts including the profit and loss account."
}
},
{
"from_name": null,
"id": "d6e8ba3fc05c4e8e8afc6cc0eb3a86f3",
"to_name": null,
"type": null,
"value": {
"end": 15865,
"labels": [
"ANALYSIS"
],
"start": 15770,
"text": "These accounts would be prepared in terms provisions contained in Banking Regulation Act, 1949."
}
},
{
"from_name": null,
"id": "b61bcc917a4340b08c20df45069ecc87",
"to_name": null,
"type": null,
"value": {
"end": 15948,
"labels": [
"ANALYSIS"
],
"start": 15866,
"text": "Subsection (2) requires preparation of the accounts in terms of the Companies Act."
}
},
{
"from_name": null,
"id": "794a332ee9294018bff71de12cc64c35",
"to_name": null,
"type": null,
"value": {
"end": 16237,
"labels": [
"ANALYSIS"
],
"start": 15949,
"text": "Proviso to subsection (2) would require maintaining the same parameters in relation to the accounting policies, accounting standards and method and rate of depreciation as adopted for the purpose of preparing the accounts, which would ultimately be laid before the Annual General Meeting."
}
},
{
"from_name": null,
"id": "1035547ad7d9457d9cbe08721267bd13",
"to_name": null,
"type": null,
"value": {
"end": 16511,
"labels": [
"ANALYSIS"
],
"start": 16238,
"text": "A Banking company in terms of subsection (2) of Section 115JB can prepare additional accounts as per provisions of Parts II and III of Schedule VI of the Companies Act or fulfill the requirements of the proviso to subsection (2) but cannot fulfill both the conditions.\n 11."
}
},
{
"from_name": null,
"id": "4e4dbfbd00ca45feb8fd7597257fbe22",
"to_name": null,
"type": null,
"value": {
"end": 16849,
"labels": [
"ANALYSIS"
],
"start": 16512,
"text": "This legal dichotomy emerging from the provisions of subsection (2) of Section 115JB particularly having regard to the first proviso contained therein in case of a banking company, would convince us that machinery provision provided in sub section (2) of section 115JB of the Act, would be rendered wholly unworkable in such a situation."
}
},
{
"from_name": null,
"id": "cd70974e084543128d78dd4af6ee44f5",
"to_name": null,
"type": null,
"value": {
"end": 17095,
"labels": [
"ANALYSIS"
],
"start": 16850,
"text": "In a well known judgment the Supreme court in case of Commissioner of IncomeTax, Bangalore Vs. B.C. Shrinivasa Setty1 had observed that in the Income Tax Act, a charing section and the computing provisions together constitute an integrated code."
}
},
{
"from_name": null,
"id": "cd30ae11ecae400ba109aa05e8d87d7c",
"to_name": null,
"type": null,
"value": {
"end": 17243,
"labels": [
"ANALYSIS"
],
"start": 17096,
"text": "In a case where the computation provision can not apply, it would be evident that such a case was not intended to fall within the charging section."
}
},
{
"from_name": null,
"id": "037468dc12a54b29867dd16efbc71267",
"to_name": null,
"type": null,
"value": {
"end": 17348,
"labels": [
"ANALYSIS"
],
"start": 17243,
"text": "\n It was a case of charging a partnership firm for transfer of a capital asset in the nature of goodwill."
}
},
{
"from_name": null,
"id": "2a1ef8ce75574c0ca3d9f3174399d110",
"to_name": null,
"type": null,
"value": {
"end": 17462,
"labels": [
"ANALYSIS"
],
"start": 17349,
"text": "The Supreme Court was of the opinion that it would not be possible to envisage a cost of acquisition of goodwill."
}
},
{
"from_name": null,
"id": "5f6265c499e6419194f22a63e5b213ff",
"to_name": null,
"type": null,
"value": {
"end": 17609,
"labels": [
"ANALYSIS"
],
"start": 17463,
"text": "Since computation of capital gain cannot be done without ascertaining the cost of acquisition, it was held that no capital gain tax can be levied."
}
},
{
"from_name": null,
"id": "bce1a42d23984396b3ef50de409398ea",
"to_name": null,
"type": null,
"value": {
"end": 18104,
"labels": [
"ANALYSIS"
],
"start": 17609,
"text": "\n 12. For the completeness of the discussion, we may note that section 211 of the Companies Act, 1956 pertains to form of 1 Vol.128 ITR 294 contents of balancesheet and profit and loss account, subsection (1) of Section 211 provided that every balance sheet of a company shall give true and fair view on the state of affairs of the company at the end of the financial year and would be subject to the provisions of the said section and be in the form set out in the Forms 1 and 2 of schedule VI."
}
},
{
"from_name": null,
"id": "7ff32f6eb4fd42d580edf03acb2b5272",
"to_name": null,
"type": null,
"value": {
"end": 18417,
"labels": [
"ANALYSIS"
],
"start": 18105,
"text": "This subsection contained a proviso providing that nothing contained in said subsection would apply to a banking company or any company engaged in generation or supply of electricity or to any other class of company for which a form of balance sheet shall be specified in or under the Act governing such company."
}
},
{
"from_name": null,
"id": "0b13771a3ca54172abfba19cea648311",
"to_name": null,
"type": null,
"value": {
"end": 18766,
"labels": [
"ANALYSIS"
],
"start": 18418,
"text": "Thus, Companies Act, 1956 excluded the insurance or banking companies, companies engaged in generation or supply of electricity or companies for which balancesheet was specified in the governing Act, from the purview of subsection (1) of Section 211 of the Companies Act, 1956 and as a consequence from the purview of Section 115JB of the Act.\n 13."
}
},
{
"from_name": null,
"id": "948bfd549cb94e0eab209bb698a328c4",
"to_name": null,
"type": null,
"value": {
"end": 18861,
"labels": [
"PRE_RELIED"
],
"start": 18767,
"text": "What we have held above is duly supported by the division bench judgment of Kerala High Court."
}
},
{
"from_name": null,
"id": "f8fc14de91e342b98ba12eb19de9bc5f",
"to_name": null,
"type": null,
"value": {
"end": 19041,
"labels": [
"PRE_RELIED"
],
"start": 18862,
"text": "It was a case in which the assessee before the court was Kerala State Electricity Board, a statutory corporation constituted under Section 5 of the Electricity (Supply) Act, 1948."
}
},
{
"from_name": null,
"id": "08ed7c7cf222430d860c5d33c2cc1f78",
"to_name": null,
"type": null,
"value": {
"end": 19162,
"labels": [
"PRE_RELIED"
],
"start": 19042,
"text": "The revenue sought to cover the said Electricity Board under the provisions of Section 115JB which the assessee opposed."
}
},
{
"from_name": null,
"id": "2ad233364758436196c8788a7306c1f6",
"to_name": null,
"type": null,
"value": {
"end": 19203,
"labels": [
"PRE_RELIED"
],
"start": 19163,
"text": "The issue reached the Kerala High Court."
}
},
{
"from_name": null,
"id": "f9a4468a708a4b83b3569bc7ff4095fb",
"to_name": null,
"type": null,
"value": {
"end": 19318,
"labels": [
"PRE_RELIED"
],
"start": 19203,
"text": "\n The Court referred to and relied upon the decision of the Supreme Court in case of B.C. Shrinivasa Setty (supra)."
}
},
{
"from_name": null,
"id": "f2bfda1ada11447e88e615d17ccbc00c",
"to_name": null,
"type": null,
"value": {
"end": 19498,
"labels": [
"PRE_RELIED"
],
"start": 19319,
"text": "It was noticed that the Board was required to keep and maintain its account in the manner specified by the Central Government and not in the manner specified in the Companies Act."
}
},
{
"from_name": null,
"id": "2087f3eecd2a4b58ad22103de994438d",
"to_name": null,
"type": null,
"value": {
"end": 19598,
"labels": [
"PRE_RELIED"
],
"start": 19499,
"text": "In that view of the matter it was held that section 115JB would not apply to the Electricity Board."
}
},
{
"from_name": null,
"id": "5e6662f9581145de9a1f93ead98f2970",
"to_name": null,
"type": null,
"value": {
"end": 19798,
"labels": [
"ANALYSIS"
],
"start": 19599,
"text": "Learned counsel for the assessee has also brought to our notice decisions of Delhi High Court holding that such MAT provisions would not apply to the insurance companies and to the banking companies."
}
},
{
"from_name": null,
"id": "3dc824086be64eef8178e83f957a0552",
"to_name": null,
"type": null,
"value": {
"end": 19930,
"labels": [
"ANALYSIS"
],
"start": 19798,
"text": "\n 14. There are certain significant legislative changes made by Finance Act, 2012, which must be noted before concluding this issue."
}
},
{
"from_name": null,
"id": "168fda3f02c84deda147fcc44384f681",
"to_name": null,
"type": null,
"value": {
"end": 20109,
"labels": [
"STA"
],
"start": 19931,
"text": "In the present form, post amendment by Finance Act, 2012, relevant portion of Section 115JB of the Act reads as under: \"Special provision for payment of tax by certain companies."
}
},
{
"from_name": null,
"id": "f9e33fe608c5494887c9a645210acf63",
"to_name": null,
"type": null,
"value": {
"end": 20116,
"labels": [
"STA"
],
"start": 20110,
"text": "115JB."
}
},
{
"from_name": null,
"id": "e1a01099099e4055947d888ff27ab07f",
"to_name": null,
"type": null,
"value": {
"end": 21555,
"labels": [
"STA"
],
"start": 20117,
"text": "(1) Notwithstanding anything contained in any other provision of this payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, (2012), is less than (eighteen and onehalf percent) of its book profit, (such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of incometax at the rate of (eighteen and onehalf percent).\n(2) Every assessee, (a) being a company, other than a company referred to in clause (b), shall, for the purposes of this section, prepare its (statement of profit and loss) for the relevant previous year in accordance with the provisions of (Schedule III) to the (Companies Act, 2013 (18 of 2013); or (b) being a company, to which the (second proviso to subsection (1) of section 129) of the (Companies Act, 2013 (18 of 2013) is applicable, shall, for the purposes of this section, prepare its (statement of profit and loss) for the relevant previous year in accordance with the provisions of the Act governing such company:) Provided that while preparing the annual accounts including (statement of profit and loss), (i) the accounting policies; (ii) the accounting standards adopted for preparing such accounts including (statement of profit and loss); (iii) the method and rates adopted for calculating the depreciation"
}
},
{
"from_name": null,
"id": "ba00cd1cabfa4df29e0854d64358f9bd",
"to_name": null,
"type": null,
"value": {
"end": 21836,
"labels": [
"STA"
],
"start": 21555,
"text": ", shall be the same as have been adopted for the purpose of preparing such accounts including (statement of profit and loss) and laid before the company at its annual general meeting in accordance with the provisions of (section 129) of the (Companies Act, 2013(18 of 2013)):\"\n 15."
}
},
{
"from_name": null,
"id": "12798a6d03744998828775613a7a554e",
"to_name": null,
"type": null,
"value": {
"end": 21998,
"labels": [
"ANALYSIS"
],
"start": 21837,
"text": "The memorandum explaining the provisions made in the Finance Bill, 2012, in relation to minimum alternative tax stated as under : \"Minimum Alternate Tax (MAT) I."
}
},
{
"from_name": null,
"id": "688b6c444d594fd7885703bc0b356c13",
"to_name": null,
"type": null,
"value": {
"end": 22244,
"labels": [
"ANALYSIS"
],
"start": 21999,
"text": "Under the existing provisions of section 115JB of the Act, a company is liable to pay MAT of eighteen and on half percent of its book profit in case tax on its total income computed under the provisions of the Act is less than the MAT liability."
}
},
{
"from_name": null,
"id": "031dc043ec6148bb8dca0d8d2a8fe4f9",
"to_name": null,
"type": null,
"value": {
"end": 22457,
"labels": [
"ANALYSIS"
],
"start": 22245,
"text": "Book profit for this purpose is computed by making certain adjustments to the profit disclosed in the profit and loss account prepared by the company in accordance with the Schedule VI of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "ec4549be770446ea9f3a3b820cf1baa0",
"to_name": null,
"type": null,
"value": {
"end": 22577,
"labels": [
"STA"
],
"start": 22459,
"text": "As per section 115JB, every company is required to prepare its accounts as per Schedule VI of the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "7d73b7b9da7d4f06882566a880fa2997",
"to_name": null,
"type": null,
"value": {
"end": 22826,
"labels": [
"ANALYSIS"
],
"start": 22578,
"text": "However, as per the provisions of the Companies Act, 1956, certain companies, e.g. insurance, banking or electricity company, are allowed to prepare their profit and loss account in accordance with the provisions specified in their regulatory Acts."
}
},
{
"from_name": null,
"id": "9ce2613b01ec46d3aa5b8de8d583e227",
"to_name": null,
"type": null,
"value": {
"end": 23309,
"labels": [
"ANALYSIS"
],
"start": 22827,
"text": "In order to align the provisions of Incometax Act with the Companies Act, 1956, it is proposed to amend section 115JB to provide that the companies which are not required under section 211 of the Companies Act to prepare their profit and loss account in accordance with Schedule VI of the Companies Act, 1956, profit and loss account prepared in accordance with the provisions of their regulatory Acts shall be taken as a basis for computing the book profit under section 115JB.\nII."
}
},
{
"from_name": null,
"id": "fa0b023aa58743e9a469a2a4d8c0d051",
"to_name": null,
"type": null,
"value": {
"end": 23461,
"labels": [
"ANALYSIS"
],
"start": 23310,
"text": "It is noted that in certain cases, the amount standing in the revaluation reserve is taken directly to general reserve on disposal of a revalued asset."
}
},
{
"from_name": null,
"id": "7ea4d316b98f4c5db7327fd628218f32",
"to_name": null,
"type": null,
"value": {
"end": 23551,
"labels": [
"ANALYSIS"
],
"start": 23462,
"text": "Thus, the gains attributable to revaluation of the asset is not subject to MAT liability."
}
},
{
"from_name": null,
"id": "24c99532e9b24069bec02b3254412a2b",
"to_name": null,
"type": null,
"value": {
"end": 23863,
"labels": [
"ANALYSIS"
],
"start": 23551,
"text": "\n It is, therefore, proposed to amend section 115JB to provide that the book profit for the purpose of section 115JB shall be increased by the amount standing in the revaluation reserve relating to the revalued asset which has been retired or disposed, if the same is not credited to the profit and loss account."
}
},
{
"from_name": null,
"id": "8767fb59b6a9411ba28c1c877b0b1f25",
"to_name": null,
"type": null,
"value": {
"end": 24073,
"labels": [
"ANALYSIS"
],
"start": 23864,
"text": "III. It is also proposed to omit the reference of Part III of Schedule VI of the Companies Act, 1956 from section 115JB in view of omission of Part III in the revised Schedule VI under the Companies Act, 1956."
}
},
{
"from_name": null,
"id": "714847f3495645dfb13bed9c5a595fba",
"to_name": null,
"type": null,
"value": {
"end": 24239,
"labels": [
"ANALYSIS"
],
"start": 24073,
"text": "\n These amendments will take effect from 1st April, 2013 and will, accordingly, apply in relation to the assessment year 201314 and subsequent assessment years.\"\n 16."
}
},
{
"from_name": null,
"id": "6ca1fcf5ef2147958180ab788b5b9d30",
"to_name": null,
"type": null,
"value": {
"end": 24375,
"labels": [
"ANALYSIS"
],
"start": 24240,
"text": "It can be seen that subsection (2) of Section 115JB of the Act has now been bifurcated in two parts covered in the clauses (a) and (b)."
}
},
{
"from_name": null,
"id": "fcaffc757036468ab055c219bf454434",
"to_name": null,
"type": null,
"value": {
"end": 24456,
"labels": [
"ANALYSIS"
],
"start": 24376,
"text": "Clause (a) would cover all companies other than those referred to in clause (b)."
}
},
{
"from_name": null,
"id": "19deed6c52e446fabdfeee18cbcc537a",
"to_name": null,
"type": null,
"value": {
"end": 24647,
"labels": [
"ANALYSIS"
],
"start": 24457,
"text": "Such companies would prepare the statement of profit and loss in accordance to the provisions of schedule III of the Companies Act, 2013 (which has now replaced the old Companies Act, 1956)."
}
},
{
"from_name": null,
"id": "60d5625a651b48b4973ae064a3724639",
"to_name": null,
"type": null,
"value": {
"end": 24777,
"labels": [
"ANALYSIS"
],
"start": 24648,
"text": "Clause (b) refers to a company to which second proviso to subsection (1) of Section 129 of the Companies Act, 2013 is applicable."
}
},
{
"from_name": null,
"id": "ec656e1aad7b4c348afc8781bdf588ca",
"to_name": null,
"type": null,
"value": {
"end": 24942,
"labels": [
"ANALYSIS"
],
"start": 24778,
"text": "Such companies, for the purpose of Section 115JB, would prepare the statement of profit and loss in accordance with the provisions of the Act governing the company."
}
},
{
"from_name": null,
"id": "4601ff4c61574965b37409a9ad1e6b3d",
"to_name": null,
"type": null,
"value": {
"end": 25014,
"labels": [
"ANALYSIS"
],
"start": 24943,
"text": "Section 129 of the Companies Act, 2013 pertains to financial statement."
}
},
{
"from_name": null,
"id": "dc9464299e4c4dc381461b99c2060c00",
"to_name": null,
"type": null,
"value": {
"end": 25309,
"labels": [
"ANALYSIS"
],
"start": 25015,
"text": "Under subsection (1) of Section 129 it is provided that the financial statement shall give a true and fair view of the state of affairs of the company, comply with the accounting standard notified under Section 113 and shall be in the form as may be provided for different classes of companies."
}
},
{
"from_name": null,
"id": "319474c985ae4b189e150530428145a3",
"to_name": null,
"type": null,
"value": {
"end": 25697,
"labels": [
"ANALYSIS"
],
"start": 25310,
"text": "Second proviso to subsection (1) of Section 129 reads as under: \"Provided further that nothing contained in this subsection shall apply to any insurance or banking company or any company engaged in the generation or supply of electricity, or to any other class of company for which a form of financial statement has been specified in or under the Act governing such class of company: 17."
}
},
{
"from_name": null,
"id": "40c4d8e032b74035983bb2e9c6c47475",
"to_name": null,
"type": null,
"value": {
"end": 25963,
"labels": [
"ANALYSIS"
],
"start": 25698,
"text": "This proviso thus refers any insurance or banking companies or companies engaged in the generation or supply of electricity or to any other class of company in which form of financial statement has been specified in or under the Act governing such class of company."
}
},
{
"from_name": null,
"id": "0c1f05e1c34045458bf2e0591cc8f45a",
"to_name": null,
"type": null,
"value": {
"end": 26447,
"labels": [
"ANALYSIS"
],
"start": 25964,
"text": "Combined reading of this proviso to subsection (1) of Section 129 of the Act, 2013 and clause (b) of sub section (2) of Section 115JB of the Act would show that in case of insurance or banking companies or companies engaged in generation or supply of electricity or class of companies for whom financial statement has been specified under the Act governing such company, the requirement of preparing the statement of accounts in terms of provisions of the Companies Act, is not made."
}
},
{
"from_name": null,
"id": "f29c650fa9c24f53b9bc96da4448a5b5",
"to_name": null,
"type": null,
"value": {
"end": 26685,
"labels": [
"ANALYSIS"
],
"start": 26448,
"text": "Clause (b) of subsection (2) provides that in case of such companies for the purpose of Section 115JB the preparation of statement of profit and loss account would be in accordance with the provisions of the Act governing such companies."
}
},
{
"from_name": null,
"id": "94d45551dc434cbab1f1dcc8b117f9be",
"to_name": null,
"type": null,
"value": {
"end": 26932,
"labels": [
"ANALYSIS"
],
"start": 26686,
"text": "This legislative change thus aliens class of companies who under the governing Acts were required to prepare profit and loss accounts not in accordance with the Companies Act, but in accordance with the provisions contained in such governing Act."
}
},
{
"from_name": null,
"id": "806bd6aa598649839dad22d7aa06a362",
"to_name": null,
"type": null,
"value": {
"end": 27123,
"labels": [
"ANALYSIS"
],
"start": 26932,
"text": "\n The earlier dichotomy of such companies also, if we accept the revenue's contention, having the obligation of preparing accounts as per the provisions of the Companies Act has been removed."
}
},
{
"from_name": null,
"id": "84ce685d837c4d35b96cb1bba4607464",
"to_name": null,
"type": null,
"value": {
"end": 27306,
"labels": [
"ANALYSIS"
],
"start": 27123,
"text": "\n 18. These amendments in section 115JB are neither declaratory nor classificatory but make substantive and significant legislative changes which are admittedly applied prospectively."
}
},
{
"from_name": null,
"id": "d81b0310dd734c97b365a0344bcf0b7b",
"to_name": null,
"type": null,
"value": {
"end": 27653,
"labels": [
"ANALYSIS"
],
"start": 27307,
"text": "The memorandum explaining the provision of the Finance Bill, 2012 while explaining the amendments under Section 115JB of the Act notes that in case of certain companies such as insurance, banking and electricity companies, they are allowed to prepare the profit and loss account in accordance with the sections specified in their regulatory Acts."
}
},
{
"from_name": null,
"id": "f860670b11d14c4faf55a115474dff67",
"to_name": null,
"type": null,
"value": {
"end": 28103,
"labels": [
"ANALYSIS"
],
"start": 27654,
"text": "To align the Income Tax Act with the Companies Act, 1956 it was decided to amend Section 115JB to provide that the companies which are not required under Section 211 of the Companies Act, to prepare profit and loss account in accordance with Schedule VI of the Companies Act, profit and loss account prepared in accordance with the provisions of their regulatory Act shall be taken as basis for computing book profit under Section 115 JB of the Act."
}
},
{
"from_name": null,
"id": "e38f68c3bd6f4dc696cba84c891173a8",
"to_name": null,
"type": null,
"value": {
"end": 28823,
"labels": [
"STA"
],
"start": 28103,
"text": "\n 19. Before closing, we may also take note of explanation (3) below subsection (2) of section 115 JB of the Act which reads as under : \"Explanation 3For the removal of doubts, it is hereby clarified that for the purposes of this section, the assessee, being a company to which the proviso to subsection (2) of section 211 of the Companies Act, 1956(1 of 1956) is applicable, has, for an assessment year commencing on or before the 1st day of April, 2012, an option to prepare its profit and loss account for the relevant previous year either in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, 1956 or in accordance with the provisions of the Act governing such company.\"\n 20."
}
},
{
"from_name": null,
"id": "da883df778bd48949ebc45462b78adbc",
"to_name": null,
"type": null,
"value": {
"end": 28896,
"labels": [
"ANALYSIS"
],
"start": 28824,
"text": "This explanation starts with the expression \"For the removal of doubts\"."
}
},
{
"from_name": null,
"id": "98055283ae324f43b76e40b12bc06ff0",
"to_name": null,
"type": null,
"value": {
"end": 29349,
"labels": [
"ANALYSIS"
],
"start": 28897,
"text": "It declares that for the purpose of the said section in case of an assesseecompany to which second proviso to section 129 (1) of the Companies Act, 2013 is applicable, would have an option for the assessment year commencing on or before 1st April, 2012 to prepare its statement of profit and loss either in accordance with the provisions of schedule III to the Companies Act, 2013 or in accordance with the provisions of the Act governing such company."
}
},
{
"from_name": null,
"id": "01e876f30bca488192287a7df6fa0288",
"to_name": null,
"type": null,
"value": {
"end": 29399,
"labels": [
"ANALYSIS"
],
"start": 29350,
"text": "To our mind, this is some what curious provision."
}
},
{
"from_name": null,
"id": "c183f2e87f594f3fbecb1c6d21fd962a",
"to_name": null,
"type": null,
"value": {
"end": 29692,
"labels": [
"ANALYSIS"
],
"start": 29400,
"text": "In the original form, subsection (2) of section 115JB of the Act did not offer any such option to a banking company, insurance company or electricity company to prepare its profit and loss account at its choice either in terms of its governing Act or as per terms of Section 115JB of the Act."
}
},
{
"from_name": null,
"id": "3d3cad744f6c45abac4044aa65069f16",
"to_name": null,
"type": null,
"value": {
"end": 29857,
"labels": [
"ANALYSIS"
],
"start": 29693,
"text": "Secondly, by virtue of this explanation if an anomaly which we have noticed is sought to be removed, we do not think that the legislature has achieved such purpose."
}
},
{
"from_name": null,
"id": "ad2a0e944bac4a95bda93414ccfabdb4",
"to_name": null,
"type": null,
"value": {
"end": 29932,
"labels": [
"RATIO"
],
"start": 29858,
"text": "In plain terms, this is not a case of retrospective legislative amendment."
}
},
{
"from_name": null,
"id": "80f63941f37c494cb76bdf8a807e8771",
"to_name": null,
"type": null,
"value": {
"end": 29998,
"labels": [
"RATIO"
],
"start": 29933,
"text": "It is stated to be clarificatory amendment for removal of doubts."
}
},
{
"from_name": null,
"id": "3c8427818b2747b1bdf109ae79704c17",
"to_name": null,
"type": null,
"value": {
"end": 30291,
"labels": [
"RATIO"
],
"start": 29999,
"text": "When the plain language of subsection (2) of Section 115JB did not permit any ambiguity, we do not think the legislature by introducing a clarificatory or declaratory amendment cure a defect without resorting to retrospective amendment, which in the present case has admittedly not been done."
}
},
{
"from_name": null,
"id": "6ae250fde97f4f5d8032ae557a7b03ee",
"to_name": null,
"type": null,
"value": {
"end": 30454,
"labels": [
"RPC"
],
"start": 30291,
"text": "\n 21. In the result, we hold that subsection 115JB as it stood prior to its amendment by virtue of Finance Act, 2012, would not be applicable to a banking company."
}
},
{
"from_name": null,
"id": "e033155dc29045f6925dedf3bc6337a0",
"to_name": null,
"type": null,
"value": {
"end": 30533,
"labels": [
"RPC"
],
"start": 30455,
"text": "We answer the question No.2 in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "dc6bfb0169b34139b86b584ba18ece36",
"to_name": null,
"type": null,
"value": {
"end": 30657,
"labels": [
"RPC"
],
"start": 30534,
"text": "In view of this, question of correctness of the order of rectification passed by the Assessing Officer becomes unimportant."
}
},
{
"from_name": null,
"id": "58fb474b66d440f5b2aff6e3a014be0a",
"to_name": null,
"type": null,
"value": {
"end": 30698,
"labels": [
"RPC"
],
"start": 30658,
"text": "Question No.1 is therefore not answered."
}
},
{
"from_name": null,
"id": "af4c320178104b868ab262e527a54b0d",
"to_name": null,
"type": null,
"value": {
"end": 30729,
"labels": [
"RPC"
],
"start": 30699,
"text": "All the appeals are dismissed."
}
},
{
"from_name": null,
"id": "16d94a7331454be39065ac167dba7601",
"to_name": null,
"type": null,
"value": {
"end": 30802,
"labels": [
"NONE"
],
"start": 30729,
"text": "\n (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.) ...."
}
}
]
}
] | 4,093 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n ORDINARY ORIGINAL CIVIL JURISDICTION\n\n INCOME TAX APPEAL NO.1196 OF 2013\n WITH\n\n INCOME TAX APPEAL NO.1175 OF 2013\n\nThe Commissioner of Income TaxLTU ... Appellant\n V/s. ... Respondent\n\nUnion Bank of India\n\n WITH\n INCOME TAX APPEAL NO.59 OF 2017\n\nCommissioner of Income Tax(IT)3 ... Appellant\n V/s. ... Respondent\n\nMashreq Bank psc\n\n WITH\n INCOME TAX APPEAL NO.1567 OF 2016\n\n WITH\n INCOME TAX APPEAL NO.1309 OF 2016\n\n WITH\n INCOME TAX APPEAL NO.143 OF 2018\n\n WITH\n INCOME TAX APPEAL NO.1907 OF 2017\n\n WITH\n INCOME TAX APPEAL NO.1878 OF 2017\n\n WITH\n INCOME TAX APPEAL NO.182 OF 2015\n\nPr. Commissioner of Income Tax2 ... Appellant\n V/s. ... Respondent\n\nBank of India\n\n WITH\n INCOME TAX APPEAL NO.1108 OF 2015\n\nPr. Commissioner of Income Tax3 ... Appellant\n\n\n V/s. ... Respondent\nM/s The New India Assurance Co.Ltd.\n\n WITH\n INCOME TAX APPEAL NO.27 OF 2016\n\nCommissioner of Income Tax(IT)2 ... Appellant\n\nV/s.\nCredit Agricole Corporate and Investment Bank... Respondent\n\n \n\nMr.Suresh Kumar for the Appellant in ITXA Nos.1196/13,\n1175/13, 1108/15, 1309/16, 1567/16, 182/15, 1878/17,\n1907/17 and 143/18.\nMr.Percy Pardiwalla, Senior Counsel with Ms.Nupur Awasthi with\nMs.Usha K.Srivastava i/by M/s Consulta Juris for the Respondent\nin ITXA Nos.1196/13 and 1175/13.\nMr.Tejveer Singh for the Appellant in ITXA Nos.59/17 and 27/16.\nMr.Percy Pardiwalla, Senior Counsel with Mr.Madhur Agrawal\ni/by Mr.Atul Jsani for the Respondent in ITXA Nos. 59/17 and\n27/16.\nMr.Atul Jasani for the Respondent in ITXA No.1108/15.\nMr.Subhash Shetty for the respondent in ITXA Nos. 1309/16,\n1567/16, 1878/17, 1907/17 and 143/18.\nMr.Sanjiv Shah for the Respondent in ITXA 182/15.\n\n \n\n CORAM : AKIL KURESHI AND\n SARANG V. KOTWAL, JJ.\n\n DATE : APRIL 16, 2019.\n\nORAL JUDGMENT : 1. In these appeals common questions of law arise. Some of the appeals have been admitted. Some have been tagged on account of similarity of issues though they are at the admission stage. For convenience, we may record facts from Income Tax Appeal No.1196 of 2013. This appeal was admitted for consideration of following questions of law: \"(i) Whether on the facts and in the circumstances of the case and in law, the ITAT is correct is reversing the order of Assessing Officer confirmed by the CIT(A), exercising the jurisdiction u/s.154 of the Income Tax Act, 1961, determining the Book Profits as per the amendment to Section 115JB?\n(ii) Whether on the facts and in the circumstances of the case and in law the ITAT is correct in holding that the provision of Section 115JB are not applicable to the assesseeBank?\"\n 2. For all the appeals we would adopt the above quoted questions as substantial questions of law.\n 3. RespondentUnion Bank of India had filed return of income for the assessment year 200506. The Assessing Officer passed order of assessment under Section 143(3) of the Income Tax Act, 1961 (\"the Act\" for short) on 23rd March, 2007 computing the assessee's taxable income at Rs.412.41 crores (rounded off) under the normal provisions and Rs.431.15 crores as book profit under Section 115JB of the Act. The Assessing Officer thereafter passed an order dated 25th March, 2010 of rectification to give effect to a retrospective amendment in Section 115JB of the Act.\n He computed the assessee's revised book profit at Rs.374.21 crores.\n 4. The assessee carried the matter in appeal. In such appeal, the assessee opposed the assessment order on merits, including the order passed by the Assessing Officer exercising rectification powers. CIT (Appeals) granted partial relief by his order dated 27th March, 2012.\n 5. Against such order of the Commissioner (Appeals), the assessee preferred further appeal before Income Tax Appellate Tribunal (\"Tribunal\" for short). In such appeal, the assessee contended that the Assessing Officer could not have exercised rectification powers. The assessee raised an additional ground that being a banking company, the provisions of Section 115JB of the Act would not be applicable. The Tribunal allowed such appeal by the impugned judgment dated 22nd March, 2012. The Tribunal was of the opinion that the Assessing Officer wrongly exercised powers of rectification. The Tribunal further noted that the coordinate bench in the assessee's own case for the assessment year 200607 had held that the provisions of Section 115JB of the Act, were not applicable to the assesseebank. The Tribunal held as under : \"7. We have considered the issue. There is no doubt that the assessment orders under section 143(3) were passed in these years under which total income was determined under normal provisions and book provisions of section 115JB were not invoked. The issues which are considered in normal assessment are still pending before the ITAT for adjudication,whereas the Assessing Officer under the guise of section 154 disallowed certain amounts revising the book profits. However, even after making these adjustments, the tax under normal provisions was determined at Rs.328.07 cores, whereas the tax under section 115JB was determined at Rs.72.02 crores for assessment years 200405 and tax under normal provisions was determined at Rs.150.91 crores under normal provisions and tax under section 115JB at Rs.28.06 crores under section 115JB. Ultimately the taxes were determined under normal provisions without exercising the provisions of section 115JB.\nIn that view, the entire exercises of modifying the orders is redundant as even after such adjustment, the tax determined under the normal provisions is more than the tax that are being determined by this order under section 154.\n8. Be that as it may, just because a retrospective amendment has been carried out on the statue, the assessment cannot be modified without examining whether the provisions so made are to be disallowed or not. This requires detailed examination and in fact as for the submissions made before the authorities, the assessee had appeared before the Assessing Officer furnishing various details and how the amounts cannot be disallowed. Since this requires claborate examination on a long run process, we are of the opinion that the orders cannot be modified by invoking the provisions of section 154. Not only that the Coordinate Bench in assessee's own case in assessment year 200607 has held that the provisions of section 115JB are not applicable to the assessee Bank. In view of this, we hold that the order under section 154 passed by the Assessing Officer is not correct and therefore, the same was set aside. Accordingly assessee's grounds in the above 2 years are allowed.\"\n 6. Against this judgment, the revenue has filed this appeal.\nAppearing for the revenue learned counsel submitted that the view expressed by the Tribunal is not sustainable in law. The provisions of Section 115JB are sufficiently clear and apply to all companies. Admittedly, respondentbank is a company. Provisions of Section 115JB would be applicable to such companies also. He submitted that the amendments made in Section 115JB of the Act under Finance Act, 2012 would have no effect on this legal position. These amendments have been made only to alien the position of the special companies such as the banking companies, electricity companies etc. with the provisions of the Income Tax Act. These amendments in no way suggest that prior to such legislative changes, the provisions of Section 115JB of the Act were not applicable to the banking companies and such other special companies.\n 7. On the other hand, learned counsel Shri Pardiwalla led arguments on behalf of the assessee. He submitted that the mechanism provided for computing book profit in terms of sub section (2) of Section 115JB of the Act would be wholly unworkable for a banking company. He submitted that this anomaly was removed by the legislature only by amending Section 115JB by Finance Act, 2012. Till then the banking companies were not within the fold of Section 115JB of the Act.\nHe submitted that when the machinery provision fails, the charging section shall have no applicability. Counsel relied on certain decisions, reference to which will be made at appropriate stage.\n 8. In order to resolve the controversy, we may take note of the statutory provisions and the legislative history. As is well known, Section 115JB of the Act, pertains to special provisions for payment of tax by certain companies and provides a formula for payment of minimum tax in case of companies, whose tax payable on the total income works out to be below a certain minimum threshhold percentage of its book profit. This provision is a successor to Section 115JA of the Act, which was also introduced for the same purpose. In fact, the first legislative introduction of the provisions pertaining to what is popularly referred to as MAT companies (Minimum Alternative Tax) was Section 115J. The Circular No.762 dated 18th February, 1998 issued by the Central Board of Direct Tax (\"CBDT\" for short) explains the object for introduction of such MAT provisions. The circular clarifies that new Section 115JA has been inserted by the Finance Act, so as to levy a minimum tax on companies, who are having book profits and paying dividends, but not paying any taxes. Relevant portion of Section 115JB as is stood at the relevant time reads as under: \"Special provision for payment of tax by certain companies 115JB.(1)Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the incometax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, (2007) is less than (ten percent) of its book profit, (such) book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of incometax at the rate of (ten percent).\n(2) Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956 (1 of 1956) Provided that while preparing the annual accounts including profit and loss account, (i) the accounting polices, (ii) the accounting standards adopted for preparing such accounts including profit and loss account; (iii) the method and rates adopted for calculating the depreciation, shall be the same as have been adopted for the purpose of preparing such accounts including profit and loss account and laid before the company at its annual general meeting in accordance with the provisions of section 210 of the Companies Act, 1956(1 of 1956): Provided further that where the company has adopted or adopts the financial year under the Companies Act, 1956(1 of 1956), which is different from the previous year under this Act, (i) the account policies; (ii) the accounting standards adopted for preparing such accounts including profit and loss account; (iii) the method and rates adopted for calculating the depreciation, shall correspond to the accounting policies, accounting standards and the method and rates for calculating the depreciation which have been adopted for preparing such accounts including profit and loss account for financial year or part of such financial year falling within the relevant previous year.\"\n 9. In terms of subsection (1) of Section 115JB of the Act thus notwithstanding anything contained in any of the provisions of the Act in case of an assessee being a company where the income tax payable on the total income as computed under the Act, is less than prescribed percentage of its book profit, such book profit shall be deemed to be the total income of the assessee. In so far as the language used under subsection (1) of Section 115JB is concerned, the same pauses no challenge. Sub section (1) of Section 115JB takes within its swip all companies with no further bifurcation or distinction between companies.\nHowever, the question that calls for our consideration is whether the machinery provision provided under subsection (2) of Section 115 JB of the Act is workable when it comes to the banking companies and such other special companies governed by the respective Acts. In the context, the question would also be of the legislative intent to cover such companies within the swip of Section 115JB of the Act. These questions arise because of the language used in subsection (2) of Section 115JB. These provisions we may peruse more minutely. As per subsection (2) of Section 115JB, every assessee being a company would for the purposes of the said section prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act, 1956. It is undisputed that the respondenta banking company is not required to prepare its accounts in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act, 1956. The accounts of the banking company are prepared as per the provisions contained in Banking Regulation Act, 1949. The counsel for the revenue may still argue that irrespective of such requirements, for the purposes of the said Act and special requirements of Section 115JB of the Act, a banking company is obliged to prepare its profit and loss account as per the provisions of the Companies Act, as mandated by subsection (2) of Section 115JB of the Act. His contention would be that such legislative mandate is not impermissible.\n 10. At the first blush, this argument seems attractive.\nHowever, when we read subsection (2) further, certain complications arise in this line of argument. The first proviso to subsection (2) of Section 115JB provides that while preparing annual accounts including profit and loss account the accounting policies and accounting standards adopted for preparing the account and the method and rules adopted in calculating the depreciation shall be the same as have been adopted for the purpose of preparing such accounts and laid before the company at its Annual General Meeting in accordance with provisions of Section 210 of the Companies Act, 1956. There is no dispute that the respondentbank in terms of Section 210 of the Companies Act, 1956 is also required to lay its accounts before the Annual General Meeting. However, such accounts would necessarily be prepared in accordance with the provisions of Banking Regulation Act, 1949 and never be those which even had it been possible to be prepared, in accordance with Parts II and III of Schedule VI of the Companies Act, 1956. The applicability of this proviso therefore, in case of a banking company would immediately create complications. On one hand, in terms of Section 210 of the Companies Act, 1956, the bank would be under an obligation to lay before Annual General Meeting its annual accounts including the profit and loss account. These accounts would be prepared in terms provisions contained in Banking Regulation Act, 1949. Subsection (2) requires preparation of the accounts in terms of the Companies Act. Proviso to subsection (2) would require maintaining the same parameters in relation to the accounting policies, accounting standards and method and rate of depreciation as adopted for the purpose of preparing the accounts, which would ultimately be laid before the Annual General Meeting. A Banking company in terms of subsection (2) of Section 115JB can prepare additional accounts as per provisions of Parts II and III of Schedule VI of the Companies Act or fulfill the requirements of the proviso to subsection (2) but cannot fulfill both the conditions.\n 11. This legal dichotomy emerging from the provisions of subsection (2) of Section 115JB particularly having regard to the first proviso contained therein in case of a banking company, would convince us that machinery provision provided in sub section (2) of section 115JB of the Act, would be rendered wholly unworkable in such a situation. In a well known judgment the Supreme court in case of Commissioner of IncomeTax, Bangalore Vs. B.C. Shrinivasa Setty1 had observed that in the Income Tax Act, a charing section and the computing provisions together constitute an integrated code. In a case where the computation provision can not apply, it would be evident that such a case was not intended to fall within the charging section.\n It was a case of charging a partnership firm for transfer of a capital asset in the nature of goodwill. The Supreme Court was of the opinion that it would not be possible to envisage a cost of acquisition of goodwill. Since computation of capital gain cannot be done without ascertaining the cost of acquisition, it was held that no capital gain tax can be levied.\n 12. For the completeness of the discussion, we may note that section 211 of the Companies Act, 1956 pertains to form of 1 Vol.128 ITR 294 contents of balancesheet and profit and loss account, subsection (1) of Section 211 provided that every balance sheet of a company shall give true and fair view on the state of affairs of the company at the end of the financial year and would be subject to the provisions of the said section and be in the form set out in the Forms 1 and 2 of schedule VI. This subsection contained a proviso providing that nothing contained in said subsection would apply to a banking company or any company engaged in generation or supply of electricity or to any other class of company for which a form of balance sheet shall be specified in or under the Act governing such company. Thus, Companies Act, 1956 excluded the insurance or banking companies, companies engaged in generation or supply of electricity or companies for which balancesheet was specified in the governing Act, from the purview of subsection (1) of Section 211 of the Companies Act, 1956 and as a consequence from the purview of Section 115JB of the Act.\n 13. What we have held above is duly supported by the division bench judgment of Kerala High Court. It was a case in which the assessee before the court was Kerala State Electricity Board, a statutory corporation constituted under Section 5 of the Electricity (Supply) Act, 1948. The revenue sought to cover the said Electricity Board under the provisions of Section 115JB which the assessee opposed. The issue reached the Kerala High Court.\n The Court referred to and relied upon the decision of the Supreme Court in case of B.C. Shrinivasa Setty (supra). It was noticed that the Board was required to keep and maintain its account in the manner specified by the Central Government and not in the manner specified in the Companies Act. In that view of the matter it was held that section 115JB would not apply to the Electricity Board. Learned counsel for the assessee has also brought to our notice decisions of Delhi High Court holding that such MAT provisions would not apply to the insurance companies and to the banking companies.\n 14. There are certain significant legislative changes made by Finance Act, 2012, which must be noted before concluding this issue. In the present form, post amendment by Finance Act, 2012, relevant portion of Section 115JB of the Act reads as under: \"Special provision for payment of tax by certain companies.\n115JB. (1) Notwithstanding anything contained in any other provision of this payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, (2012), is less than (eighteen and onehalf percent) of its book profit, (such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of incometax at the rate of (eighteen and onehalf percent).\n(2) Every assessee, (a) being a company, other than a company referred to in clause (b), shall, for the purposes of this section, prepare its (statement of profit and loss) for the relevant previous year in accordance with the provisions of (Schedule III) to the (Companies Act, 2013 (18 of 2013); or (b) being a company, to which the (second proviso to subsection (1) of section 129) of the (Companies Act, 2013 (18 of 2013) is applicable, shall, for the purposes of this section, prepare its (statement of profit and loss) for the relevant previous year in accordance with the provisions of the Act governing such company:) Provided that while preparing the annual accounts including (statement of profit and loss), (i) the accounting policies; (ii) the accounting standards adopted for preparing such accounts including (statement of profit and loss); (iii) the method and rates adopted for calculating the depreciation, shall be the same as have been adopted for the purpose of preparing such accounts including (statement of profit and loss) and laid before the company at its annual general meeting in accordance with the provisions of (section 129) of the (Companies Act, 2013(18 of 2013)):\"\n 15. The memorandum explaining the provisions made in the Finance Bill, 2012, in relation to minimum alternative tax stated as under : \"Minimum Alternate Tax (MAT) I. Under the existing provisions of section 115JB of the Act, a company is liable to pay MAT of eighteen and on half percent of its book profit in case tax on its total income computed under the provisions of the Act is less than the MAT liability. Book profit for this purpose is computed by making certain adjustments to the profit disclosed in the profit and loss account prepared by the company in accordance with the Schedule VI of the Companies Act, 1956.\n As per section 115JB, every company is required to prepare its accounts as per Schedule VI of the Companies Act, 1956. However, as per the provisions of the Companies Act, 1956, certain companies, e.g. insurance, banking or electricity company, are allowed to prepare their profit and loss account in accordance with the provisions specified in their regulatory Acts. In order to align the provisions of Incometax Act with the Companies Act, 1956, it is proposed to amend section 115JB to provide that the companies which are not required under section 211 of the Companies Act to prepare their profit and loss account in accordance with Schedule VI of the Companies Act, 1956, profit and loss account prepared in accordance with the provisions of their regulatory Acts shall be taken as a basis for computing the book profit under section 115JB.\nII. It is noted that in certain cases, the amount standing in the revaluation reserve is taken directly to general reserve on disposal of a revalued asset. Thus, the gains attributable to revaluation of the asset is not subject to MAT liability.\n It is, therefore, proposed to amend section 115JB to provide that the book profit for the purpose of section 115JB shall be increased by the amount standing in the revaluation reserve relating to the revalued asset which has been retired or disposed, if the same is not credited to the profit and loss account.\nIII. It is also proposed to omit the reference of Part III of Schedule VI of the Companies Act, 1956 from section 115JB in view of omission of Part III in the revised Schedule VI under the Companies Act, 1956.\n These amendments will take effect from 1st April, 2013 and will, accordingly, apply in relation to the assessment year 201314 and subsequent assessment years.\"\n 16. It can be seen that subsection (2) of Section 115JB of the Act has now been bifurcated in two parts covered in the clauses (a) and (b). Clause (a) would cover all companies other than those referred to in clause (b). Such companies would prepare the statement of profit and loss in accordance to the provisions of schedule III of the Companies Act, 2013 (which has now replaced the old Companies Act, 1956). Clause (b) refers to a company to which second proviso to subsection (1) of Section 129 of the Companies Act, 2013 is applicable. Such companies, for the purpose of Section 115JB, would prepare the statement of profit and loss in accordance with the provisions of the Act governing the company. Section 129 of the Companies Act, 2013 pertains to financial statement. Under subsection (1) of Section 129 it is provided that the financial statement shall give a true and fair view of the state of affairs of the company, comply with the accounting standard notified under Section 113 and shall be in the form as may be provided for different classes of companies. Second proviso to subsection (1) of Section 129 reads as under: \"Provided further that nothing contained in this subsection shall apply to any insurance or banking company or any company engaged in the generation or supply of electricity, or to any other class of company for which a form of financial statement has been specified in or under the Act governing such class of company: 17. This proviso thus refers any insurance or banking companies or companies engaged in the generation or supply of electricity or to any other class of company in which form of financial statement has been specified in or under the Act governing such class of company. Combined reading of this proviso to subsection (1) of Section 129 of the Act, 2013 and clause (b) of sub section (2) of Section 115JB of the Act would show that in case of insurance or banking companies or companies engaged in generation or supply of electricity or class of companies for whom financial statement has been specified under the Act governing such company, the requirement of preparing the statement of accounts in terms of provisions of the Companies Act, is not made. Clause (b) of subsection (2) provides that in case of such companies for the purpose of Section 115JB the preparation of statement of profit and loss account would be in accordance with the provisions of the Act governing such companies. This legislative change thus aliens class of companies who under the governing Acts were required to prepare profit and loss accounts not in accordance with the Companies Act, but in accordance with the provisions contained in such governing Act.\n The earlier dichotomy of such companies also, if we accept the revenue's contention, having the obligation of preparing accounts as per the provisions of the Companies Act has been removed.\n 18. These amendments in section 115JB are neither declaratory nor classificatory but make substantive and significant legislative changes which are admittedly applied prospectively. The memorandum explaining the provision of the Finance Bill, 2012 while explaining the amendments under Section 115JB of the Act notes that in case of certain companies such as insurance, banking and electricity companies, they are allowed to prepare the profit and loss account in accordance with the sections specified in their regulatory Acts. To align the Income Tax Act with the Companies Act, 1956 it was decided to amend Section 115JB to provide that the companies which are not required under Section 211 of the Companies Act, to prepare profit and loss account in accordance with Schedule VI of the Companies Act, profit and loss account prepared in accordance with the provisions of their regulatory Act shall be taken as basis for computing book profit under Section 115 JB of the Act.\n 19. Before closing, we may also take note of explanation (3) below subsection (2) of section 115 JB of the Act which reads as under : \"Explanation 3For the removal of doubts, it is hereby clarified that for the purposes of this section, the assessee, being a company to which the proviso to subsection (2) of section 211 of the Companies Act, 1956(1 of 1956) is applicable, has, for an assessment year commencing on or before the 1st day of April, 2012, an option to prepare its profit and loss account for the relevant previous year either in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, 1956 or in accordance with the provisions of the Act governing such company.\"\n 20. This explanation starts with the expression \"For the removal of doubts\". It declares that for the purpose of the said section in case of an assesseecompany to which second proviso to section 129 (1) of the Companies Act, 2013 is applicable, would have an option for the assessment year commencing on or before 1st April, 2012 to prepare its statement of profit and loss either in accordance with the provisions of schedule III to the Companies Act, 2013 or in accordance with the provisions of the Act governing such company. To our mind, this is some what curious provision. In the original form, subsection (2) of section 115JB of the Act did not offer any such option to a banking company, insurance company or electricity company to prepare its profit and loss account at its choice either in terms of its governing Act or as per terms of Section 115JB of the Act. Secondly, by virtue of this explanation if an anomaly which we have noticed is sought to be removed, we do not think that the legislature has achieved such purpose. In plain terms, this is not a case of retrospective legislative amendment. It is stated to be clarificatory amendment for removal of doubts. When the plain language of subsection (2) of Section 115JB did not permit any ambiguity, we do not think the legislature by introducing a clarificatory or declaratory amendment cure a defect without resorting to retrospective amendment, which in the present case has admittedly not been done.\n 21. In the result, we hold that subsection 115JB as it stood prior to its amendment by virtue of Finance Act, 2012, would not be applicable to a banking company. We answer the question No.2 in favour of the assessee and against the revenue. In view of this, question of correctness of the order of rectification passed by the Assessing Officer becomes unimportant. Question No.1 is therefore not answered. All the appeals are dismissed.\n (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.) ....\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"end": 114,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF THE ASSISTANT SESSIONS JUDGE : BONAI\n\nPresent : Shri Bisworanjan Behera, LL.B.,PGDLL,\n "
}
},
{
"from_name": null,
"id": "7fa0aa9cbe56434daa16409c478e49e1",
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"end": 142,
"labels": [
"PREAMBLE"
],
"start": 114,
"text": "Asst. Sessions Judge, Bonai."
}
},
{
"from_name": null,
"id": "1149e032235c4f97b467f557f5326679",
"to_name": null,
"type": null,
"value": {
"end": 307,
"labels": [
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],
"start": 142,
"text": "\n\n Dated, this the 28th day of July, 2016\n\n Sessions Trial No. 20/16 of 2016\n\nArising out of G.R. Case No. 641 of 2010 corresponding to Koira PS."
}
},
{
"from_name": null,
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"end": 497,
"labels": [
"PREAMBLE"
],
"start": 307,
"text": "\nCase No. 120 dated 19.12.2010, committed to the court of Addl.\nSessions Judge, Bonai by the court of S.D.J.M, Bonai and\nsubsequently transferred to this court for disposal according to law."
}
},
{
"from_name": null,
"id": "55defa234aed461eaf29d794260f04ef",
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"value": {
"end": 557,
"labels": [
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],
"start": 497,
"text": "\n\nState of Odisha ... ... Prosecution."
}
},
{
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"id": "dcc57ba2b9f14448b5f0556a39bb918d",
"to_name": null,
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"end": 713,
"labels": [
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],
"start": 557,
"text": "\n versus\n\nSantosh Munda@ Gurkha, aged about 28 years, Son of Ganguram\nMunda of village Barua Hutting, P.S. Barbil, DistKeonjhar."
}
},
{
"from_name": null,
"id": "6d80079394624c029b01651d94470eea",
"to_name": null,
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"value": {
"end": 786,
"labels": [
"PREAMBLE"
],
"start": 766,
"text": "...Accused Persons ."
}
},
{
"from_name": null,
"id": "b40ab9f939c042eeb31343e14fa9785d",
"to_name": null,
"type": null,
"value": {
"end": 800,
"labels": [
"PREAMBLE"
],
"start": 786,
"text": "\n\nAppearances:"
}
},
{
"from_name": null,
"id": "86ebdfe23ab3404a8c190b2f4eaf9e77",
"to_name": null,
"type": null,
"value": {
"end": 845,
"labels": [
"PREAMBLE"
],
"start": 817,
"text": ": Shri T.K. Sahoo, Addl.P.P."
}
},
{
"from_name": null,
"id": "77e51cdddc4a4103bce9ab82ca8e4bff",
"to_name": null,
"type": null,
"value": {
"end": 1448,
"labels": [
"PREAMBLE"
],
"start": 854,
"text": "For the Prosecution\n\nFor the Defence : Shri B.K. Dash & Associates,\n Defence Counsel, Bonai.\n\nDate of Argument : 16th day of July, 2016\n\nDate of Judgment : 28th day of July, 2016\n\nOFFENCES PUNISHABLE UNDER SECTION 395 OF THE INDIAN\n PENAL CODE & UNDER SECTION 25/27 OF ARMS\n ACT.\n\n\nStatus of the Accused Persons: Accused is under judicial custody\n and present today.\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "9df309f86834497f93ca00c7ce029afd",
"to_name": null,
"type": null,
"value": {
"end": 1615,
"labels": [
"FAC"
],
"start": 1448,
"text": "\n The above named accused stands charged for the offence punishable u/s. 395 of the Indian Penal Code (hereinafter in short as \"IPC\") along with u/s 25/27 of Arms Act."
}
},
{
"from_name": null,
"id": "6193f480f0c345d7b704ab404ff11dbd",
"to_name": null,
"type": null,
"value": {
"end": 1916,
"labels": [
"FAC"
],
"start": 1615,
"text": "\n2. The Prosecution story as per First Information Report is that: One Bijaya Kumar Patra lodged a written report before the Officer in Charge, Koira P.S alleging that on 18.12.2010 at about 6.50 PM about 18 to 20 persons being armed with gun entered into his house and broke the suit cases and boxes."
}
},
{
"from_name": null,
"id": "251c294582594116b3c834c6e65f28ba",
"to_name": null,
"type": null,
"value": {
"end": 1963,
"labels": [
"FAC"
],
"start": 1917,
"text": "They also damaged the furnitures of his house."
}
},
{
"from_name": null,
"id": "8d6069e08d104bbda60d3625c9c4e587",
"to_name": null,
"type": null,
"value": {
"end": 2022,
"labels": [
"FAC"
],
"start": 1964,
"text": "They have looted cash of Rs. 4,00,000/ and gold ornaments."
}
},
{
"from_name": null,
"id": "3c68fce1d77f4b929040a7bc73a8367b",
"to_name": null,
"type": null,
"value": {
"end": 2124,
"labels": [
"FAC"
],
"start": 2023,
"text": "When his sisterinlaw Jyosna Rani Patra opposed to it, they assaulted her and snatched her gold chain."
}
},
{
"from_name": null,
"id": "bab58339f4f145e2be4d2557f8794d39",
"to_name": null,
"type": null,
"value": {
"end": 2233,
"labels": [
"FAC"
],
"start": 2125,
"text": "They have also taken away his 12 bore licenced gun of the informant along with 12 cartridge and his licence."
}
},
{
"from_name": null,
"id": "8678ef52b7f041ceaaa80d0d5a108e7d",
"to_name": null,
"type": null,
"value": {
"end": 2295,
"labels": [
"FAC"
],
"start": 2234,
"text": "So also they have taken four number of mobile from his house."
}
},
{
"from_name": null,
"id": "b1cc3cc6169a4e91a0b4336e70c07306",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"FAC"
],
"start": 2296,
"text": "At the time of leaving the house they handed over a letter on Maoist pad in which they have demanded to pay Rs.2,00,000/ within the period of 24 hours."
}
},
{
"from_name": null,
"id": "4466114bb89d451bbbfb2189b8574ee3",
"to_name": null,
"type": null,
"value": {
"end": 2616,
"labels": [
"FAC"
],
"start": 2447,
"text": "\n On receipt of the above written report Koira P.S. Case No. 120 Dtd. 19.12..2010 has been registered u/s. 395 of the Indian Penal Code along with u/s 25/27 of Arms Act."
}
},
{
"from_name": null,
"id": "6377d2f515be4f26957832033e3310b8",
"to_name": null,
"type": null,
"value": {
"end": 2763,
"labels": [
"FAC"
],
"start": 2617,
"text": "After closure of the investigation the charge sheet is submitted against the above named accused along with 9 others under the aforesaid offences."
}
},
{
"from_name": null,
"id": "2f8fbde1b98f4c6f9292985dce583d81",
"to_name": null,
"type": null,
"value": {
"end": 2922,
"labels": [
"FAC"
],
"start": 2764,
"text": "Accordingly, the cognizance has been taken by the court of SDJM, Bonai and thereafter the case was committed to the court of Additional Sessions Judge, Bonai."
}
},
{
"from_name": null,
"id": "c86e24f1df81429a88fd3eb01152631b",
"to_name": null,
"type": null,
"value": {
"end": 3021,
"labels": [
"FAC"
],
"start": 2922,
"text": "\nSubsequently this case is transferred to this court for trial after split up against this accused."
}
},
{
"from_name": null,
"id": "6fb78ff28c934ea297b4cfc0f7bb944f",
"to_name": null,
"type": null,
"value": {
"end": 3124,
"labels": [
"ANALYSIS"
],
"start": 3021,
"text": "\n 3. The plea of the defence is as usual one of complete innocence and false implication in this case."
}
},
{
"from_name": null,
"id": "4b02555fd3ae43a8a095a1b83024310f",
"to_name": null,
"type": null,
"value": {
"end": 3187,
"labels": [
"ISSUE"
],
"start": 3126,
"text": "4. The following points are to be determined in this case: I."
}
},
{
"from_name": null,
"id": "87d5bdd6463b410e82c294e1d3661af1",
"to_name": null,
"type": null,
"value": {
"end": 3418,
"labels": [
"ISSUE"
],
"start": 3188,
"text": "Whether on 18.12.2010 at about 6.50 PM at Ganua, the accused along with others committed dacoity of cash of Rs. 4,00,000/, gold ornaments, one pistol, 12 nos of cartridge and 7 nos of mobile phones from the house of the informant."
}
},
{
"from_name": null,
"id": "be51d5f67f20471fbb1862154d24f5ea",
"to_name": null,
"type": null,
"value": {
"end": 3426,
"labels": [
"ISSUE"
],
"start": 3418,
"text": "\n II."
}
},
{
"from_name": null,
"id": "2dbd61c4b0774d72be609aab2070d53e",
"to_name": null,
"type": null,
"value": {
"end": 3652,
"labels": [
"ISSUE"
],
"start": 3427,
"text": "Whether on the relevant date, time and place, the accused along with others were found carrying gun for which they did not hold licence issued in accordance with the provision of the Arms Act, 1959 and rules made thereunder.."
}
},
{
"from_name": null,
"id": "94069fdb37d247c1a458eb45b836dd2a",
"to_name": null,
"type": null,
"value": {
"end": 3658,
"labels": [
"ISSUE"
],
"start": 3652,
"text": "\n III."
}
},
{
"from_name": null,
"id": "2d9aa255911644ae8470bf7ff9f659b3",
"to_name": null,
"type": null,
"value": {
"end": 3825,
"labels": [
"ISSUE"
],
"start": 3659,
"text": "Whether on the relevant date, time and place, The accused along with others were carrying fire arms like guns for unlawful purpose, i.e for commission of dacoity.\n 5."
}
},
{
"from_name": null,
"id": "dbf710c5cf414a0ab4b25c7390adf09c",
"to_name": null,
"type": null,
"value": {
"end": 3965,
"labels": [
"ANALYSIS"
],
"start": 3826,
"text": "In order to prove this case, the prosecution has examined all total six numbers of witnesses and marked the documents as Ext.1 and Ext.1/1."
}
},
{
"from_name": null,
"id": "2e50bfe11ca74327922fd502ac7b8c62",
"to_name": null,
"type": null,
"value": {
"end": 4073,
"labels": [
"ANALYSIS"
],
"start": 3966,
"text": "On the other hand, neither any witness is examined nor any document is marked from the side of the defence."
}
},
{
"from_name": null,
"id": "1ee2651c3db84318a37c3318d0cb7e62",
"to_name": null,
"type": null,
"value": {
"end": 4130,
"labels": [
"ANALYSIS"
],
"start": 4074,
"text": "Out of the prosecution witnesses P.W.1 is the informant."
}
},
{
"from_name": null,
"id": "8120a1185eb64f588a459f82d4bde7c3",
"to_name": null,
"type": null,
"value": {
"end": 4248,
"labels": [
"ANALYSIS"
],
"start": 4131,
"text": "P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 are the father, younger brother, mother, wife and sisterin law of the informant."
}
},
{
"from_name": null,
"id": "ea1afde00f614d3f895eea962a3a6c08",
"to_name": null,
"type": null,
"value": {
"end": 4431,
"labels": [
"ANALYSIS"
],
"start": 4249,
"text": "6. After thoroughly analysing the evidence on record, it is observed that the informant(P.W.4) has stated that he does not know the accused Santosh Munda who is standing in the dock."
}
},
{
"from_name": null,
"id": "55edb7ade45948e7a8ae88f04f5e370f",
"to_name": null,
"type": null,
"value": {
"end": 4686,
"labels": [
"ANALYSIS"
],
"start": 4432,
"text": "He has further stated that on 18.12.2010 at about 6.30 PM while he was at home, four to five unknown masked persons being armed with gun entered into his house and taken away cash of Rs. 4,00,000/ and gold ornament weighing about 10 varis from his house."
}
},
{
"from_name": null,
"id": "52ae80c2794c40ab9b4fb85b89b2dfc3",
"to_name": null,
"type": null,
"value": {
"end": 4823,
"labels": [
"ANALYSIS"
],
"start": 4687,
"text": "He has further deposed that they assaulted and gave a Maoist letter to him and also they have taken way four cell phones from his house."
}
},
{
"from_name": null,
"id": "8915cf7370fc4879882b578fee9b7680",
"to_name": null,
"type": null,
"value": {
"end": 5058,
"labels": [
"ANALYSIS"
],
"start": 4824,
"text": "On next day morning he lodged the FIR at P.S. On his cross examination, he has stated that all the above persons have wrapped their faces by cloth and the accused who is standing in the dock was not present there at the relevant time."
}
},
{
"from_name": null,
"id": "9ae1a120c4eb4eb086ba48c9c331a878",
"to_name": null,
"type": null,
"value": {
"end": 5310,
"labels": [
"ANALYSIS"
],
"start": 5058,
"text": "\n7. P.W.2 is the father of the informant who has stated that at the relevant time he was watching TV at his house and about 10 to 12 unknown masked persons entered into their house being armed with gun and other 10 persons standing outside their house."
}
},
{
"from_name": null,
"id": "be993dab09c247cba81bb0d9ac109166",
"to_name": null,
"type": null,
"value": {
"end": 5445,
"labels": [
"ANALYSIS"
],
"start": 5311,
"text": "He has further deposed that, they have broken their boxes, almirahs and taken away cash of Rs. 4,00,000/ and 150 gm of gold ornaments."
}
},
{
"from_name": null,
"id": "f4dd2371ec5d449488ee479a0c661867",
"to_name": null,
"type": null,
"value": {
"end": 5533,
"labels": [
"ANALYSIS"
],
"start": 5446,
"text": "He has further deposed that they have also taken the licenced gun of the the informant."
}
},
{
"from_name": null,
"id": "33d792be0322401bb65b82178e2186f6",
"to_name": null,
"type": null,
"value": {
"end": 5630,
"labels": [
"ANALYSIS"
],
"start": 5534,
"text": "In his cross examination, he has stated that all the culprits have wrapped their faces by cloth."
}
},
{
"from_name": null,
"id": "cfce692efd5a4b9cbd57537ebf5e7348",
"to_name": null,
"type": null,
"value": {
"end": 6001,
"labels": [
"ANALYSIS"
],
"start": 5631,
"text": "8. P.W.3 who is the younger brother of the informant has stated that, he has not seen the accused Santosh Munda who is standing in the dock and at the relevant time he was absent from his house and on return he heard from his family members that number of persons entered into their house and took away cash of Rs.4,00,000/, 10 to 12 varis of gold and his identity card."
}
},
{
"from_name": null,
"id": "bc24231381d44ed38b496ef75d7b90cf",
"to_name": null,
"type": null,
"value": {
"end": 6178,
"labels": [
"ANALYSIS"
],
"start": 6002,
"text": "9. P.W.4 is the mother of the informant has stated that, she has not seen the accused prior to her examination and the occurrence took place four years back inside their house."
}
},
{
"from_name": null,
"id": "03570a1a548f4857bf7b1a51295205fd",
"to_name": null,
"type": null,
"value": {
"end": 6297,
"labels": [
"ANALYSIS"
],
"start": 6179,
"text": "She further deposed that at the relevant time she has not seen the occurrence and she was watching TV in another room."
}
},
{
"from_name": null,
"id": "079ec8cbf29a465abf27c6e79653e689",
"to_name": null,
"type": null,
"value": {
"end": 6550,
"labels": [
"ANALYSIS"
],
"start": 6298,
"text": "10. The wife of the informant(P.W.5) has stated that at the relevant time she was in a separate room and her husband informed her that some persons entered into their house and took away cash of Rs.\n4,00,000/ and gold ornaments weighing about 10 varis."
}
},
{
"from_name": null,
"id": "174e8e0cbb564bfea9799b38588bb500",
"to_name": null,
"type": null,
"value": {
"end": 6613,
"labels": [
"ANALYSIS"
],
"start": 6551,
"text": "11. P.W.6 is the wife of the younger brother of the informant."
}
},
{
"from_name": null,
"id": "7b6f9279bd1f4d0b8c34f37d952661e0",
"to_name": null,
"type": null,
"value": {
"end": 6780,
"labels": [
"ANALYSIS"
],
"start": 6614,
"text": "She has stated that at the relevant time while she was sitting inside her room at a sudden ten to fifteen persons being wrapped on their faces entered into her house."
}
},
{
"from_name": null,
"id": "2d97744e183b4b64bab6a6d2b8d20561",
"to_name": null,
"type": null,
"value": {
"end": 7007,
"labels": [
"ANALYSIS"
],
"start": 6781,
"text": "She further deposed that they were armed with gun, pistol and sword and they snatched away her gold chain from her neck and they have also taken away about 10 varis of gold ornaments and cash of Rs. 4,00,000/ from their house."
}
},
{
"from_name": null,
"id": "02baf042e724428a9ed841074b2fafb7",
"to_name": null,
"type": null,
"value": {
"end": 7072,
"labels": [
"ANALYSIS"
],
"start": 7008,
"text": "She further deposed that they slapped her during the occurrence."
}
},
{
"from_name": null,
"id": "a2759a65a2e8487c889db90b71a1762c",
"to_name": null,
"type": null,
"value": {
"end": 7178,
"labels": [
"ANALYSIS"
],
"start": 7073,
"text": "In her cross examination she has stated that she cannot identify anyone as they have wrapped their faces."
}
},
{
"from_name": null,
"id": "1b12a8fdc0314f0ebcfcb823a9b75477",
"to_name": null,
"type": null,
"value": {
"end": 7388,
"labels": [
"ANALYSIS"
],
"start": 7179,
"text": "12. It is needless to say that in a criminal trial, at very inception the prosecution is required to establish the complicity and involvement of the accused in terms of the charge he is facing under the trial."
}
},
{
"from_name": null,
"id": "c17bebeeaeb44d1d8137d55128df0fc5",
"to_name": null,
"type": null,
"value": {
"end": 7584,
"labels": [
"ANALYSIS"
],
"start": 7389,
"text": "Once his complicity is established, the prosecution shall prove the alleged overt act or omission committed by the accused by adducing legal evidence to fix the criminal liability on the accused."
}
},
{
"from_name": null,
"id": "ba714cebdb2441b89bbfc8adca01277b",
"to_name": null,
"type": null,
"value": {
"end": 7844,
"labels": [
"ANALYSIS"
],
"start": 7585,
"text": "Where primafacie complicity of the accused is established, a court shall make a judicial scrutiny to access whether the proved overt acts committed by the accused attracts the penal provision and declares the penal liability on the accused in terms of charge."
}
},
{
"from_name": null,
"id": "7be7a0e56de94a72ab7073d01433d3f6",
"to_name": null,
"type": null,
"value": {
"end": 7952,
"labels": [
"ANALYSIS"
],
"start": 7845,
"text": "Alternatively it can be said complicity can only be established by proving the \"actus reus\" of the accused."
}
},
{
"from_name": null,
"id": "7d8088b0223246dc9655e701cbc27286",
"to_name": null,
"type": null,
"value": {
"end": 8196,
"labels": [
"ANALYSIS"
],
"start": 7953,
"text": "On analysing the evidence in the present case at hand, it is found that none of the prosecution witness including the informant and injured has whispered a single word showing the complicity of the present accused in connection with this case."
}
},
{
"from_name": null,
"id": "a177146818e343d08e19382788e2bb57",
"to_name": null,
"type": null,
"value": {
"end": 8473,
"labels": [
"ANALYSIS"
],
"start": 8197,
"text": "When the prosecution evidence fails to establish the primafacie complicity of the accused in the present case, it was a futile exercise to make further judicial investigation of the evidence adduced on behalf of the prosecution to find out their guilty in terms of the charge."
}
},
{
"from_name": null,
"id": "ab3b205c473540bea7087db918e28f17",
"to_name": null,
"type": null,
"value": {
"end": 8669,
"labels": [
"ANALYSIS"
],
"start": 8474,
"text": "13. In this case at hand all the prosecution witnesses have stated that some unknown persons entered into their house being armed with gun and taken away cash of Rs. 4,00,000/ and gold ornaments."
}
},
{
"from_name": null,
"id": "ec81edaca75e4875a8086156f708f329",
"to_name": null,
"type": null,
"value": {
"end": 8775,
"labels": [
"ANALYSIS"
],
"start": 8670,
"text": "None of the prosecution witness has stated the involvement of the present accused into the alleged crime."
}
},
{
"from_name": null,
"id": "5fd5040905b44e5496557bf903ea42ee",
"to_name": null,
"type": null,
"value": {
"end": 8918,
"labels": [
"ANALYSIS"
],
"start": 8776,
"text": "Even they have categorically stated that they do not know the present accused who was standing in the dock during course of their examination."
}
},
{
"from_name": null,
"id": "d7def6231a984e2da110e66d866251ef",
"to_name": null,
"type": null,
"value": {
"end": 8989,
"labels": [
"ANALYSIS"
],
"start": 8919,
"text": "Though the FIR has been proved by the informant as Ext.1 in this case."
}
},
{
"from_name": null,
"id": "dbe6bc8755d34136b0a6cf8be921a630",
"to_name": null,
"type": null,
"value": {
"end": 9043,
"labels": [
"ANALYSIS"
],
"start": 8990,
"text": "The contents of the same have not been proved by him."
}
},
{
"from_name": null,
"id": "877999b3fb7c457fae8b107121c5847c",
"to_name": null,
"type": null,
"value": {
"end": 9225,
"labels": [
"ANALYSIS"
],
"start": 9044,
"text": "The law is fairly well settled that, FIR is not a substantive piece of evidence and the same can only be used for the purpose of corroboration or contradiction to the maker thereof."
}
},
{
"from_name": null,
"id": "4e1353c443924897abfb4d38ed0ddca0",
"to_name": null,
"type": null,
"value": {
"end": 9401,
"labels": [
"RATIO"
],
"start": 9226,
"text": "14. Hence, basing on the above reason, this court come to irresistible conclusion that the prosecution is utterly failed to bring home the charges against the present accused."
}
},
{
"from_name": null,
"id": "e0a6d25e6f4c4b949c681ae82099d789",
"to_name": null,
"type": null,
"value": {
"end": 9444,
"labels": [
"RATIO"
],
"start": 9402,
"text": "As such he is entitled to clean acquittal."
}
},
{
"from_name": null,
"id": "7f7e205fd24e486fa8f5b9c6d63d3dea",
"to_name": null,
"type": null,
"value": {
"end": 9631,
"labels": [
"RPC"
],
"start": 9445,
"text": "In the result, I found the present accused is not guilty for the commission of offence u/s 395 of IPC and 25/27 of Arms Act and he is acquitted therefrom as per section 235(1) of Cr.P.C."
}
},
{
"from_name": null,
"id": "fe9c1ad505ea48efa87f8c5449af2f62",
"to_name": null,
"type": null,
"value": {
"end": 9663,
"labels": [
"RPC"
],
"start": 9632,
"text": "He be set at liberty forthwith."
}
},
{
"from_name": null,
"id": "35cf14f4d32b45ccb4b23db23aa3b97f",
"to_name": null,
"type": null,
"value": {
"end": 9846,
"labels": [
"RPC"
],
"start": 9663,
"text": "\n The seized articles if any be destroyed four months after the expiry of the appeal period and in case of appeal the same be disposed as per the order of the Hon'ble Appellate Court."
}
},
{
"from_name": null,
"id": "b0a96039f16a4b6a92c490c2014f641e",
"to_name": null,
"type": null,
"value": {
"end": 9914,
"labels": [
"RPC"
],
"start": 9848,
"text": "Enter this case as a mistake of facts for the statistical purpose."
}
},
{
"from_name": null,
"id": "0c14b855e98c4427987cf5567c838670",
"to_name": null,
"type": null,
"value": {
"end": 10045,
"labels": [
"NONE"
],
"start": 9916,
"text": "Pronounced the judgment in the open court and given under my signature and seal of this court on this the 28th day of July, 2016."
}
},
{
"from_name": null,
"id": "f7d17006c9e649a8b5ece5d258a5bc34",
"to_name": null,
"type": null,
"value": {
"end": 10136,
"labels": [
"NONE"
],
"start": 10047,
"text": "Typed to my dictation in office computer and corrected by me Asst. Sessions Judge, Bonai."
}
},
{
"from_name": null,
"id": "2192ebb3d7c84f529780f25681756e41",
"to_name": null,
"type": null,
"value": {
"end": 10175,
"labels": [
"NONE"
],
"start": 10137,
"text": " Asst. Sessions Judge, Bonai."
}
},
{
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"id": "4294abde91df4b149db89612df443c77",
"to_name": null,
"type": null,
"value": {
"end": 10193,
"labels": [
"NONE"
],
"start": 10175,
"text": "\n 28.07.2016"
}
},
{
"from_name": null,
"id": "8d43459e8c634f9a8331c0df42cb7661",
"to_name": null,
"type": null,
"value": {
"end": 10236,
"labels": [
"NONE"
],
"start": 10226,
"text": "28.07.2016"
}
},
{
"from_name": null,
"id": "dfc08f49101d4ecba9b986173b52b8a9",
"to_name": null,
"type": null,
"value": {
"end": 10436,
"labels": [
"NONE"
],
"start": 10237,
"text": "List of Prosecution witnesses: P.W.1 Bijay Kumar Patra P.W.2 Kulamani Patra P.W.3 Tapan Kumar Patra P.W.4 Smt. Kishorilata Patra P.W.5 Smt. Bhagabati Patra P.W.6 Jyotshnarani Patra."
}
},
{
"from_name": null,
"id": "370581e285e64a6b87fc9ffad63a7a32",
"to_name": null,
"type": null,
"value": {
"end": 10730,
"labels": [
"NONE"
],
"start": 10438,
"text": "List of Defence Witnesses: Nil.\n List of Exts. marked for Prosecution: Ext.1 FIR Ext.1/1 Signature of P.W.1 List of Exts. marked for Defence: Nil.\n List of material objects, if any Nil.\n Asst. Sessions Judge,Bonai.\n 28.07.2016"
}
}
]
}
] | 4,189 | {
"text": "IN THE COURT OF THE ASSISTANT SESSIONS JUDGE : BONAI\n\nPresent : Shri Bisworanjan Behera, LL.B.,PGDLL,\n Asst. Sessions Judge, Bonai.\n\n Dated, this the 28th day of July, 2016\n\n Sessions Trial No. 20/16 of 2016\n\nArising out of G.R. Case No. 641 of 2010 corresponding to Koira PS.\nCase No. 120 dated 19.12.2010, committed to the court of Addl.\nSessions Judge, Bonai by the court of S.D.J.M, Bonai and\nsubsequently transferred to this court for disposal according to law.\n\nState of Odisha ... ... Prosecution.\n versus\n\nSantosh Munda@ Gurkha, aged about 28 years, Son of Ganguram\nMunda of village Barua Hutting, P.S. Barbil, DistKeonjhar.\n\n ...Accused Persons .\n\nAppearances: : Shri T.K. Sahoo, Addl.P.P.\n For the Prosecution\n\nFor the Defence : Shri B.K. Dash & Associates,\n Defence Counsel, Bonai.\n\nDate of Argument : 16th day of July, 2016\n\nDate of Judgment : 28th day of July, 2016\n\nOFFENCES PUNISHABLE UNDER SECTION 395 OF THE INDIAN\n PENAL CODE & UNDER SECTION 25/27 OF ARMS\n ACT.\n\n\nStatus of the Accused Persons: Accused is under judicial custody\n and present today.\n\n J U D G M E N T\n The above named accused stands charged for the offence punishable u/s. 395 of the Indian Penal Code (hereinafter in short as \"IPC\") along with u/s 25/27 of Arms Act.\n2. The Prosecution story as per First Information Report is that: One Bijaya Kumar Patra lodged a written report before the Officer in Charge, Koira P.S alleging that on 18.12.2010 at about 6.50 PM about 18 to 20 persons being armed with gun entered into his house and broke the suit cases and boxes. They also damaged the furnitures of his house. They have looted cash of Rs. 4,00,000/ and gold ornaments. When his sisterinlaw Jyosna Rani Patra opposed to it, they assaulted her and snatched her gold chain. They have also taken away his 12 bore licenced gun of the informant along with 12 cartridge and his licence. So also they have taken four number of mobile from his house. At the time of leaving the house they handed over a letter on Maoist pad in which they have demanded to pay Rs.2,00,000/ within the period of 24 hours.\n On receipt of the above written report Koira P.S. Case No. 120 Dtd. 19.12..2010 has been registered u/s. 395 of the Indian Penal Code along with u/s 25/27 of Arms Act. After closure of the investigation the charge sheet is submitted against the above named accused along with 9 others under the aforesaid offences. Accordingly, the cognizance has been taken by the court of SDJM, Bonai and thereafter the case was committed to the court of Additional Sessions Judge, Bonai.\nSubsequently this case is transferred to this court for trial after split up against this accused.\n 3. The plea of the defence is as usual one of complete innocence and false implication in this case.\n 4. The following points are to be determined in this case: I. Whether on 18.12.2010 at about 6.50 PM at Ganua, the accused along with others committed dacoity of cash of Rs. 4,00,000/, gold ornaments, one pistol, 12 nos of cartridge and 7 nos of mobile phones from the house of the informant.\n II. Whether on the relevant date, time and place, the accused along with others were found carrying gun for which they did not hold licence issued in accordance with the provision of the Arms Act, 1959 and rules made thereunder..\n III. Whether on the relevant date, time and place, The accused along with others were carrying fire arms like guns for unlawful purpose, i.e for commission of dacoity.\n 5. In order to prove this case, the prosecution has examined all total six numbers of witnesses and marked the documents as Ext.1 and Ext.1/1. On the other hand, neither any witness is examined nor any document is marked from the side of the defence. Out of the prosecution witnesses P.W.1 is the informant. P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 are the father, younger brother, mother, wife and sisterin law of the informant.\n6. After thoroughly analysing the evidence on record, it is observed that the informant(P.W.4) has stated that he does not know the accused Santosh Munda who is standing in the dock. He has further stated that on 18.12.2010 at about 6.30 PM while he was at home, four to five unknown masked persons being armed with gun entered into his house and taken away cash of Rs. 4,00,000/ and gold ornament weighing about 10 varis from his house. He has further deposed that they assaulted and gave a Maoist letter to him and also they have taken way four cell phones from his house. On next day morning he lodged the FIR at P.S. On his cross examination, he has stated that all the above persons have wrapped their faces by cloth and the accused who is standing in the dock was not present there at the relevant time.\n7. P.W.2 is the father of the informant who has stated that at the relevant time he was watching TV at his house and about 10 to 12 unknown masked persons entered into their house being armed with gun and other 10 persons standing outside their house. He has further deposed that, they have broken their boxes, almirahs and taken away cash of Rs. 4,00,000/ and 150 gm of gold ornaments. He has further deposed that they have also taken the licenced gun of the the informant. In his cross examination, he has stated that all the culprits have wrapped their faces by cloth.\n8. P.W.3 who is the younger brother of the informant has stated that, he has not seen the accused Santosh Munda who is standing in the dock and at the relevant time he was absent from his house and on return he heard from his family members that number of persons entered into their house and took away cash of Rs.4,00,000/, 10 to 12 varis of gold and his identity card.\n9. P.W.4 is the mother of the informant has stated that, she has not seen the accused prior to her examination and the occurrence took place four years back inside their house. She further deposed that at the relevant time she has not seen the occurrence and she was watching TV in another room.\n10. The wife of the informant(P.W.5) has stated that at the relevant time she was in a separate room and her husband informed her that some persons entered into their house and took away cash of Rs.\n4,00,000/ and gold ornaments weighing about 10 varis.\n11. P.W.6 is the wife of the younger brother of the informant. She has stated that at the relevant time while she was sitting inside her room at a sudden ten to fifteen persons being wrapped on their faces entered into her house. She further deposed that they were armed with gun, pistol and sword and they snatched away her gold chain from her neck and they have also taken away about 10 varis of gold ornaments and cash of Rs. 4,00,000/ from their house. She further deposed that they slapped her during the occurrence. In her cross examination she has stated that she cannot identify anyone as they have wrapped their faces.\n12. It is needless to say that in a criminal trial, at very inception the prosecution is required to establish the complicity and involvement of the accused in terms of the charge he is facing under the trial. Once his complicity is established, the prosecution shall prove the alleged overt act or omission committed by the accused by adducing legal evidence to fix the criminal liability on the accused. Where primafacie complicity of the accused is established, a court shall make a judicial scrutiny to access whether the proved overt acts committed by the accused attracts the penal provision and declares the penal liability on the accused in terms of charge. Alternatively it can be said complicity can only be established by proving the \"actus reus\" of the accused. On analysing the evidence in the present case at hand, it is found that none of the prosecution witness including the informant and injured has whispered a single word showing the complicity of the present accused in connection with this case. When the prosecution evidence fails to establish the primafacie complicity of the accused in the present case, it was a futile exercise to make further judicial investigation of the evidence adduced on behalf of the prosecution to find out their guilty in terms of the charge.\n13. In this case at hand all the prosecution witnesses have stated that some unknown persons entered into their house being armed with gun and taken away cash of Rs. 4,00,000/ and gold ornaments. None of the prosecution witness has stated the involvement of the present accused into the alleged crime. Even they have categorically stated that they do not know the present accused who was standing in the dock during course of their examination. Though the FIR has been proved by the informant as Ext.1 in this case. The contents of the same have not been proved by him. The law is fairly well settled that, FIR is not a substantive piece of evidence and the same can only be used for the purpose of corroboration or contradiction to the maker thereof.\n14. Hence, basing on the above reason, this court come to irresistible conclusion that the prosecution is utterly failed to bring home the charges against the present accused. As such he is entitled to clean acquittal. In the result, I found the present accused is not guilty for the commission of offence u/s 395 of IPC and 25/27 of Arms Act and he is acquitted therefrom as per section 235(1) of Cr.P.C. He be set at liberty forthwith.\n The seized articles if any be destroyed four months after the expiry of the appeal period and in case of appeal the same be disposed as per the order of the Hon'ble Appellate Court.\n Enter this case as a mistake of facts for the statistical purpose.\n Pronounced the judgment in the open court and given under my signature and seal of this court on this the 28th day of July, 2016.\n Typed to my dictation in office computer and corrected by me Asst. Sessions Judge, Bonai. Asst. Sessions Judge, Bonai.\n 28.07.2016 28.07.2016 List of Prosecution witnesses: P.W.1 Bijay Kumar Patra P.W.2 Kulamani Patra P.W.3 Tapan Kumar Patra P.W.4 Smt. Kishorilata Patra P.W.5 Smt. Bhagabati Patra P.W.6 Jyotshnarani Patra.\n List of Defence Witnesses: Nil.\n List of Exts. marked for Prosecution: Ext.1 FIR Ext.1/1 Signature of P.W.1 List of Exts. marked for Defence: Nil.\n List of material objects, if any Nil.\n Asst. Sessions Judge,Bonai.\n 28.07.2016 "
} |
{
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{
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{
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"end": 159,
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"start": 0,
"text": " IN THE COURT OF THE PRINCIPAL DISTRICT AND\n SESSIONS JUDGE AT MYSORE\n Friday, 6th day of December 2013"
}
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{
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"id": "03c4c9fc43a74ea78d0526a7ba7b087d",
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"start": 159,
"text": "\n\nPRESENT : Sri N.RUDRAMUNI, B.Com., LL.M.,\n\n Principal District & Sessions Judge.\n\n Mysore.\n\n CRIMINAL MIS. NOS. 1761 & 1789 OF 2013\n\nPETITIONERS\n[ CR.MIS.NO.1761 OF 2013]\n\n 1. Yeshwanth S/o Boregowda, Aged\n\n about 29 years, Residing at\n\n No.119, Kempegowda Layout, Near\n\n Citizen School,"
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{
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"start": 529,
"text": "Nanjangud Town,"
}
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{
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"start": 544,
"text": "\n\n Mysore District."
}
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{
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"value": {
"end": 635,
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"start": 586,
"text": "2. H.P.Manju S/o Puttaswamy, Aged\n\n "
}
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{
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"text": "about 29 years,"
}
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{
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"text": "Residing at"
}
},
{
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"start": 662,
"text": "\n\n No.120, Kempegowda, Layout,"
}
},
{
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"id": "86c2f0bf9d134a129894420f4955e705",
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"value": {
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"start": 719,
"text": "Near Citizen School, Nanjangud\n\n Town, Mysore District."
}
},
{
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"value": {
"end": 874,
"labels": [
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],
"start": 828,
"text": "[By Sri R.M.Siddaraju, Advocate]\n\nPETITIONERS\n"
}
},
{
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"id": "b735d29971de43a7a4ad2d1301990691",
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"text": "[ CR.MIS.NO.1789"
}
},
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"value": {
"end": 899,
"labels": [
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"start": 891,
"text": "OF 2013]"
}
},
{
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"id": "fe08990bd0554318b2c1875bfae3173c",
"to_name": null,
"type": null,
"value": {
"end": 921,
"labels": [
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"start": 910,
"text": "1. Prakash"
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 1044,
"labels": [
"PREAMBLE"
],
"start": 922,
"text": "S/o Devaiah, Aged about\n\n 20 years.\n\n 2. Kumara S/o Hanumanthaiah, Aged\n\n about 22 years."
}
},
{
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"id": "859b55aa372d42d4b92bb9edde65ac78",
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"labels": [
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"start": 1044,
"text": "\n\n Both are residing at Madrahalli\n\n Village, Gundlupet Taluk,\n\n Chamarajanagar District.\n\n [By Sri B.P.Devaraj, Advocate]\n\n V/"
}
},
{
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"id": "fc479d288c004adb9ea08f7c406d2aab",
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"value": {
"end": 1369,
"labels": [
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],
"start": 1291,
"text": "s\n\nRESPONDENT IN BOTH PETITIONS\n\n State by Nanjangud Rural Police."
}
},
{
"from_name": null,
"id": "4704acd24e694da5bdccd9df15412684",
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"value": {
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"labels": [
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],
"start": 1384,
"text": "[Represented by the Learned Public Prosecutor ]\n\n\n"
}
},
{
"from_name": null,
"id": "5e265e896fcd446d930aeb61b9469097",
"to_name": null,
"type": null,
"value": {
"end": 1502,
"labels": [
"PREAMBLE"
],
"start": 1434,
"text": "COMMON ORDERS ON BAIL APPLICATION UNDER SECTION 438 & 439 OF CR.P.C."
}
},
{
"from_name": null,
"id": "b4af68f5c40d497ebb918e1a077b6e4b",
"to_name": null,
"type": null,
"value": {
"end": 1944,
"labels": [
"FAC"
],
"start": 1502,
"text": "\n Petitioners in Cr.Mis.No.1761 of 2013 who are arrayed as Accused Nos.3 and 4, while Petitioners in Cr.Mis.No.1789 of 2013 who are arrayed as Accused Nos.1 and 2 in the F.I.R., have filed anticipatory and regular bail petitions respectively seeking their enlargement on bail in Cr.No.271 of 2013 of Nanjangud Rural Police Station, registered for the offences made punishable under Sections 3, 4 and 5 of Immoral Traffic Prevention Act, 1956."
}
},
{
"from_name": null,
"id": "19f6b8028ee44a6c821d35664f113287",
"to_name": null,
"type": null,
"value": {
"end": 2034,
"labels": [
"FAC"
],
"start": 1944,
"text": "\n 2. In brief, case according to Prosecution, as set out in the Case Diary is as follows:"
}
},
{
"from_name": null,
"id": "5e93d751b2f040afa7051f9c5c7b318d",
"to_name": null,
"type": null,
"value": {
"end": 2387,
"labels": [
"FAC"
],
"start": 2035,
"text": "The assistant Superintendent of Police, Nanjangud Sub Division has suo-moto lodged complaint with P.S.H.O., of Nanjangud Rural Police Station alleging that on 21.11.2013, at 1.30 p.m. when he was in the office, he received a credible information that in Malabar Plaza Hotel situated at Elachagere Bore Village, certain immoral activities were going on."
}
},
{
"from_name": null,
"id": "d5b750bf6fb047d398f7137203823287",
"to_name": null,
"type": null,
"value": {
"end": 2524,
"labels": [
"FAC"
],
"start": 2387,
"text": "\nComplainant immediately thereafter secured his staff and panchas to conduct raid and proceeded in their Jeep to Elachagere Bore Village."
}
},
{
"from_name": null,
"id": "14d8d3043e3a45a099fef4baee57d29b",
"to_name": null,
"type": null,
"value": {
"end": 2637,
"labels": [
"FAC"
],
"start": 2525,
"text": "When they conducted raid on the hotel, they found the Petitioners in compromising position with the Prostitutes."
}
},
{
"from_name": null,
"id": "b37ad53c68ba4d52a67a00b3e2bc3c78",
"to_name": null,
"type": null,
"value": {
"end": 2707,
"labels": [
"FAC"
],
"start": 2638,
"text": "On inquiry with them, they revealed their names as Prakash and Kumar."
}
},
{
"from_name": null,
"id": "e23cf5896e034a088d8465063f9be35a",
"to_name": null,
"type": null,
"value": {
"end": 2865,
"labels": [
"FAC"
],
"start": 2708,
"text": "The complainant arrested the Petitioners, seized cell phones from them and produced them before the learned Magistrate who remanded them to Judicial Custody."
}
},
{
"from_name": null,
"id": "88da32b21ca34f08962ae67389512c31",
"to_name": null,
"type": null,
"value": {
"end": 3039,
"labels": [
"FAC"
],
"start": 2866,
"text": "The Petitioners moved bail application before the learned Magistrate which came to be rejected on the premise that Petitioners were caught red handed along with the victims."
}
},
{
"from_name": null,
"id": "1098f4f98a5a4124a382a67652ea3f69",
"to_name": null,
"type": null,
"value": {
"end": 3077,
"labels": [
"FAC"
],
"start": 3039,
"text": "\nInvestigation is yet to be completed."
}
},
{
"from_name": null,
"id": "43dfe11deedd4a4babf00605e64dda2f",
"to_name": null,
"type": null,
"value": {
"end": 3263,
"labels": [
"FAC"
],
"start": 3077,
"text": "\n 3. On the strength of said complaint, a case in Cr.No.271 of 2013, for the offences punishable under Sections 3, 4 and 5 of Immoral Traffic Prevention Act 1956, came to be registered."
}
},
{
"from_name": null,
"id": "49754e20e4ac4d1a952048b8e85c7713",
"to_name": null,
"type": null,
"value": {
"end": 3412,
"labels": [
"RLC"
],
"start": 3263,
"text": "\n 4. Petitioner in Cr.Mis.No.1789 of 2013 have voluntarily surrendered before the learned Magistrate, who in turn remanded them to Judicial Custody."
}
},
{
"from_name": null,
"id": "fcffa373ea9240348cc65ade208972f8",
"to_name": null,
"type": null,
"value": {
"end": 3723,
"labels": [
"FAC"
],
"start": 3413,
"text": "Hence, Petitioners filed the bail petition and the Petitioners in Cr.Mis.No.1761 of 2013, being apprehensive of their arrest, filed the bail petition, on the following amongst other common grounds: Petitioners are innocent of the offences alleged against them and they have been falsely implicated in the case."
}
},
{
"from_name": null,
"id": "53e12b8cc9fc4fdb8fdafd13b46326e9",
"to_name": null,
"type": null,
"value": {
"end": 3876,
"labels": [
"FAC"
],
"start": 3724,
"text": "Petitionerd in Cr.Mis.No.1789 of 2013 have voluntarily surrendered before the Trial Court on 21.11.2013 and till this day, they are in Judicial Custody."
}
},
{
"from_name": null,
"id": "5b9514b185324390a13d91874d0f8df8",
"to_name": null,
"type": null,
"value": {
"end": 4015,
"labels": [
"FAC"
],
"start": 3877,
"text": "Petitioners in Cr.Mis.No.1789 of 2013 being Cook in the said hotel were not involved in any of the activities as alleged in the complaint."
}
},
{
"from_name": null,
"id": "c95a767df027448f830ec30610a21632",
"to_name": null,
"type": null,
"value": {
"end": 4071,
"labels": [
"FAC"
],
"start": 4016,
"text": "They are neither the owners nor customers of the hotel."
}
},
{
"from_name": null,
"id": "685c967d846d4580a840f72e0beaea8c",
"to_name": null,
"type": null,
"value": {
"end": 4178,
"labels": [
"FAC"
],
"start": 4072,
"text": "Petitioners in Cr.Mis.No.1761 of 2013 are not running any hotel and they are agriculturists by profession."
}
},
{
"from_name": null,
"id": "2137c0736646497cb1e7568be8c49f84",
"to_name": null,
"type": null,
"value": {
"end": 4435,
"labels": [
"FAC"
],
"start": 4179,
"text": "Petitioners in Cr.Mis.No.1789 of 2013 are residents of Madrahalli Village, Gundlupet Taluk, Chamarajanagar District and the Petitioners in Cr.Mis.No.1761 of 2013 are residents of Nanjangud Taluk, Mysore District and having movable and immovable properties."
}
},
{
"from_name": null,
"id": "3533d7cd02b4489a9438d1196dfd4fa8",
"to_name": null,
"type": null,
"value": {
"end": 4570,
"labels": [
"FAC"
],
"start": 4436,
"text": "They are ready to abide by the conditions that may be imposed by the Court and ready to offer surety to the satisfaction of the Court."
}
},
{
"from_name": null,
"id": "675974fde63b454b8318a3298ee96cbf",
"to_name": null,
"type": null,
"value": {
"end": 4674,
"labels": [
"FAC"
],
"start": 4571,
"text": "On all these amongst other grounds, Petitioners in both petitions prayed for their enlargement on bail."
}
},
{
"from_name": null,
"id": "d21f383a7a5147f39e51cd24d8da8719",
"to_name": null,
"type": null,
"value": {
"end": 4788,
"labels": [
"ANALYSIS"
],
"start": 4674,
"text": "\n 5. The learned Public Prosecutor has filed similar objections, reiterating the averments made in the complaint."
}
},
{
"from_name": null,
"id": "00d630c4a8b5439290d117d47fe1fffc",
"to_name": null,
"type": null,
"value": {
"end": 4907,
"labels": [
"ARG_RESPONDENT"
],
"start": 4789,
"text": "He has contended that there are reasonable grounds to believe that Petitioners have committed the above said offences."
}
},
{
"from_name": null,
"id": "40ddd8319e074ae085b353553324d8e5",
"to_name": null,
"type": null,
"value": {
"end": 4987,
"labels": [
"ARG_RESPONDENT"
],
"start": 4908,
"text": "Petitioners in Cr.Mis.No.1761 of 2013 are absconding since the date of offence."
}
},
{
"from_name": null,
"id": "93b2ea6fbd31469aacbf274a12aceb38",
"to_name": null,
"type": null,
"value": {
"end": 5032,
"labels": [
"ARG_RESPONDENT"
],
"start": 4988,
"text": "All the Petitioners are influential persons."
}
},
{
"from_name": null,
"id": "efd7d963f7ec4b819871a338389295db",
"to_name": null,
"type": null,
"value": {
"end": 5071,
"labels": [
"ARG_RESPONDENT"
],
"start": 5032,
"text": "\nInvestigation is at preliminary stage."
}
},
{
"from_name": null,
"id": "3c89655c3044489795472468ec69f631",
"to_name": null,
"type": null,
"value": {
"end": 5189,
"labels": [
"ARG_RESPONDENT"
],
"start": 5072,
"text": "If Petitioners are released on bail, they may abscond, may tamper prosecution witnesses and may hamper investigation."
}
},
{
"from_name": null,
"id": "7029d3c9b30941108229076edc0ef52b",
"to_name": null,
"type": null,
"value": {
"end": 5257,
"labels": [
"ARG_RESPONDENT"
],
"start": 5190,
"text": "Hence, Petitioners prayed for rejection of both the bail petitions."
}
},
{
"from_name": null,
"id": "a70d422987b44814b501f6287fa523b5",
"to_name": null,
"type": null,
"value": {
"end": 5376,
"labels": [
"NONE"
],
"start": 5259,
"text": "6. Heard the arguments of learned Counsels appearing on behalf of the Petitioners and learned Public Prosecutor.\n 7."
}
},
{
"from_name": null,
"id": "691ccded056442b6ae0650410ea7d407",
"to_name": null,
"type": null,
"value": {
"end": 5431,
"labels": [
"ISSUE"
],
"start": 5377,
"text": "The following points would arise for consideration: 1."
}
},
{
"from_name": null,
"id": "8cfdecfaab514f068f10791f20ec0f35",
"to_name": null,
"type": null,
"value": {
"end": 5540,
"labels": [
"ISSUE"
],
"start": 5432,
"text": "Whether Petitioners in Cr.Mis.No.1761 of 2013 are entitled to anticipatory bail as prayed in their petition?"
}
},
{
"from_name": null,
"id": "98e6216538d643edbc0e7cc3bcf5f713",
"to_name": null,
"type": null,
"value": {
"end": 5639,
"labels": [
"ISSUE"
],
"start": 5540,
"text": "\n 2. Whether Petitioners in Cr.Mis.No.179 of 2013 are entitled to bail as prayed in their petition?"
}
},
{
"from_name": null,
"id": "b0b4bfdadf8240309a68469969b47f67",
"to_name": null,
"type": null,
"value": {
"end": 5655,
"labels": [
"ISSUE"
],
"start": 5639,
"text": "\n 3. What order?"
}
},
{
"from_name": null,
"id": "b6e8d885c0b34035b8738e662b09aaad",
"to_name": null,
"type": null,
"value": {
"end": 5926,
"labels": [
"ANALYSIS"
],
"start": 5655,
"text": "\n 8. My answer to the above points is as follows: Point No.1 : In the AFFIRMATIVE Point No.2 : In the AFFIRMATIVE Point No.3 : As per final order for the following: REASONS Point Nos.1 and 2 9. Learned Public Prosecutor has filed only the statement of objections."
}
},
{
"from_name": null,
"id": "6044ec02f3c84a2690f84e61bd98e17f",
"to_name": null,
"type": null,
"value": {
"end": 6055,
"labels": [
"ANALYSIS"
],
"start": 5927,
"text": "He has not made available to this Court the case diary relating to the investigation thus far done by the Investigating Officer."
}
},
{
"from_name": null,
"id": "e72c382d33004df49104b61966b42e6d",
"to_name": null,
"type": null,
"value": {
"end": 6314,
"labels": [
"ANALYSIS"
],
"start": 6055,
"text": "\n 10. However, learned Counsel for the Petitioners has produced order sheet of the Trial Court, F.I.R, remand application etc., Perused these documents and also perused the grounds urged by the Petitioners in their petitions and their statement of objections."
}
},
{
"from_name": null,
"id": "a99effe8699043c1b893bb822167121f",
"to_name": null,
"type": null,
"value": {
"end": 6464,
"labels": [
"ANALYSIS"
],
"start": 6315,
"text": "The contents of the F.I.R is quite clear that the Petitioners were caught red handed while they were in compromising position with the victim ladies."
}
},
{
"from_name": null,
"id": "be619c5c1c364298a6f3a8ad2a21dd78",
"to_name": null,
"type": null,
"value": {
"end": 6584,
"labels": [
"ARG_PETITIONER"
],
"start": 6465,
"text": "The learned Counsel for the Petitioners in Cr.Mis.No.1789 of 2013 would contend that Petitioners are Cook in the Hotel."
}
},
{
"from_name": null,
"id": "df41a3e4dd7b460ab30d4214425cd188",
"to_name": null,
"type": null,
"value": {
"end": 6869,
"labels": [
"ARG_PETITIONER"
],
"start": 6585,
"text": "The learned Counsel for the Petitioners in Cr.Mis.No.1761 of 2013 would contend that Petitioners are not the owners of the hotel nor they are running the hotel and they are agriculturists by profession and they had nothing to do with the alleged brothel being carried on in the hotel."
}
},
{
"from_name": null,
"id": "e2cc69ba54da4846a8313afec6e6c313",
"to_name": null,
"type": null,
"value": {
"end": 7114,
"labels": [
"ANALYSIS"
],
"start": 6870,
"text": "But, I am not in agreement with the submission of the learned Counsel for the obvious reason that the allegations in the complaint and statement of witnesses would reveal that the Petitioners were found in compromising position with two ladies."
}
},
{
"from_name": null,
"id": "56a5e553652c460e8ac2d79514acfcd9",
"to_name": null,
"type": null,
"value": {
"end": 7242,
"labels": [
"ANALYSIS"
],
"start": 7116,
"text": "11. At this stage, this Court refrains itself from making entire comment upon the rival contention and the merits of the case."
}
},
{
"from_name": null,
"id": "65e8a6b8b2db46bbaf10b3b68dada884",
"to_name": null,
"type": null,
"value": {
"end": 7389,
"labels": [
"ANALYSIS"
],
"start": 7243,
"text": "Suffice it to say that the alleged offences are not punishable with death or imprisonment for life and are all triable by the Court of Magistrate."
}
},
{
"from_name": null,
"id": "51eaf1bc7fdd405eb6a7cde72cbfc7ba",
"to_name": null,
"type": null,
"value": {
"end": 7447,
"labels": [
"ANALYSIS"
],
"start": 7390,
"text": "Maximum punishment for the said offences is only 7 years."
}
},
{
"from_name": null,
"id": "0b946a476d8d4e38834acb891ea8bd0b",
"to_name": null,
"type": null,
"value": {
"end": 7793,
"labels": [
"ANALYSIS"
],
"start": 7448,
"text": "Fact that the Petitioners in Cr.Mis.No.1761 of 2013 are permanent residents of Nanjangud Town, Mysore District and the Petitioners in Cr.Mis.No.1789 of 2013 are permanent residents of Madrahalli Village, Gundlupet Taluk, Chamarajanagar District, owning substantial movable and immovable properties and are deep rooted in society is not disputed."
}
},
{
"from_name": null,
"id": "abd16c848df544e58de9ceded98870af",
"to_name": null,
"type": null,
"value": {
"end": 8073,
"labels": [
"RATIO"
],
"start": 7793,
"text": "\n 12. Having regard to the nature and magnitude of the offence, I am of the view that Petitioners in Cr.Mis.No.1761 of 2013 could be given benefit of anticipatory bail and Petitioners in Cr.Mis.No.1789 of 2013 could be given benefit of regular bail by imposing certain conditions."
}
},
{
"from_name": null,
"id": "d199a98650634884b5112e9d2545d6cd",
"to_name": null,
"type": null,
"value": {
"end": 8149,
"labels": [
"RATIO"
],
"start": 8074,
"text": "I have accordingly answered the above Point Nos.1 and 2 in the AFFIRMATIVE."
}
},
{
"from_name": null,
"id": "f63d0e5a06c54cdf81b444bb5ec2978a",
"to_name": null,
"type": null,
"value": {
"end": 8407,
"labels": [
"RPC"
],
"start": 8149,
"text": "\n Point No.3 13. In the result and for the reasons stated above, I proceed to pass the following: ORDER Petition in Cr.Mis.Nos.1761 of 2013 and Cr.Mis.No.1789 of 2013 filed by the Petitioners under Section 438 and 439 of Cr.P.C. respectively stands ACCEPTED."
}
},
{
"from_name": null,
"id": "0650c8e81cf34c9b98a8b3043f3f6817",
"to_name": null,
"type": null,
"value": {
"end": 8676,
"labels": [
"RPC"
],
"start": 8407,
"text": "\n The Respondent / Police are directed to enlarge the Petitioners in Cr.Mis.No.1761 of 2013, on bail in the event of their arrest in Cr.No.271 of 2013 on their executing personal bond in a sum of Rs.1,00,000/- [Rupees one lakh only] each with two sureties for like sum."
}
},
{
"from_name": null,
"id": "33f586f7777a4b8b81f4c1fc6167acdd",
"to_name": null,
"type": null,
"value": {
"end": 8894,
"labels": [
"RPC"
],
"start": 8678,
"text": "The Petitioners in Cr.Mis.No.1789 of 2013 is enlarged on bail on their executing personal bond in a sum of Rs.1,00,000/- [Rupees one lakh only] each with two sureties for the like sum subject to following: CONDITIONS"
}
},
{
"from_name": null,
"id": "aa52ca89b49745d5b38ecc0e9bd381ab",
"to_name": null,
"type": null,
"value": {
"end": 9002,
"labels": [
"RPC"
],
"start": 8895,
"text": "Petitioners in both petitions shall not tamper with prosecution witnesses or hamper with the investigation."
}
},
{
"from_name": null,
"id": "f6c6b6d243e949248bd42ac747f714db",
"to_name": null,
"type": null,
"value": {
"end": 9234,
"labels": [
"RPC"
],
"start": 9002,
"text": "\n Petitioners in Cr.Mis.No.1761 of 2013 shall appear before the Investigating Officer within 10 days from the date of this Order and Investigating Officer shall after interrogation, release them on bail by obtaining necessary bonds."
}
},
{
"from_name": null,
"id": "8a9b41d2e0194e7994b259bc97f9c408",
"to_name": null,
"type": null,
"value": {
"end": 9411,
"labels": [
"RPC"
],
"start": 9234,
"text": "\n Petitioners in Cr.Mis.No.1789 of 2013 shall appear before the Investigating Officer on 1st and 16th of every month and mark their attendance, till further orders of the Court."
}
},
{
"from_name": null,
"id": "5039142ba2574910830416834fb3f137",
"to_name": null,
"type": null,
"value": {
"end": 9530,
"labels": [
"RPC"
],
"start": 9411,
"text": "\n Petitioners in Cr.Mis.No.1761 of 2013 shall not leave the jurisdiction of the concerned Court without prior sanction."
}
},
{
"from_name": null,
"id": "a8ccc1a7f3bf464bb8945bf740d36d91",
"to_name": null,
"type": null,
"value": {
"end": 9638,
"labels": [
"RPC"
],
"start": 9530,
"text": "\n If the petitioners violate any of the conditions of bail order, this order automatically stands cancelled."
}
},
{
"from_name": null,
"id": "b78621c1cbd8448191695511d2f2ce1b",
"to_name": null,
"type": null,
"value": {
"end": 9945,
"labels": [
"NONE"
],
"start": 9638,
"text": "\n Original of this Common Order shall be kept in Cr.Mis.No.1761 of 2013 and a copy thereof in Cr.Mis.No.1789 of 2013.\n [Dictated to the Judgement Writer, transcribed by her on Computer, revised and corrected and then pronounced by me in the Open Court on this day the 6th day of December 2013] [N.RUDRAMUNI]"
}
},
{
"from_name": null,
"id": "252e00ca6dd440bc92b040f3b321a72d",
"to_name": null,
"type": null,
"value": {
"end": 9955,
"labels": [
"NONE"
],
"start": 9946,
"text": "Principal"
}
},
{
"from_name": null,
"id": "5932ea7bc21747db855abcce30559f7d",
"to_name": null,
"type": null,
"value": {
"end": 9964,
"labels": [
"NONE"
],
"start": 9956,
"text": "District"
}
},
{
"from_name": null,
"id": "a6be0e3364a54c568eab3f7a2fc8afa2",
"to_name": null,
"type": null,
"value": {
"end": 9990,
"labels": [
"NONE"
],
"start": 9965,
"text": "& Sessions Judge, Mysore."
}
},
{
"from_name": null,
"id": "ed3466859c934d5593965b39aef01c4c",
"to_name": null,
"type": null,
"value": {
"end": 9996,
"labels": [
"NONE"
],
"start": 9990,
"text": "\n Par:"
}
}
]
}
] | 4,223 | {
"text": " IN THE COURT OF THE PRINCIPAL DISTRICT AND\n SESSIONS JUDGE AT MYSORE\n Friday, 6th day of December 2013\n\nPRESENT : Sri N.RUDRAMUNI, B.Com., LL.M.,\n\n Principal District & Sessions Judge.\n\n Mysore.\n\n CRIMINAL MIS. NOS. 1761 & 1789 OF 2013\n\nPETITIONERS\n[ CR.MIS.NO.1761 OF 2013]\n\n 1. Yeshwanth S/o Boregowda, Aged\n\n about 29 years, Residing at\n\n No.119, Kempegowda Layout, Near\n\n Citizen School, Nanjangud Town,\n\n Mysore District.\n\n 2. H.P.Manju S/o Puttaswamy, Aged\n\n about 29 years, Residing at\n\n No.120, Kempegowda, Layout,\n\n Near Citizen School, Nanjangud\n\n Town, Mysore District.\n\n [By Sri R.M.Siddaraju, Advocate]\n\nPETITIONERS\n[ CR.MIS.NO.1789 OF 2013]\n\n 1. Prakash S/o Devaiah, Aged about\n\n 20 years.\n\n 2. Kumara S/o Hanumanthaiah, Aged\n\n about 22 years.\n\n Both are residing at Madrahalli\n\n Village, Gundlupet Taluk,\n\n Chamarajanagar District.\n\n [By Sri B.P.Devaraj, Advocate]\n\n V/s\n\nRESPONDENT IN BOTH PETITIONS\n\n State by Nanjangud Rural Police.\n\n [Represented by the Learned Public Prosecutor ]\n\n\nCOMMON ORDERS ON BAIL APPLICATION UNDER SECTION 438 & 439 OF CR.P.C.\n Petitioners in Cr.Mis.No.1761 of 2013 who are arrayed as Accused Nos.3 and 4, while Petitioners in Cr.Mis.No.1789 of 2013 who are arrayed as Accused Nos.1 and 2 in the F.I.R., have filed anticipatory and regular bail petitions respectively seeking their enlargement on bail in Cr.No.271 of 2013 of Nanjangud Rural Police Station, registered for the offences made punishable under Sections 3, 4 and 5 of Immoral Traffic Prevention Act, 1956.\n 2. In brief, case according to Prosecution, as set out in the Case Diary is as follows: The assistant Superintendent of Police, Nanjangud Sub Division has suo-moto lodged complaint with P.S.H.O., of Nanjangud Rural Police Station alleging that on 21.11.2013, at 1.30 p.m. when he was in the office, he received a credible information that in Malabar Plaza Hotel situated at Elachagere Bore Village, certain immoral activities were going on.\nComplainant immediately thereafter secured his staff and panchas to conduct raid and proceeded in their Jeep to Elachagere Bore Village. When they conducted raid on the hotel, they found the Petitioners in compromising position with the Prostitutes. On inquiry with them, they revealed their names as Prakash and Kumar. The complainant arrested the Petitioners, seized cell phones from them and produced them before the learned Magistrate who remanded them to Judicial Custody. The Petitioners moved bail application before the learned Magistrate which came to be rejected on the premise that Petitioners were caught red handed along with the victims.\nInvestigation is yet to be completed.\n 3. On the strength of said complaint, a case in Cr.No.271 of 2013, for the offences punishable under Sections 3, 4 and 5 of Immoral Traffic Prevention Act 1956, came to be registered.\n 4. Petitioner in Cr.Mis.No.1789 of 2013 have voluntarily surrendered before the learned Magistrate, who in turn remanded them to Judicial Custody. Hence, Petitioners filed the bail petition and the Petitioners in Cr.Mis.No.1761 of 2013, being apprehensive of their arrest, filed the bail petition, on the following amongst other common grounds: Petitioners are innocent of the offences alleged against them and they have been falsely implicated in the case. Petitionerd in Cr.Mis.No.1789 of 2013 have voluntarily surrendered before the Trial Court on 21.11.2013 and till this day, they are in Judicial Custody. Petitioners in Cr.Mis.No.1789 of 2013 being Cook in the said hotel were not involved in any of the activities as alleged in the complaint. They are neither the owners nor customers of the hotel. Petitioners in Cr.Mis.No.1761 of 2013 are not running any hotel and they are agriculturists by profession. Petitioners in Cr.Mis.No.1789 of 2013 are residents of Madrahalli Village, Gundlupet Taluk, Chamarajanagar District and the Petitioners in Cr.Mis.No.1761 of 2013 are residents of Nanjangud Taluk, Mysore District and having movable and immovable properties. They are ready to abide by the conditions that may be imposed by the Court and ready to offer surety to the satisfaction of the Court. On all these amongst other grounds, Petitioners in both petitions prayed for their enlargement on bail.\n 5. The learned Public Prosecutor has filed similar objections, reiterating the averments made in the complaint. He has contended that there are reasonable grounds to believe that Petitioners have committed the above said offences. Petitioners in Cr.Mis.No.1761 of 2013 are absconding since the date of offence. All the Petitioners are influential persons.\nInvestigation is at preliminary stage. If Petitioners are released on bail, they may abscond, may tamper prosecution witnesses and may hamper investigation. Hence, Petitioners prayed for rejection of both the bail petitions.\n 6. Heard the arguments of learned Counsels appearing on behalf of the Petitioners and learned Public Prosecutor.\n 7. The following points would arise for consideration: 1. Whether Petitioners in Cr.Mis.No.1761 of 2013 are entitled to anticipatory bail as prayed in their petition?\n 2. Whether Petitioners in Cr.Mis.No.179 of 2013 are entitled to bail as prayed in their petition?\n 3. What order?\n 8. My answer to the above points is as follows: Point No.1 : In the AFFIRMATIVE Point No.2 : In the AFFIRMATIVE Point No.3 : As per final order for the following: REASONS Point Nos.1 and 2 9. Learned Public Prosecutor has filed only the statement of objections. He has not made available to this Court the case diary relating to the investigation thus far done by the Investigating Officer.\n 10. However, learned Counsel for the Petitioners has produced order sheet of the Trial Court, F.I.R, remand application etc., Perused these documents and also perused the grounds urged by the Petitioners in their petitions and their statement of objections. The contents of the F.I.R is quite clear that the Petitioners were caught red handed while they were in compromising position with the victim ladies. The learned Counsel for the Petitioners in Cr.Mis.No.1789 of 2013 would contend that Petitioners are Cook in the Hotel. The learned Counsel for the Petitioners in Cr.Mis.No.1761 of 2013 would contend that Petitioners are not the owners of the hotel nor they are running the hotel and they are agriculturists by profession and they had nothing to do with the alleged brothel being carried on in the hotel. But, I am not in agreement with the submission of the learned Counsel for the obvious reason that the allegations in the complaint and statement of witnesses would reveal that the Petitioners were found in compromising position with two ladies.\n 11. At this stage, this Court refrains itself from making entire comment upon the rival contention and the merits of the case. Suffice it to say that the alleged offences are not punishable with death or imprisonment for life and are all triable by the Court of Magistrate. Maximum punishment for the said offences is only 7 years. Fact that the Petitioners in Cr.Mis.No.1761 of 2013 are permanent residents of Nanjangud Town, Mysore District and the Petitioners in Cr.Mis.No.1789 of 2013 are permanent residents of Madrahalli Village, Gundlupet Taluk, Chamarajanagar District, owning substantial movable and immovable properties and are deep rooted in society is not disputed.\n 12. Having regard to the nature and magnitude of the offence, I am of the view that Petitioners in Cr.Mis.No.1761 of 2013 could be given benefit of anticipatory bail and Petitioners in Cr.Mis.No.1789 of 2013 could be given benefit of regular bail by imposing certain conditions. I have accordingly answered the above Point Nos.1 and 2 in the AFFIRMATIVE.\n Point No.3 13. In the result and for the reasons stated above, I proceed to pass the following: ORDER Petition in Cr.Mis.Nos.1761 of 2013 and Cr.Mis.No.1789 of 2013 filed by the Petitioners under Section 438 and 439 of Cr.P.C. respectively stands ACCEPTED.\n The Respondent / Police are directed to enlarge the Petitioners in Cr.Mis.No.1761 of 2013, on bail in the event of their arrest in Cr.No.271 of 2013 on their executing personal bond in a sum of Rs.1,00,000/- [Rupees one lakh only] each with two sureties for like sum.\n The Petitioners in Cr.Mis.No.1789 of 2013 is enlarged on bail on their executing personal bond in a sum of Rs.1,00,000/- [Rupees one lakh only] each with two sureties for the like sum subject to following: CONDITIONS Petitioners in both petitions shall not tamper with prosecution witnesses or hamper with the investigation.\n Petitioners in Cr.Mis.No.1761 of 2013 shall appear before the Investigating Officer within 10 days from the date of this Order and Investigating Officer shall after interrogation, release them on bail by obtaining necessary bonds.\n Petitioners in Cr.Mis.No.1789 of 2013 shall appear before the Investigating Officer on 1st and 16th of every month and mark their attendance, till further orders of the Court.\n Petitioners in Cr.Mis.No.1761 of 2013 shall not leave the jurisdiction of the concerned Court without prior sanction.\n If the petitioners violate any of the conditions of bail order, this order automatically stands cancelled.\n Original of this Common Order shall be kept in Cr.Mis.No.1761 of 2013 and a copy thereof in Cr.Mis.No.1789 of 2013.\n [Dictated to the Judgement Writer, transcribed by her on Computer, revised and corrected and then pronounced by me in the Open Court on this day the 6th day of December 2013] [N.RUDRAMUNI] Principal District & Sessions Judge, Mysore.\n Par: "
} |
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{
"result": [
{
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"id": "5c0c051264c7448582de7dc06898acec",
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"end": 111,
"labels": [
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],
"start": 0,
"text": "IN THE COURT OF THE CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE\n FIRST CLASS, RAJGANGPUR, DISTRICT- SUNDARGARH."
}
},
{
"from_name": null,
"id": "40e08b79daf14ce0af86765ab8a5622d",
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"value": {
"end": 196,
"labels": [
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],
"start": 111,
"text": "\n\nPresent: Ms. Navneeta Dash, B.L.S/LL.B,\n C.J-cum-J.M.F.C, Rajgangpur."
}
},
{
"from_name": null,
"id": "a1f6d0ea7de0405190826ae4e0a1bc55",
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"value": {
"end": 237,
"labels": [
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],
"start": 196,
"text": "\n\n 2(a)CC No. 203 of 2014"
}
},
{
"from_name": null,
"id": "df8ccc8f2d6b4db98c9d0c2240910a0a",
"to_name": null,
"type": null,
"value": {
"end": 276,
"labels": [
"PREAMBLE"
],
"start": 237,
"text": "\n TR. No. 65 of 2015"
}
},
{
"from_name": null,
"id": "dc25ffb85e384b6fad05b17cbe0fef0c",
"to_name": null,
"type": null,
"value": {
"end": 368,
"labels": [
"PREAMBLE"
],
"start": 276,
"text": "\n\n(arising out of Bargaon Charge P.R No. 43/2014-2015)\n\nDated this the 10th day of May, 2018"
}
},
{
"from_name": null,
"id": "f33d0ad1c9bc4a4e873269d3b67898db",
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"value": {
"end": 429,
"labels": [
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],
"start": 368,
"text": "\n\nState of Odisha ...... Prosecution"
}
},
{
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"id": "3c6110b22ba744579ff0d692100d1aba",
"to_name": null,
"type": null,
"value": {
"end": 469,
"labels": [
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],
"start": 429,
"text": "\n\n -versus-"
}
},
{
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"id": "bfd1661108084d37b073d01984fe36a8",
"to_name": null,
"type": null,
"value": {
"end": 499,
"labels": [
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],
"start": 469,
"text": "\n\nNiranjan Ekka, aged about 40"
}
},
{
"from_name": null,
"id": "ae5c6f21ef6d4b2b97c393b475fe1d39",
"to_name": null,
"type": null,
"value": {
"end": 627,
"labels": [
"PREAMBLE"
],
"start": 500,
"text": " ...... Accused\nyears, son of Gopal Ekka,\nresident of Tudalaga (Bus\nStand Pada), P.S- Bargaon,\nDistrict- Sundargarh."
}
},
{
"from_name": null,
"id": "8a29e6a90745482bbf1454b3d743b8c3",
"to_name": null,
"type": null,
"value": {
"end": 689,
"labels": [
"PREAMBLE"
],
"start": 627,
"text": "\n\nOffence u/s. 47(a) of the Bihar and Orissa Excise Act, 1915."
}
},
{
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"id": "070a3f7cfb764fec91ee0b55a7d0c1c5",
"to_name": null,
"type": null,
"value": {
"end": 764,
"labels": [
"PREAMBLE"
],
"start": 689,
"text": "\n\nDate of conclusion of argument : 10.05.2018\n\nDate of delivery of judgment"
}
},
{
"from_name": null,
"id": "5ece7bc464e642a59fdb2d9d11e2c3ac",
"to_name": null,
"type": null,
"value": {
"end": 778,
"labels": [
"PREAMBLE"
],
"start": 765,
"text": " : 10.05.2018"
}
},
{
"from_name": null,
"id": "319006e5b3674c79a2344d85ba31d12d",
"to_name": null,
"type": null,
"value": {
"end": 999,
"labels": [
"PREAMBLE"
],
"start": 780,
"text": "Counsel for the Prosecution : Ms. Bijaylata Saw,\nCounsel for the Defence Ld. A.P.P, Rajgangpur.\n\n : Shri. B.K Routray and\n Associates, Advocates."
}
},
{
"from_name": null,
"id": "9739089775b8424db939509b64efa410",
"to_name": null,
"type": null,
"value": {
"end": 1052,
"labels": [
"PREAMBLE"
],
"start": 999,
"text": "\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "c6908b2d7ad2445e891485b8b0ce008d",
"to_name": null,
"type": null,
"value": {
"end": 1302,
"labels": [
"FAC"
],
"start": 1052,
"text": "\n The above named accused stands charged for having committed the offence of illegal possession of I.D liquor, punishable u/s. 47(a) of the Bihar and Orissa Excise Act, 1915 (to be hereinafter referred to as `the Act' for the sake of brevity)."
}
},
{
"from_name": null,
"id": "26073c49254f4cd0bc9ae3ddd239ba0a",
"to_name": null,
"type": null,
"value": {
"end": 1650,
"labels": [
"FAC"
],
"start": 1304,
"text": "2. The case of the prosecution in brief is that, on 29.12.2014 at around 10:00 am, Dolagobinda Panda, S.I. of Excise, Bargaon Charge and other staff members of his office, while conducting patrolling in Tudalaga (Bus Stand Pada) area, spotted the accused walking suspiciously on the said village road holding a plastic jerrycan in his right hand."
}
},
{
"from_name": null,
"id": "0ae60ee972f14e05abec1156234f9cee",
"to_name": null,
"type": null,
"value": {
"end": 1858,
"labels": [
"FAC"
],
"start": 1651,
"text": "Upon the basis of such suspicion, the S.I detained the accused and conducted search, during which he recovered the said plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "1753fe0111684050947518bca044c0a0",
"to_name": null,
"type": null,
"value": {
"end": 1970,
"labels": [
"FAC"
],
"start": 1859,
"text": "Then the S.I conducted tongue and smell test and blue litmus paper test during which the paper turned into red."
}
},
{
"from_name": null,
"id": "91a5664139924779ad94fdeaeaa60f19",
"to_name": null,
"type": null,
"value": {
"end": 2109,
"labels": [
"FAC"
],
"start": 1971,
"text": "He also conducted Hydrometer Test thereon and found its temperature to be 75 F, Spindle Indication to be 88.4 and Strength to be 70.9 U.P."
}
},
{
"from_name": null,
"id": "aa120351c1d14d94a149b0a9407046b5",
"to_name": null,
"type": null,
"value": {
"end": 2236,
"labels": [
"FAC"
],
"start": 2110,
"text": "From the findings of said tests as well as from his departmental experience, the S.I concluded that the liquid was I.D liquor."
}
},
{
"from_name": null,
"id": "622ae7d52a4d4e40ac53efc498985b61",
"to_name": null,
"type": null,
"value": {
"end": 2473,
"labels": [
"FAC"
],
"start": 2237,
"text": "On demand, since the accused failed to produce any kind of authentic document or licence for legitimising his possession of the said liquor, the S.I seized the said liquor and on completion of enquiry, submitted P.R against the accused."
}
},
{
"from_name": null,
"id": "16d5411a63804ca9a2a80deb17aa9c99",
"to_name": null,
"type": null,
"value": {
"end": 2600,
"labels": [
"FAC"
],
"start": 2475,
"text": "3. The plea of the accused is of complete denial and false implication as is revealed from his statement u/s. 313 Cr.P.C.\n 4."
}
},
{
"from_name": null,
"id": "4eb508f05d12423aa0f58ee083ea9964",
"to_name": null,
"type": null,
"value": {
"end": 3047,
"labels": [
"ISSUE"
],
"start": 2601,
"text": "On the above factual matrix and after hearing both sides, I find that the points which call for determination, are as follows: Whether on 29.12.2014 at around 10:00 am on the village road of Bus Stand Pada, Tudalaga, under Bargaon P.S:- i. the accused was found to be possessing 03 litres of I.D liquor without any licence or valid authority?\n ii. the I.D liquor and jerrycan was seized from the exclusive and conscious possession of the accused?"
}
},
{
"from_name": null,
"id": "213e2073182b4db6852ba1889867637b",
"to_name": null,
"type": null,
"value": {
"end": 3124,
"labels": [
"ANALYSIS"
],
"start": 3047,
"text": "\n 5. In order to prove its case the prosecution has examined three witnesses."
}
},
{
"from_name": null,
"id": "e26f2cf9f152473ebf9c8f50a63c41eb",
"to_name": null,
"type": null,
"value": {
"end": 3204,
"labels": [
"ANALYSIS"
],
"start": 3125,
"text": "On the other hand, the defence examined none and led no evidence from its side."
}
},
{
"from_name": null,
"id": "d2b3a8731ff34ff4a4a3309f72f21b97",
"to_name": null,
"type": null,
"value": {
"end": 3311,
"labels": [
"ANALYSIS"
],
"start": 3205,
"text": "P.W.3 is the complainant-cum-I.O who has deposed about his patrolling and about detection of the incident."
}
},
{
"from_name": null,
"id": "89e8af575e3e48e4893ea40066b4f698",
"to_name": null,
"type": null,
"value": {
"end": 3364,
"labels": [
"ANALYSIS"
],
"start": 3312,
"text": "He stated that, he spotted and detained the accused."
}
},
{
"from_name": null,
"id": "7235d9e411384e70b3efd0020e4c7544",
"to_name": null,
"type": null,
"value": {
"end": 3516,
"labels": [
"ANALYSIS"
],
"start": 3365,
"text": "He added that on conducting search, he recovered and seized one plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "498df5e6bf2c459a80cc88a20f95d1d6",
"to_name": null,
"type": null,
"value": {
"end": 3615,
"labels": [
"ANALYSIS"
],
"start": 3517,
"text": "He added that upon conducting litmus test over the seized liquid the blue litmus paper turned red."
}
},
{
"from_name": null,
"id": "67474f3638d84a66925f4067c45ce417",
"to_name": null,
"type": null,
"value": {
"end": 3736,
"labels": [
"ANALYSIS"
],
"start": 3616,
"text": "He also conducted Hydrometer Test and found its temperature to be 75 F, Spindle Indication- 88.4 and Strength- 70.9 U.P."
}
},
{
"from_name": null,
"id": "0926d0e933c24336871daa4504f12e57",
"to_name": null,
"type": null,
"value": {
"end": 3892,
"labels": [
"ANALYSIS"
],
"start": 3737,
"text": "He deposed that upon conducting such tests and due to his training and service experience he ascertained that the seized liquid was nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "1ed6268dcc7f4c6cba0ad0225d3097c7",
"to_name": null,
"type": null,
"value": {
"end": 4002,
"labels": [
"ANALYSIS"
],
"start": 3893,
"text": "P.W.2 is an official seizure witness, being an Excise Constable who had accompanied P.W.3 on patrolling duty."
}
},
{
"from_name": null,
"id": "1fa087ef502b47dbb0a1d9443c861e26",
"to_name": null,
"type": null,
"value": {
"end": 4058,
"labels": [
"ANALYSIS"
],
"start": 4003,
"text": "He has supported the prosecution story in his evidence."
}
},
{
"from_name": null,
"id": "46ce17b403954f55a8fea9558ce7d3f2",
"to_name": null,
"type": null,
"value": {
"end": 4133,
"labels": [
"ANALYSIS"
],
"start": 4059,
"text": "He has deposed about their patrolling and about detection of the incident."
}
},
{
"from_name": null,
"id": "41e8280d2fcc44a6b8cbcb144b391896",
"to_name": null,
"type": null,
"value": {
"end": 4468,
"labels": [
"ANALYSIS"
],
"start": 4134,
"text": "He stated that upon detaining the accused and conducting search, P.W.3 recovered and seized one plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused in his presence, and that Litmus and Hydrometer tests were conducted and a Seizure List thereof was prepared by the P.W.3-I.O upon which he had signed."
}
},
{
"from_name": null,
"id": "cfcea738f1194738bae29e2857d30bbd",
"to_name": null,
"type": null,
"value": {
"end": 4613,
"labels": [
"ANALYSIS"
],
"start": 4469,
"text": "P.W.1 is an independent witness who has deposed that he does not know anything about this case and that nothing has been seized in his presence."
}
},
{
"from_name": null,
"id": "13805489e4f2439c8b9ed0a84c7c1fed",
"to_name": null,
"type": null,
"value": {
"end": 4665,
"labels": [
"ANALYSIS"
],
"start": 4613,
"text": "\n 6. Heard the arguments advanced by both the sides."
}
},
{
"from_name": null,
"id": "d4ea56f3cebe4c31a3cbe1f48c5c4dbd",
"to_name": null,
"type": null,
"value": {
"end": 4809,
"labels": [
"ANALYSIS"
],
"start": 4666,
"text": "Perused the evidence on record and carefully considered the arguments advanced by both sides with respect to both the points for determination."
}
},
{
"from_name": null,
"id": "2659432b05114d5b97137504bfe1c702",
"to_name": null,
"type": null,
"value": {
"end": 4912,
"labels": [
"ANALYSIS"
],
"start": 4810,
"text": "Considering the nature of evidence on record, both the points are taken up for determination together."
}
},
{
"from_name": null,
"id": "b69461c15ac444fcb8b6a872891c8b5b",
"to_name": null,
"type": null,
"value": {
"end": 5153,
"labels": [
"STA"
],
"start": 4912,
"text": "\n 7. In order to establish an offence u/s. 47(a) of the Act, the prosecution must establish the following: (i) The seized substance was I.D. liquor (ii) That the said I.D. liquor was possessed by the accused without any licence or authority."
}
},
{
"from_name": null,
"id": "7b7642a1992845f0b39a1d763b100663",
"to_name": null,
"type": null,
"value": {
"end": 5238,
"labels": [
"STA"
],
"start": 5154,
"text": "(iii) That it was seized from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "d9bb554bb4da496baf3bfcf6430252e6",
"to_name": null,
"type": null,
"value": {
"end": 5437,
"labels": [
"ANALYSIS"
],
"start": 5238,
"text": "\nAlthough the evidence on record reveals that litmus test and Hydrometer Test have both been conducted, no conclusive test such as Chemical Examination has been conducted by the prosecution agencies."
}
},
{
"from_name": null,
"id": "9ef3abc7b2984df49466aba370b80e21",
"to_name": null,
"type": null,
"value": {
"end": 5609,
"labels": [
"ANALYSIS"
],
"start": 5438,
"text": "In the absence of Chemical Examination or any other kind of direct and cogent evidence, it cannot be conclusively proved that the seized liquid was nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "3e4c5524ba60494e9a816dd4ee5077e5",
"to_name": null,
"type": null,
"value": {
"end": 5711,
"labels": [
"ANALYSIS"
],
"start": 5610,
"text": "Therefore, it is held that the prosecution has failed to prove that the seized article is I.D liquor."
}
},
{
"from_name": null,
"id": "d3e209c934cc4ba49df5ba904b4552d2",
"to_name": null,
"type": null,
"value": {
"end": 5932,
"labels": [
"ANALYSIS"
],
"start": 5711,
"text": "\n 8. Besides that, as regards seizure, the prosecution has also not seized any identity document from the accused in order to establish that the seizure took place from the possession of none else but the present accused."
}
},
{
"from_name": null,
"id": "29e3c5e4f6c34bba9c2194ce0aca4441",
"to_name": null,
"type": null,
"value": {
"end": 6060,
"labels": [
"ANALYSIS"
],
"start": 5933,
"text": "Further, it is clear from the evidence of the sole independent seizure witness that no seizure has taken place in his presence."
}
},
{
"from_name": null,
"id": "0ca7422730e841488b08647d67637c93",
"to_name": null,
"type": null,
"value": {
"end": 6216,
"labels": [
"ANALYSIS"
],
"start": 6061,
"text": "In absence of any support from the independent witness, it is not prudent to rely solely upon the evidence of P.Ws.2 and 3 regarding the factum of seizure."
}
},
{
"from_name": null,
"id": "510528eea603481591bcd32898ada823",
"to_name": null,
"type": null,
"value": {
"end": 6311,
"labels": [
"ANALYSIS"
],
"start": 6216,
"text": "\nMoreover, the seized I.D. liquor if any, has not been produced before this court during trial."
}
},
{
"from_name": null,
"id": "b641d7522eac4d47b5c47eb525c7e7c9",
"to_name": null,
"type": null,
"value": {
"end": 6446,
"labels": [
"ANALYSIS"
],
"start": 6312,
"text": "Hence, in view of the same, even the seizure cannot be held to be proved to have occurred from none else but the accused in this case."
}
},
{
"from_name": null,
"id": "8f8727feda014286b55ddd2f0a56235b",
"to_name": null,
"type": null,
"value": {
"end": 6728,
"labels": [
"RATIO"
],
"start": 6447,
"text": "Therefore, it is held that the prosecution has failed to bring forth any direct and cogent evidence against the accused, to establish the essential ingredients of offence u/s. 47(a) of the Act, and accordingly, both the points are answered in the negative in favour of the accused."
}
},
{
"from_name": null,
"id": "005e4ce130ca4828853b46d100d811af",
"to_name": null,
"type": null,
"value": {
"end": 6939,
"labels": [
"RPC"
],
"start": 6728,
"text": "\n 9. In the result, accused Niranjan Ekka is held not guilty for having committed the alleged offence u/s. 47 (a) of the Bihar and Orissa Excise Act, 1915 and is therefore, acquitted u/s. 248 (1) of the Cr.P.C."
}
},
{
"from_name": null,
"id": "03fa0b0ca38e49bea112f06083b1367a",
"to_name": null,
"type": null,
"value": {
"end": 7009,
"labels": [
"RPC"
],
"start": 6940,
"text": "He be set at liberty forthwith and be discharged from his bail bonds."
}
},
{
"from_name": null,
"id": "f84bf4bea4f24a459a77d5248a5eac21",
"to_name": null,
"type": null,
"value": {
"end": 7202,
"labels": [
"RPC"
],
"start": 7011,
"text": "10. The seized items, if any, be destroyed after four months of expiry of appeal period if no appeal is preferred, and if preferred, be dealt with as per the direction of the appellate court."
}
},
{
"from_name": null,
"id": "a0dc1f0a4ef94a54b8a39e858cfbe744",
"to_name": null,
"type": null,
"value": {
"end": 7272,
"labels": [
"RPC"
],
"start": 7202,
"text": "\n 11. Status of the accused: - Accused is on bail and is present.\n 12."
}
},
{
"from_name": null,
"id": "5603f23a70f34f5fadcaabe1d8380daa",
"to_name": null,
"type": null,
"value": {
"end": 7310,
"labels": [
"RPC"
],
"start": 7273,
"text": "Enter this case as `mistake of fact.'"
}
},
{
"from_name": null,
"id": "8e5a8b23f12a4563b8bcf45e2eb176b5",
"to_name": null,
"type": null,
"value": {
"end": 7339,
"labels": [
"RPC"
],
"start": 7311,
"text": "C.J-cum-J.M.F.C, Rajgangpur."
}
},
{
"from_name": null,
"id": "88789c523e644b4e9cd7dc9567f5a9a1",
"to_name": null,
"type": null,
"value": {
"end": 7506,
"labels": [
"NONE"
],
"start": 7341,
"text": "This judgment is typed, corrected, signed and pronounced by me in the open Court today i.e., on this the 10th day of May, 2018, under my hand and seal of this Court."
}
},
{
"from_name": null,
"id": "84d6a44f70214f9fad4e652d8ab0a018",
"to_name": null,
"type": null,
"value": {
"end": 7536,
"labels": [
"NONE"
],
"start": 7506,
"text": "\n C.J-cum-J.M.F.C, Rajgangpur."
}
},
{
"from_name": null,
"id": "14d930896b4745c6ace5fe53a9e0de1d",
"to_name": null,
"type": null,
"value": {
"end": 7619,
"labels": [
"NONE"
],
"start": 7536,
"text": "\n List of Prosecution Witnesses: P.W.1- Bikram Bag.\n P.W.2- Sandeep Kumar Naik."
}
},
{
"from_name": null,
"id": "3da1dee723e94173bd1f92aeeb2b581b",
"to_name": null,
"type": null,
"value": {
"end": 7648,
"labels": [
"NONE"
],
"start": 7619,
"text": "\n P.W.3- Dolagobinda Panda."
}
},
{
"from_name": null,
"id": "706a0276d44a41c5af5dce25f9da8456",
"to_name": null,
"type": null,
"value": {
"end": 7726,
"labels": [
"NONE"
],
"start": 7650,
"text": "List of Defence Witnesses: None List of Exhibits marked for the Prosecution:"
}
},
{
"from_name": null,
"id": "25acd6ab7a504385885e14eada6ac0f3",
"to_name": null,
"type": null,
"value": {
"end": 7749,
"labels": [
"NONE"
],
"start": 7727,
"text": "Ext.1 Seizure List."
}
},
{
"from_name": null,
"id": "1951c41e07564d0abf8093a5e7065bcb",
"to_name": null,
"type": null,
"value": {
"end": 8015,
"labels": [
"NONE"
],
"start": 7749,
"text": "\n Ext.11- Signature of P.W.2 on Ext.1.\n Ext.12- Signature of P.W.3 on Ext.1.\n Ext.13- Tested blue litmus paper Strip.\n Ext.2- Hydrometer Chart.\n Ext.21- Signature of P.W.3 on Ext.2.\n List of Exhibits marked for the Defence: Nil.\n C.J-cum-J.M.F.C, Rajgangpur.\n "
}
}
]
}
] | 4,165 | {
"text": "IN THE COURT OF THE CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE\n FIRST CLASS, RAJGANGPUR, DISTRICT- SUNDARGARH.\n\nPresent: Ms. Navneeta Dash, B.L.S/LL.B,\n C.J-cum-J.M.F.C, Rajgangpur.\n\n 2(a)CC No. 203 of 2014\n TR. No. 65 of 2015\n\n(arising out of Bargaon Charge P.R No. 43/2014-2015)\n\nDated this the 10th day of May, 2018\n\nState of Odisha ...... Prosecution\n\n -versus-\n\nNiranjan Ekka, aged about 40 ...... Accused\nyears, son of Gopal Ekka,\nresident of Tudalaga (Bus\nStand Pada), P.S- Bargaon,\nDistrict- Sundargarh.\n\nOffence u/s. 47(a) of the Bihar and Orissa Excise Act, 1915.\n\nDate of conclusion of argument : 10.05.2018\n\nDate of delivery of judgment : 10.05.2018\n\nCounsel for the Prosecution : Ms. Bijaylata Saw,\nCounsel for the Defence Ld. A.P.P, Rajgangpur.\n\n : Shri. B.K Routray and\n Associates, Advocates.\n\n J U D G M E N T\n The above named accused stands charged for having committed the offence of illegal possession of I.D liquor, punishable u/s. 47(a) of the Bihar and Orissa Excise Act, 1915 (to be hereinafter referred to as `the Act' for the sake of brevity).\n 2. The case of the prosecution in brief is that, on 29.12.2014 at around 10:00 am, Dolagobinda Panda, S.I. of Excise, Bargaon Charge and other staff members of his office, while conducting patrolling in Tudalaga (Bus Stand Pada) area, spotted the accused walking suspiciously on the said village road holding a plastic jerrycan in his right hand. Upon the basis of such suspicion, the S.I detained the accused and conducted search, during which he recovered the said plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused. Then the S.I conducted tongue and smell test and blue litmus paper test during which the paper turned into red. He also conducted Hydrometer Test thereon and found its temperature to be 75 F, Spindle Indication to be 88.4 and Strength to be 70.9 U.P. From the findings of said tests as well as from his departmental experience, the S.I concluded that the liquid was I.D liquor. On demand, since the accused failed to produce any kind of authentic document or licence for legitimising his possession of the said liquor, the S.I seized the said liquor and on completion of enquiry, submitted P.R against the accused.\n 3. The plea of the accused is of complete denial and false implication as is revealed from his statement u/s. 313 Cr.P.C.\n 4. On the above factual matrix and after hearing both sides, I find that the points which call for determination, are as follows: Whether on 29.12.2014 at around 10:00 am on the village road of Bus Stand Pada, Tudalaga, under Bargaon P.S:- i. the accused was found to be possessing 03 litres of I.D liquor without any licence or valid authority?\n ii. the I.D liquor and jerrycan was seized from the exclusive and conscious possession of the accused?\n 5. In order to prove its case the prosecution has examined three witnesses. On the other hand, the defence examined none and led no evidence from its side. P.W.3 is the complainant-cum-I.O who has deposed about his patrolling and about detection of the incident. He stated that, he spotted and detained the accused. He added that on conducting search, he recovered and seized one plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused. He added that upon conducting litmus test over the seized liquid the blue litmus paper turned red. He also conducted Hydrometer Test and found its temperature to be 75 F, Spindle Indication- 88.4 and Strength- 70.9 U.P. He deposed that upon conducting such tests and due to his training and service experience he ascertained that the seized liquid was nothing but I.D liquor. P.W.2 is an official seizure witness, being an Excise Constable who had accompanied P.W.3 on patrolling duty. He has supported the prosecution story in his evidence. He has deposed about their patrolling and about detection of the incident. He stated that upon detaining the accused and conducting search, P.W.3 recovered and seized one plastic jerrycan containing 03 litres of I.D liquor from the possession of the accused in his presence, and that Litmus and Hydrometer tests were conducted and a Seizure List thereof was prepared by the P.W.3-I.O upon which he had signed. P.W.1 is an independent witness who has deposed that he does not know anything about this case and that nothing has been seized in his presence.\n 6. Heard the arguments advanced by both the sides. Perused the evidence on record and carefully considered the arguments advanced by both sides with respect to both the points for determination. Considering the nature of evidence on record, both the points are taken up for determination together.\n 7. In order to establish an offence u/s. 47(a) of the Act, the prosecution must establish the following: (i) The seized substance was I.D. liquor (ii) That the said I.D. liquor was possessed by the accused without any licence or authority. (iii) That it was seized from the exclusive and conscious possession of the accused.\nAlthough the evidence on record reveals that litmus test and Hydrometer Test have both been conducted, no conclusive test such as Chemical Examination has been conducted by the prosecution agencies. In the absence of Chemical Examination or any other kind of direct and cogent evidence, it cannot be conclusively proved that the seized liquid was nothing but I.D liquor. Therefore, it is held that the prosecution has failed to prove that the seized article is I.D liquor.\n 8. Besides that, as regards seizure, the prosecution has also not seized any identity document from the accused in order to establish that the seizure took place from the possession of none else but the present accused. Further, it is clear from the evidence of the sole independent seizure witness that no seizure has taken place in his presence. In absence of any support from the independent witness, it is not prudent to rely solely upon the evidence of P.Ws.2 and 3 regarding the factum of seizure.\nMoreover, the seized I.D. liquor if any, has not been produced before this court during trial. Hence, in view of the same, even the seizure cannot be held to be proved to have occurred from none else but the accused in this case. Therefore, it is held that the prosecution has failed to bring forth any direct and cogent evidence against the accused, to establish the essential ingredients of offence u/s. 47(a) of the Act, and accordingly, both the points are answered in the negative in favour of the accused.\n 9. In the result, accused Niranjan Ekka is held not guilty for having committed the alleged offence u/s. 47 (a) of the Bihar and Orissa Excise Act, 1915 and is therefore, acquitted u/s. 248 (1) of the Cr.P.C. He be set at liberty forthwith and be discharged from his bail bonds.\n 10. The seized items, if any, be destroyed after four months of expiry of appeal period if no appeal is preferred, and if preferred, be dealt with as per the direction of the appellate court.\n 11. Status of the accused: - Accused is on bail and is present.\n 12. Enter this case as `mistake of fact.' C.J-cum-J.M.F.C, Rajgangpur.\n This judgment is typed, corrected, signed and pronounced by me in the open Court today i.e., on this the 10th day of May, 2018, under my hand and seal of this Court.\n C.J-cum-J.M.F.C, Rajgangpur.\n List of Prosecution Witnesses: P.W.1- Bikram Bag.\n P.W.2- Sandeep Kumar Naik.\n P.W.3- Dolagobinda Panda.\n List of Defence Witnesses: None List of Exhibits marked for the Prosecution: Ext.1 Seizure List.\n Ext.11- Signature of P.W.2 on Ext.1.\n Ext.12- Signature of P.W.3 on Ext.1.\n Ext.13- Tested blue litmus paper Strip.\n Ext.2- Hydrometer Chart.\n Ext.21- Signature of P.W.3 on Ext.2.\n List of Exhibits marked for the Defence: Nil.\n C.J-cum-J.M.F.C, Rajgangpur.\n "
} |
{
"group": "Criminal"
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{
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{
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"text": "IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE"
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"text": "SUNDARGARH."
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"text": "Present:"
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"start": 117,
"text": " Miss. Chinmayee Panda, BA,LL.B,(Hons)\n S.D.J.M.,Sundargarh."
}
},
{
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"start": 196,
"text": "Date of Argument: - 05.03.2018\n Date of Judgment: -06.03.2018"
}
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{
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"text": "\n\n GR Case No. 427/2004\n "
}
},
{
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"start": 311,
"text": "Trial No. 1847/2004\n\n State\n\n "
}
},
{
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"value": {
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"text": "Vrs.\n\n "
}
},
{
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"value": {
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"text": "Khirod Bag , aged about 36 years ,"
}
},
{
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"end": 493,
"labels": [
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],
"start": 416,
"text": "S/o-Rasaba Bag, Resident\n of Village- Bankibahal, Ps-Hemgir,\n District."
}
},
{
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"id": "83a7f0fc124a4d65bdc4f6ca68449c2d",
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"text": "Sundargarh."
}
},
{
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],
"start": 507,
"text": "Counsel for the State....... Ld. A.P.P, Sundargarh."
}
},
{
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"id": "c56a057fdbd148a2b6ac044320fb74ca",
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"end": 618,
"labels": [
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"start": 560,
"text": "Counsel for the defence..... Smt. Y Naik, SDC, Sundargarh."
}
},
{
"from_name": null,
"id": "3c34da6b3bb94004b5320d7e200d588c",
"to_name": null,
"type": null,
"value": {
"end": 728,
"labels": [
"PREAMBLE"
],
"start": 618,
"text": "\n\n Status of the accused : In custody\n\n Offence U/s.279/337/304(A) of IPC\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "6bbca466040e4f6da78d697659609cb2",
"to_name": null,
"type": null,
"value": {
"end": 734,
"labels": [
"FAC"
],
"start": 728,
"text": "\n 1. "
}
},
{
"from_name": null,
"id": "41eb9b9fdf414c4b870f9df7199b6084",
"to_name": null,
"type": null,
"value": {
"end": 963,
"labels": [
"FAC"
],
"start": 734,
"text": "The accused above named stands prosecuted for allegedly committing offence U/s.279/337/304(A) of the Indian Penal Code ( hereinafter referred to as IPC ) r/w Sec. 181 of Motor Vehicles Act (hereinafter referred to as the MV Act)."
}
},
{
"from_name": null,
"id": "94170d8e43744cd2bb1da2271457378e",
"to_name": null,
"type": null,
"value": {
"end": 1559,
"labels": [
"FAC"
],
"start": 965,
"text": "2. The story of the prosecution as unveiled from the FIR that on 25.07.2004 at about 4.00 PM, while the grand son of the informant namely Deepak Kumar Patel was returning from the house of the informant to Sundargarh in a Hero Honda motor cycle bearing Regd NO. OR 16 9395, near Mahuljor Forest area another Hero Honda Splendor motor cycle bearing Regd No. OR 14G 6618 coming in a high speed from opposite side , dashed with him and as a result of such accident, the grand son of the informant fell down on the road, sustained severe bleeding injury and ultimately succumbed to such injuries.\n "
}
},
{
"from_name": null,
"id": "c9b6ebda501f4799ae61cc4b29915aab",
"to_name": null,
"type": null,
"value": {
"end": 1772,
"labels": [
"FAC"
],
"start": 1559,
"text": "With such allegation the informant lodged a written report before the IIC, Sadar PS, Sundargarh, who registered the same as PS case No.\n76/2004 and directed ASI Shri S K Patel to take up investigation of the case."
}
},
{
"from_name": null,
"id": "fe3ef4f92b7e4a0099d37daa13b40e85",
"to_name": null,
"type": null,
"value": {
"end": 1886,
"labels": [
"FAC"
],
"start": 1772,
"text": "\nOn completion of investigation, charge sheet U/s.279/337/304(A) of IPC r/w Sec. 181 of MV Act to stand the trial."
}
},
{
"from_name": null,
"id": "620f0899588a44ecb1b8d7b64c451fd7",
"to_name": null,
"type": null,
"value": {
"end": 1904,
"labels": [
"FAC"
],
"start": 1887,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "281ae74d944f44dfaea8c5f1396a8b29",
"to_name": null,
"type": null,
"value": {
"end": 1970,
"labels": [
"FAC"
],
"start": 1904,
"text": "\n 3. The plea of defence is that of denial and false implication ."
}
},
{
"from_name": null,
"id": "089105872aad4748be2e6ef9022d71d1",
"to_name": null,
"type": null,
"value": {
"end": 2245,
"labels": [
"ISSUE"
],
"start": 1971,
"text": "4. Points for determination : I. Whether on 25.07.2004 at about 4.00 PM near Mahuljor Forest Area, Sundargarh the accused was driving a Hero Honda Splender motor cycle bearing Regd No. OR 14G 6618, so rashly and negligently in a public way so as to endanger human life ?\nII."
}
},
{
"from_name": null,
"id": "f22078b9283741d5b87d631449b9e00a",
"to_name": null,
"type": null,
"value": {
"end": 2449,
"labels": [
"ISSUE"
],
"start": 2246,
"text": "Whether on the above mentioned date, time and place, the accused caused hurt to the grand son of the informant namely Deepak Kumar Patel due to rash and negligent driving of the above mentioned vehicle ?"
}
},
{
"from_name": null,
"id": "cc696fe4e6944833bd1828b91f941946",
"to_name": null,
"type": null,
"value": {
"end": 2637,
"labels": [
"ISSUE"
],
"start": 2450,
"text": "III. Whether on the above mentioned date, time and place, the accused caused death of the above Deepak Kumar Patel by doing any rash or negligent act, not amounting to culpable homicide ?"
}
},
{
"from_name": null,
"id": "222eb77d91f44ed29c1810ca7ad826c1",
"to_name": null,
"type": null,
"value": {
"end": 2774,
"labels": [
"ISSUE"
],
"start": 2638,
"text": "IV. Whether on the above mentioned date, time and place, the accused contravened any of the provision of Sec. 3 or Sec. 4 of the MV Act."
}
},
{
"from_name": null,
"id": "28397e9a4c194eb09a0542d307c7ac94",
"to_name": null,
"type": null,
"value": {
"end": 3028,
"labels": [
"ANALYSIS"
],
"start": 2774,
"text": "\n 5. In order to substantiate its case prosecution has examined as many as 10 witnesses out of whom P.W.3 is the informant, P.W.1 and P.W.2 are two medical officers, P.W.10 is the investigating officer and rest are the independent and seizure witnesses."
}
},
{
"from_name": null,
"id": "bcf8eb11eb52409bbf5060cf1bbf4d1b",
"to_name": null,
"type": null,
"value": {
"end": 3145,
"labels": [
"ANALYSIS"
],
"start": 3029,
"text": "In view of these witnesses, prosecution has declined to examine the rest of the witnesses named in the charge sheet."
}
},
{
"from_name": null,
"id": "4dd1498a9f02475496f02bb64e38fece",
"to_name": null,
"type": null,
"value": {
"end": 3229,
"labels": [
"ANALYSIS"
],
"start": 3146,
"text": "On other hand, the accused has preferred not to adduce any evidence in his defence."
}
},
{
"from_name": null,
"id": "a03501996dd34db49ecf92900d1cead9",
"to_name": null,
"type": null,
"value": {
"end": 3499,
"labels": [
"ANALYSIS"
],
"start": 3231,
"text": "6. In order to avoid repetition and for the sake of brevity and precision , this Court feels it appropriate to consider the merit of the prosecution case as a whole in respect of all offence alleged against the accused instead of analysing each offence individually ."
}
},
{
"from_name": null,
"id": "aaee19e941f94ec5b5226a6a4603e0ff",
"to_name": null,
"type": null,
"value": {
"end": 4051,
"labels": [
"ANALYSIS"
],
"start": 3500,
"text": "Proceeding in that direction , the informant while being examined as P.W.3 has deposed that on 25.07.2004 at about 3.00 PM to 4.00 PM his grand son Deepak Kumar Patel had come to his house from Ujjalpur in a Hero Honda splendor motor cycle bearing Regd NO. OR 16 9395 and while he was returning through Mahuljor forest are , another motor cycle bearing Regd No. OR 14G 6618 coming from the opposite direction in high speed dashed with him , as a result of which , his grand son fell down and received bleeding injuries in his head an died on the spot."
}
},
{
"from_name": null,
"id": "791e204effe94550a585e7c1df4cd7e3",
"to_name": null,
"type": null,
"value": {
"end": 4129,
"labels": [
"ANALYSIS"
],
"start": 4052,
"text": "The informant has fairly deposed in the Court , he does not know the accused."
}
},
{
"from_name": null,
"id": "d7bb551312be4fd2bb1626a74c36d1f4",
"to_name": null,
"type": null,
"value": {
"end": 4213,
"labels": [
"ANALYSIS"
],
"start": 4130,
"text": "He has identified the FIR lodged by him Ext.3 and his signature thereon as Ext.3/1."
}
},
{
"from_name": null,
"id": "22b30d9f780940b989cc0cdb6e16319b",
"to_name": null,
"type": null,
"value": {
"end": 4364,
"labels": [
"ANALYSIS"
],
"start": 4214,
"text": "Similarly he deposed that the police conducted inquest over the dead body of the grand son and prepared inquest report which has been marked as Ext.4."
}
},
{
"from_name": null,
"id": "b136d508c2c64080b81e54fdd093ac16",
"to_name": null,
"type": null,
"value": {
"end": 4469,
"labels": [
"ANALYSIS"
],
"start": 4365,
"text": "The independent witnesses (P.W.4, P.W.5 and P.W.8) have also deposed in the same light as that of P.W.3."
}
},
{
"from_name": null,
"id": "08a36952160f402a8ed8ff9fd7d9ad6c",
"to_name": null,
"type": null,
"value": {
"end": 4730,
"labels": [
"ANALYSIS"
],
"start": 4470,
"text": "P.W.6 has deposed that the deceased is his nephew and on the fateful day, the deceased had taken his motor cycle bearing Regd No. OR 16 9395 and during course of investigation, the police handed over the said motor cycle to him by executing a zimanama (Ext.6)."
}
},
{
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"end": 4847,
"labels": [
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],
"start": 4731,
"text": "P.W.7 has merely deposed that on 25.07.2004 there was an accident of two motor cycles and two persons were injured ."
}
},
{
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],
"start": 4848,
"text": "He has expressed his inability to depose anything more regarding the case."
}
},
{
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],
"start": 4923,
"text": "P.W.9 has stated that during course of investigation of the case , the police had handed over the Hero Honda splendor motor cycle bearing Regd No. OR 14G 6618 and its documents to him by executing a zimanama (Ext.7)."
}
},
{
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"labels": [
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],
"start": 5140,
"text": "P.W.1 is a medical officer who had examined the accused facing trial in this case."
}
},
{
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"to_name": null,
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"labels": [
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],
"start": 5223,
"text": "After the alleged occurrence."
}
},
{
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"to_name": null,
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"labels": [
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],
"start": 5253,
"text": "P.W.2 is the medical officer who had conducted post mortem examination of the deceased and has deposed the cause of death to be shock and hemorrhage due to injury to vital organ like brain."
}
},
{
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"id": "e062a64fdf004a57bdb468168d7f1d6f",
"to_name": null,
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"labels": [
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],
"start": 5443,
"text": "The investigating officer who has been examined as P.W.10 has deposed that after taking the charge of the investigation of the case, he visited the spot, prepared th spot map (Ext.8), conducted inquest of the dead body of the deceased and prepared inquest report vide Ext.5, sent the dead body for post mortem examination, seized both the motor cycles bearing Regd No. OR 16 9395 and OR 14G 6618 vide seizure lists marked as Ext.4 and Ext.10 respectively, handed over the same in zima by executing zimanama marked as Ext.6 and Ext.7 , obtained MVI report and on completion of investigation submitted charge sheet against the accused."
}
},
{
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"to_name": null,
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"end": 6247,
"labels": [
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],
"start": 6078,
"text": "So far as the offence u/s 279/337/304(A) of IPC is concerned , the crux of the offence lies in prosecution establishing rash or negligent act on the part of the accused."
}
},
{
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"labels": [
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],
"start": 6248,
"text": "As regards the case in hand, though it is apparent from the evidence of the informant and other witnesses that there was a collision between the motor cycles one out of which bearing Regd No. OR 16 9395 was being driven by the deceased and has result of such head to head collision, the grand son of the informant died on the spot but there is nothing in the evidence to reveal that such occurrence happened due to rash and negligent act on the part of the accused."
}
},
{
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"to_name": null,
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"labels": [
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],
"start": 6714,
"text": "More over, though the investigating officer has deposed that he had obtained MVI report during course of investigation but there is no clear evidence from the side of prosecution to reveal as to in respect of which of the two motor cycles the MVI report was obtained."
}
},
{
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"to_name": null,
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"end": 7112,
"labels": [
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],
"start": 6982,
"text": "Even such MVI report has not been proved in this court so as to lend any assistant to the case of prosecution against the accused."
}
},
{
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"id": "b2d0fa2d5e834d51bdeb1f6297025071",
"to_name": null,
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"value": {
"end": 7469,
"labels": [
"ANALYSIS"
],
"start": 7113,
"text": "Though it is well established from evidence adduced from the side of prosecution that the deceased died in a vehiclular accident having sustained injuries in vital organ like brain but there is absolutely no evidence to establish that the accused was responsible for such occurrence and death of the deceased by doing any rash or negligent act on his part."
}
},
{
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"to_name": null,
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"end": 7678,
"labels": [
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],
"start": 7470,
"text": "So far as the offence u/s 181 of the MV Act is concerned, there is no iota of evidence from the side of prosecution that the accused was driving any vehicle in contravention of Sec. 3 or Sec. 4 of the MV Act."
}
},
{
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"to_name": null,
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"value": {
"end": 7738,
"labels": [
"ANALYSIS"
],
"start": 7679,
"text": "The evidence of the IO is completely silent in that regard."
}
},
{
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"id": "833133bca16a4c19993c9ba2f828c591",
"to_name": null,
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"value": {
"end": 7861,
"labels": [
"RATIO"
],
"start": 7739,
"text": "In view of the above discussion, this Court finds lack of evidence to bring home the charges levelled against the accused."
}
},
{
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"to_name": null,
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"value": {
"end": 8032,
"labels": [
"RPC"
],
"start": 7861,
"text": "\n 7. In the result I hold the accused not guilty of offence u/s 279/337/304(A) of IPC and he be acquitted therefrom as per the provision of section 255(1) of Cr.P.C."
}
},
{
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"id": "f748e5a5d1974a77832b4954cb4a56d7",
"to_name": null,
"type": null,
"value": {
"end": 8108,
"labels": [
"RPC"
],
"start": 8033,
"text": "The accused be set at liberty forthwith if not required in any other case ."
}
},
{
"from_name": null,
"id": "9140099d784d43b6be53fb470500ccae",
"to_name": null,
"type": null,
"value": {
"end": 8333,
"labels": [
"RPC"
],
"start": 8110,
"text": "The zimanama be cancelled and the seized articles be handed over to its rightful owner after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "5424694873f142ca9d7e6ee598ca9da6",
"to_name": null,
"type": null,
"value": {
"end": 8395,
"labels": [
"RPC"
],
"start": 8335,
"text": "Enter this case as mistake of fact for statistical purpose ."
}
},
{
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"id": "09d7af873a8d43ac815744c54c85ec04",
"to_name": null,
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"value": {
"end": 8417,
"labels": [
"NONE"
],
"start": 8395,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
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"id": "0a11ab2e55a64ff9b41243f6817509f7",
"to_name": null,
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"value": {
"end": 8628,
"labels": [
"NONE"
],
"start": 8417,
"text": "\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court in presence of the accused under my signature and seal on this the 6th day of March, 2018."
}
},
{
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"id": "dc18c546e9bf4a24abc2b20c0eb234f3",
"to_name": null,
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"value": {
"end": 8650,
"labels": [
"NONE"
],
"start": 8628,
"text": "\n S.D.J.M.,Sundargarh."
}
},
{
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"id": "b9f5bc084aa24a2b8c4dc4e8fb969db1",
"to_name": null,
"type": null,
"value": {
"end": 9008,
"labels": [
"NONE"
],
"start": 8652,
"text": "LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Dr. Ruma Mohapatra P.W. 2 Dr. Sura Bhitria P.W.3 Baikuntha Naik P.W.4 Aswini Kumar Naik P.W.5 Samir Ranjan Naik P.W.6 Sandhya Rani Naik P.W.7 Sumanyu Kumar Patel P.W.8 Shyama Kishan P.W.9 Bhabani Kishan P.W.10 Surendra Kumar Patel LIST OF WITNESSES EXAMINED FOR THE DEFENCE:"
}
},
{
"from_name": null,
"id": "d316f64b31b249baa3bc1ed9b9309439",
"to_name": null,
"type": null,
"value": {
"end": 9769,
"labels": [
"NONE"
],
"start": 9009,
"text": "Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Injury report Ext.1/1 Signature of P.W.1 Ext.2 Injury report Ext.2/1 Signature of P.W.2 Ext.3 FIR Ext.3/1 Signature of P.W.3 Ext.3/2 Signature of the then IIC in endorsement of FIR Ext.3/3 Formal FIR Ext.3/4 Signature of then IIC on formal FIR Ext.4 Inquest report Ext.4/1 Signature of P.W.3 Ext.4/2 Signature of P.W.10 Ext.5 Seizure list Ext.5/1 Signature of P.W.5 Ext.5/2 Signature of P.W.10 Ext.6 Zimanama Ext.6/1 Signature of P.W.6 Ext.7 Zimanama Ext.7/1 Signature of P.W.9 Ext.7/2 Signature of P.W.9 Ext.7/3 Signature of P.W.10 Ext.8 Spot map Ext.8/1 Signature of P.W.10 Ext.9 Requisition Ext.9/1 Signature of P.W.10 Ext.10 "
}
},
{
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"id": "2667271817034e998d27e34ac1fe1e53",
"to_name": null,
"type": null,
"value": {
"end": 9861,
"labels": [
"NONE"
],
"start": 9769,
"text": "Seizure list Ext.10/1 Signature of P.W.10 Ext.10/2 Signature of P.W.10 on Ext.6 Ext.11 "
}
},
{
"from_name": null,
"id": "a1e452e0fc854e4a84f7d8b2e97d5344",
"to_name": null,
"type": null,
"value": {
"end": 9959,
"labels": [
"NONE"
],
"start": 9861,
"text": "Seizure list Ext.11/1 Signature of P.W.10 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil."
}
},
{
"from_name": null,
"id": "7fc34fa0f641471da5f6c910d0456a8f",
"to_name": null,
"type": null,
"value": {
"end": 10010,
"labels": [
"NONE"
],
"start": 9959,
"text": "\n LIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION."
}
},
{
"from_name": null,
"id": "493f4cefd74c44fa9d2611a510652d67",
"to_name": null,
"type": null,
"value": {
"end": 10061,
"labels": [
"NONE"
],
"start": 10010,
"text": "\n Nil LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE."
}
},
{
"from_name": null,
"id": "96d2cf339b57482799a8b89047ba6d6e",
"to_name": null,
"type": null,
"value": {
"end": 10067,
"labels": [
"NONE"
],
"start": 10061,
"text": "\n Nil."
}
},
{
"from_name": null,
"id": "32e1a87b03ca4ea2a529f59fa547e7ce",
"to_name": null,
"type": null,
"value": {
"end": 10089,
"labels": [
"NONE"
],
"start": 10067,
"text": "\n S.D.J.M.,Sundargarh."
}
}
]
}
] | 4,237 | {
"text": "IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE\n SUNDARGARH.\n\n Present: Miss. Chinmayee Panda, BA,LL.B,(Hons)\n S.D.J.M.,Sundargarh.\n\n Date of Argument: - 05.03.2018\n Date of Judgment: -06.03.2018\n\n GR Case No. 427/2004\n Trial No. 1847/2004\n\n State\n\n Vrs.\n\n Khirod Bag , aged about 36 years ,\n S/o-Rasaba Bag, Resident\n of Village- Bankibahal, Ps-Hemgir,\n District. Sundargarh.\n\nCounsel for the State....... Ld. A.P.P, Sundargarh.\n\nCounsel for the defence..... Smt. Y Naik, SDC, Sundargarh.\n\n Status of the accused : In custody\n\n Offence U/s.279/337/304(A) of IPC\n\n J U D G M E N T\n 1. The accused above named stands prosecuted for allegedly committing offence U/s.279/337/304(A) of the Indian Penal Code ( hereinafter referred to as IPC ) r/w Sec. 181 of Motor Vehicles Act (hereinafter referred to as the MV Act).\n 2. The story of the prosecution as unveiled from the FIR that on 25.07.2004 at about 4.00 PM, while the grand son of the informant namely Deepak Kumar Patel was returning from the house of the informant to Sundargarh in a Hero Honda motor cycle bearing Regd NO. OR 16 9395, near Mahuljor Forest area another Hero Honda Splendor motor cycle bearing Regd No. OR 14G 6618 coming in a high speed from opposite side , dashed with him and as a result of such accident, the grand son of the informant fell down on the road, sustained severe bleeding injury and ultimately succumbed to such injuries.\n With such allegation the informant lodged a written report before the IIC, Sadar PS, Sundargarh, who registered the same as PS case No.\n76/2004 and directed ASI Shri S K Patel to take up investigation of the case.\nOn completion of investigation, charge sheet U/s.279/337/304(A) of IPC r/w Sec. 181 of MV Act to stand the trial. Hence, this case.\n 3. The plea of defence is that of denial and false implication .\n4. Points for determination : I. Whether on 25.07.2004 at about 4.00 PM near Mahuljor Forest Area, Sundargarh the accused was driving a Hero Honda Splender motor cycle bearing Regd No. OR 14G 6618, so rashly and negligently in a public way so as to endanger human life ?\nII. Whether on the above mentioned date, time and place, the accused caused hurt to the grand son of the informant namely Deepak Kumar Patel due to rash and negligent driving of the above mentioned vehicle ?\nIII. Whether on the above mentioned date, time and place, the accused caused death of the above Deepak Kumar Patel by doing any rash or negligent act, not amounting to culpable homicide ?\nIV. Whether on the above mentioned date, time and place, the accused contravened any of the provision of Sec. 3 or Sec. 4 of the MV Act.\n 5. In order to substantiate its case prosecution has examined as many as 10 witnesses out of whom P.W.3 is the informant, P.W.1 and P.W.2 are two medical officers, P.W.10 is the investigating officer and rest are the independent and seizure witnesses. In view of these witnesses, prosecution has declined to examine the rest of the witnesses named in the charge sheet. On other hand, the accused has preferred not to adduce any evidence in his defence.\n 6. In order to avoid repetition and for the sake of brevity and precision , this Court feels it appropriate to consider the merit of the prosecution case as a whole in respect of all offence alleged against the accused instead of analysing each offence individually . Proceeding in that direction , the informant while being examined as P.W.3 has deposed that on 25.07.2004 at about 3.00 PM to 4.00 PM his grand son Deepak Kumar Patel had come to his house from Ujjalpur in a Hero Honda splendor motor cycle bearing Regd NO. OR 16 9395 and while he was returning through Mahuljor forest are , another motor cycle bearing Regd No. OR 14G 6618 coming from the opposite direction in high speed dashed with him , as a result of which , his grand son fell down and received bleeding injuries in his head an died on the spot. The informant has fairly deposed in the Court , he does not know the accused. He has identified the FIR lodged by him Ext.3 and his signature thereon as Ext.3/1. Similarly he deposed that the police conducted inquest over the dead body of the grand son and prepared inquest report which has been marked as Ext.4. The independent witnesses (P.W.4, P.W.5 and P.W.8) have also deposed in the same light as that of P.W.3. P.W.6 has deposed that the deceased is his nephew and on the fateful day, the deceased had taken his motor cycle bearing Regd No. OR 16 9395 and during course of investigation, the police handed over the said motor cycle to him by executing a zimanama (Ext.6). P.W.7 has merely deposed that on 25.07.2004 there was an accident of two motor cycles and two persons were injured . He has expressed his inability to depose anything more regarding the case. P.W.9 has stated that during course of investigation of the case , the police had handed over the Hero Honda splendor motor cycle bearing Regd No. OR 14G 6618 and its documents to him by executing a zimanama (Ext.7). P.W.1 is a medical officer who had examined the accused facing trial in this case. After the alleged occurrence. P.W.2 is the medical officer who had conducted post mortem examination of the deceased and has deposed the cause of death to be shock and hemorrhage due to injury to vital organ like brain. The investigating officer who has been examined as P.W.10 has deposed that after taking the charge of the investigation of the case, he visited the spot, prepared th spot map (Ext.8), conducted inquest of the dead body of the deceased and prepared inquest report vide Ext.5, sent the dead body for post mortem examination, seized both the motor cycles bearing Regd No. OR 16 9395 and OR 14G 6618 vide seizure lists marked as Ext.4 and Ext.10 respectively, handed over the same in zima by executing zimanama marked as Ext.6 and Ext.7 , obtained MVI report and on completion of investigation submitted charge sheet against the accused.\n So far as the offence u/s 279/337/304(A) of IPC is concerned , the crux of the offence lies in prosecution establishing rash or negligent act on the part of the accused. As regards the case in hand, though it is apparent from the evidence of the informant and other witnesses that there was a collision between the motor cycles one out of which bearing Regd No. OR 16 9395 was being driven by the deceased and has result of such head to head collision, the grand son of the informant died on the spot but there is nothing in the evidence to reveal that such occurrence happened due to rash and negligent act on the part of the accused. More over, though the investigating officer has deposed that he had obtained MVI report during course of investigation but there is no clear evidence from the side of prosecution to reveal as to in respect of which of the two motor cycles the MVI report was obtained. Even such MVI report has not been proved in this court so as to lend any assistant to the case of prosecution against the accused. Though it is well established from evidence adduced from the side of prosecution that the deceased died in a vehiclular accident having sustained injuries in vital organ like brain but there is absolutely no evidence to establish that the accused was responsible for such occurrence and death of the deceased by doing any rash or negligent act on his part. So far as the offence u/s 181 of the MV Act is concerned, there is no iota of evidence from the side of prosecution that the accused was driving any vehicle in contravention of Sec. 3 or Sec. 4 of the MV Act. The evidence of the IO is completely silent in that regard. In view of the above discussion, this Court finds lack of evidence to bring home the charges levelled against the accused.\n 7. In the result I hold the accused not guilty of offence u/s 279/337/304(A) of IPC and he be acquitted therefrom as per the provision of section 255(1) of Cr.P.C. The accused be set at liberty forthwith if not required in any other case .\n The zimanama be cancelled and the seized articles be handed over to its rightful owner after four months of expiry of the appeal period in case of no appeal and in case of any appeal as per the order of the Appellate Court.\n Enter this case as mistake of fact for statistical purpose .\n S.D.J.M.,Sundargarh.\n Transcript is typed out to my dictation, corrected by me and judgment is pronounced in the open court in presence of the accused under my signature and seal on this the 6th day of March, 2018.\n S.D.J.M.,Sundargarh.\n LIST OF WITNESSES EXAMINED FOR THE PROSECUTION: P.W. 1 Dr. Ruma Mohapatra P.W. 2 Dr. Sura Bhitria P.W.3 Baikuntha Naik P.W.4 Aswini Kumar Naik P.W.5 Samir Ranjan Naik P.W.6 Sandhya Rani Naik P.W.7 Sumanyu Kumar Patel P.W.8 Shyama Kishan P.W.9 Bhabani Kishan P.W.10 Surendra Kumar Patel LIST OF WITNESSES EXAMINED FOR THE DEFENCE: Nil LIST OF EXHIBITS MARKED ON BEHALF OF THE PROSECUTION: Ext. 1 Injury report Ext.1/1 Signature of P.W.1 Ext.2 Injury report Ext.2/1 Signature of P.W.2 Ext.3 FIR Ext.3/1 Signature of P.W.3 Ext.3/2 Signature of the then IIC in endorsement of FIR Ext.3/3 Formal FIR Ext.3/4 Signature of then IIC on formal FIR Ext.4 Inquest report Ext.4/1 Signature of P.W.3 Ext.4/2 Signature of P.W.10 Ext.5 Seizure list Ext.5/1 Signature of P.W.5 Ext.5/2 Signature of P.W.10 Ext.6 Zimanama Ext.6/1 Signature of P.W.6 Ext.7 Zimanama Ext.7/1 Signature of P.W.9 Ext.7/2 Signature of P.W.9 Ext.7/3 Signature of P.W.10 Ext.8 Spot map Ext.8/1 Signature of P.W.10 Ext.9 Requisition Ext.9/1 Signature of P.W.10 Ext.10 Seizure list Ext.10/1 Signature of P.W.10 Ext.10/2 Signature of P.W.10 on Ext.6 Ext.11 Seizure list Ext.11/1 Signature of P.W.10 LIST OF EXHIBITS MARKED ON BEHALF OF THE DEFENCE : Nil.\n LIST OF M.O. MARKED ON BEHALF OF THE PROSECUTION.\n Nil LIST OF M.O. MARKED ON BEHALF OF THE DEFENCE.\n Nil.\n S.D.J.M.,Sundargarh.\n "
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"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 05TH DAY OF MARCH 2014\n\n PRESENT"
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"text": "\n\nTHE HON'BLE MR.JUSTICE DILIP B.BHOSALE\n\n AND\n\n THE HON'BLE MR.JUSTICE B.MANOHAR\n\n ITA NO.828/2007"
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"text": "\n\nBETWEEN:\n\nH.Raghavendra Rao, ...Appellant\nNo.431-D, 1st Floor,\n10th Main, 1st `N' Block,\nRajajinagar,\nBangalore\nNow at New Delhi.\n\n(By Sri.K.P.Kumar, Sr. Adv a/w. Sri.Chandrashekar and\nSri.Kashinath Kalmath, Advocates for M/s.Vasan\nAssociates for the appellant)\n\nAND:\n\nDeputy Commissioner of Income Tax,\n\nCircle -4 (1),\n\nBangalore. .... Respondent"
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"start": 692,
"text": "\n\n This ITA is filed under Sec.260-A of I.T Act 1961,\narising out of order dated 13/07/2007 passed in ITA\n\nNo.82/Bang/2005, for the Assessment Year 1997-98,\npraying that this Hon'ble Court may be pleased to:\n\n i. formulate the substantial questions of law\n stated therein,\n\n ii. allow the appeal and set aside the order\n passed by the ITAT, in ITA\n No.82/Bang/2005 dated 13/07/2007, in the\n interest of justice and equity.\n\n This appeal having been heard and reserved and\ncoming on for pronouncement of judgment this day,\n\nB.MANOHAR.J., delivered the following:\n\n J U D G M E N T\n "
}
},
{
"from_name": "label",
"id": "1e87b2b96706419d9bda832825669c1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 1827,
"labels": [
"FAC"
],
"start": 1380,
"text": "The assessee filed this appeal under Section 260A of the Income Tax Act, 1961 (for short `the Act') challenging the order dated 13th July 2007 made in ITA No.82/Bang/2005 passed the by Income Tax Appellate Tribunal, Bangalore Bench `A' (for short `the Tribunal') dismissing the appeal filed by the assessee confirming the order passed by the authorities below in respect of deduction under Section 80-O of the Act, for the assessment year 1997-98."
}
},
{
"from_name": "label",
"id": "23e0dc0abedd44f59023232354ae0172",
"to_name": "text",
"type": "labels",
"value": {
"end": 2043,
"labels": [
"FAC"
],
"start": 1829,
"text": "2. The assessee, in the status of an individual, filed return of income for the assessment year 1997-98 declaring the total income of Rs.5,23,576/- on 29.10.1997 and claimed deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "15be3c69a9b04bd78262c8f57fe3df76",
"to_name": "text",
"type": "labels",
"value": {
"end": 2120,
"labels": [
"FAC"
],
"start": 2044,
"text": "The said return was processed under Section 143(1) of the Act on 26.03.1998."
}
},
{
"from_name": "label",
"id": "d2501e0679e24c8799163f1ce2bbfb66",
"to_name": "text",
"type": "labels",
"value": {
"end": 2246,
"labels": [
"FAC"
],
"start": 2121,
"text": "Subsequently, the Assessing Officer issued notice dated 27.09.2000 under Section 148 of the Act for reopening the assessment."
}
},
{
"from_name": "label",
"id": "e31e796bc6b7475283de9899327c94b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 2464,
"labels": [
"FAC"
],
"start": 2247,
"text": "On receipt of the notice, the assessee vide letter dated 13.10.2000 requested the Assessing Officer to treat the returns filed on 29.10.1997 as the returns filed in response to the notice under Section 148 of the Act."
}
},
{
"from_name": "label",
"id": "419f778163d94002b03712240de9326f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2586,
"labels": [
"FAC"
],
"start": 2465,
"text": "Further requested the Assessing Officer to furnish a copy of the reason recorded for initiating reassessment proceedings."
}
},
{
"from_name": "label",
"id": "15370cdeb88e4bedbe1c90a4b2ad44bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 2724,
"labels": [
"FAC"
],
"start": 2587,
"text": "In pursuance of the notice, an authorized representative of the assessee appeared and produced necessary documents and argued the matter."
}
},
{
"from_name": "label",
"id": "7180669318724c2db6f1e02af2a0df1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2988,
"labels": [
"FAC"
],
"start": 2725,
"text": "The Assessing Officer after hearing the matter on various dates held that the assessee is not entitled for the benefit of deduction under Section 80-O of the Act since the assessee has rendered service in India as per Explanation (iii) to Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "aecbb2a42acc4781bab534b9b1420a43",
"to_name": "text",
"type": "labels",
"value": {
"end": 3166,
"labels": [
"FAC"
],
"start": 2988,
"text": "\nAccordingly, by its order dated 26.12.2001 reassessed the income of the assessee under Section 143(3) of the Act and demanded interest under Sections 234-B and 234-C of the Act."
}
},
{
"from_name": "label",
"id": "317c4f8d20d94cbaac3777da2918a9fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 3421,
"labels": [
"FAC"
],
"start": 3166,
"text": "\n 3. The assessee being aggrieved by the reassessment order dated 26.12.2001 passed under Section 143(3) of the Act preferred an appeal before the Commissioner of Income-Tax (Appeals)-II, Bangalore (for short `the Appellate Authority') on various grounds."
}
},
{
"from_name": "label",
"id": "4d647f942bec451898e896ab2ffe1dd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 3572,
"labels": [
"FAC"
],
"start": 3422,
"text": "The Appellate Authority, after re-examining the matter and taking into consideration the Retainer Agreement entered into between the assessee and M/s."
}
},
{
"from_name": "label",
"id": "78e40c78f4544ebca20744c54c0b12ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 3768,
"labels": [
"FAC"
],
"start": 3573,
"text": "Buckeye Corporation Private Limited held that in view of Explanation (iii) to Section 80-O, the assessee is not entitled for the relief and dismissed the appeal by its order dated 25.10.2004.\n 4."
}
},
{
"from_name": "label",
"id": "026a6ffd69bc4225963cab60ef4a0cda",
"to_name": "text",
"type": "labels",
"value": {
"end": 4030,
"labels": [
"FAC"
],
"start": 3769,
"text": "Being aggrieved by the order passed by the Appellate Authority, the assessee preferred an appeal before the Tribunal, mainly contending that reopening of the assessment is contrary to law and the assessee is entitled for deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "b0eb71828781487cbe9b3c7f4ae74ff9",
"to_name": "text",
"type": "labels",
"value": {
"end": 4522,
"labels": [
"RLC"
],
"start": 4030,
"text": "\nIn view of the Circular No.700 dated 23.03.1995 passed by the Central Board for Direct Taxes (for short `the CBDT'), the Appellate Tribunal after re-examining the matter held that the assessee has rendered his service in India and received the fees in foreign exchange out of the Retainer Agreement entered into between the assessee and the Foreign Enterprises and in view of Explanation (iii) to Section 80-O of the Act, the assessee is not entitled for any relief and dismissed the appeal."
}
},
{
"from_name": "label",
"id": "9e91e8bd2c1f4d7e8890ec8b4f37467e",
"to_name": "text",
"type": "labels",
"value": {
"end": 4611,
"labels": [
"FAC"
],
"start": 4522,
"text": "\nBeing aggrieved by the order passed by the Tribunal, the assessee preferred this appeal."
}
},
{
"from_name": "label",
"id": "3cc26ec866cd43098cd3bef3029f7fdb",
"to_name": "text",
"type": "labels",
"value": {
"end": 5308,
"labels": [
"ISSUE"
],
"start": 4613,
"text": "5. The instant appeal was admitted for considering the following substantial questions of law: (1) Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal grossly erred in dismissing the appeal without considering the submissions made by the appellant challenging the reopening of the assessment by initiating proceedings u/s.147 of the Act?\n (2) Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal erred in not examining the documents produced by the appellant to appreciate that the assessee had be producing fax receipts sent to Singapore demonstrated that he had rendered the services from India but not in India?"
}
},
{
"from_name": "label",
"id": "d1fbb6f3e93349bdbf79c84324cb3d98",
"to_name": "text",
"type": "labels",
"value": {
"end": 5316,
"labels": [
"ARG_PETITIONER"
],
"start": 5308,
"text": "\n 6. Sri"
}
},
{
"from_name": "label",
"id": "d4c3377110384fe8bcfe77168e7baab7",
"to_name": "text",
"type": "labels",
"value": {
"end": 5578,
"labels": [
"ARG_PETITIONER"
],
"start": 5316,
"text": ".K.P.Kumar, learned Senior Advocate appearing for M/s.Vasan Associates for the appellant contended that the order passed by the Appellate Tribunal confirming the order passed by the First Appellate Authority as well as the Assessing Authority is contrary to law."
}
},
{
"from_name": "label",
"id": "c3869dc02d71434fac4fd8c88b61c414",
"to_name": "text",
"type": "labels",
"value": {
"end": 5674,
"labels": [
"ARG_PETITIONER"
],
"start": 5579,
"text": "He submitted that, reopening of the assessment under Section 147 of the Act is contrary to law."
}
},
{
"from_name": "label",
"id": "5db498e8643d4d38a52bf936010506f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5815,
"labels": [
"ARG_PETITIONER"
],
"start": 5675,
"text": "It is not open to the Assessing Officer for reappraisal of the opinion already reached and change of opinion is not permitted under the law."
}
},
{
"from_name": "label",
"id": "7331f02bdc1b427983465eac43b88a0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5875,
"labels": [
"ARG_PETITIONER"
],
"start": 5816,
"text": "Hence, reopening of the assessment is without jurisdiction."
}
},
{
"from_name": "label",
"id": "d5624bfa1a7342259f0dafe22caca636",
"to_name": "text",
"type": "labels",
"value": {
"end": 5986,
"labels": [
"ARG_PETITIONER"
],
"start": 5876,
"text": "He further submitted that the Assessing Officer had failed to furnish the reason for reopening the assessment."
}
},
{
"from_name": "label",
"id": "4968e6167f9b4224943b5b7af4f9aec7",
"to_name": "text",
"type": "labels",
"value": {
"end": 6081,
"labels": [
"ARG_PETITIONER"
],
"start": 5987,
"text": "The Appellate Authority failed to appreciate the Circular dated 23.03.1995 issued by the CBDT."
}
},
{
"from_name": "label",
"id": "0fd2d115ad8542f7af5ba454a004ea9a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6142,
"labels": [
"ARG_PETITIONER"
],
"start": 6082,
"text": "He submitted that the assessee is an advocate by profession."
}
},
{
"from_name": "label",
"id": "1934392f5a5b45daa5f0daf07b4b8ab7",
"to_name": "text",
"type": "labels",
"value": {
"end": 6225,
"labels": [
"ARG_PETITIONER"
],
"start": 6143,
"text": "He entered into a Retainer Agreement with M/s.Buckeye Corporation Private Limited."
}
},
{
"from_name": "label",
"id": "118c5dbd42aa495b8831620b4f7bcdca",
"to_name": "text",
"type": "labels",
"value": {
"end": 6357,
"labels": [
"ARG_PETITIONER"
],
"start": 6226,
"text": "He has given legal opinion on all matters required by the company, since the said company wanted to establish an industry in India."
}
},
{
"from_name": "label",
"id": "2391a098351d4fe0a8b4e4a0baececac",
"to_name": "text",
"type": "labels",
"value": {
"end": 6476,
"labels": [
"ARG_PETITIONER"
],
"start": 6358,
"text": "The assessee being the resident of India has fulfilled all the conditions as prescribed under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "4c69a6960c08435bab717e242e8306a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6643,
"labels": [
"ARG_PETITIONER"
],
"start": 6476,
"text": "\nIn consideration of professional service rendered or agreed to be rendered outside India, he received Fee in convertible foreign exchange and it was brought to India."
}
},
{
"from_name": "label",
"id": "49cbc83a77354ae7abe92cd051a20acf",
"to_name": "text",
"type": "labels",
"value": {
"end": 6775,
"labels": [
"ARG_PETITIONER"
],
"start": 6644,
"text": "Hence, he is entitled for deduction of 50% of the income so received or brought to India in computing total income of the assessee."
}
},
{
"from_name": "label",
"id": "fea6b428fd3445f3b127862cb386efe1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6855,
"labels": [
"ARG_PETITIONER"
],
"start": 6776,
"text": "The services rendered by the assessee is out of India to a Foreign Enterpriser."
}
},
{
"from_name": "label",
"id": "0b6848f73f7843769c22f93a15000b75",
"to_name": "text",
"type": "labels",
"value": {
"end": 7272,
"labels": [
"ARG_PETITIONER"
],
"start": 6856,
"text": "The circular issued by the CBDT vide Circular No.700, dated 23.03.1995 categorically states that as long as technical and professional services are rendered from India and are received by a Foreign Government or Enterprise outside India, deduction under Section 80-O would be available to the person rendering the services even if the foreign recipient of the services utilizes the benefit of such services in India."
}
},
{
"from_name": "label",
"id": "7f70a35aa66d42d588185f95c209f628",
"to_name": "text",
"type": "labels",
"value": {
"end": 7325,
"labels": [
"ARG_PETITIONER"
],
"start": 7273,
"text": "The Tribunal misunderstood and misread the circular."
}
},
{
"from_name": "label",
"id": "2f7c37f8ded943b1a96f23e281480ceb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7658,
"labels": [
"ARG_PETITIONER"
],
"start": 7326,
"text": "He also relied upon the judgments reported in (2005) 273 ITR 92 (COMMISSIONER OF INCOME-TAX v/s INCHCAPE INDIA P. LIMITED); (2008) 305 ITR 105 (Delhi) (LI & FUNG INDIA P. LTD. v/s COMMISSIONER OF INCOME- TAX); (2008) 167 Taxman 64 (COMMISSIONER OF INCOME-TAX v/s EICHER CONSULTANCY SERVICES LTD.) and sought for allowing the appeal."
}
},
{
"from_name": "label",
"id": "661dc1cfbd22486fbb1b85bf559fc1fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7889,
"labels": [
"ARG_RESPONDENT"
],
"start": 7658,
"text": "\n 7. On the other hand, Sri.K.V.Aravind, learned counsel appearing for the Revenue argued in support of the order passed by the Tribunal and contended that the assessee is not entitled for the benefit under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "767d08cc4a7b46b68cd8f36d93a1aca6",
"to_name": "text",
"type": "labels",
"value": {
"end": 8164,
"labels": [
"ARG_RESPONDENT"
],
"start": 7890,
"text": "The Retainer Agreement entered into between the assessee and M/s. Buckeye Corporation P.\nLimited clearly disclose that the assessee has to act as an Advocate and render all legal services and to conduct cases in India in view of Explanation (iii) to Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "8510d970cb80463095f99c1851e0aee0",
"to_name": "text",
"type": "labels",
"value": {
"end": 8212,
"labels": [
"ARG_RESPONDENT"
],
"start": 8165,
"text": "The assessee is not entitled for any deduction."
}
},
{
"from_name": "label",
"id": "8b3d628c74e3440e8de2c8b6451bdf0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8434,
"labels": [
"ARG_RESPONDENT"
],
"start": 8213,
"text": "In support of the said contention, learned counsel for the Revenue relied upon the judgment in (2006) 286 ITR 432 (Delhi) in the case of ANAND & ANAND v/s COMMISSIONER OF INCOME-TAX and sought for dismissal of the appeal."
}
},
{
"from_name": "label",
"id": "b670cf19588549fe974f8cdc80be640b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8590,
"labels": [
"NONE"
],
"start": 8434,
"text": "\n 8. We have carefully considered the arguments addressed by the learned counsel for the parties and perused the orders impugned and other relevant records."
}
},
{
"from_name": "label",
"id": "450884a75c7a4819815e8487d1bb0fd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8783,
"labels": [
"ANALYSIS"
],
"start": 8592,
"text": "9. The assessee filed the return of income in the status of an individual for the assessment year 1997-98 declaring the total income and also claiming deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "1f28788e158c43c5a08bf341f1b26a6b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8847,
"labels": [
"ANALYSIS"
],
"start": 8784,
"text": "The said returns was processed under Section 143(1) of the Act."
}
},
{
"from_name": "label",
"id": "e943ad25583f4467a8fcfb75c3840f21",
"to_name": "text",
"type": "labels",
"value": {
"end": 9056,
"labels": [
"ANALYSIS"
],
"start": 8847,
"text": "\nSubsequently, the Assessing Officer noticed that the assessee has not fulfilled the conditions of the provisions of Section 80-O and issued notice under Section 148 of the Act for reopening of the assessment."
}
},
{
"from_name": "label",
"id": "8b26a3c9da2b4369969231b3e88d7c4d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9275,
"labels": [
"ANALYSIS"
],
"start": 9057,
"text": "The authorized representative of the assessee appeared and produced the necessary documents and also made available the Retainer Agreement entered into between the assessee and M/s. Buckeye Corporation Private Limited."
}
},
{
"from_name": "label",
"id": "ed338f4da97f432f9fddd642077adf11",
"to_name": "text",
"type": "labels",
"value": {
"end": 9710,
"labels": [
"ANALYSIS"
],
"start": 9276,
"text": "The Assessing Officer noticing some of the clauses of the agreement held that the services rendered by the assessee in relation to legal proceedings in the Court within the country to the clients who are stationed outside the country, though the payment has been made under the convertible foreign exchange, the said receipt will not fall under Section 80-O of the Act, more particularly, Explanation (iii) to Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "8dd6ed15c4cd437f890d6da34849f837",
"to_name": "text",
"type": "labels",
"value": {
"end": 10502,
"labels": [
"ANALYSIS"
],
"start": 9711,
"text": "Some of the clauses of the agreement read thus: (i) That the Company hereby retains and appoints the said Advocate to act as its Advocate and to render all legal advice and give opinion on all matters required by the Company including but not limited to requisitions made therefore to the said Company and to represent it in all matters which may be pending in any of the Courts brought by or against the said Company and representations before any tribunal regulatory or administrative authority during the continuance of this agreement and to examine all abstracts of title, documents and correspondences and prepare all agreement and contracts and do all such acts and render all such legal services as the said Company or any of its officers or directors, acting officially, may require."
}
},
{
"from_name": "label",
"id": "98df01027b144ea1ac771c589bf7d84b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10727,
"labels": [
"ANALYSIS"
],
"start": 10502,
"text": "\n (ii) This agreement shall be terminable at the option of either party with prior notice of three months subject to the stipulation that the right of termination shall not be exercised during the first year of its operation."
}
},
{
"from_name": "label",
"id": "a1e64a388b0140ff9779edef3bb7f561",
"to_name": "text",
"type": "labels",
"value": {
"end": 11920,
"labels": [
"ANALYSIS"
],
"start": 10728,
"text": "That the Advocate engages to attend to all the legal matters of the said Company and also, to send notices of demand or otherwise for recovery of outstanding dues to the Company, to reply to notices received by the Company from others, to enter into correspondence in the above matters with the said persons to take legal proceedings arising in any maters with the said persons, to take legal proceedings and make representations to all governmental and non-governental entities arising in any matters connected with the business of the Company and to defend such matters in the courts or before other authority in this behalf, to render legal advice in connection with any matters arising out of the business carried on or intended to be carried on by the Company, to represent the Company and act, plead and appear for the Company in all legal matters whether in Court or before any tribunal regulatory or administrative authority and other non-governental entities or elsewhere in India, to draft deeds or other documents usually drafted by Lawyers for a client, and to give opinion in writing on requests being made thereof on facts stated to the said Advocates orally or in writing.\n 10."
}
},
{
"from_name": "label",
"id": "1c99c7ada3014a19856a841ba4260cf7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11979,
"labels": [
"ANALYSIS"
],
"start": 11921,
"text": "In order to obtain deduction under Section 80-O of the Act"
}
},
{
"from_name": "label",
"id": "6b5f164f12cd42e4957b5ad2e5950d7d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12118,
"labels": [
"ANALYSIS"
],
"start": 11979,
"text": ", the services rendered or agreed to be rendered outside India or rendered from India but shall not include the services rendered in India."
}
},
{
"from_name": "label",
"id": "7e0986cc83b54b1a86160539cff016fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12324,
"labels": [
"STA"
],
"start": 12119,
"text": "For better appreciation of the facts, Section 80-O of the Act as it stood at the relevant point in time reads as under: \" Sec.80-O Deduction in respect of royalties, etc., from certain foreign enterprises."
}
},
{
"from_name": "label",
"id": "f012b0e7c5c14614ba81f4cb0315e88f",
"to_name": "text",
"type": "labels",
"value": {
"end": 13691,
"labels": [
"STA"
],
"start": 12325,
"text": " Where the gross total income of an assessee, being an Indian company, or an person (other than a company) who is resident in India includes any income by way of royalty, commission, fees or any similar payment received by the assessee from the Government of a foreign State or a foreign enterprise in consideration for the use outside India of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill made available or provided or agreed to be made available or provided to such Government or enterprise by the assessee, or in consideration of technical or professional services rendered or agreed to be rendered outside India to such Government or enterprise by the assessee, and such income is received in convertible foreign exchange in India, or having been received in convertible foreign exchange outside India, is brought into India, by or on behalf of the assessee in accordance with any law for the time being in force for regulating payments and dealings in foreign exchange, they shall be allowed, in accordance with and subject to the provisions of this section, a deduction of an amount equal to fifty per cent of the income so received in, or brought into India, in computing the total income of the assessee,: Explanation"
}
},
{
"from_name": "label",
"id": "0fe2c9c0608a4225b8e6a682ce045d57",
"to_name": "text",
"type": "labels",
"value": {
"end": 14203,
"labels": [
"STA"
],
"start": 13692,
"text": " For the purposes of this Section, - (i) `convertible foreign exchange, means foreign exchange which is for the time being treated by the RBI as convertible foreign exchange for the purposes of the law for the time being in force for regulating payments and dealings in foreign exchange; (ii) \"foreign enterprise\" means a person who is a non-resident; (iii) services rendered or agreed to be rendered outside India shall include services rendered from India but shall not include services rendered in India; 11."
}
},
{
"from_name": "label",
"id": "29652529db784f068971a2ea582a2a7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14581,
"labels": [
"ANALYSIS"
],
"start": 14204,
"text": "Reading of the above Section makes it very clear that deduction is admissible under Section 80-O only if the income of the assessee includes receipt by it from the Government of a Foreign State or a Foreign Enterprises in convertible foreign exchange in consideration of professional services rendered or agreed to be rendered outside India to such enterprises by the assessee."
}
},
{
"from_name": "label",
"id": "b7eb22b47d094d35b144cd8cb9608405",
"to_name": "text",
"type": "labels",
"value": {
"end": 14781,
"labels": [
"ANALYSIS"
],
"start": 14582,
"text": "The Explanation (iii) to Section 80-O of the Act makes a clear distinction between the services rendered or agreed to be rendered outside India which expression includes services rendered from India."
}
},
{
"from_name": "label",
"id": "49428f3f26994479bef08605a2e6a508",
"to_name": "text",
"type": "labels",
"value": {
"end": 14838,
"labels": [
"ANALYSIS"
],
"start": 14781,
"text": "\nHowever, it will not include services rendered in India."
}
},
{
"from_name": "label",
"id": "5eb8129bd75146bb94e20025b14d2dce",
"to_name": "text",
"type": "labels",
"value": {
"end": 15203,
"labels": [
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],
"start": 14838,
"text": "\nIn the instant case, reading of some of the clauses of the agreement makes it very clear that in convertible foreign exchange by way of fee received by the assessee for the services rendered in relation to legal proceedings in Court within this country, it falls under the Explanation (iii) to Section 80-O i.e. services rendered or agreed to be rendered in India."
}
},
{
"from_name": "label",
"id": "1af29c6893af4dcea0eb0b0494d08178",
"to_name": "text",
"type": "labels",
"value": {
"end": 15259,
"labels": [
"ANALYSIS"
],
"start": 15204,
"text": "Hence, the assessee is not entitled to claim deduction."
}
},
{
"from_name": "label",
"id": "192adbb4f0304016a02d01280636c52b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15690,
"labels": [
"ANALYSIS"
],
"start": 15260,
"text": "Further, reading of the clarification made by the CBDT in its circular dated 23rd March 1995, it is very clear that \"the technical and professional services are rendered from India and are received by a Foreign Government or Enterprises outside India, deduction under Section 80-O would be available to the person rendering the services even if the foreign recipient of the service utilizes the benefit of such services in India\"."
}
},
{
"from_name": "label",
"id": "5884d4a775c7492bbadba712b383cb41",
"to_name": "text",
"type": "labels",
"value": {
"end": 15860,
"labels": [
"ANALYSIS"
],
"start": 15691,
"text": "In the instant case, admittedly the service has been rendered in India representing the foreign company in the litigation brought forward by or against the said company."
}
},
{
"from_name": "label",
"id": "fa1600a45c3648bdad3f21f7d298be14",
"to_name": "text",
"type": "labels",
"value": {
"end": 16018,
"labels": [
"ANALYSIS"
],
"start": 15861,
"text": "For the services rendered in India, the company has to pay $10,000 payable on or before 5th of every month as a retainer fee in convertible foreign exchange."
}
},
{
"from_name": "label",
"id": "17ecd8a64dfe4ae88def0c548980b67b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16086,
"labels": [
"ANALYSIS"
],
"start": 16019,
"text": "Hence, the Board Circular will not come to the aid of the assessee."
}
},
{
"from_name": "label",
"id": "a729606f37fa4ebb83f8d803a7de51dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 16203,
"labels": [
"ANALYSIS"
],
"start": 16087,
"text": "To avail the benefit under Section 80-O, he has to come within the purview of Explanation (iii) to the said Section."
}
},
{
"from_name": "label",
"id": "3aa8b7cbdba3469587e19bde4a4c1133",
"to_name": "text",
"type": "labels",
"value": {
"end": 16334,
"labels": [
"ANALYSIS"
],
"start": 16204,
"text": "In the instant case, the assessee is rendering services in India to a foreign company, hence he is not entitled for any deduction."
}
},
{
"from_name": "label",
"id": "8ace1fd9278f4a64b15c19c382b2509c",
"to_name": "text",
"type": "labels",
"value": {
"end": 16449,
"labels": [
"ANALYSIS"
],
"start": 16336,
"text": "12. The judgments relied upon by the learned Senior Advocate are not applicable to the facts of the present case."
}
},
{
"from_name": "label",
"id": "a0828487a7cf40a2af8f96e8471bc524",
"to_name": "text",
"type": "labels",
"value": {
"end": 16663,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16450,
"text": "In LI & FUNG INDIA PRIVATE LIMITED v/s COMMISSIONER OF INCOME-TAX, the Delhi High Court examined the matter with regard to the managerial services rendered by the assessee which falls under the technical services."
}
},
{
"from_name": "label",
"id": "8350bddba9304278a076411407f8d889",
"to_name": "text",
"type": "labels",
"value": {
"end": 16862,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16664,
"text": "In COMMISSIONER OF INCOME-TAX v/s INCHCAPE INDIA P. LTD., the Delhi High Court examined the services rendered with regard to the dyeing and testing divisions, whether it is technical service or not?"
}
},
{
"from_name": "label",
"id": "93cd12ea6bb049d39629b22cb3601393",
"to_name": "text",
"type": "labels",
"value": {
"end": 17042,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16863,
"text": "Further in COMMISSIONER OF INCOME-TAX v/s EICHER CONSULTANCY SERVICES LTD., the Delhi High Court has dealt with providing consultancy services to the foreign company in Faridabad."
}
},
{
"from_name": "label",
"id": "561bee76df3e419f86711a368c75018f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17114,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17043,
"text": "The said judgments are not applicable to the facts of the present case."
}
},
{
"from_name": "label",
"id": "0ca16d0b811c469b87be79d3c5c54c61",
"to_name": "text",
"type": "labels",
"value": {
"end": 17273,
"labels": [
"PRE_RELIED"
],
"start": 17115,
"text": "On the other hand, the judgment of Delhi High Court in ANAND AND ANAND v/s COMMISSIONER OF INCOME-TAX is squarely applicable to the facts of the present case."
}
},
{
"from_name": "label",
"id": "a9748a36fe8341189d0ce13925417190",
"to_name": "text",
"type": "labels",
"value": {
"end": 17380,
"labels": [
"PRE_RELIED"
],
"start": 17274,
"text": "In the said case, the court was dealing with the legal services rendered by the Firm to a foreign company."
}
},
{
"from_name": "label",
"id": "ef8a059cbd9e4f60931683744fab50a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17564,
"labels": [
"PRE_RELIED"
],
"start": 17381,
"text": "The Delhi High Court after examining Section 80-O and also the clarification issued by the CBDT held that the assessee is not entitled for any deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "50b50a4df71f49d09887ec803aefca62",
"to_name": "text",
"type": "labels",
"value": {
"end": 17625,
"labels": [
"PRE_RELIED"
],
"start": 17565,
"text": "Relevant Paragraph 7 of the said judgment reads as under: 7."
}
},
{
"from_name": "label",
"id": "33628c2a40804c2290c478dd6ef0f228",
"to_name": "text",
"type": "labels",
"value": {
"end": 17698,
"labels": [
"PRE_RELIED"
],
"start": 17626,
"text": "There is, in our opinion, no merits in the contention urged by Mr.Vohra."
}
},
{
"from_name": "label",
"id": "db240ef6e46b4d70b685a365cd631b0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17874,
"labels": [
"PRE_RELIED"
],
"start": 17699,
"text": "The legislative intent behind the provision of s.80-O is much too clear from Expln. (iii) to the same to need any detailed exercise involving interpretation of that provision."
}
},
{
"from_name": "label",
"id": "73d62eccd4dc4525b768505142223319",
"to_name": "text",
"type": "labels",
"value": {
"end": 18033,
"labels": [
"PRE_RELIED"
],
"start": 17875,
"text": "The Explanation makes it abundantly clear that a deduction under s.80- O is not allowable if the foreign receipts are relatable to services rendered in India."
}
},
{
"from_name": "label",
"id": "b907ce0cdc5e407bb091a6eb27df5c02",
"to_name": "text",
"type": "labels",
"value": {
"end": 18129,
"labels": [
"PRE_RELIED"
],
"start": 18034,
"text": "A professional's service can be rendered within India as much as it can be rendered from India."
}
},
{
"from_name": "label",
"id": "eac46734ffa1454bb29eee187e5c01ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 18281,
"labels": [
"PRE_RELIED"
],
"start": 18130,
"text": "It would depend upon the nature of the service and not on whether the provider and the recipient of the service are located in two different countries."
}
},
{
"from_name": "label",
"id": "a5409aa644c748a9ac74ef3336ca8107",
"to_name": "text",
"type": "labels",
"value": {
"end": 18569,
"labels": [
"PRE_RELIED"
],
"start": 18282,
"text": "For instance, in cases where a professional offers his professional advice to a client who is stationed outside India, the service can be said to be rendered from India because it is only the rendition of advice from the professional to the recipient that is flowing outside the country."
}
},
{
"from_name": "label",
"id": "133fbbc1008645118ef99243eb6ccab6",
"to_name": "text",
"type": "labels",
"value": {
"end": 18746,
"labels": [
"PRE_RELIED"
],
"start": 18570,
"text": "The flow of technical or professional expertise and knowledge of an expert located in India to a recipient outside India would doubtless constitute service rendered from India."
}
},
{
"from_name": "label",
"id": "2d5a2657223e4494992252b8fbc04671",
"to_name": "text",
"type": "labels",
"value": {
"end": 18853,
"labels": [
"PRE_RELIED"
],
"start": 18747,
"text": "At the same time, the service rendered by the expert may be limited to his advice or opinion on a subject."
}
},
{
"from_name": "label",
"id": "58ef00f8d3644a7f91a3e73c162802ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 18955,
"labels": [
"PRE_RELIED"
],
"start": 18854,
"text": "It may at times be accompanied by the experts doing various other acts within or outside the country."
}
},
{
"from_name": "label",
"id": "f686aa70c6df419cb238c3ec5038f2bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 19116,
"labels": [
"PRE_RELIED"
],
"start": 18956,
"text": "If the service is limited to advice with or without acts to be performed outside the country, payments received in foreign exchange would qualify for deduction."
}
},
{
"from_name": "label",
"id": "12ece18a258845f1966b8719da0f4bb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 19332,
"labels": [
"PRE_RELIED"
],
"start": 19116,
"text": "\n That may not be so in cases where a professional, as in the case of the appellant before us, offers its professional services in Courts within the country and receives payment for rendition of such services."
}
},
{
"from_name": "label",
"id": "a3cc46c46a8141c285d16620279a0ca4",
"to_name": "text",
"type": "labels",
"value": {
"end": 19485,
"labels": [
"PRE_RELIED"
],
"start": 19333,
"text": "In such a situation, what the client gets is services of the professional rendered in India in relation to a matter which is pending in the Courts here."
}
},
{
"from_name": "label",
"id": "fbc2702453e14fc5bde8714389dbbeb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 19621,
"labels": [
"PRE_RELIED"
],
"start": 19486,
"text": "The fact that the client who eventually benefits from such service in India is stationed outside the country is not the sole criterion."
}
},
{
"from_name": "label",
"id": "f8a9e3e31f0a476599419ae7f86b2a73",
"to_name": "text",
"type": "labels",
"value": {
"end": 19753,
"labels": [
"PRE_RELIED"
],
"start": 19621,
"text": "\n Payments received by any such professional for such services would not, therefore, qualify for deduction under s.80-O.\n 13."
}
},
{
"from_name": "label",
"id": "7fa7a4fd68dc446389ab23d337c7e5cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 19859,
"labels": [
"ANALYSIS"
],
"start": 19754,
"text": "We are in respectful agreement with the view taken by the Delhi High Court in the case referred to above."
}
},
{
"from_name": "label",
"id": "c0ddea555d704b7b905e4644ab13cbdc",
"to_name": "text",
"type": "labels",
"value": {
"end": 20052,
"labels": [
"RATIO"
],
"start": 19860,
"text": "The Tribunal, the First Appellate Authority and the Assessing Authority on examining the matter concurrently held that the assessee is not entitled for deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "09336e5d9059417d82c4824da24e389c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20135,
"labels": [
"RATIO"
],
"start": 20053,
"text": "We find no infirmity or irregularity in the order passed by the authorities below."
}
},
{
"from_name": "label",
"id": "2cd791b59aed4a94b94c32e7884db365",
"to_name": "text",
"type": "labels",
"value": {
"end": 20260,
"labels": [
"RATIO"
],
"start": 20136,
"text": "On re-examining the matter, we also found that the assessee is not entitled for any deduction under Section 80-O of the Act."
}
},
{
"from_name": "label",
"id": "47951a8a7e63443b9656f6ac90e16a71",
"to_name": "text",
"type": "labels",
"value": {
"end": 20353,
"labels": [
"RPC"
],
"start": 20261,
"text": "Hence, the substantial questions of law framed in this appeal are held against the assessee."
}
},
{
"from_name": "label",
"id": "e9bdea6f16c54eaa82fee90a9630820c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20391,
"labels": [
"RPC"
],
"start": 20354,
"text": "Accordingly, the appeal is dismissed."
}
},
{
"from_name": "label",
"id": "bdf7091a176b488ab7298a2dab00f8e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 20421,
"labels": [
"NONE"
],
"start": 20391,
"text": "\n Sd/- JUDGE Sd/- JUDGE mpk/-*"
}
}
]
}
] | 1,756 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 05TH DAY OF MARCH 2014\n\n PRESENT\n\nTHE HON'BLE MR.JUSTICE DILIP B.BHOSALE\n\n AND\n\n THE HON'BLE MR.JUSTICE B.MANOHAR\n\n ITA NO.828/2007\n\nBETWEEN:\n\nH.Raghavendra Rao, ...Appellant\nNo.431-D, 1st Floor,\n10th Main, 1st `N' Block,\nRajajinagar,\nBangalore\nNow at New Delhi.\n\n(By Sri.K.P.Kumar, Sr. Adv a/w. Sri.Chandrashekar and\nSri.Kashinath Kalmath, Advocates for M/s.Vasan\nAssociates for the appellant)\n\nAND:\n\nDeputy Commissioner of Income Tax,\n\nCircle -4 (1),\n\nBangalore. .... Respondent\n\n(By Sri.K.V.Aravind, Advocate)\n\n This ITA is filed under Sec.260-A of I.T Act 1961,\narising out of order dated 13/07/2007 passed in ITA\n\nNo.82/Bang/2005, for the Assessment Year 1997-98,\npraying that this Hon'ble Court may be pleased to:\n\n i. formulate the substantial questions of law\n stated therein,\n\n ii. allow the appeal and set aside the order\n passed by the ITAT, in ITA\n No.82/Bang/2005 dated 13/07/2007, in the\n interest of justice and equity.\n\n This appeal having been heard and reserved and\ncoming on for pronouncement of judgment this day,\n\nB.MANOHAR.J., delivered the following:\n\n J U D G M E N T\n The assessee filed this appeal under Section 260A of the Income Tax Act, 1961 (for short `the Act') challenging the order dated 13th July 2007 made in ITA No.82/Bang/2005 passed the by Income Tax Appellate Tribunal, Bangalore Bench `A' (for short `the Tribunal') dismissing the appeal filed by the assessee confirming the order passed by the authorities below in respect of deduction under Section 80-O of the Act, for the assessment year 1997-98.\n 2. The assessee, in the status of an individual, filed return of income for the assessment year 1997-98 declaring the total income of Rs.5,23,576/- on 29.10.1997 and claimed deduction under Section 80-O of the Act. The said return was processed under Section 143(1) of the Act on 26.03.1998. Subsequently, the Assessing Officer issued notice dated 27.09.2000 under Section 148 of the Act for reopening the assessment. On receipt of the notice, the assessee vide letter dated 13.10.2000 requested the Assessing Officer to treat the returns filed on 29.10.1997 as the returns filed in response to the notice under Section 148 of the Act. Further requested the Assessing Officer to furnish a copy of the reason recorded for initiating reassessment proceedings. In pursuance of the notice, an authorized representative of the assessee appeared and produced necessary documents and argued the matter. The Assessing Officer after hearing the matter on various dates held that the assessee is not entitled for the benefit of deduction under Section 80-O of the Act since the assessee has rendered service in India as per Explanation (iii) to Section 80-O of the Act.\nAccordingly, by its order dated 26.12.2001 reassessed the income of the assessee under Section 143(3) of the Act and demanded interest under Sections 234-B and 234-C of the Act.\n 3. The assessee being aggrieved by the reassessment order dated 26.12.2001 passed under Section 143(3) of the Act preferred an appeal before the Commissioner of Income-Tax (Appeals)-II, Bangalore (for short `the Appellate Authority') on various grounds. The Appellate Authority, after re-examining the matter and taking into consideration the Retainer Agreement entered into between the assessee and M/s. Buckeye Corporation Private Limited held that in view of Explanation (iii) to Section 80-O, the assessee is not entitled for the relief and dismissed the appeal by its order dated 25.10.2004.\n 4. Being aggrieved by the order passed by the Appellate Authority, the assessee preferred an appeal before the Tribunal, mainly contending that reopening of the assessment is contrary to law and the assessee is entitled for deduction under Section 80-O of the Act.\nIn view of the Circular No.700 dated 23.03.1995 passed by the Central Board for Direct Taxes (for short `the CBDT'), the Appellate Tribunal after re-examining the matter held that the assessee has rendered his service in India and received the fees in foreign exchange out of the Retainer Agreement entered into between the assessee and the Foreign Enterprises and in view of Explanation (iii) to Section 80-O of the Act, the assessee is not entitled for any relief and dismissed the appeal.\nBeing aggrieved by the order passed by the Tribunal, the assessee preferred this appeal.\n 5. The instant appeal was admitted for considering the following substantial questions of law: (1) Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal grossly erred in dismissing the appeal without considering the submissions made by the appellant challenging the reopening of the assessment by initiating proceedings u/s.147 of the Act?\n (2) Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal erred in not examining the documents produced by the appellant to appreciate that the assessee had be producing fax receipts sent to Singapore demonstrated that he had rendered the services from India but not in India?\n 6. Sri.K.P.Kumar, learned Senior Advocate appearing for M/s.Vasan Associates for the appellant contended that the order passed by the Appellate Tribunal confirming the order passed by the First Appellate Authority as well as the Assessing Authority is contrary to law. He submitted that, reopening of the assessment under Section 147 of the Act is contrary to law. It is not open to the Assessing Officer for reappraisal of the opinion already reached and change of opinion is not permitted under the law. Hence, reopening of the assessment is without jurisdiction. He further submitted that the Assessing Officer had failed to furnish the reason for reopening the assessment. The Appellate Authority failed to appreciate the Circular dated 23.03.1995 issued by the CBDT. He submitted that the assessee is an advocate by profession. He entered into a Retainer Agreement with M/s.Buckeye Corporation Private Limited. He has given legal opinion on all matters required by the company, since the said company wanted to establish an industry in India. The assessee being the resident of India has fulfilled all the conditions as prescribed under Section 80-O of the Act.\nIn consideration of professional service rendered or agreed to be rendered outside India, he received Fee in convertible foreign exchange and it was brought to India. Hence, he is entitled for deduction of 50% of the income so received or brought to India in computing total income of the assessee. The services rendered by the assessee is out of India to a Foreign Enterpriser.\nThe circular issued by the CBDT vide Circular No.700, dated 23.03.1995 categorically states that as long as technical and professional services are rendered from India and are received by a Foreign Government or Enterprise outside India, deduction under Section 80-O would be available to the person rendering the services even if the foreign recipient of the services utilizes the benefit of such services in India. The Tribunal misunderstood and misread the circular. He also relied upon the judgments reported in (2005) 273 ITR 92 (COMMISSIONER OF INCOME-TAX v/s INCHCAPE INDIA P. LIMITED); (2008) 305 ITR 105 (Delhi) (LI & FUNG INDIA P. LTD. v/s COMMISSIONER OF INCOME- TAX); (2008) 167 Taxman 64 (COMMISSIONER OF INCOME-TAX v/s EICHER CONSULTANCY SERVICES LTD.) and sought for allowing the appeal.\n 7. On the other hand, Sri.K.V.Aravind, learned counsel appearing for the Revenue argued in support of the order passed by the Tribunal and contended that the assessee is not entitled for the benefit under Section 80-O of the Act. The Retainer Agreement entered into between the assessee and M/s. Buckeye Corporation P.\nLimited clearly disclose that the assessee has to act as an Advocate and render all legal services and to conduct cases in India in view of Explanation (iii) to Section 80-O of the Act. The assessee is not entitled for any deduction. In support of the said contention, learned counsel for the Revenue relied upon the judgment in (2006) 286 ITR 432 (Delhi) in the case of ANAND & ANAND v/s COMMISSIONER OF INCOME-TAX and sought for dismissal of the appeal.\n 8. We have carefully considered the arguments addressed by the learned counsel for the parties and perused the orders impugned and other relevant records.\n 9. The assessee filed the return of income in the status of an individual for the assessment year 1997-98 declaring the total income and also claiming deduction under Section 80-O of the Act. The said returns was processed under Section 143(1) of the Act.\nSubsequently, the Assessing Officer noticed that the assessee has not fulfilled the conditions of the provisions of Section 80-O and issued notice under Section 148 of the Act for reopening of the assessment.\nThe authorized representative of the assessee appeared and produced the necessary documents and also made available the Retainer Agreement entered into between the assessee and M/s. Buckeye Corporation Private Limited. The Assessing Officer noticing some of the clauses of the agreement held that the services rendered by the assessee in relation to legal proceedings in the Court within the country to the clients who are stationed outside the country, though the payment has been made under the convertible foreign exchange, the said receipt will not fall under Section 80-O of the Act, more particularly, Explanation (iii) to Section 80-O of the Act. Some of the clauses of the agreement read thus: (i) That the Company hereby retains and appoints the said Advocate to act as its Advocate and to render all legal advice and give opinion on all matters required by the Company including but not limited to requisitions made therefore to the said Company and to represent it in all matters which may be pending in any of the Courts brought by or against the said Company and representations before any tribunal regulatory or administrative authority during the continuance of this agreement and to examine all abstracts of title, documents and correspondences and prepare all agreement and contracts and do all such acts and render all such legal services as the said Company or any of its officers or directors, acting officially, may require.\n (ii) This agreement shall be terminable at the option of either party with prior notice of three months subject to the stipulation that the right of termination shall not be exercised during the first year of its operation. That the Advocate engages to attend to all the legal matters of the said Company and also, to send notices of demand or otherwise for recovery of outstanding dues to the Company, to reply to notices received by the Company from others, to enter into correspondence in the above matters with the said persons to take legal proceedings arising in any maters with the said persons, to take legal proceedings and make representations to all governmental and non-governental entities arising in any matters connected with the business of the Company and to defend such matters in the courts or before other authority in this behalf, to render legal advice in connection with any matters arising out of the business carried on or intended to be carried on by the Company, to represent the Company and act, plead and appear for the Company in all legal matters whether in Court or before any tribunal regulatory or administrative authority and other non-governental entities or elsewhere in India, to draft deeds or other documents usually drafted by Lawyers for a client, and to give opinion in writing on requests being made thereof on facts stated to the said Advocates orally or in writing.\n 10. In order to obtain deduction under Section 80-O of the Act, the services rendered or agreed to be rendered outside India or rendered from India but shall not include the services rendered in India. For better appreciation of the facts, Section 80-O of the Act as it stood at the relevant point in time reads as under: \" Sec.80-O Deduction in respect of royalties, etc., from certain foreign enterprises. Where the gross total income of an assessee, being an Indian company, or an person (other than a company) who is resident in India includes any income by way of royalty, commission, fees or any similar payment received by the assessee from the Government of a foreign State or a foreign enterprise in consideration for the use outside India of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge, experience or skill made available or provided or agreed to be made available or provided to such Government or enterprise by the assessee, or in consideration of technical or professional services rendered or agreed to be rendered outside India to such Government or enterprise by the assessee, and such income is received in convertible foreign exchange in India, or having been received in convertible foreign exchange outside India, is brought into India, by or on behalf of the assessee in accordance with any law for the time being in force for regulating payments and dealings in foreign exchange, they shall be allowed, in accordance with and subject to the provisions of this section, a deduction of an amount equal to fifty per cent of the income so received in, or brought into India, in computing the total income of the assessee,: Explanation For the purposes of this Section, - (i) `convertible foreign exchange, means foreign exchange which is for the time being treated by the RBI as convertible foreign exchange for the purposes of the law for the time being in force for regulating payments and dealings in foreign exchange; (ii) \"foreign enterprise\" means a person who is a non-resident; (iii) services rendered or agreed to be rendered outside India shall include services rendered from India but shall not include services rendered in India; 11. Reading of the above Section makes it very clear that deduction is admissible under Section 80-O only if the income of the assessee includes receipt by it from the Government of a Foreign State or a Foreign Enterprises in convertible foreign exchange in consideration of professional services rendered or agreed to be rendered outside India to such enterprises by the assessee. The Explanation (iii) to Section 80-O of the Act makes a clear distinction between the services rendered or agreed to be rendered outside India which expression includes services rendered from India.\nHowever, it will not include services rendered in India.\nIn the instant case, reading of some of the clauses of the agreement makes it very clear that in convertible foreign exchange by way of fee received by the assessee for the services rendered in relation to legal proceedings in Court within this country, it falls under the Explanation (iii) to Section 80-O i.e. services rendered or agreed to be rendered in India. Hence, the assessee is not entitled to claim deduction. Further, reading of the clarification made by the CBDT in its circular dated 23rd March 1995, it is very clear that \"the technical and professional services are rendered from India and are received by a Foreign Government or Enterprises outside India, deduction under Section 80-O would be available to the person rendering the services even if the foreign recipient of the service utilizes the benefit of such services in India\". In the instant case, admittedly the service has been rendered in India representing the foreign company in the litigation brought forward by or against the said company. For the services rendered in India, the company has to pay $10,000 payable on or before 5th of every month as a retainer fee in convertible foreign exchange. Hence, the Board Circular will not come to the aid of the assessee. To avail the benefit under Section 80-O, he has to come within the purview of Explanation (iii) to the said Section. In the instant case, the assessee is rendering services in India to a foreign company, hence he is not entitled for any deduction.\n 12. The judgments relied upon by the learned Senior Advocate are not applicable to the facts of the present case. In LI & FUNG INDIA PRIVATE LIMITED v/s COMMISSIONER OF INCOME-TAX, the Delhi High Court examined the matter with regard to the managerial services rendered by the assessee which falls under the technical services. In COMMISSIONER OF INCOME-TAX v/s INCHCAPE INDIA P. LTD., the Delhi High Court examined the services rendered with regard to the dyeing and testing divisions, whether it is technical service or not? Further in COMMISSIONER OF INCOME-TAX v/s EICHER CONSULTANCY SERVICES LTD., the Delhi High Court has dealt with providing consultancy services to the foreign company in Faridabad. The said judgments are not applicable to the facts of the present case. On the other hand, the judgment of Delhi High Court in ANAND AND ANAND v/s COMMISSIONER OF INCOME-TAX is squarely applicable to the facts of the present case. In the said case, the court was dealing with the legal services rendered by the Firm to a foreign company. The Delhi High Court after examining Section 80-O and also the clarification issued by the CBDT held that the assessee is not entitled for any deduction under Section 80-O of the Act. Relevant Paragraph 7 of the said judgment reads as under: 7. There is, in our opinion, no merits in the contention urged by Mr.Vohra. The legislative intent behind the provision of s.80-O is much too clear from Expln. (iii) to the same to need any detailed exercise involving interpretation of that provision. The Explanation makes it abundantly clear that a deduction under s.80- O is not allowable if the foreign receipts are relatable to services rendered in India. A professional's service can be rendered within India as much as it can be rendered from India. It would depend upon the nature of the service and not on whether the provider and the recipient of the service are located in two different countries. For instance, in cases where a professional offers his professional advice to a client who is stationed outside India, the service can be said to be rendered from India because it is only the rendition of advice from the professional to the recipient that is flowing outside the country. The flow of technical or professional expertise and knowledge of an expert located in India to a recipient outside India would doubtless constitute service rendered from India. At the same time, the service rendered by the expert may be limited to his advice or opinion on a subject. It may at times be accompanied by the experts doing various other acts within or outside the country. If the service is limited to advice with or without acts to be performed outside the country, payments received in foreign exchange would qualify for deduction.\n That may not be so in cases where a professional, as in the case of the appellant before us, offers its professional services in Courts within the country and receives payment for rendition of such services. In such a situation, what the client gets is services of the professional rendered in India in relation to a matter which is pending in the Courts here. The fact that the client who eventually benefits from such service in India is stationed outside the country is not the sole criterion.\n Payments received by any such professional for such services would not, therefore, qualify for deduction under s.80-O.\n 13. We are in respectful agreement with the view taken by the Delhi High Court in the case referred to above. The Tribunal, the First Appellate Authority and the Assessing Authority on examining the matter concurrently held that the assessee is not entitled for deduction under Section 80-O of the Act. We find no infirmity or irregularity in the order passed by the authorities below. On re-examining the matter, we also found that the assessee is not entitled for any deduction under Section 80-O of the Act. Hence, the substantial questions of law framed in this appeal are held against the assessee. Accordingly, the appeal is dismissed.\n Sd/- JUDGE Sd/- JUDGE mpk/-* "
} |
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"text": " THE HIGH COURT OF DELHI AT NEW DELHI\n% Judgment delivered on: 18.02.2013"
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"text": "\n\n+ W.P.(C) 1987/2012 & CM No. 4285/2012\n\nAJAY KUMAR SHARMA "
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},
{
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"start": 242,
"text": "... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR"
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},
{
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"value": {
"end": 1293,
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"start": 382,
"text": "... Respondents\n\nAND\n\n+ W.P.(C) 2732/2012 & CM No. 5883/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\nAND\n\n+ W.P.(C) 2749/2012 & CM No. 5909/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\nAND\n\n+ W.P.(C) 2733/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\n\n\n\n\nAdvocates who appeared in these cases:\nFor the Petitioner :"
}
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{
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"start": 1294,
"text": "Mr A. Sharma, Mr Manu K. Giri"
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"text": "\nFor the Respondent"
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{
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"text": " : Ms Suruchii Aggarwal"
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{
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"text": "\n\n\nCORAM:-"
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"text": "\nHON’BLE MR JUSTICE BADAR DURREZ AHMED"
}
},
{
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],
"start": 1429,
"text": "\nHON’BLE MR JUSTICE R.V.EASWAR"
}
},
{
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"text": "JUDGMENT"
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"labels": [
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],
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"text": "\n BADAR DURREZ AHMED, J (ORAL) 1."
}
},
{
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"to_name": null,
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"end": 1738,
"labels": [
"FAC"
],
"start": 1549,
"text": "These writ petitions are directed against the notices issued under section 148 (all dated 16.12.2011) intending to re-open assessments pertaining to the assessment years 2005-06 to 2008-09."
}
},
{
"from_name": null,
"id": "fc53a8f3a0e44d30a7f9459f4bed4881",
"to_name": null,
"type": null,
"value": {
"end": 1987,
"labels": [
"FAC"
],
"start": 1739,
"text": "Insofar as the assessment year 2007-08 is concerned, a regular assessment had not been completed under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the said Act’) and only an intimation under section 143(1) had been sent."
}
},
{
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"id": "ecc045238fe84f61a1961a6274075f68",
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"value": {
"end": 2093,
"labels": [
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],
"start": 1988,
"text": "As regards the other three years, assessment orders had been framed under section 143(3) of the said Act."
}
},
{
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"id": "e26afd4b443b4c9a9de16a70926f3562",
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"value": {
"end": 2171,
"labels": [
"FAC"
],
"start": 2093,
"text": "\n 2. In assessment year 2005-06, the assessment was framed on 29.03.2007."
}
},
{
"from_name": null,
"id": "99a4098461624159a0971032b89dcf4e",
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"value": {
"end": 2302,
"labels": [
"FAC"
],
"start": 2171,
"text": "\n Similarly, for assessment years 2006-07 and 2008-09 the assessment orders were passed on 26.12.2008 and 30.12.2010, respectively."
}
},
{
"from_name": null,
"id": "770e2b7c2a3446a381e5baaa0b03fd5b",
"to_name": null,
"type": null,
"value": {
"end": 2600,
"labels": [
"FAC"
],
"start": 2303,
"text": "It should also be pointed out that insofar as the impugned notices relate to the assessment years 2005-06 and 2006-07, they have been issued beyond the period of four years from the end of the respective assessment years and therefore the proviso to section 147 of the said Act would be attracted."
}
},
{
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"id": "6865bf5aebc344dcb7102f5037a349df",
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"value": {
"end": 2610,
"labels": [
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],
"start": 2602,
"text": "3. "
}
},
{
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"id": "9b9497a9a85c4aadac47f45a9ffe31db",
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"value": {
"end": 2953,
"labels": [
"FAC"
],
"start": 2610,
"text": "The learned counsel for the petitioner drew our attention to the proceedings pertaining to the assessment year 2005-06 which was the first year in which the petitioner had made a claim of deduction under section 80-IC of the said Act inasmuch as there was a substantial expansion in the plant and machinery during the financial year 2004-2005."
}
},
{
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"id": "03be075e0d4040bdb9a168c77977e964",
"to_name": null,
"type": null,
"value": {
"end": 2996,
"labels": [
"FAC"
],
"start": 2954,
"text": "The petitioner manufactures ‘PET’ bottles."
}
},
{
"from_name": null,
"id": "05bd16a69e07418a9269e5c8db2f81dd",
"to_name": null,
"type": null,
"value": {
"end": 3006,
"labels": [
"FAC"
],
"start": 2998,
"text": "4. "
}
},
{
"from_name": null,
"id": "cfe3c6cbcc7a42df915e9f51b3bc3e0d",
"to_name": null,
"type": null,
"value": {
"end": 3139,
"labels": [
"FAC"
],
"start": 3006,
"text": "The learned counsel for the petitioner drew our attention to the purported reasons for the belief that income had escaped assessment."
}
},
{
"from_name": null,
"id": "a32632539215413f83ce9fffda93ed5d",
"to_name": null,
"type": null,
"value": {
"end": 3299,
"labels": [
"FAC"
],
"start": 3140,
"text": "The said purported reasons read as under:- “Name &address of the Assessee :Sh. Ajay Kumar Sharma Prop. M/s OM Shiva Industries 181, Azad Mara, Vivekanand Puri."
}
},
{
"from_name": null,
"id": "a7c4fb8dd2924dc39f8f99833ba9ce9a",
"to_name": null,
"type": null,
"value": {
"end": 3398,
"labels": [
"FAC"
],
"start": 3300,
"text": "Delhi PAN : ARGPS9602P Status :"
}
},
{
"from_name": null,
"id": "6a6aa5138cee40a29fb4ce9f88579af8",
"to_name": null,
"type": null,
"value": {
"end": 3463,
"labels": [
"FAC"
],
"start": 3401,
"text": "Individual Assessment Year : 2005-2006"
}
},
{
"from_name": null,
"id": "f31d630092b54724b3ddf5fbe6a0eb4f",
"to_name": null,
"type": null,
"value": {
"end": 3702,
"labels": [
"FAC"
],
"start": 3464,
"text": "Reasons for the belief that income has escaped assessment Return of income for the AY 2005-06 in this case was filed on 30.10.2005 declaring an income of Rs. Nil after claiming deduction of Rs. 26,36,700/- u/s 801C of the I.T.\n Act, 1961."
}
},
{
"from_name": null,
"id": "e7cfa00e6fcc48acaed3965f14c766b3",
"to_name": null,
"type": null,
"value": {
"end": 3802,
"labels": [
"FAC"
],
"start": 3703,
"text": "Assessment for this year was completed u/s 143(3) vide Order dated 29.03.2007 at income of Rs. Nil."
}
},
{
"from_name": null,
"id": "cd1d16b924af401abdd8b2736d1a0284",
"to_name": null,
"type": null,
"value": {
"end": 4048,
"labels": [
"FAC"
],
"start": 3804,
"text": "Assesee is engaged in the manufacture of petbottles in Industrial area, Barotiwalan, district Solan Himachal Pradesh.ln the earlier years i.e; up to the AY 2004-05 , assessee was claiming deduction u/s 801B in respect of Industrial undertakimg."
}
},
{
"from_name": null,
"id": "031e2a9f429c4b4eaef3c9a28ee551f9",
"to_name": null,
"type": null,
"value": {
"end": 4194,
"labels": [
"FAC"
],
"start": 4049,
"text": "This year assessee claimed deduction u/s 80IC on the ground that he had undertaken substantial expansion in Plant & Machinery during F.Y.2004-05."
}
},
{
"from_name": null,
"id": "4d99b4594aca4ac7af0d1a27c5953280",
"to_name": null,
"type": null,
"value": {
"end": 4342,
"labels": [
"FAC"
],
"start": 4195,
"text": "In support of this claim, Assessee filed audit report u/s 80IC on Form No. IOCCB along with his Return of Income for AY 2005-2006 placed on record."
}
},
{
"from_name": null,
"id": "4ccd8b8430224cdfbe308605d3746aca",
"to_name": null,
"type": null,
"value": {
"end": 4830,
"labels": [
"FAC"
],
"start": 4342,
"text": "\n The claim of the assessee being in respect of manufacturing of pet bottles in the state of Himachal Pradesh ;pet bottles being an article specified in the Thirteenth Schedule (Sr. No. 20) Assessee was not entitled to deduction of Rs. 26,36,700/- u/s 80 IC despite which Assessee claimed deduction u/s 801C (Form No. 10 CCB), in col. 14(ii)(e)- \"Does the undertaking or enterprise manufacture of produce any article or thing specified in the Thirteenth Schedule\".\n "
}
},
{
"from_name": null,
"id": "b1c6004eba67462086d3209b442fec33",
"to_name": null,
"type": null,
"value": {
"end": 4853,
"labels": [
"FAC"
],
"start": 4830,
"text": "Assessee reported N.A.\""
}
},
{
"from_name": null,
"id": "f85b2126b9f04dcf982ac8c50162c08b",
"to_name": null,
"type": null,
"value": {
"end": 5066,
"labels": [
"FAC"
],
"start": 4854,
"text": "despite the fact that the claim of the Assessee being in respect of manufacturing of pet bottles being an article specified in the Thirteenth Schedule (Sr. N 20) , assessee was not entitled to deduction u/s 801C."
}
},
{
"from_name": null,
"id": "5d33bed38a70448c9c867931d56f7f38",
"to_name": null,
"type": null,
"value": {
"end": 5527,
"labels": [
"FAC"
],
"start": 5075,
"text": "Accordingly, I am satisfied that there is a failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment for the said assessment year and income chargeable to tax of Rs. 26,36,700/- has escaped assessment for the assessment year 2005-06 by reason of the failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment for his assessment for A.Y. 2005-06.I"
}
},
{
"from_name": null,
"id": "8b844e13b36e4cffab638f1728366b33",
"to_name": null,
"type": null,
"value": {
"end": 5654,
"labels": [
"FAC"
],
"start": 5528,
"text": "have therefore, reason to believe that the sum of Rs.26,36,700/- chargeable to tax has escaped assessment for the AY 2005-06 ."
}
},
{
"from_name": null,
"id": "194ab0e13aad4f0695f7fb200bd0c894",
"to_name": null,
"type": null,
"value": {
"end": 5845,
"labels": [
"FAC"
],
"start": 5655,
"text": "Thus, the same is to be brought to tax under section 147/148 of the I.T. Act, 1961.\n (K.K. MITRA) Income Tax Officer, WardNo.33(1), New Delhi.”"
}
},
{
"from_name": null,
"id": "be03242a7813401c92fb6927cc75a7d2",
"to_name": null,
"type": null,
"value": {
"end": 6033,
"labels": [
"ARG_PETITIONER"
],
"start": 5846,
"text": "It is apparent that in response to serial No. 14(ii)(e) of form No.10 CCB filed along with return, the petitioner/assessee had indicated- ‘NA’ meaning thereby that the same did not apply."
}
},
{
"from_name": null,
"id": "0d8d1cd8cd024f1f828eb7a7eb0dacfc",
"to_name": null,
"type": null,
"value": {
"end": 6166,
"labels": [
"ARG_PETITIONER"
],
"start": 6034,
"text": "The question was whether the undertaking or enterprise manufactures or produces any article or thing specified in the 13th schedule."
}
},
{
"from_name": null,
"id": "f4fe0499e1454fc691b1aded7ae73899",
"to_name": null,
"type": null,
"value": {
"end": 6176,
"labels": [
"ARG_PETITIONER"
],
"start": 6168,
"text": "5. "
}
},
{
"from_name": null,
"id": "e2a8ff344be24a5cad56b04e83c9df49",
"to_name": null,
"type": null,
"value": {
"end": 6401,
"labels": [
"ARG_PETITIONER"
],
"start": 6176,
"text": "It should be pointed out that by virtue of section 80-IC(2) of the said Act, the deduction thereunder is not to be given to an undertaking which manufactures any of the articles specified in the 13th schedule to the said Act."
}
},
{
"from_name": null,
"id": "3e5cefa9584f45969e4c0b1e99ff6d97",
"to_name": null,
"type": null,
"value": {
"end": 6411,
"labels": [
"ARG_PETITIONER"
],
"start": 6403,
"text": "6. "
}
},
{
"from_name": null,
"id": "962bd43fbe704241b271cb9371616af1",
"to_name": null,
"type": null,
"value": {
"end": 6755,
"labels": [
"ARG_PETITIONER"
],
"start": 6411,
"text": "Serial 20 of the 13th schedule to the Income-tax Act reads as under:- Activity or article Excise Sub-class under National or thing classification Industrial Classification (NIC), 1998 xxx xxx xxx 20. Plastics and 39.09 to 39.15 articles thereof"
}
},
{
"from_name": null,
"id": "bd80d6c5f9234499bf95cc6c0c3f8570",
"to_name": null,
"type": null,
"value": {
"end": 6967,
"labels": [
"ARG_PETITIONER"
],
"start": 6756,
"text": "It is clear from the above that the plastics and articles which are referred to at serial No. 20 of the 13th schedule pertain to the goods falling within the excise classification in the range of 39.09 to 39.15."
}
},
{
"from_name": null,
"id": "375a27c811b347abaaf0cb9e7fcbf89b",
"to_name": null,
"type": null,
"value": {
"end": 7143,
"labels": [
"ARG_PETITIONER"
],
"start": 6968,
"text": "The learned counsel for the petitioner submitted that the PET bottles manufactured by the petitioner fell within chapter 39 but under heading 39.23 and sub heading 3923.30.90."
}
},
{
"from_name": null,
"id": "3fb9436f57124f2b9fda3b2609842fa4",
"to_name": null,
"type": null,
"value": {
"end": 7247,
"labels": [
"ARG_PETITIONER"
],
"start": 7144,
"text": "The heading 3923.30 relates to ‘Carboys, bottles, flasks and similar articles’. Sub- heading 3923.30.10"
}
},
{
"from_name": null,
"id": "2fa52cbd1dce4ccdb89227d70995cab4",
"to_name": null,
"type": null,
"value": {
"end": 7310,
"labels": [
"ARG_PETITIONER"
],
"start": 7248,
"text": "refers to ‘insulated ware’ and 3923.30.90 refers to ‘other’.\n "
}
},
{
"from_name": null,
"id": "565c436682b14599937b75f0947085db",
"to_name": null,
"type": null,
"value": {
"end": 7397,
"labels": [
"ARG_PETITIONER"
],
"start": 7310,
"text": "It is under this sub-heading that the PET bottles manufactured by the petitioner falls."
}
},
{
"from_name": null,
"id": "ab0b236bb57141f9b104971c04311834",
"to_name": null,
"type": null,
"value": {
"end": 7724,
"labels": [
"ARG_PETITIONER"
],
"start": 7398,
"text": "It was therefore pointed out by the learned counsel for the petitioner that the PET bottles manufactured by the petitioner do not fall within the articles specified in the 13th schedule to the said Act and therefore do not form part of the negative list in respect of which the deduction under section 80-IC cannot be claimed."
}
},
{
"from_name": null,
"id": "4e26dddc9a224344bcaaba8164124c6b",
"to_name": null,
"type": null,
"value": {
"end": 8064,
"labels": [
"ARG_PETITIONER"
],
"start": 7724,
"text": "\n 7. It was pointed out further by the learned counsel for the petitioner that the only purported reason indicated for re-opening of the assessment was that the PET bottles manufactured by the petitioner were not entitled to deduction under section 80-IC because they fell within the serial No. 20 of the 13th schedule of the said Act."
}
},
{
"from_name": null,
"id": "b8d0961766f34444a77478b76a8c9526",
"to_name": null,
"type": null,
"value": {
"end": 8074,
"labels": [
"ARG_PETITIONER"
],
"start": 8064,
"text": "\n 8. "
}
},
{
"from_name": null,
"id": "d11070c63e964e2e93d92ae2af976aec",
"to_name": null,
"type": null,
"value": {
"end": 8424,
"labels": [
"ARG_PETITIONER"
],
"start": 8074,
"text": "The reasoning adopted in the two years for which the re-opening is being sought after four years from the end of the relevant assessment year was that since the petitioner had answered ‘Not Applicable’ with regard to serial No. 14(ii)(e) of form 10 CCB, the petitioner had failed to disclose full and true material facts necessary for his assessment."
}
},
{
"from_name": null,
"id": "2fb80fa558c84972832325e40fd07bda",
"to_name": null,
"type": null,
"value": {
"end": 8751,
"labels": [
"ARG_PETITIONER"
],
"start": 8425,
"text": "Apart from this, the learned counsel for the petitioner also drew our attention to the assessment order dated 29.3.2007 pertaining to the assessment year 2005-06 wherein the assessing officer had allowed the deduction claimed by the petitioner and had specifically noted as under:- “the assessee has filed necessary evidences”"
}
},
{
"from_name": null,
"id": "64361abccebd4c7eb9e71761c071de6f",
"to_name": null,
"type": null,
"value": {
"end": 9057,
"labels": [
"ARG_PETITIONER"
],
"start": 8752,
"text": "It was also pointed out by the learned counsel that prior to the completion of the assessment, several letters including the letters dated 27.12.2006, 13.03.2007 and 23.03.2007 had been written by the petitioner to the assessing officer explaining, inter alia, the claim for deduction under section 80-IC."
}
},
{
"from_name": null,
"id": "b46528bf4ce745188bec8e0774691be5",
"to_name": null,
"type": null,
"value": {
"end": 9232,
"labels": [
"ARG_PETITIONER"
],
"start": 9058,
"text": "The learned counsel for the petitioner also drew our attention to the objections which were taken by the petitioner to the purported reasons for re-opening of the assessment."
}
},
{
"from_name": null,
"id": "258639d8fdad49cc88d088ae1331269e",
"to_name": null,
"type": null,
"value": {
"end": 9676,
"labels": [
"ARG_PETITIONER"
],
"start": 9233,
"text": "In the objections the petitioner had specifically taken the plea that the 13th schedule of the said Act and, particularly, serial No. 20 thereof has been misrepresented by the revenue inasmuch as it has not realized that the product manufactured by the petitioner fell within the heading no. 39.23 and was therefore not in the negative list which dealt with articles falling within headings 39.09 to 39.15 of the Central Excise Classification."
}
},
{
"from_name": null,
"id": "4f3abd56ae864b4eb90ab3b4948f842b",
"to_name": null,
"type": null,
"value": {
"end": 9872,
"labels": [
"ARG_PETITIONER"
],
"start": 9677,
"text": "Unfortunately this aspect of the matter has not been dealt with appropriately, if at all, by the assessing officer in the order dated 17.02.2012 rejecting the objections raised by the petitioner."
}
},
{
"from_name": null,
"id": "71fa5f4b0f48423d9d89f47b4a6dca60",
"to_name": null,
"type": null,
"value": {
"end": 10055,
"labels": [
"ARG_RESPONDENT"
],
"start": 9872,
"text": "\n 9. We have also heard the learned counsel for the respondent who has supported the issuance of the notices as also the purported reasons and the order rejecting the objections."
}
},
{
"from_name": null,
"id": "16c325a7f4ba4431a0fb17b687e3e0a0",
"to_name": null,
"type": null,
"value": {
"end": 10158,
"labels": [
"ANALYSIS"
],
"start": 10056,
"text": "However, we are inclined to agree with the submissions made by the learned counsel for the petitioner."
}
},
{
"from_name": null,
"id": "e6917703c9d84a63953760a8bfc73c6c",
"to_name": null,
"type": null,
"value": {
"end": 10386,
"labels": [
"ANALYSIS"
],
"start": 10159,
"text": "The entire sub- stratum of the notices issued under section 148 of the said Act is that the petitioner’s product namely PET bottles fall within the negative list stipulated in serial No. 20 of the 13th schedule of the said Act."
}
},
{
"from_name": null,
"id": "7800bab48cae4c428807fb044d1d0224",
"to_name": null,
"type": null,
"value": {
"end": 10701,
"labels": [
"ANALYSIS"
],
"start": 10387,
"text": "We have noted the arguments of the learned counsel for the petitioner that the product manufactured by them falls under 3923.30.90 of the Central Excise Classification which is not within the range of products specified in serial No.20 of the 13th schedule of the said Act, that is, within headings 39.09 to 39.15."
}
},
{
"from_name": null,
"id": "32c8a494b2fd449b879f8ca5fafd73a3",
"to_name": null,
"type": null,
"value": {
"end": 10793,
"labels": [
"ANALYSIS"
],
"start": 10702,
"text": " Therefore clearly, the submission of the learned counsel for the petitioner is correct."
}
},
{
"from_name": null,
"id": "dd953a6c6dba477391099ddde4481099",
"to_name": null,
"type": null,
"value": {
"end": 10906,
"labels": [
"ANALYSIS"
],
"start": 10794,
"text": "The petitioner’s product does not fall within the negative list stipulated in the 13th schedule of the said Act."
}
},
{
"from_name": null,
"id": "5220ecbc22f0415a83a283e767600831",
"to_name": null,
"type": null,
"value": {
"end": 11070,
"labels": [
"ANALYSIS"
],
"start": 10907,
"text": "If that be the case, then, the answer given by the petitioner in serial No. 14(ii)(e) of form 10 CCB filed along with the return is not wrong, false or inaccurate."
}
},
{
"from_name": null,
"id": "3b3e2defc59440e8b5b9b641f9849fe3",
"to_name": null,
"type": null,
"value": {
"end": 11203,
"labels": [
"ANALYSIS"
],
"start": 11071,
"text": "Therefore, the petitioner cannot be held to have failed to fully and truly disclose all material facts necessary for its assessment."
}
},
{
"from_name": null,
"id": "7db7ef79d8d64dbf88b09230dedc7974",
"to_name": null,
"type": null,
"value": {
"end": 11366,
"labels": [
"ANALYSIS"
],
"start": 11203,
"text": "\n 10. Insofar as the other assessment years are concerned where the issue of limitation of four years does not arise, the position would not be any different."
}
},
{
"from_name": null,
"id": "7f59dc1f850d4dce9de176f6c39fe7a0",
"to_name": null,
"type": null,
"value": {
"end": 11930,
"labels": [
"ANALYSIS"
],
"start": 11366,
"text": "\n This would be so because on a reasonable interpretation of the provisions of section 80-IC(2) read with serial No. 20 of the 13th schedule of the said Act read with the first schedule to the Central Excise Tariff Act, 1985, it would be clear that the petitioner’s product does not fall within the negative list and therefore the petitioner had rightly claimed deduction under section 80-IC of the said Act which the assessing officer in the years in which the assessment had been completed under section 143(3) had allowed after examining the necessary evidence."
}
},
{
"from_name": null,
"id": "e24e8ef824e347529f40f36f43f17efa",
"to_name": null,
"type": null,
"value": {
"end": 12286,
"labels": [
"ANALYSIS"
],
"start": 11931,
"text": "Even in respect of the year in which there was no assessment order under section 143(3), that is, the assessment year 2007-08, we feel that the same cannot be re-opened because no reasonable person can be attributed with any reason to believe that income had escaped assessment when the petitioner’s product clearly does not fall within the negative list."
}
},
{
"from_name": null,
"id": "a5ca149e3b764657bfe3665f6f541873",
"to_name": null,
"type": null,
"value": {
"end": 12479,
"labels": [
"RATIO"
],
"start": 12287,
"text": "Thus, in view of the established facts in this case, the assessing officer could not even have taken the prima facie view that there were reasons to believe that income had escaped assessment."
}
},
{
"from_name": null,
"id": "42e1d547250d4ec1ba63cdb3a1dc1c00",
"to_name": null,
"type": null,
"value": {
"end": 12643,
"labels": [
"RATIO"
],
"start": 12480,
"text": " Consequently, we feel that, in the facts and circumstances of this case, the issuance of notices under section 148 of the said Act was not warranted."
}
},
{
"from_name": null,
"id": "02a6efed594a4b179e4030c2658d0a17",
"to_name": null,
"type": null,
"value": {
"end": 12727,
"labels": [
"RPC"
],
"start": 12644,
"text": "The said notices are quashed and all proceedings pursuant thereto are also quashed."
}
},
{
"from_name": null,
"id": "9af4e14e70294f6dbd7df19a90c8aa97",
"to_name": null,
"type": null,
"value": {
"end": 12768,
"labels": [
"RPC"
],
"start": 12729,
"text": "11. The writ petitions are allowed."
}
},
{
"from_name": null,
"id": "db5aca2e3d614587a66c49caba78e579",
"to_name": null,
"type": null,
"value": {
"end": 12817,
"labels": [
"RPC"
],
"start": 12769,
"text": "All pending applications also stand disposed of."
}
},
{
"from_name": null,
"id": "71bb2dd8b15e4bdb855508890f3cdc84",
"to_name": null,
"type": null,
"value": {
"end": 12855,
"labels": [
"RPC"
],
"start": 12818,
"text": "There shall be no orders as to costs."
}
},
{
"from_name": null,
"id": "874486a74e594e1baa59d111676d731a",
"to_name": null,
"type": null,
"value": {
"end": 12913,
"labels": [
"NONE"
],
"start": 12855,
"text": "\n BADAR DURREZ AHMED, J R.V.EASWAR, J FEBRUARY 18, 2013 kb"
}
}
]
}
] | 4,281 | {
"text": " THE HIGH COURT OF DELHI AT NEW DELHI\n% Judgment delivered on: 18.02.2013\n\n+ W.P.(C) 1987/2012 & CM No. 4285/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\nAND\n\n+ W.P.(C) 2732/2012 & CM No. 5883/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\nAND\n\n+ W.P.(C) 2749/2012 & CM No. 5909/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\nAND\n\n+ W.P.(C) 2733/2012\n\nAJAY KUMAR SHARMA ... Petitioner\n versus\n\nCOMMISSIONER OF INCOME TAX AND ANR ... Respondents\n\n\n\n\n\nAdvocates who appeared in these cases:\nFor the Petitioner : Mr A. Sharma, Mr Manu K. Giri\nFor the Respondent : Ms Suruchii Aggarwal\n\n\nCORAM:-\nHON’BLE MR JUSTICE BADAR DURREZ AHMED\nHON’BLE MR JUSTICE R.V.EASWAR\n\n JUDGMENT\n BADAR DURREZ AHMED, J (ORAL) 1. These writ petitions are directed against the notices issued under section 148 (all dated 16.12.2011) intending to re-open assessments pertaining to the assessment years 2005-06 to 2008-09. Insofar as the assessment year 2007-08 is concerned, a regular assessment had not been completed under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the said Act’) and only an intimation under section 143(1) had been sent. As regards the other three years, assessment orders had been framed under section 143(3) of the said Act.\n 2. In assessment year 2005-06, the assessment was framed on 29.03.2007.\n Similarly, for assessment years 2006-07 and 2008-09 the assessment orders were passed on 26.12.2008 and 30.12.2010, respectively. It should also be pointed out that insofar as the impugned notices relate to the assessment years 2005-06 and 2006-07, they have been issued beyond the period of four years from the end of the respective assessment years and therefore the proviso to section 147 of the said Act would be attracted.\n 3. The learned counsel for the petitioner drew our attention to the proceedings pertaining to the assessment year 2005-06 which was the first year in which the petitioner had made a claim of deduction under section 80-IC of the said Act inasmuch as there was a substantial expansion in the plant and machinery during the financial year 2004-2005. The petitioner manufactures ‘PET’ bottles.\n 4. The learned counsel for the petitioner drew our attention to the purported reasons for the belief that income had escaped assessment. The said purported reasons read as under:- “Name &address of the Assessee :Sh. Ajay Kumar Sharma Prop. M/s OM Shiva Industries 181, Azad Mara, Vivekanand Puri. Delhi PAN : ARGPS9602P Status : Individual Assessment Year : 2005-2006 Reasons for the belief that income has escaped assessment Return of income for the AY 2005-06 in this case was filed on 30.10.2005 declaring an income of Rs. Nil after claiming deduction of Rs. 26,36,700/- u/s 801C of the I.T.\n Act, 1961. Assessment for this year was completed u/s 143(3) vide Order dated 29.03.2007 at income of Rs. Nil.\n Assesee is engaged in the manufacture of petbottles in Industrial area, Barotiwalan, district Solan Himachal Pradesh.ln the earlier years i.e; up to the AY 2004-05 , assessee was claiming deduction u/s 801B in respect of Industrial undertakimg. This year assessee claimed deduction u/s 80IC on the ground that he had undertaken substantial expansion in Plant & Machinery during F.Y.2004-05. In support of this claim, Assessee filed audit report u/s 80IC on Form No. IOCCB along with his Return of Income for AY 2005-2006 placed on record.\n The claim of the assessee being in respect of manufacturing of pet bottles in the state of Himachal Pradesh ;pet bottles being an article specified in the Thirteenth Schedule (Sr. No. 20) Assessee was not entitled to deduction of Rs. 26,36,700/- u/s 80 IC despite which Assessee claimed deduction u/s 801C (Form No. 10 CCB), in col. 14(ii)(e)- \"Does the undertaking or enterprise manufacture of produce any article or thing specified in the Thirteenth Schedule\".\n Assessee reported N.A.\" despite the fact that the claim of the Assessee being in respect of manufacturing of pet bottles being an article specified in the Thirteenth Schedule (Sr. N 20) , assessee was not entitled to deduction u/s 801C.\n Accordingly, I am satisfied that there is a failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment for the said assessment year and income chargeable to tax of Rs. 26,36,700/- has escaped assessment for the assessment year 2005-06 by reason of the failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment for his assessment for A.Y. 2005-06.I have therefore, reason to believe that the sum of Rs.26,36,700/- chargeable to tax has escaped assessment for the AY 2005-06 . Thus, the same is to be brought to tax under section 147/148 of the I.T. Act, 1961.\n (K.K. MITRA) Income Tax Officer, WardNo.33(1), New Delhi.” It is apparent that in response to serial No. 14(ii)(e) of form No.10 CCB filed along with return, the petitioner/assessee had indicated- ‘NA’ meaning thereby that the same did not apply. The question was whether the undertaking or enterprise manufactures or produces any article or thing specified in the 13th schedule.\n 5. It should be pointed out that by virtue of section 80-IC(2) of the said Act, the deduction thereunder is not to be given to an undertaking which manufactures any of the articles specified in the 13th schedule to the said Act.\n 6. Serial 20 of the 13th schedule to the Income-tax Act reads as under:- Activity or article Excise Sub-class under National or thing classification Industrial Classification (NIC), 1998 xxx xxx xxx 20. Plastics and 39.09 to 39.15 articles thereof It is clear from the above that the plastics and articles which are referred to at serial No. 20 of the 13th schedule pertain to the goods falling within the excise classification in the range of 39.09 to 39.15. The learned counsel for the petitioner submitted that the PET bottles manufactured by the petitioner fell within chapter 39 but under heading 39.23 and sub heading 3923.30.90. The heading 3923.30 relates to ‘Carboys, bottles, flasks and similar articles’. Sub- heading 3923.30.10 refers to ‘insulated ware’ and 3923.30.90 refers to ‘other’.\n It is under this sub-heading that the PET bottles manufactured by the petitioner falls. It was therefore pointed out by the learned counsel for the petitioner that the PET bottles manufactured by the petitioner do not fall within the articles specified in the 13th schedule to the said Act and therefore do not form part of the negative list in respect of which the deduction under section 80-IC cannot be claimed.\n 7. It was pointed out further by the learned counsel for the petitioner that the only purported reason indicated for re-opening of the assessment was that the PET bottles manufactured by the petitioner were not entitled to deduction under section 80-IC because they fell within the serial No. 20 of the 13th schedule of the said Act.\n 8. The reasoning adopted in the two years for which the re-opening is being sought after four years from the end of the relevant assessment year was that since the petitioner had answered ‘Not Applicable’ with regard to serial No. 14(ii)(e) of form 10 CCB, the petitioner had failed to disclose full and true material facts necessary for his assessment. Apart from this, the learned counsel for the petitioner also drew our attention to the assessment order dated 29.3.2007 pertaining to the assessment year 2005-06 wherein the assessing officer had allowed the deduction claimed by the petitioner and had specifically noted as under:- “the assessee has filed necessary evidences” It was also pointed out by the learned counsel that prior to the completion of the assessment, several letters including the letters dated 27.12.2006, 13.03.2007 and 23.03.2007 had been written by the petitioner to the assessing officer explaining, inter alia, the claim for deduction under section 80-IC. The learned counsel for the petitioner also drew our attention to the objections which were taken by the petitioner to the purported reasons for re-opening of the assessment. In the objections the petitioner had specifically taken the plea that the 13th schedule of the said Act and, particularly, serial No. 20 thereof has been misrepresented by the revenue inasmuch as it has not realized that the product manufactured by the petitioner fell within the heading no. 39.23 and was therefore not in the negative list which dealt with articles falling within headings 39.09 to 39.15 of the Central Excise Classification. Unfortunately this aspect of the matter has not been dealt with appropriately, if at all, by the assessing officer in the order dated 17.02.2012 rejecting the objections raised by the petitioner.\n 9. We have also heard the learned counsel for the respondent who has supported the issuance of the notices as also the purported reasons and the order rejecting the objections. However, we are inclined to agree with the submissions made by the learned counsel for the petitioner. The entire sub- stratum of the notices issued under section 148 of the said Act is that the petitioner’s product namely PET bottles fall within the negative list stipulated in serial No. 20 of the 13th schedule of the said Act. We have noted the arguments of the learned counsel for the petitioner that the product manufactured by them falls under 3923.30.90 of the Central Excise Classification which is not within the range of products specified in serial No.20 of the 13th schedule of the said Act, that is, within headings 39.09 to 39.15. Therefore clearly, the submission of the learned counsel for the petitioner is correct. The petitioner’s product does not fall within the negative list stipulated in the 13th schedule of the said Act. If that be the case, then, the answer given by the petitioner in serial No. 14(ii)(e) of form 10 CCB filed along with the return is not wrong, false or inaccurate. Therefore, the petitioner cannot be held to have failed to fully and truly disclose all material facts necessary for its assessment.\n 10. Insofar as the other assessment years are concerned where the issue of limitation of four years does not arise, the position would not be any different.\n This would be so because on a reasonable interpretation of the provisions of section 80-IC(2) read with serial No. 20 of the 13th schedule of the said Act read with the first schedule to the Central Excise Tariff Act, 1985, it would be clear that the petitioner’s product does not fall within the negative list and therefore the petitioner had rightly claimed deduction under section 80-IC of the said Act which the assessing officer in the years in which the assessment had been completed under section 143(3) had allowed after examining the necessary evidence. Even in respect of the year in which there was no assessment order under section 143(3), that is, the assessment year 2007-08, we feel that the same cannot be re-opened because no reasonable person can be attributed with any reason to believe that income had escaped assessment when the petitioner’s product clearly does not fall within the negative list. Thus, in view of the established facts in this case, the assessing officer could not even have taken the prima facie view that there were reasons to believe that income had escaped assessment. Consequently, we feel that, in the facts and circumstances of this case, the issuance of notices under section 148 of the said Act was not warranted. The said notices are quashed and all proceedings pursuant thereto are also quashed.\n 11. The writ petitions are allowed. All pending applications also stand disposed of. There shall be no orders as to costs.\n BADAR DURREZ AHMED, J R.V.EASWAR, J FEBRUARY 18, 2013 kb "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "6256bd0ca26e48cab323f9d8eb5ea605",
"to_name": null,
"type": null,
"value": {
"end": 44,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nBHABA NANDA SARMA & ORS.\n\n Vs."
}
},
{
"from_name": null,
"id": "cb7dbf7871894a18b9bd60c4b37266e8",
"to_name": null,
"type": null,
"value": {
"end": 104,
"labels": [
"PREAMBLE"
],
"start": 44,
"text": "\n\nRESPONDENT:\nTHE STATE OF ASSAM\n\nDATE OF JUDGMENT12/10/1977"
}
},
{
"from_name": null,
"id": "19e38d56bdb145e5b783847d077ea4e4",
"to_name": null,
"type": null,
"value": {
"end": 956,
"labels": [
"PREAMBLE"
],
"start": 104,
"text": "\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nGOSWAMI, P.K.\nDESAI, D.A.\n\nCITATION:\n\n1977 AIR 2252 1978 SCR (1) 714\n (11)\n1977 SCC (4) 396\n\nCITATOR INFO :\n\nR 1988 SC 863\n\nACT:\nIndian Penal Code, S. 34 vis-a-vis s. 38-Assault by common\nintention to cause injury likely to result in death-\nDevelopment of further common intention among some\nassailants to commit murder-Liability for murder whether\nshared by all participants under s. 34.\n\nHEADNOTE:\nThe three appellants assaulted deceased Shashi Mohan with\nthe common intention to cause injury likely to result in his\ndeath, but during the assault, two of them developed a\nfurther common intention of murdering him. The sessions\nCourt tried the appellants for charges u/ss. 302/34 and ss.\n323 /34 I.P.C. but giving them the benefit of doubt,\nacquitted them."
}
},
{
"from_name": null,
"id": "8f0eebf214754177afd7c4b4fe2f9479",
"to_name": null,
"type": null,
"value": {
"end": 1080,
"labels": [
"PREAMBLE"
],
"start": 957,
"text": "In a State appeal, the High Court set aside\nthe acquittal order, and convicted all the assailants\nsentencing them for life."
}
},
{
"from_name": null,
"id": "a30fb77a57ba4c949912b06c39b5e93d",
"to_name": null,
"type": null,
"value": {
"end": 1280,
"labels": [
"PREAMBLE"
],
"start": 1080,
"text": "\nThis Court considered the question whether the conviction of\nall the three appellants u/s. 302 with aid of s. 34 I.P.C.\nwas justified in law, and partly allowing only the appeal of\nBhaba Nanda Sarma."
}
},
{
"from_name": null,
"id": "4fc4ac1c6f24454f81c3d982de111dbf",
"to_name": null,
"type": null,
"value": {
"end": 1420,
"labels": [
"PREAMBLE"
],
"start": 1280,
"text": "\nHELD :-Applying the principle of law under s. 38 of the\nPenal Code, the case of Bhaba Nanda can be separated from\nthat of his two brothers."
}
},
{
"from_name": null,
"id": "98594eb474394f3592393cd84b60ea73",
"to_name": null,
"type": null,
"value": {
"end": 1671,
"labels": [
"PREAMBLE"
],
"start": 1421,
"text": "He shared their common intention\nto assault, with the knowledge that it was likely to result\nin death but while committing the act in furtherance of that\ncommon intention, the other two developed and shared the\ncommon intention of causing the murder."
}
},
{
"from_name": null,
"id": "143e78527b9d4bd9a463fdd375442790",
"to_name": null,
"type": null,
"value": {
"end": 1834,
"labels": [
"PREAMBLE"
],
"start": 1672,
"text": "Bhaba Nanda can,\ntherefore, be held guilty only u/s. 304 Part 11 while the\nother two appellants are liable for the murder with the aid\nof s. 34 of the Penal Code."
}
},
{
"from_name": null,
"id": "770e9adcfa9e4a4bb86e240e2d46b476",
"to_name": null,
"type": null,
"value": {
"end": 1945,
"labels": [
"PREAMBLE"
],
"start": 1835,
"text": "[717 G-H, 718 A-B]\nAfrahim Sheikh and Ors. v. State of West Bengal [1964] 6\nS.C.R. 172 referred to.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "869363d6639f464199d18902b7615c7e",
"to_name": null,
"type": null,
"value": {
"end": 2169,
"labels": [
"NONE"
],
"start": 1945,
"text": "\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of 1972.\n Appeal by Special Leave from the Judgment and Order dated the 24-11-1971 of the Assam and Nagaland High Court at Gauhati in Criminal Appeal No. 20 of 1968."
}
},
{
"from_name": null,
"id": "38cda863006e46ed9f391e8d12580a8a",
"to_name": null,
"type": null,
"value": {
"end": 2201,
"labels": [
"NONE"
],
"start": 2169,
"text": "\nS. K. Nandy for the Appellants."
}
},
{
"from_name": null,
"id": "e0e440739bf44d809edc9bcfe92731fe",
"to_name": null,
"type": null,
"value": {
"end": 2237,
"labels": [
"NONE"
],
"start": 2201,
"text": "\nS. N. Choudhary for the Respondent."
}
},
{
"from_name": null,
"id": "b0d21f61f8bc4b3fa7e720f687f252f3",
"to_name": null,
"type": null,
"value": {
"end": 2293,
"labels": [
"NONE"
],
"start": 2237,
"text": "\nThe Judgment of the Court was delivered by UNTWALIA, J."
}
},
{
"from_name": null,
"id": "b09e52fbdc8641099be16feca56f3f92",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"FAC"
],
"start": 2293,
"text": "-This is an appeal under section 2 (a) of the Supreme Court (,Enlargement of Criminal Appellate Jurisdiction) Act, 1970 by three persons who are brothers."
}
},
{
"from_name": null,
"id": "c7e3b3318f8a452d8dbec54e30639fe7",
"to_name": null,
"type": null,
"value": {
"end": 2558,
"labels": [
"FAC"
],
"start": 2447,
"text": "\nOn the 10th of November, 1967 at about 7.00 A. M. an occurrence took place in a village near Barpeta in Assam."
}
},
{
"from_name": null,
"id": "94ccf11ef4ed45eab00eeb454a53730e",
"to_name": null,
"type": null,
"value": {
"end": 2797,
"labels": [
"FAC"
],
"start": 2558,
"text": "\nThe prosecution case was that Shashi-Mohan Sarma, a person who lost his life as a result of the assault on him', in the company of his elder brother Gopi Nath Sarma, P.W. 2, was proceeding to his field with some mustard seeds in a basket."
}
},
{
"from_name": null,
"id": "5eb1b35a5239494582068644b3b3f8de",
"to_name": null,
"type": null,
"value": {
"end": 2863,
"labels": [
"FAC"
],
"start": 2798,
"text": "Gopi Nath was going with some cattle to tether them in the field."
}
},
{
"from_name": null,
"id": "37a986a4c13f4f838d67c318f90e5a6e",
"to_name": null,
"type": null,
"value": {
"end": 3204,
"labels": [
"FAC"
],
"start": 2864,
"text": "When they proceeded to some distance Shashi Mohan was chased by the three appellants, appellant Bhaba Nanda Sarma who was aged about 20 years at the time of the occur-rence was armed with a lathi, appellant Phanidhar Sarma had a dolibari (a wooden hammer with along handle) and appellant Harendra Nath Sarma carried an iron rod in his hand."
}
},
{
"from_name": null,
"id": "1b30a29f2d45487eac8ef62a662a6192",
"to_name": null,
"type": null,
"value": {
"end": 3234,
"labels": [
"FAC"
],
"start": 3205,
"text": "They all chased Shashi Mohan."
}
},
{
"from_name": null,
"id": "4a3ac6df6f2b437f9f1b530bcd2c6b4b",
"to_name": null,
"type": null,
"value": {
"end": 3296,
"labels": [
"FAC"
],
"start": 3235,
"text": "Shashi Mohan ran towards his brother Gopi Nath raising alarm."
}
},
{
"from_name": null,
"id": "d9a596e88e2843edb8b8b5fe91574590",
"to_name": null,
"type": null,
"value": {
"end": 3367,
"labels": [
"FAC"
],
"start": 3297,
"text": "Bhaba Nanda caught hold of both the hands of Shashi Mohan from behind."
}
},
{
"from_name": null,
"id": "8e8bef3aecf74cdab0e248d6005908a0",
"to_name": null,
"type": null,
"value": {
"end": 3435,
"labels": [
"FAC"
],
"start": 3368,
"text": "Thereupon, Phanidhar gave him a blow on his head with the dolibari."
}
},
{
"from_name": null,
"id": "90749278452c4acba6c6bcd881ab5fe3",
"to_name": null,
"type": null,
"value": {
"end": 3459,
"labels": [
"FAC"
],
"start": 3435,
"text": "\nShashi Mohan fell down."
}
},
{
"from_name": null,
"id": "b24c227306274b24824f8a679b0a3241",
"to_name": null,
"type": null,
"value": {
"end": 3557,
"labels": [
"FAC"
],
"start": 3460,
"text": "There-after Harendra struck Shashi Mohan on Ms head and other parts of as body with the iron rod."
}
},
{
"from_name": null,
"id": "bb606eeb44ad42699400d87246140131",
"to_name": null,
"type": null,
"value": {
"end": 3587,
"labels": [
"FAC"
],
"start": 3558,
"text": "Gopi Nath tried to intervene."
}
},
{
"from_name": null,
"id": "e309a7cf57af4e4381b2baafe974ead9",
"to_name": null,
"type": null,
"value": {
"end": 3688,
"labels": [
"FAC"
],
"start": 3588,
"text": "Bhaba Nanda caught hold of Gopi Nath also Harendra assaulted him with the iron rod causing injuries."
}
},
{
"from_name": null,
"id": "7d544601667849abbb96d7f940add161",
"to_name": null,
"type": null,
"value": {
"end": 3862,
"labels": [
"FAC"
],
"start": 3689,
"text": "Shashi Mohan was taken to the hospital where he died at about 3.00 A.M. on the 11th of November, 1967 as a result of severe injuries caused to him by Phanidhar and Harendra."
}
},
{
"from_name": null,
"id": "55e3887c9f674614a4e730cb34da134c",
"to_name": null,
"type": null,
"value": {
"end": 3925,
"labels": [
"FAC"
],
"start": 3863,
"text": "The injuries inflicted on Gopi Nath were all simple in nature."
}
},
{
"from_name": null,
"id": "9caf03adb0f64873918d52eb05036ec3",
"to_name": null,
"type": null,
"value": {
"end": 4153,
"labels": [
"FAC"
],
"start": 3926,
"text": "After charge-sheet by the police and committal by the Magistrate, the appellants were tried in the Sessions Court for charges under section 302 read with section 34 and section 323 read with section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "587e3544e72645ccb86606177847f064",
"to_name": null,
"type": null,
"value": {
"end": 4220,
"labels": [
"RLC"
],
"start": 4154,
"text": "The Trial Judge gave them the benefit of doubt and acquitted them."
}
},
{
"from_name": null,
"id": "cdb4dd78a31244f1bfae988ad82cbe32",
"to_name": null,
"type": null,
"value": {
"end": 4285,
"labels": [
"FAC"
],
"start": 4221,
"text": "The State of Assam filed an appeal in the High Court of Gauhati."
}
},
{
"from_name": null,
"id": "42af75efafdd4e9eb83e506ffd5d82e8",
"to_name": null,
"type": null,
"value": {
"end": 4493,
"labels": [
"RLC"
],
"start": 4286,
"text": "The High Court set aside the order of acquittal, convicted all the three appellants for the offence of murder of Shashi Mohan with the aid of section 34 and sentenced each of them to impri- sonment for life."
}
},
{
"from_name": null,
"id": "de9a099e21aa487d913bf23f299e5f0e",
"to_name": null,
"type": null,
"value": {
"end": 4623,
"labels": [
"FAC"
],
"start": 4494,
"text": "Their conviction under section 323 read with section 34 was also recorded by the High Court but no separate sentence was imposed."
}
},
{
"from_name": null,
"id": "369e19daba34456cb6e466ad9f30640f",
"to_name": null,
"type": null,
"value": {
"end": 4642,
"labels": [
"FAC"
],
"start": 4624,
"text": "Hence this appeal."
}
},
{
"from_name": null,
"id": "44f871d9ccc6487b995685ed6212920f",
"to_name": null,
"type": null,
"value": {
"end": 4769,
"labels": [
"ANALYSIS"
],
"start": 4642,
"text": "\nThe eye witnesses of the occurrence were P.W. 2 Gopi Nath Sarma; P.W. 3 Danesh Ali; P.W. 4 Nur Mohammad and P.W. 6 Kurpan Ali."
}
},
{
"from_name": null,
"id": "b7a946732cee4b478dceaa2e817a3707",
"to_name": null,
"type": null,
"value": {
"end": 4925,
"labels": [
"ANALYSIS"
],
"start": 4770,
"text": "The High Court in its judgment has catalogued the main five reasons which led the Sessions Judge to make an order of acquittal in favour of the appellants."
}
},
{
"from_name": null,
"id": "2cf28915a8a0451393d8eaff09b91b34",
"to_name": null,
"type": null,
"value": {
"end": 5055,
"labels": [
"ANALYSIS"
],
"start": 4926,
"text": "In our opinion the High Court was right in reversing the judgment of the Trial Judge and interfering with the order of acquittal."
}
},
{
"from_name": null,
"id": "093020c1ea7849fba39e2effa1a17d30",
"to_name": null,
"type": null,
"value": {
"end": 5163,
"labels": [
"ANALYSIS"
],
"start": 5056,
"text": "It did so well within the limits of its power and the law as enunciated by this Court in several decisions."
}
},
{
"from_name": null,
"id": "2a6bf5f3d9de47beaf4558ce940c3b09",
"to_name": null,
"type": null,
"value": {
"end": 5241,
"labels": [
"ANALYSIS"
],
"start": 5164,
"text": "The four reasons given by the learned Sessions Judge were of a flimsy nature."
}
},
{
"from_name": null,
"id": "6eac5dd7259e4d94959ce93159d609e1",
"to_name": null,
"type": null,
"value": {
"end": 5356,
"labels": [
"ANALYSIS"
],
"start": 5242,
"text": "It did not justify the entertaining of any doubt in regard to the prosecution story on the basis of these reasons."
}
},
{
"from_name": null,
"id": "66db7bd813a14d689a76b2de7fb47cb9",
"to_name": null,
"type": null,
"value": {
"end": 5494,
"labels": [
"ANALYSIS"
],
"start": 5357,
"text": "One of the five reasons was that the P.Ws did not state about the injuries of Bhaba Nanda and they were not explained by the prosecution."
}
},
{
"from_name": null,
"id": "3afbd753d2504301bf37ac369b75e087",
"to_name": null,
"type": null,
"value": {
"end": 5648,
"labels": [
"ANALYSIS"
],
"start": 5495,
"text": "In our opinion the High Court has rightly not attached much significanceto the alleged failure of the prosecution to explain the injuries on Bhaba Nanda."
}
},
{
"from_name": null,
"id": "e2227956cefe43b4bbbbadf23c8dd18a",
"to_name": null,
"type": null,
"value": {
"end": 5787,
"labels": [
"ANALYSIS"
],
"start": 5649,
"text": "The injuries on his person were of a very minor nature, three ofthem being ecchymosis and one swelling of the root of right index finger."
}
},
{
"from_name": null,
"id": "7fb1624be59842adba402e620aad8484",
"to_name": null,
"type": null,
"value": {
"end": 5915,
"labels": [
"ANALYSIS"
],
"start": 5788,
"text": "The evidence of the Doctor D.W. 1 was not sufficient to prove that theinjury on the right index finger was grievious in nature."
}
},
{
"from_name": null,
"id": "08818e8aad494fa6952246a735287c20",
"to_name": null,
"type": null,
"value": {
"end": 5971,
"labels": [
"ANALYSIS"
],
"start": 5916,
"text": "The ecchymosis inquiries however, were all very simple."
}
},
{
"from_name": null,
"id": "0fe737c597b643b48d7ec04973abccd7",
"to_name": null,
"type": null,
"value": {
"end": 6135,
"labels": [
"ANALYSIS"
],
"start": 5972,
"text": "Bhaba Nanda did not claim in his statement under section 342 of the Code of Criminal Procedure, 1898 as to with what weapon the injuries were caused on his person."
}
},
{
"from_name": null,
"id": "44d0342b157d4b9d815291d09058e326",
"to_name": null,
"type": null,
"value": {
"end": 6199,
"labels": [
"ANALYSIS"
],
"start": 6136,
"text": "He merely said that Gopinath and Shashi gave blows on his back."
}
},
{
"from_name": null,
"id": "e18807f32be34cd0baf9bc2b5bfd9994",
"to_name": null,
"type": null,
"value": {
"end": 6294,
"labels": [
"ANALYSIS"
],
"start": 6200,
"text": "He did not attribute the right index finger injury as having been caused by either of the two."
}
},
{
"from_name": null,
"id": "60bee44f876c4d758f167dc1ce3887f0",
"to_name": null,
"type": null,
"value": {
"end": 6373,
"labels": [
"ANALYSIS"
],
"start": 6295,
"text": "No defence witness was examined to give any counter version of the occurrence."
}
},
{
"from_name": null,
"id": "91a462e8bc584f238134950bfa4de58e",
"to_name": null,
"type": null,
"value": {
"end": 6523,
"labels": [
"ANALYSIS"
],
"start": 6374,
"text": "Bhaba Nanda did not show his injuries to the Investigating Officer, as is apparent from his evidence, when he arrested him soon after the occurrence."
}
},
{
"from_name": null,
"id": "f6a58a4188fb4482898da05cc2c3bbff",
"to_name": null,
"type": null,
"value": {
"end": 6614,
"labels": [
"ANALYSIS"
],
"start": 6524,
"text": "No counter information 9-951 SCI/77 was lodged with the police nor any counter case filed."
}
},
{
"from_name": null,
"id": "e4471266f4c7497592be30e6e6c8b926",
"to_name": null,
"type": null,
"value": {
"end": 7004,
"labels": [
"ANALYSIS"
],
"start": 6615,
"text": "In a case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured."
}
},
{
"from_name": null,
"id": "2e428dfdc40f4907b6d387267ea95da9",
"to_name": null,
"type": null,
"value": {
"end": 7140,
"labels": [
"ANALYSIS"
],
"start": 7005,
"text": "The prosecution is not obliged to explain the injuries oil the personof an accused in all cases and in all circumstances."
}
},
{
"from_name": null,
"id": "5c5b45ae7b734eafa1f9f41d594c1520",
"to_name": null,
"type": null,
"value": {
"end": 7166,
"labels": [
"ANALYSIS"
],
"start": 7141,
"text": " This is not thelaw."
}
},
{
"from_name": null,
"id": "dcfb4c83474d40b0adbdf5f15ba413c3",
"to_name": null,
"type": null,
"value": {
"end": 7339,
"labels": [
"ANALYSIS"
],
"start": 7167,
"text": "It all depends upon the facts and circumstances of each casewhether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused."
}
},
{
"from_name": null,
"id": "6d6fc4376eb943c5b7d241d3d352a9bf",
"to_name": null,
"type": null,
"value": {
"end": 7509,
"labels": [
"ANALYSIS"
],
"start": 7340,
"text": "In the instant case the Sessions Judge was not justified in doubting the truth of the version given by the eye witnesses-three of whom were wholly independent witnesses."
}
},
{
"from_name": null,
"id": "5e571fc13051439ab49ceb590c2dfebd",
"to_name": null,
"type": null,
"value": {
"end": 7635,
"labels": [
"ANALYSIS"
],
"start": 7509,
"text": "\n Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction."
}
},
{
"from_name": null,
"id": "29d2e91d398f40ca94a708f2e3182745",
"to_name": null,
"type": null,
"value": {
"end": 7707,
"labels": [
"ANALYSIS"
],
"start": 7636,
"text": "The High Court has rightly believed the testimony of the eye witnesses."
}
},
{
"from_name": null,
"id": "9a5d45621a9546648057805d481438d1",
"to_name": null,
"type": null,
"value": {
"end": 7890,
"labels": [
"ISSUE"
],
"start": 7707,
"text": "\n The question for consideration, however, is whether the conviction of all the three appellants under section 302 with the aid of section, 34 of the Penal Code is justified in law.\n "
}
},
{
"from_name": null,
"id": "e4f09a70e8e74df78a3b08c08034865e",
"to_name": null,
"type": null,
"value": {
"end": 8077,
"labels": [
"ANALYSIS"
],
"start": 7890,
"text": "To attract the application of section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all."
}
},
{
"from_name": null,
"id": "8632918802db4908a29ad3eb1333ff9d",
"to_name": null,
"type": null,
"value": {
"end": 8310,
"labels": [
"ANALYSIS"
],
"start": 8078,
"text": "In other words, the prosecution must prove facts to justify an inference that all the partici- pants of the act bad shared a common intention to commit the criminal act which was finally committed by one or more of the participants."
}
},
{
"from_name": null,
"id": "637ef37e754e41ddbc53572d0318846f",
"to_name": null,
"type": null,
"value": {
"end": 8497,
"labels": [
"STA"
],
"start": 8311,
"text": "Section 38 of the 'Penal Code says :- \"Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that Act.\""
}
},
{
"from_name": null,
"id": "9eba4a0164a94734a04e29de8799b2c8",
"to_name": null,
"type": null,
"value": {
"end": 8877,
"labels": [
"PRE_RELIED"
],
"start": 8499,
"text": "In Afrahim Sheikh and others v. State of West Bengal(1) Hidayatullah J. as he then was, has pointed out that it was possible to apply the ingredients of section 34 in relation to the commission of an offence tinder section 304 Part II, even though death is caused with the knowledge of the persons participating in the occurrence that by their act death was likely to be caused."
}
},
{
"from_name": null,
"id": "cf44572da94944c4b3aac5e650ce4063",
"to_name": null,
"type": null,
"value": {
"end": 9011,
"labels": [
"PRE_RELIED"
],
"start": 8878,
"text": "The sharing of the common intention, as pointed out in that case, is the commission of the act or acts by which death was occasioned."
}
},
{
"from_name": null,
"id": "78743c7eef5346248b5aa5e37b861a26",
"to_name": null,
"type": null,
"value": {
"end": 9157,
"labels": [
"PRE_RELIED"
],
"start": 9012,
"text": "With reference to section 38, the learned Judge observed at page 178 : \"That is to say, even though several persons may do a single criminal act."
}
},
{
"from_name": null,
"id": "312f84c7993249dd97c85b420e2768b3",
"to_name": null,
"type": null,
"value": {
"end": 9233,
"labels": [
"PRE_RELIED"
],
"start": 9158,
"text": "the responsibility may vary according to the degree of their participation."
}
},
{
"from_name": null,
"id": "46c897d505f04afc93742bb78d5da1bd",
"to_name": null,
"type": null,
"value": {
"end": 9304,
"labels": [
"PRE_RELIED"
],
"start": 9234,
"text": " The illustration which is given clearly brings out that point."
}
},
{
"from_name": null,
"id": "67ca7dc4285144c9a50d72c822d2d6e9",
"to_name": null,
"type": null,
"value": {
"end": 9604,
"labels": [
"PRE_RELIED"
],
"start": 9304,
"text": "\n lastly section 38 provide., that the responsibility for the corn pleted criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.\""
}
},
{
"from_name": null,
"id": "aa1ed2e5a1554eabbd54ab1c4adfed83",
"to_name": null,
"type": null,
"value": {
"end": 9775,
"labels": [
"PRE_RELIED"
],
"start": 9604,
"text": "\n (1)[1964] 6 S.C.R. 172.\n The injuries found on the person of the deceased by P. W. 5 Dr. S. Kalita, who held the autopsy over the dead body were of a very severe nature."
}
},
{
"from_name": null,
"id": "26ad54fe726747b08d906a23a7f4f9f4",
"to_name": null,
"type": null,
"value": {
"end": 9838,
"labels": [
"ANALYSIS"
],
"start": 9776,
"text": "The fatal injuries in particular were the three head injuries."
}
},
{
"from_name": null,
"id": "2427061497a146dab9c1a1956e901a62",
"to_name": null,
"type": null,
"value": {
"end": 10003,
"labels": [
"ANALYSIS"
],
"start": 9839,
"text": "According to the consistent version of the prosecution-one was caused by Phanidhar with the dolibari and the other two were inflicted by Harendra with the iron rod."
}
},
{
"from_name": null,
"id": "d532584640194dedac9ef5e10b2585a7",
"to_name": null,
"type": null,
"value": {
"end": 10096,
"labels": [
"ANALYSIS"
],
"start": 10004,
"text": "Harendra is also said to have caused the other injuries found on the person of Shashi Mohan."
}
},
{
"from_name": null,
"id": "9652746aaf1f4fcab9902cdacc139bbf",
"to_name": null,
"type": null,
"value": {
"end": 10239,
"labels": [
"ANALYSIS"
],
"start": 10097,
"text": "The result of the three head injuries was fracture of the occipital bone into six pieces and fracture of the right parietal bone 2\" in length."
}
},
{
"from_name": null,
"id": "665ad0b73c6b4640ac2377ea1224732f",
"to_name": null,
"type": null,
"value": {
"end": 10381,
"labels": [
"ANALYSIS"
],
"start": 10240,
"text": "In the opinion of the Doctor the death was due to coma as a result of intracranial hemorrhage caused by the injuries sustained by the victim."
}
},
{
"from_name": null,
"id": "838df5f742f3461a8ea7f1ee213087a6",
"to_name": null,
"type": null,
"value": {
"end": 10625,
"labels": [
"ANALYSIS"
],
"start": 10381,
"text": "\n The two authors of the injuries, namely, Phanidhar and Harendra, therefore, undoubtedly had shared the common intention of causing such bodily injuries to Shashi Mohan which were sufficient in the ordinary course of nature to cause his death."
}
},
{
"from_name": null,
"id": "f1a12f2719db4a96baaecb37f14ecb35",
"to_name": null,
"type": null,
"value": {
"end": 10767,
"labels": [
"ANALYSIS"
],
"start": 10626,
"text": "In other words, his death was as a result of the criminal acts committed by the said two appellants in furtherance of their common intention."
}
},
{
"from_name": null,
"id": "5acccef5f2884356b898067ae8cc538d",
"to_name": null,
"type": null,
"value": {
"end": 10803,
"labels": [
"ANALYSIS"
],
"start": 10768,
"text": "There cannot be any doubt about it."
}
},
{
"from_name": null,
"id": "53cae59ddaf046bca1511aa09c3aea9a",
"to_name": null,
"type": null,
"value": {
"end": 10917,
"labels": [
"ANALYSIS"
],
"start": 10804,
"text": "Their liability for the murder of Shashi Mohan with the aid of section 34 of the Penal Code is fully established."
}
},
{
"from_name": null,
"id": "71be0e06a3aa473b87e55988d9aeaf35",
"to_name": null,
"type": null,
"value": {
"end": 11053,
"labels": [
"ANALYSIS"
],
"start": 10918,
"text": "The case of Bhaba Nanda, however, stands on a different footing and can justifiably be separated from that of the other two appellants."
}
},
{
"from_name": null,
"id": "e781b8abc2664c6c9bddaa19f2febb72",
"to_name": null,
"type": null,
"value": {
"end": 11121,
"labels": [
"ANALYSIS"
],
"start": 11053,
"text": "\n On the evidence of Gopi Nath himself the result aforesaid follows."
}
},
{
"from_name": null,
"id": "cd812f8158344c02837e7defdc9e3cbc",
"to_name": null,
"type": null,
"value": {
"end": 11258,
"labels": [
"ANALYSIS"
],
"start": 11122,
"text": "Shashi Mohan had reached near him and when he tried to obstruct the accused and prevent them from committing the assault on Shashi Mohan"
}
},
{
"from_name": null,
"id": "6bcd7699e7444f18b110ad8f2eaae051",
"to_name": null,
"type": null,
"value": {
"end": 11318,
"labels": [
"ANALYSIS"
],
"start": 11259,
"text": "Harendra said \"we have met enemy today, need not be freed\"."
}
},
{
"from_name": null,
"id": "8848c65c416f4ae3aa66cffa882440e6",
"to_name": null,
"type": null,
"value": {
"end": 11394,
"labels": [
"ANALYSIS"
],
"start": 11319,
"text": "Thereupon Bhaba Nanda caught hold of-the hands of Shashi Mohan from behind."
}
},
{
"from_name": null,
"id": "409360ee490e4d5cb2c2ea6ab8c2b570",
"to_name": null,
"type": null,
"value": {
"end": 11479,
"labels": [
"ANALYSIS"
],
"start": 11394,
"text": "\n Phanidhar then gave him the blow on the head, as already stated, with the dolibari."
}
},
{
"from_name": null,
"id": "d31b5ba8236d4093af856cd3aabf9dea",
"to_name": null,
"type": null,
"value": {
"end": 11571,
"labels": [
"ANALYSIS"
],
"start": 11480,
"text": "Harendra gave further blows on his head and other parts of his body after Shashi fell down."
}
},
{
"from_name": null,
"id": "4271c9193ba84472af2965992c5a42d4",
"to_name": null,
"type": null,
"value": {
"end": 11754,
"labels": [
"ANALYSIS"
],
"start": 11571,
"text": "\n On these facts it is difficult to conclude that Bhaba Nanda caught hold of the hands of Shashi sharing the common intention of Phanidhar and Harendra of causing the death of Shashi."
}
},
{
"from_name": null,
"id": "55cf2932f81e4cbdbabbe6a1fe0ee2e2",
"to_name": null,
"type": null,
"value": {
"end": 11817,
"labels": [
"ANALYSIS"
],
"start": 11755,
"text": "He did not utter a word which would justify such a conclusion."
}
},
{
"from_name": null,
"id": "7d1b9409ec344c4e96d87b1a8fd4b5ce",
"to_name": null,
"type": null,
"value": {
"end": 11960,
"labels": [
"ANALYSIS"
],
"start": 11818,
"text": "He must be aware that his two elder brothers Phanidhar and Harendra were going to assault Shashi with their respective weapons in their hands."
}
},
{
"from_name": null,
"id": "698e98e63bc849c7b3864c447edeafe4",
"to_name": null,
"type": null,
"value": {
"end": 12030,
"labels": [
"ANALYSIS"
],
"start": 11961,
"text": "Bhaba Nanda did not use his lathi for causing any injuries on Shashi."
}
},
{
"from_name": null,
"id": "ceeae6723cd84215a40795c11fea3f69",
"to_name": null,
"type": null,
"value": {
"end": 12069,
"labels": [
"ANALYSIS"
],
"start": 12031,
"text": "The first blow was given by Phanidhar."
}
},
{
"from_name": null,
"id": "2b2dcfd0bf4d4fcfbf29325e105304db",
"to_name": null,
"type": null,
"value": {
"end": 12097,
"labels": [
"ANALYSIS"
],
"start": 12070,
"text": "Thereupon Shashi fell down."
}
},
{
"from_name": null,
"id": "e1bef83b1bff476c897fb0bbe08d7324",
"to_name": null,
"type": null,
"value": {
"end": 12359,
"labels": [
"ANALYSIS"
],
"start": 12098,
"text": "Bhaba Nanda's intention, therefore, was to join in the commission of the acts by the other two with the intention of getting Shashi assaulted severely with the knowledge that such an assault in all probability and likelihood might result in the death of Shashi."
}
},
{
"from_name": null,
"id": "014c6d71e63d4fa7be8b9d28ca88ea79",
"to_name": null,
"type": null,
"value": {
"end": 12493,
"labels": [
"ANALYSIS"
],
"start": 12360,
"text": "His participation in the crime, therefore, did not take him to the extent of the sharing of the common intention to cause his murder."
}
},
{
"from_name": null,
"id": "ccae3293666442dcaf8e6c8e8d26f2af",
"to_name": null,
"type": null,
"value": {
"end": 12767,
"labels": [
"ANALYSIS"
],
"start": 12494,
"text": "As we have said above, Phanidhar and Harendra undoubtedly shared such an intention as is apparent from the manner of assault by them on Shashi and the severity and force with which the blows were given on his bead by both of them with the respective weapons in their hands."
}
},
{
"from_name": null,
"id": "5f457bb02be14814ad74c0b77d5db500",
"to_name": null,
"type": null,
"value": {
"end": 12913,
"labels": [
"ANALYSIS"
],
"start": 12768,
"text": "Applying the principle of law under section 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two."
}
},
{
"from_name": null,
"id": "6cc93468942048af93a4f2b3da481a8b",
"to_name": null,
"type": null,
"value": {
"end": 13107,
"labels": [
"ANALYSIS"
],
"start": 12914,
"text": "He can be held guilty only under section 304 Part II as he bad intentionally joined in the commission of ,an act with the knowledge that the assault on Shashi was likely to result in his death."
}
},
{
"from_name": null,
"id": "1f18c5508d764828abb4f1df80df7823",
"to_name": null,
"type": null,
"value": {
"end": 13262,
"labels": [
"RATIO"
],
"start": 13108,
"text": "The facts of this case indicate that Bhaba Nanda shared the common intention of his other two brothers for the commission of a lesser offence than murder."
}
},
{
"from_name": null,
"id": "a548709c1f1049468a35a4496cf117d4",
"to_name": null,
"type": null,
"value": {
"end": 13420,
"labels": [
"RATIO"
],
"start": 13263,
"text": "But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder."
}
},
{
"from_name": null,
"id": "3327080361be4215873c9b6d306ffebf",
"to_name": null,
"type": null,
"value": {
"end": 13513,
"labels": [
"RPC"
],
"start": 13420,
"text": "\n For the reasons stated above, the appeal of appellants Phanidhar and Harendra is dismissed."
}
},
{
"from_name": null,
"id": "5042e03c7f5a453d8f0d620fbaa2248c",
"to_name": null,
"type": null,
"value": {
"end": 13558,
"labels": [
"RPC"
],
"start": 13514,
"text": "The appeal of Bhaba Nanda is partly allowed."
}
},
{
"from_name": null,
"id": "c8c90ca879d5430fa35eab46c61f3bf2",
"to_name": null,
"type": null,
"value": {
"end": 13652,
"labels": [
"RPC"
],
"start": 13559,
"text": "His conviction is altered from sections 302/34 to section 304 Part 11 read with section 34.\n "
}
},
{
"from_name": null,
"id": "b6f53a0ed6404b429d7fc319fb4aef50",
"to_name": null,
"type": null,
"value": {
"end": 13754,
"labels": [
"RPC"
],
"start": 13652,
"text": "The sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years only."
}
},
{
"from_name": null,
"id": "ffdfc958e95a48f2bd9d4475c35762fc",
"to_name": null,
"type": null,
"value": {
"end": 13835,
"labels": [
"RPC"
],
"start": 13755,
"text": "The conviction of all the appellants under sections 323/34 is also main- tained."
}
},
{
"from_name": null,
"id": "fe0e38bcd565486fabd6d920cbfa8bce",
"to_name": null,
"type": null,
"value": {
"end": 13881,
"labels": [
"RPC"
],
"start": 13835,
"text": "\n M.R. Appeal allowed in part."
}
}
]
}
] | 4,103 | {
"text": "PETITIONER:\nBHABA NANDA SARMA & ORS.\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF ASSAM\n\nDATE OF JUDGMENT12/10/1977\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nGOSWAMI, P.K.\nDESAI, D.A.\n\nCITATION:\n\n1977 AIR 2252 1978 SCR (1) 714\n (11)\n1977 SCC (4) 396\n\nCITATOR INFO :\n\nR 1988 SC 863\n\nACT:\nIndian Penal Code, S. 34 vis-a-vis s. 38-Assault by common\nintention to cause injury likely to result in death-\nDevelopment of further common intention among some\nassailants to commit murder-Liability for murder whether\nshared by all participants under s. 34.\n\nHEADNOTE:\nThe three appellants assaulted deceased Shashi Mohan with\nthe common intention to cause injury likely to result in his\ndeath, but during the assault, two of them developed a\nfurther common intention of murdering him. The sessions\nCourt tried the appellants for charges u/ss. 302/34 and ss.\n323 /34 I.P.C. but giving them the benefit of doubt,\nacquitted them. In a State appeal, the High Court set aside\nthe acquittal order, and convicted all the assailants\nsentencing them for life.\nThis Court considered the question whether the conviction of\nall the three appellants u/s. 302 with aid of s. 34 I.P.C.\nwas justified in law, and partly allowing only the appeal of\nBhaba Nanda Sarma.\nHELD :-Applying the principle of law under s. 38 of the\nPenal Code, the case of Bhaba Nanda can be separated from\nthat of his two brothers. He shared their common intention\nto assault, with the knowledge that it was likely to result\nin death but while committing the act in furtherance of that\ncommon intention, the other two developed and shared the\ncommon intention of causing the murder. Bhaba Nanda can,\ntherefore, be held guilty only u/s. 304 Part 11 while the\nother two appellants are liable for the murder with the aid\nof s. 34 of the Penal Code. [717 G-H, 718 A-B]\nAfrahim Sheikh and Ors. v. State of West Bengal [1964] 6\nS.C.R. 172 referred to.\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of 1972.\n Appeal by Special Leave from the Judgment and Order dated the 24-11-1971 of the Assam and Nagaland High Court at Gauhati in Criminal Appeal No. 20 of 1968.\nS. K. Nandy for the Appellants.\nS. N. Choudhary for the Respondent.\nThe Judgment of the Court was delivered by UNTWALIA, J.-This is an appeal under section 2 (a) of the Supreme Court (,Enlargement of Criminal Appellate Jurisdiction) Act, 1970 by three persons who are brothers.\nOn the 10th of November, 1967 at about 7.00 A. M. an occurrence took place in a village near Barpeta in Assam.\nThe prosecution case was that Shashi-Mohan Sarma, a person who lost his life as a result of the assault on him', in the company of his elder brother Gopi Nath Sarma, P.W. 2, was proceeding to his field with some mustard seeds in a basket. Gopi Nath was going with some cattle to tether them in the field. When they proceeded to some distance Shashi Mohan was chased by the three appellants, appellant Bhaba Nanda Sarma who was aged about 20 years at the time of the occur-rence was armed with a lathi, appellant Phanidhar Sarma had a dolibari (a wooden hammer with along handle) and appellant Harendra Nath Sarma carried an iron rod in his hand. They all chased Shashi Mohan. Shashi Mohan ran towards his brother Gopi Nath raising alarm. Bhaba Nanda caught hold of both the hands of Shashi Mohan from behind. Thereupon, Phanidhar gave him a blow on his head with the dolibari.\nShashi Mohan fell down. There-after Harendra struck Shashi Mohan on Ms head and other parts of as body with the iron rod. Gopi Nath tried to intervene. Bhaba Nanda caught hold of Gopi Nath also Harendra assaulted him with the iron rod causing injuries. Shashi Mohan was taken to the hospital where he died at about 3.00 A.M. on the 11th of November, 1967 as a result of severe injuries caused to him by Phanidhar and Harendra. The injuries inflicted on Gopi Nath were all simple in nature. After charge-sheet by the police and committal by the Magistrate, the appellants were tried in the Sessions Court for charges under section 302 read with section 34 and section 323 read with section 34 of the Indian Penal Code. The Trial Judge gave them the benefit of doubt and acquitted them. The State of Assam filed an appeal in the High Court of Gauhati. The High Court set aside the order of acquittal, convicted all the three appellants for the offence of murder of Shashi Mohan with the aid of section 34 and sentenced each of them to impri- sonment for life. Their conviction under section 323 read with section 34 was also recorded by the High Court but no separate sentence was imposed. Hence this appeal.\nThe eye witnesses of the occurrence were P.W. 2 Gopi Nath Sarma; P.W. 3 Danesh Ali; P.W. 4 Nur Mohammad and P.W. 6 Kurpan Ali. The High Court in its judgment has catalogued the main five reasons which led the Sessions Judge to make an order of acquittal in favour of the appellants. In our opinion the High Court was right in reversing the judgment of the Trial Judge and interfering with the order of acquittal. It did so well within the limits of its power and the law as enunciated by this Court in several decisions. The four reasons given by the learned Sessions Judge were of a flimsy nature. It did not justify the entertaining of any doubt in regard to the prosecution story on the basis of these reasons. One of the five reasons was that the P.Ws did not state about the injuries of Bhaba Nanda and they were not explained by the prosecution. In our opinion the High Court has rightly not attached much significanceto the alleged failure of the prosecution to explain the injuries on Bhaba Nanda. The injuries on his person were of a very minor nature, three ofthem being ecchymosis and one swelling of the root of right index finger. The evidence of the Doctor D.W. 1 was not sufficient to prove that theinjury on the right index finger was grievious in nature. The ecchymosis inquiries however, were all very simple. Bhaba Nanda did not claim in his statement under section 342 of the Code of Criminal Procedure, 1898 as to with what weapon the injuries were caused on his person. He merely said that Gopinath and Shashi gave blows on his back. He did not attribute the right index finger injury as having been caused by either of the two. No defence witness was examined to give any counter version of the occurrence. Bhaba Nanda did not show his injuries to the Investigating Officer, as is apparent from his evidence, when he arrested him soon after the occurrence. No counter information 9-951 SCI/77 was lodged with the police nor any counter case filed. In a case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries oil the personof an accused in all cases and in all circumstances. This is not thelaw. It all depends upon the facts and circumstances of each casewhether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. In the instant case the Sessions Judge was not justified in doubting the truth of the version given by the eye witnesses-three of whom were wholly independent witnesses.\n Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eye witnesses.\n The question for consideration, however, is whether the conviction of all the three appellants under section 302 with the aid of section, 34 of the Penal Code is justified in law.\n To attract the application of section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inference that all the partici- pants of the act bad shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Section 38 of the 'Penal Code says :- \"Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that Act.\"\n In Afrahim Sheikh and others v. State of West Bengal(1) Hidayatullah J. as he then was, has pointed out that it was possible to apply the ingredients of section 34 in relation to the commission of an offence tinder section 304 Part II, even though death is caused with the knowledge of the persons participating in the occurrence that by their act death was likely to be caused. The sharing of the common intention, as pointed out in that case, is the commission of the act or acts by which death was occasioned. With reference to section 38, the learned Judge observed at page 178 : \"That is to say, even though several persons may do a single criminal act. the responsibility may vary according to the degree of their participation. The illustration which is given clearly brings out that point.\n lastly section 38 provide., that the responsibility for the corn pleted criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.\"\n (1)[1964] 6 S.C.R. 172.\n The injuries found on the person of the deceased by P. W. 5 Dr. S. Kalita, who held the autopsy over the dead body were of a very severe nature. The fatal injuries in particular were the three head injuries. According to the consistent version of the prosecution-one was caused by Phanidhar with the dolibari and the other two were inflicted by Harendra with the iron rod. Harendra is also said to have caused the other injuries found on the person of Shashi Mohan. The result of the three head injuries was fracture of the occipital bone into six pieces and fracture of the right parietal bone 2\" in length. In the opinion of the Doctor the death was due to coma as a result of intracranial hemorrhage caused by the injuries sustained by the victim.\n The two authors of the injuries, namely, Phanidhar and Harendra, therefore, undoubtedly had shared the common intention of causing such bodily injuries to Shashi Mohan which were sufficient in the ordinary course of nature to cause his death. In other words, his death was as a result of the criminal acts committed by the said two appellants in furtherance of their common intention. There cannot be any doubt about it. Their liability for the murder of Shashi Mohan with the aid of section 34 of the Penal Code is fully established. The case of Bhaba Nanda, however, stands on a different footing and can justifiably be separated from that of the other two appellants.\n On the evidence of Gopi Nath himself the result aforesaid follows. Shashi Mohan had reached near him and when he tried to obstruct the accused and prevent them from committing the assault on Shashi Mohan Harendra said \"we have met enemy today, need not be freed\". Thereupon Bhaba Nanda caught hold of-the hands of Shashi Mohan from behind.\n Phanidhar then gave him the blow on the head, as already stated, with the dolibari. Harendra gave further blows on his head and other parts of his body after Shashi fell down.\n On these facts it is difficult to conclude that Bhaba Nanda caught hold of the hands of Shashi sharing the common intention of Phanidhar and Harendra of causing the death of Shashi. He did not utter a word which would justify such a conclusion. He must be aware that his two elder brothers Phanidhar and Harendra were going to assault Shashi with their respective weapons in their hands. Bhaba Nanda did not use his lathi for causing any injuries on Shashi. The first blow was given by Phanidhar. Thereupon Shashi fell down. Bhaba Nanda's intention, therefore, was to join in the commission of the acts by the other two with the intention of getting Shashi assaulted severely with the knowledge that such an assault in all probability and likelihood might result in the death of Shashi. His participation in the crime, therefore, did not take him to the extent of the sharing of the common intention to cause his murder. As we have said above, Phanidhar and Harendra undoubtedly shared such an intention as is apparent from the manner of assault by them on Shashi and the severity and force with which the blows were given on his bead by both of them with the respective weapons in their hands. Applying the principle of law under section 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two. He can be held guilty only under section 304 Part II as he bad intentionally joined in the commission of ,an act with the knowledge that the assault on Shashi was likely to result in his death. The facts of this case indicate that Bhaba Nanda shared the common intention of his other two brothers for the commission of a lesser offence than murder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder.\n For the reasons stated above, the appeal of appellants Phanidhar and Harendra is dismissed. The appeal of Bhaba Nanda is partly allowed. His conviction is altered from sections 302/34 to section 304 Part 11 read with section 34.\n The sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years only. The conviction of all the appellants under sections 323/34 is also main- tained.\n M.R. Appeal allowed in part.\n "
} |
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{
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"text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI"
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"text": "\n\n\n+ ITA 318/2007\n\n Date of decision: 4th November, 2009"
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"start": 149,
"text": "THE COMMISSIONER OF INCOME TAX, DELHI-II\n ..... Appellant\n Through:"
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{
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"text": "Mr. Sanjeev Sabharwal, Adv."
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"text": "\n\n\n versus\n\n\n "
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"text": "KSA TECHNOPAK (INDIA) (PVT.) LTD. ......"
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"start": 377,
"text": "Respondent\n\n Through:"
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{
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"start": 423,
"text": " Mr. P.K. Sahu, Adv. with\n Mr. Prashant Shukla, Adv."
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{
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"text": "% CORAM:\n HON'BLE MR. JUSTICE A.K.SIKRI\n HON'BLE MR. JUSTICE SIDDHARTH MRIDUL\n\n\n 1. "
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"labels": [
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"text": "Whether reporters of local papers may be allowed to see\n the judgment?"
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},
{
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"start": 708,
"text": "2. To be referred to the Reporter or not?"
}
},
{
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"labels": [
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"start": 758,
"text": "3. Whether the judgment should be reported in\n the Digest?\n\n JUDGMENT"
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},
{
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"start": 865,
"text": "\n A.K.SIKRI, J. (ORAL)"
}
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{
"from_name": null,
"id": "d83c040345364564a253ddb74523f539",
"to_name": null,
"type": null,
"value": {
"end": 1139,
"labels": [
"FAC"
],
"start": 888,
"text": "1. In the income tax return filed by the assessee for the assessment year 1997-98, the assessee had shown income received from two sources i.e. domestic income as well as receipts of consultancy from foreign clients earned as foreign exchange."
}
},
{
"from_name": null,
"id": "e6505dfc25c645cfbc86037f0028f125",
"to_name": null,
"type": null,
"value": {
"end": 1359,
"labels": [
"FAC"
],
"start": 1140,
"text": "Insofar as, latter category of income is concerned, the assessee also claimed benefit of Section 80-O of the Income Tax Act namely exemption to the extent of 50% of such receipts from tax as per this provision existing."
}
},
{
"from_name": null,
"id": "a1d855c51a274535b49ad80a2898edc7",
"to_name": null,
"type": null,
"value": {
"end": 1558,
"labels": [
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],
"start": 1363,
"text": "The Assessing Officer while processing the return for assessment noticed that the expenses shown by the assessee in earning the foreign exchange on account of consultancy receipts were much less."
}
},
{
"from_name": null,
"id": "37a8dadbff244dcd8129ad012881348a",
"to_name": null,
"type": null,
"value": {
"end": 1775,
"labels": [
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],
"start": 1558,
"text": "\n 2. We may note that the assessee had shown consultancy receipts in foreign exchange convertible to Indian Rs.1,11,63,213/- and claiming deduction of Rs.48,28,471/- under Section 80-O of the Income Tax Act."
}
},
{
"from_name": null,
"id": "e52197a60abf45c1ba7c1fceaa996cef",
"to_name": null,
"type": null,
"value": {
"end": 1923,
"labels": [
"FAC"
],
"start": 1776,
"text": "The expenses on the foreign income on account of bank charges, foreign travelling expenses, salaries etc. were shown at a figure of Rs.14,37,643/-."
}
},
{
"from_name": null,
"id": "5c73ec088c4e486ea293cc55ab1d85d9",
"to_name": null,
"type": null,
"value": {
"end": 2286,
"labels": [
"FAC"
],
"start": 1924,
"text": " According to the Assessing Officer the expenses stated to have been incurred on the foreign business were much less as compared to the receipts since the exemption under Section 80-O is allowed after deduction of the expenditure over the receipts, the Assessing Officer was of the opinion that the expenses incurred are suppressed to claim higher exemption."
}
},
{
"from_name": null,
"id": "a1d9acf87a3d47fb80f9645d894bcaa2",
"to_name": null,
"type": null,
"value": {
"end": 2508,
"labels": [
"FAC"
],
"start": 2297,
"text": "In these circumstances, the Assessing Officer was of the opinion that the entire expenditure incurred, whether domestic or foreign earnings, should be proportionately apportioned to the foreign earnings as well."
}
},
{
"from_name": null,
"id": "a26c6cc2b83849b9ba4c386e51d63f63",
"to_name": null,
"type": null,
"value": {
"end": 2818,
"labels": [
"FAC"
],
"start": 2508,
"text": "\n To arrive at a figure of expenditure to be attributed to foreign earnings, he adopted the following formula: “Total profit from business x Related receipts brought profession into India in convertible foreign exchange total receipts from business/profession ……A” 3. "
}
},
{
"from_name": null,
"id": "bc6ca64c27434f489fb3ea49358f810e",
"to_name": null,
"type": null,
"value": {
"end": 2888,
"labels": [
"FAC"
],
"start": 2818,
"text": "The assessee challenged this order by filing appeal before the CIT(A)."
}
},
{
"from_name": null,
"id": "ab97c7d6a9af41478c3194968c940227",
"to_name": null,
"type": null,
"value": {
"end": 3108,
"labels": [
"FAC"
],
"start": 2889,
"text": "The assessee in this appeal itself accepted that some of the expenses incurred in India could be attributed to the foreign receipts and conceded that the assessee will have no objection if such expenses are apportioned."
}
},
{
"from_name": null,
"id": "4df7dc564dc14cb5b6cfc2192d79d3a9",
"to_name": null,
"type": null,
"value": {
"end": 3326,
"labels": [
"FAC"
],
"start": 3109,
"text": "However, the plea of the assessee was that the approach of the Assessing Officer in taking into consideration the total expenditure incurred and apportioning the same by applying the aforesaid formula was not correct."
}
},
{
"from_name": null,
"id": "5e4755d4fbc14ebea1cbcb38370cfe93",
"to_name": null,
"type": null,
"value": {
"end": 3649,
"labels": [
"FAC"
],
"start": 3327,
"text": "As per the assessee, the expenses which were exclusively incurred on domestic business, as well as foreign receipts were to be apportioned in entirety respectively and it is only in respect of other expenses which should be treated as common expenses for foreign exchange as well as domestic earning had to be apportioned."
}
},
{
"from_name": null,
"id": "1ac7c37f9698405782d5de1b8d46ace1",
"to_name": null,
"type": null,
"value": {
"end": 3689,
"labels": [
"FAC"
],
"start": 3650,
"text": "This method was accepted by the CIT(A)."
}
},
{
"from_name": null,
"id": "109923c4d02742ebac5a3980c326c13a",
"to_name": null,
"type": null,
"value": {
"end": 3819,
"labels": [
"RLC"
],
"start": 3690,
"text": "The CIT(A) found that the total expenses incurred by the assessee were Rs.2,09,33,800/- and the bifurcation thereof is as under:-"
}
},
{
"from_name": null,
"id": "2fe1633f40e74133a9eca95e61d94ee5",
"to_name": null,
"type": null,
"value": {
"end": 3870,
"labels": [
"RLC"
],
"start": 3820,
"text": "Recovered from the Indian customers: 37,24,318"
}
},
{
"from_name": null,
"id": "857469e8eb2b449397154a5095d22046",
"to_name": null,
"type": null,
"value": {
"end": 4071,
"labels": [
"RLC"
],
"start": 3871,
"text": "Recovered from the foreign customers: 16,42,963 Indian projects relocation expenses: 60,08,752 Other expenses: 95,57,767 ____________ 2,09,33,800 ____________ 4. "
}
},
{
"from_name": null,
"id": "9522be083b514828a10f232ef7b8324f",
"to_name": null,
"type": null,
"value": {
"end": 4203,
"labels": [
"RLC"
],
"start": 4071,
"text": "He treated the expenses recovered from Indian customers as well as expenses incurred on Indian projects to be the domestic expenses."
}
},
{
"from_name": null,
"id": "30c7de54e9bb47a283ef0643888751cf",
"to_name": null,
"type": null,
"value": {
"end": 4457,
"labels": [
"RLC"
],
"start": 4204,
"text": "Other expenses to the tune of Rs.95,57,767/- were treated as common expenses and it is these expenses which were divided between the foreign business receipts and Indian business receipts by applying the same formula as devised by the Assessing Officer."
}
},
{
"from_name": null,
"id": "9efdcb021f6c409bbbe2b19a96a7dbee",
"to_name": null,
"type": null,
"value": {
"end": 4472,
"labels": [
"FAC"
],
"start": 4459,
"text": "5. "
}
},
{
"from_name": null,
"id": "a352f6c7754d4c4abba1b0e484e9c23b",
"to_name": null,
"type": null,
"value": {
"end": 4557,
"labels": [
"FAC"
],
"start": 4472,
"text": "The Revenue filed appeal against this order, which has been rejected by the Tribunal."
}
},
{
"from_name": null,
"id": "8c80a4d20f8b4fb680d867fd85c88d3c",
"to_name": null,
"type": null,
"value": {
"end": 4572,
"labels": [
"ARG_PETITIONER"
],
"start": 4559,
"text": "6. "
}
},
{
"from_name": null,
"id": "a779cf0f82ae46039de51fe048ac9259",
"to_name": null,
"type": null,
"value": {
"end": 4864,
"labels": [
"ARG_PETITIONER"
],
"start": 4572,
"text": "Mr. Sabharwal, learned counsel appearing for the Revenue could not find fault with the approach of the CIT(A) in separating the expenses which were exclusively incurred on Indian business and foreign business respectively and only those expenses which were common in objection."
}
},
{
"from_name": null,
"id": "1389a008d8684735a4c03db834ed8251",
"to_name": null,
"type": null,
"value": {
"end": 5013,
"labels": [
"ARG_PETITIONER"
],
"start": 4865,
"text": "His submission, however, was that no detail was given in respect of the Indian projects relocation expenses which were treated as domestic expenses."
}
},
{
"from_name": null,
"id": "3404781711ff44e4833716446a0a3dcf",
"to_name": null,
"type": null,
"value": {
"end": 5028,
"labels": [
"ANALYSIS"
],
"start": 5015,
"text": "7. "
}
},
{
"from_name": null,
"id": "582fb549da284e0e9eedf7be526dc9e9",
"to_name": null,
"type": null,
"value": {
"end": 5170,
"labels": [
"ANALYSIS"
],
"start": 5028,
"text": "After reading the order of the CIT(A), we can safely infer that the CIT(A) has taken these figures from the books of accounts of the assessee."
}
},
{
"from_name": null,
"id": "06dc6e71ac4d41c188e7a3813e1735ca",
"to_name": null,
"type": null,
"value": {
"end": 5471,
"labels": [
"ANALYSIS"
],
"start": 5171,
"text": " Secondly, if there was any objection to the aforesaid Indian projects relocation expenses or to the justification and genuineness of the Indian projects relocation expenses, it was for the Revenue to challenge the same especially in the appeal preferred before the Income Tax Appellate Tribunal."
}
},
{
"from_name": null,
"id": "4c163915da98499d8d41242db2168fa1",
"to_name": null,
"type": null,
"value": {
"end": 5527,
"labels": [
"ANALYSIS"
],
"start": 5472,
"text": "However, no such ground was raised before the Tribunal."
}
},
{
"from_name": null,
"id": "3f09c39edb4b4dd38acbf1b82d7d5b57",
"to_name": null,
"type": null,
"value": {
"end": 5542,
"labels": [
"RATIO"
],
"start": 5529,
"text": "8. "
}
},
{
"from_name": null,
"id": "316bdd79cd1b40f8b34f594f2e55fdb8",
"to_name": null,
"type": null,
"value": {
"end": 6023,
"labels": [
"RATIO"
],
"start": 5542,
"text": "We, therefore, are of the opinion that it is a pure finding of fact recorded by the CIT(A), which has been accepted by the Income Tax Appellate Tribunal (ITAT) as well (since it was un-challenged that Indian projects relocation expenses to the tune of Rs.60,08,752/- were incurred by the assessee which could be treated exclusively as domestic expenses and were, therefore, not to be taken into account for apportioning the same between the foreign expenses and domestic expenses)."
}
},
{
"from_name": null,
"id": "fc0ae054f88f4ff98c7400aa792373ab",
"to_name": null,
"type": null,
"value": {
"end": 6121,
"labels": [
"RPC"
],
"start": 6023,
"text": "\n 9. We thus find that no question of law arises and accordingly this appeal is dismissed."
}
},
{
"from_name": null,
"id": "c1c662804c8643b69d78226a985d78ca",
"to_name": null,
"type": null,
"value": {
"end": 6180,
"labels": [
"NONE"
],
"start": 6121,
"text": "\n A.K. SIKRI, J.\n SIDDHARTH MRIDUL, J.\nNovember 04, 2009 dn"
}
}
]
}
] | 4,234 | {
"text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n+ ITA 318/2007\n\n Date of decision: 4th November, 2009\n\n\n THE COMMISSIONER OF INCOME TAX, DELHI-II\n ..... Appellant\n Through: Mr. Sanjeev Sabharwal, Adv.\n\n\n versus\n\n\n KSA TECHNOPAK (INDIA) (PVT.) LTD. ...... Respondent\n\n Through: Mr. P.K. Sahu, Adv. with\n Mr. Prashant Shukla, Adv.\n\n\n % CORAM:\n HON'BLE MR. JUSTICE A.K.SIKRI\n HON'BLE MR. JUSTICE SIDDHARTH MRIDUL\n\n\n 1. Whether reporters of local papers may be allowed to see\n the judgment?\n 2. To be referred to the Reporter or not?\n 3. Whether the judgment should be reported in\n the Digest?\n\n JUDGMENT\n A.K.SIKRI, J. (ORAL) 1. In the income tax return filed by the assessee for the assessment year 1997-98, the assessee had shown income received from two sources i.e. domestic income as well as receipts of consultancy from foreign clients earned as foreign exchange. Insofar as, latter category of income is concerned, the assessee also claimed benefit of Section 80-O of the Income Tax Act namely exemption to the extent of 50% of such receipts from tax as per this provision existing. The Assessing Officer while processing the return for assessment noticed that the expenses shown by the assessee in earning the foreign exchange on account of consultancy receipts were much less.\n 2. We may note that the assessee had shown consultancy receipts in foreign exchange convertible to Indian Rs.1,11,63,213/- and claiming deduction of Rs.48,28,471/- under Section 80-O of the Income Tax Act. The expenses on the foreign income on account of bank charges, foreign travelling expenses, salaries etc. were shown at a figure of Rs.14,37,643/-. According to the Assessing Officer the expenses stated to have been incurred on the foreign business were much less as compared to the receipts since the exemption under Section 80-O is allowed after deduction of the expenditure over the receipts, the Assessing Officer was of the opinion that the expenses incurred are suppressed to claim higher exemption. In these circumstances, the Assessing Officer was of the opinion that the entire expenditure incurred, whether domestic or foreign earnings, should be proportionately apportioned to the foreign earnings as well.\n To arrive at a figure of expenditure to be attributed to foreign earnings, he adopted the following formula: “Total profit from business x Related receipts brought profession into India in convertible foreign exchange total receipts from business/profession ……A” 3. The assessee challenged this order by filing appeal before the CIT(A). The assessee in this appeal itself accepted that some of the expenses incurred in India could be attributed to the foreign receipts and conceded that the assessee will have no objection if such expenses are apportioned. However, the plea of the assessee was that the approach of the Assessing Officer in taking into consideration the total expenditure incurred and apportioning the same by applying the aforesaid formula was not correct. As per the assessee, the expenses which were exclusively incurred on domestic business, as well as foreign receipts were to be apportioned in entirety respectively and it is only in respect of other expenses which should be treated as common expenses for foreign exchange as well as domestic earning had to be apportioned. This method was accepted by the CIT(A). The CIT(A) found that the total expenses incurred by the assessee were Rs.2,09,33,800/- and the bifurcation thereof is as under:- Recovered from the Indian customers: 37,24,318 Recovered from the foreign customers: 16,42,963 Indian projects relocation expenses: 60,08,752 Other expenses: 95,57,767 ____________ 2,09,33,800 ____________ 4. He treated the expenses recovered from Indian customers as well as expenses incurred on Indian projects to be the domestic expenses. Other expenses to the tune of Rs.95,57,767/- were treated as common expenses and it is these expenses which were divided between the foreign business receipts and Indian business receipts by applying the same formula as devised by the Assessing Officer.\n 5. The Revenue filed appeal against this order, which has been rejected by the Tribunal.\n 6. Mr. Sabharwal, learned counsel appearing for the Revenue could not find fault with the approach of the CIT(A) in separating the expenses which were exclusively incurred on Indian business and foreign business respectively and only those expenses which were common in objection. His submission, however, was that no detail was given in respect of the Indian projects relocation expenses which were treated as domestic expenses.\n 7. After reading the order of the CIT(A), we can safely infer that the CIT(A) has taken these figures from the books of accounts of the assessee. Secondly, if there was any objection to the aforesaid Indian projects relocation expenses or to the justification and genuineness of the Indian projects relocation expenses, it was for the Revenue to challenge the same especially in the appeal preferred before the Income Tax Appellate Tribunal. However, no such ground was raised before the Tribunal.\n 8. We, therefore, are of the opinion that it is a pure finding of fact recorded by the CIT(A), which has been accepted by the Income Tax Appellate Tribunal (ITAT) as well (since it was un-challenged that Indian projects relocation expenses to the tune of Rs.60,08,752/- were incurred by the assessee which could be treated exclusively as domestic expenses and were, therefore, not to be taken into account for apportioning the same between the foreign expenses and domestic expenses).\n 9. We thus find that no question of law arises and accordingly this appeal is dismissed.\n A.K. SIKRI, J.\n SIDDHARTH MRIDUL, J.\nNovember 04, 2009 dn "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "c05df619f120487ea88ae4be794a4833",
"to_name": null,
"type": null,
"value": {
"end": 124,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA.\n\n Vs.\n\nRESPONDENT:\nMAHARAJA PRATAPSINGH BAHADUR OF GIDHAUR."
}
},
{
"from_name": null,
"id": "811903c939c14a45a92634b6451ce2fa",
"to_name": null,
"type": null,
"value": {
"end": 162,
"labels": [
"PREAMBLE"
],
"start": 124,
"text": "\n\nDATE OF JUDGMENT:\n29/11/1960\n\nBENCH:"
}
},
{
"from_name": null,
"id": "ea56bff8cd5a45ae8a079bd1b5f30ffa",
"to_name": null,
"type": null,
"value": {
"end": 179,
"labels": [
"PREAMBLE"
],
"start": 162,
"text": "\nHIDAYATULLAH, M."
}
},
{
"from_name": null,
"id": "db52532decbd4393a838ccf77ae75582",
"to_name": null,
"type": null,
"value": {
"end": 1024,
"labels": [
"PREAMBLE"
],
"start": 180,
"text": "BENCH:\nHIDAYATULLAH, M.\nKAPUR, J.L.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 1026 1961 SCR (2) 760\n\nCITATOR INFO : (4)\n (11)\nD 1965 SC1031 (12)\n\nD 1965 SC1431\n\nD 1978 SC 209\n\nACT:\n\nIncome Tax-Escaped income--Notice issued by Income-tax\n\nOfficer without approval of Commissioner--Subsequent\n\namendment of enactment providing for Commissioner's\n\napproval--Assessment based on original\n\nnotice--Validity--General Clauses Act, 1897 (10 of 1897), s.\n\n6--Income-tax and Business Profits Tax (Amendment) Act, 1948\n\n(48 of 1948), ss. r, 8--Indian Income-tax Act, 1922 (11 of\n\n1922), s. 34, as amended by Act 48 of 1948.\n\nHEADNOTE:\nThe appellant who had agricultural income from his Zamindari\nwas assessed to income-tax for the four assessment years,\n1944-45, to 1947-48."
}
},
{
"from_name": null,
"id": "f439a4eeecb04ed6bc96665d21b7fcae",
"to_name": null,
"type": null,
"value": {
"end": 1254,
"labels": [
"PREAMBLE"
],
"start": 1025,
"text": "The income-tax authorities did not\ninclude in his assessable income, interest received by him\non arrears of rent, in view of a decision of the Patna High\nCourt, but subsequently this view of law was reversed by the\nPrivy Council."
}
},
{
"from_name": null,
"id": "75b2a2546e1e42c68d373082ae6cced0",
"to_name": null,
"type": null,
"value": {
"end": 1392,
"labels": [
"PREAMBLE"
],
"start": 1255,
"text": "On August 8, 1948, the Income-tax Officer\nissued notices under s. 34of the Indian Income-tax Act,\n1922, for assessing the escaped income."
}
},
{
"from_name": null,
"id": "622f3e91120c49979d6984fd28c244f8",
"to_name": null,
"type": null,
"value": {
"end": 1602,
"labels": [
"PREAMBLE"
],
"start": 1393,
"text": "Before the notices\nwere issued the Income-tax Officer had not put the matter\nbefore the Commissioner for his approval as the section then\ndid not require it and the assessments were completed on\nthose notices."
}
},
{
"from_name": null,
"id": "bc8dc0241e144287974f4533154012e8",
"to_name": null,
"type": null,
"value": {
"end": 1768,
"labels": [
"PREAMBLE"
],
"start": 1603,
"text": "In the meantime, certain amendments were\nmade to the Indian Income-tax Act by Act 48 of 1948, which\nreceived the assent of the Governor-General on September 8,\n1948."
}
},
{
"from_name": null,
"id": "f5425bff755e486cb92ee21eac454b2d",
"to_name": null,
"type": null,
"value": {
"end": 2237,
"labels": [
"PREAMBLE"
],
"start": 1769,
"text": "The Amending Act substituted a new section in place\nof S. 34, which among other changes, added a proviso to the\neffect that \"the Income-tax Officer shall not issue a\nnotice...... unless he has recorded his reasons for doing so\nand the Commissioner is satisfied on such reasons that it is\na fit case for the issue of such notice\", and also made it\nretrospective by providing that the new section \"shall be\ndeemed to have come into force on the 30th day of March,\n1948\"."
}
},
{
"from_name": null,
"id": "cad8f8102f3a421bb36c892d1447fed6",
"to_name": null,
"type": null,
"value": {
"end": 2437,
"labels": [
"PREAMBLE"
],
"start": 2238,
"text": "The question was whether the notices issued by the\nIncome-tax Officer on August 8, 1948, without the approval\nof the Commissioner, were rendered void by reason of the\n\noperation of the amended s. 34."
}
},
{
"from_name": null,
"id": "c7583ff456c1408c8e04503e3c02495f",
"to_name": null,
"type": null,
"value": {
"end": 2517,
"labels": [
"PREAMBLE"
],
"start": 2438,
"text": "The Commissioner claimed\nthat s. 6 of the General Clauses Act, 1897, saved the\n"
}
},
{
"from_name": null,
"id": "da5db25e9e4e4c5fbfd991e6a98211ec",
"to_name": null,
"type": null,
"value": {
"end": 2528,
"labels": [
"PREAMBLE"
],
"start": 2517,
"text": "assessments"
}
},
{
"from_name": null,
"id": "7adaefe1d0d24d0d91c32fc355ea2788",
"to_name": null,
"type": null,
"value": {
"end": 2539,
"labels": [
"PREAMBLE"
],
"start": 2529,
"text": "as well as"
}
},
{
"from_name": null,
"id": "6a2d1c61052e4bd2a9d5cce51e1f2fee",
"to_name": null,
"type": null,
"value": {
"end": 2551,
"labels": [
"PREAMBLE"
],
"start": 2540,
"text": "the notices"
}
},
{
"from_name": null,
"id": "7b63da924c9444878c5540acce1f93a4",
"to_name": null,
"type": null,
"value": {
"end": 2859,
"labels": [
"PREAMBLE"
],
"start": 2551,
"text": ".\nHeld, that s. 6 of the General Clauses Act, 1897, was in-\napplicable as the Amending Act of 1948 indicated a different\nintention within the meaning of that section, inasmuch as\nthe amended S. 34 of the Indian Income-tax Act, 1922,\nprovided that it shall be deemed to have come into force on\nMarch 30, 1948."
}
},
{
"from_name": null,
"id": "d282ff21191b4e83bcdabb5e5bdacb4e",
"to_name": null,
"type": null,
"value": {
"end": 3040,
"labels": [
"PREAMBLE"
],
"start": 2859,
"text": "\nLemm v. Mitchell, [1912] A.C. 400, distinguished,Held, further, that the notices issued by the Income-tax\nOfficer on August 8, 1948, and the assessments based on them\nwere invalid."
}
},
{
"from_name": null,
"id": "8b5dd9c410a7451689080e0823e7a840",
"to_name": null,
"type": null,
"value": {
"end": 3117,
"labels": [
"PREAMBLE"
],
"start": 3040,
"text": "\nVenkatachalam v. Bombay Dyeing & Mfg. Co., Ltd., [1959]\nS.C.R. 703, applied."
}
},
{
"from_name": null,
"id": "e5a9f55101f34fb29fb450cfe99572aa",
"to_name": null,
"type": null,
"value": {
"end": 3128,
"labels": [
"PREAMBLE"
],
"start": 3117,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "600efece7b5a4c1fb182211f9de981d1",
"to_name": null,
"type": null,
"value": {
"end": 3188,
"labels": [
"NONE"
],
"start": 3128,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 650 of 1957."
}
},
{
"from_name": null,
"id": "0105cfe034b241f5a79defe2b5a3d21a",
"to_name": null,
"type": null,
"value": {
"end": 3306,
"labels": [
"NONE"
],
"start": 3188,
"text": "\nAppeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954."
}
},
{
"from_name": null,
"id": "19885b73f9af4a20b036c40ecbb41f8c",
"to_name": null,
"type": null,
"value": {
"end": 3361,
"labels": [
"NONE"
],
"start": 3306,
"text": "\nR. Ganapathy Iyer and R. H. Dhebar, for the appellant."
}
},
{
"from_name": null,
"id": "8ae73ff75d5e41dcaf952378f1396af9",
"to_name": null,
"type": null,
"value": {
"end": 3423,
"labels": [
"NONE"
],
"start": 3361,
"text": "\nA. V. Viswanatha Sastri and R. C. Prasad, for the respondent."
}
},
{
"from_name": null,
"id": "7a7ca14f7426498284249a1a02de6719",
"to_name": null,
"type": null,
"value": {
"end": 3429,
"labels": [
"NONE"
],
"start": 3423,
"text": "\n1960."
}
},
{
"from_name": null,
"id": "2da2f09d6a6c40b7872606be998f79b5",
"to_name": null,
"type": null,
"value": {
"end": 3442,
"labels": [
"NONE"
],
"start": 3430,
"text": "November 29."
}
},
{
"from_name": null,
"id": "971be4efee1041b2ba53fb11a39788fc",
"to_name": null,
"type": null,
"value": {
"end": 3748,
"labels": [
"FAC"
],
"start": 3443,
"text": "The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal by the Commissioner of Income-tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under s. 66(1) of the Income-tax Act by the Tribunal, in the negative."
}
},
{
"from_name": null,
"id": "e0d301f9302841a3b55d792f24c4fb8c",
"to_name": null,
"type": null,
"value": {
"end": 4076,
"labels": [
"FAC"
],
"start": 3749,
"text": "Those questions were: \"(1) Whether in the circumstances of the case assessment proceedings were validly initiated under s. 34 of the Indian Income-tax Act?\n(2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?\""
}
},
{
"from_name": null,
"id": "c53afacbdbff45f29e335a042ae3e567",
"to_name": null,
"type": null,
"value": {
"end": 4228,
"labels": [
"FAC"
],
"start": 4076,
"text": "\nThe assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944-45 to 1947-48."
}
},
{
"from_name": null,
"id": "2f289e59ea4745c884e34316bcf9e474",
"to_name": null,
"type": null,
"value": {
"end": 4369,
"labels": [
"FAC"
],
"start": 4229,
"text": "In assessing his income to income-tax, the authorities did not include in his assessable income interest received by him on arrears of rent."
}
},
{
"from_name": null,
"id": "279e07ef790e4e30950afc26ed7fa87d",
"to_name": null,
"type": null,
"value": {
"end": 4441,
"labels": [
"FAC"
],
"start": 4370,
"text": "This was presumably so in view of the decision of the Patna High Court."
}
},
{
"from_name": null,
"id": "1f7c256e77314094851763e2699617a5",
"to_name": null,
"type": null,
"value": {
"end": 4718,
"labels": [
"FAC"
],
"start": 4442,
"text": "When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income-tax v. Kamakhya Narayan Singh (1), the Income-tax Officer issued notices under S. 34 of the (1) [1948] 16 I.T.R. 325.Indian Income-tax Act for assessing the escaped income."
}
},
{
"from_name": null,
"id": "626d3032dd6c4dc6b4525deeaad88fc4",
"to_name": null,
"type": null,
"value": {
"end": 4763,
"labels": [
"FAC"
],
"start": 4718,
"text": "\nThese notices were issued on August 8, 1948."
}
},
{
"from_name": null,
"id": "b443a763d5854e59b80f59235385f7df",
"to_name": null,
"type": null,
"value": {
"end": 4844,
"labels": [
"FAC"
],
"start": 4764,
"text": "The assessments after the returns were filed, were completed on August 26, 1948."
}
},
{
"from_name": null,
"id": "bcea898b5dad41b486ac7afab1c9f90f",
"to_name": null,
"type": null,
"value": {
"end": 5057,
"labels": [
"FAC"
],
"start": 4845,
"text": "Before the notices were issued, the Income-tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices."
}
},
{
"from_name": null,
"id": "a83452eddfd04526b9808bbab28dbfce",
"to_name": null,
"type": null,
"value": {
"end": 5237,
"labels": [
"FAC"
],
"start": 5058,
"text": "Section 34 was amended by the Income-tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor-General on Sep- tember 8, 1948."
}
},
{
"from_name": null,
"id": "601029f0bcd3460ca28912e7a0cd835f",
"to_name": null,
"type": null,
"value": {
"end": 5446,
"labels": [
"FAC"
],
"start": 5238,
"text": "The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under s. 34 was raised."
}
},
{
"from_name": null,
"id": "1cd1ae06cb08459b8e0b330bb8993d46",
"to_name": null,
"type": null,
"value": {
"end": 5599,
"labels": [
"FAC"
],
"start": 5447,
"text": "The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time."
}
},
{
"from_name": null,
"id": "fc25a078124d4e1a92fe4bc3c1e3f699",
"to_name": null,
"type": null,
"value": {
"end": 5745,
"labels": [
"FAC"
],
"start": 5600,
"text": "In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary."
}
},
{
"from_name": null,
"id": "cddfdf0f1b9746b7be96ce1d9e5a77d3",
"to_name": null,
"type": null,
"value": {
"end": 5876,
"labels": [
"FAC"
],
"start": 5745,
"text": "\n The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside."
}
},
{
"from_name": null,
"id": "ec093d855ad1417cb4cd7d17e4a035ab",
"to_name": null,
"type": null,
"value": {
"end": 5982,
"labels": [
"FAC"
],
"start": 5876,
"text": "\n The Tribunal then stated a case and raised and referred the two questions, which have been quoted above."
}
},
{
"from_name": null,
"id": "da9b080a1fda4b56aa03330a674d1a21",
"to_name": null,
"type": null,
"value": {
"end": 6124,
"labels": [
"FAC"
],
"start": 5983,
"text": "The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court."
}
},
{
"from_name": null,
"id": "6c2fbcf495024ea08c410048f72a3ca6",
"to_name": null,
"type": null,
"value": {
"end": 6319,
"labels": [
"ANALYSIS"
],
"start": 6124,
"text": "\n Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income-tax Officer to seek the approval of the Commissioner before issuing a notice under s. 34."
}
},
{
"from_name": null,
"id": "a17160511b824bf7a1327a04f1029636",
"to_name": null,
"type": null,
"value": {
"end": 6518,
"labels": [
"ANALYSIS"
],
"start": 6320,
"text": "The amending Act by its first section made ss. 3 to 12 of the amending Act retrospective by providing \"sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948........"
}
},
{
"from_name": null,
"id": "71fcacda38924013ba822fd72e8d829b",
"to_name": null,
"type": null,
"value": {
"end": 6953,
"labels": [
"STA"
],
"start": 6519,
"text": "Section 8 of the amending Act substituted a new section in place of s.\n 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : \"Provided that- (1) the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice.\"\n "
}
},
{
"from_name": null,
"id": "589b100ba033437783e2c05339055b85",
"to_name": null,
"type": null,
"value": {
"end": 7061,
"labels": [
"ISSUE"
],
"start": 6953,
"text": "The question is whether the notices which were issued were rendered void by the operation of this proviso.-'"
}
},
{
"from_name": null,
"id": "ed8a737e53c1490f90a7c8efbea2fb50",
"to_name": null,
"type": null,
"value": {
"end": 7201,
"labels": [
"ANALYSIS"
],
"start": 7062,
"text": "The Commissioner contends that s. 6 of the General Clauses Act, particularly cls. (b) and (c) saved the assessments as well as the notices."
}
},
{
"from_name": null,
"id": "ae60465d103e40a89e54821bf6650781",
"to_name": null,
"type": null,
"value": {
"end": 7360,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7202,
"text": "He relies upon a decision of the Privy Council in Lemm v. Mitchell (1), Eyre v. Wynn-Mackenzie (2) and Butcher v. Henderson (3) in support of his proposition."
}
},
{
"from_name": null,
"id": "be89cd1e630146c092ed2d0007fe5977",
"to_name": null,
"type": null,
"value": {
"end": 7473,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7362,
"text": "The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case."
}
},
{
"from_name": null,
"id": "348ec2ee3b654037b81bb03f4cde5cb1",
"to_name": null,
"type": null,
"value": {
"end": 7984,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7474,
"text": "In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right."
}
},
{
"from_name": null,
"id": "63f457f7a3f048e58e9b016dc780849f",
"to_name": null,
"type": null,
"value": {
"end": 8035,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7985,
"text": "The Privy Council case is thus entirely different."
}
},
{
"from_name": null,
"id": "1a600864c02d4c81aac59b383daad194",
"to_name": null,
"type": null,
"value": {
"end": 8405,
"labels": [
"STA"
],
"start": 8035,
"text": "\n No doubt, under s. 6 of the General Clauses Act it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed."
}
},
{
"from_name": null,
"id": "52ca8c3e62694e34a19d545ac3f2e3d6",
"to_name": null,
"type": null,
"value": {
"end": 8526,
"labels": [
"STA"
],
"start": 8406,
"text": "It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed."
}
},
{
"from_name": null,
"id": "298d83286e5646b99ebead413973fbb3",
"to_name": null,
"type": null,
"value": {
"end": 8723,
"labels": [
"ANALYSIS"
],
"start": 8527,
"text": "Now, if the amending Act had repealed the original s. 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of s. 6."
}
},
{
"from_name": null,
"id": "e26ef9664dfd493d8e61226b74d67302",
"to_name": null,
"type": null,
"value": {
"end": 8768,
"labels": [
"ANALYSIS"
],
"start": 8724,
"text": "But the amending Act goes further than this."
}
},
{
"from_name": null,
"id": "d3dffcd8138344e3af8e6a312b2d2d9b",
"to_name": null,
"type": null,
"value": {
"end": 9090,
"labels": [
"ANALYSIS"
],
"start": 8769,
"text": "It (1) [1912] A.C. 400. (2) (1896) 1 Ch. 135.\n (3) (1868) L.R. 3 Q. B. 335.\n repeals the original s. 34, not from the day on which the Act received the assent of the Governor-General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned."
}
},
{
"from_name": null,
"id": "72a3f20342cc4328bc7cded322828805",
"to_name": null,
"type": null,
"value": {
"end": 9309,
"labels": [
"ANALYSIS"
],
"start": 9091,
"text": "The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of s. 6.\n "
}
},
{
"from_name": null,
"id": "35b941454d704128b2e7da4916ef40ca",
"to_name": null,
"type": null,
"value": {
"end": 9612,
"labels": [
"ANALYSIS"
],
"start": 9309,
"text": "It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income- tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued"
}
},
{
"from_name": null,
"id": "70764e632ba74be0862a7920e5c25bbb",
"to_name": null,
"type": null,
"value": {
"end": 9642,
"labels": [
"ANALYSIS"
],
"start": 9613,
"text": "The notice were thus invalid."
}
},
{
"from_name": null,
"id": "b8d94f2dc9e546d89a2ed449d1cb45a6",
"to_name": null,
"type": null,
"value": {
"end": 9772,
"labels": [
"PRE_RELIED"
],
"start": 9643,
"text": ", The principle which was applied by this Court in Venkatachalam v. Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here."
}
},
{
"from_name": null,
"id": "9196df3f97f14b039af8cedd626f5f61",
"to_name": null,
"type": null,
"value": {
"end": 9967,
"labels": [
"PRE_RELIED"
],
"start": 9772,
"text": "\n No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty v.\n Income-tax Officer (2), that the proviso was not mandatory in character."
}
},
{
"from_name": null,
"id": "d00e700a4c3a485ab4c5917897234bee",
"to_name": null,
"type": null,
"value": {
"end": 10116,
"labels": [
"RATIO"
],
"start": 9968,
"text": "Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued."
}
},
{
"from_name": null,
"id": "8de3b2a7717443df8203ff89182c48b3",
"to_name": null,
"type": null,
"value": {
"end": 10237,
"labels": [
"RPC"
],
"start": 10116,
"text": "\n For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs.\n "
}
},
{
"from_name": null,
"id": "4211ed57b98442ce88b8dbd891399b8a",
"to_name": null,
"type": null,
"value": {
"end": 10256,
"labels": [
"RPC"
],
"start": 10237,
"text": "A appeal dismissed."
}
},
{
"from_name": null,
"id": "a4db091aff9f4ce3a9b12ab7132c3562",
"to_name": null,
"type": null,
"value": {
"end": 10312,
"labels": [
"NONE"
],
"start": 10256,
"text": "\n (1) [1959] S.C.R. 703. (2) [1959] 35 I.T.R. 388.\n "
}
}
]
}
] | 4,259 | {
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA.\n\n Vs.\n\nRESPONDENT:\nMAHARAJA PRATAPSINGH BAHADUR OF GIDHAUR.\n\nDATE OF JUDGMENT:\n29/11/1960\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nKAPUR, J.L.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 1026 1961 SCR (2) 760\n\nCITATOR INFO : (4)\n (11)\nD 1965 SC1031 (12)\n\nD 1965 SC1431\n\nD 1978 SC 209\n\nACT:\n\nIncome Tax-Escaped income--Notice issued by Income-tax\n\nOfficer without approval of Commissioner--Subsequent\n\namendment of enactment providing for Commissioner's\n\napproval--Assessment based on original\n\nnotice--Validity--General Clauses Act, 1897 (10 of 1897), s.\n\n6--Income-tax and Business Profits Tax (Amendment) Act, 1948\n\n(48 of 1948), ss. r, 8--Indian Income-tax Act, 1922 (11 of\n\n1922), s. 34, as amended by Act 48 of 1948.\n\nHEADNOTE:\nThe appellant who had agricultural income from his Zamindari\nwas assessed to income-tax for the four assessment years,\n1944-45, to 1947-48. The income-tax authorities did not\ninclude in his assessable income, interest received by him\non arrears of rent, in view of a decision of the Patna High\nCourt, but subsequently this view of law was reversed by the\nPrivy Council. On August 8, 1948, the Income-tax Officer\nissued notices under s. 34of the Indian Income-tax Act,\n1922, for assessing the escaped income. Before the notices\nwere issued the Income-tax Officer had not put the matter\nbefore the Commissioner for his approval as the section then\ndid not require it and the assessments were completed on\nthose notices. In the meantime, certain amendments were\nmade to the Indian Income-tax Act by Act 48 of 1948, which\nreceived the assent of the Governor-General on September 8,\n1948. The Amending Act substituted a new section in place\nof S. 34, which among other changes, added a proviso to the\neffect that \"the Income-tax Officer shall not issue a\nnotice...... unless he has recorded his reasons for doing so\nand the Commissioner is satisfied on such reasons that it is\na fit case for the issue of such notice\", and also made it\nretrospective by providing that the new section \"shall be\ndeemed to have come into force on the 30th day of March,\n1948\". The question was whether the notices issued by the\nIncome-tax Officer on August 8, 1948, without the approval\nof the Commissioner, were rendered void by reason of the\n\noperation of the amended s. 34. The Commissioner claimed\nthat s. 6 of the General Clauses Act, 1897, saved the\nassessments as well as the notices.\nHeld, that s. 6 of the General Clauses Act, 1897, was in-\napplicable as the Amending Act of 1948 indicated a different\nintention within the meaning of that section, inasmuch as\nthe amended S. 34 of the Indian Income-tax Act, 1922,\nprovided that it shall be deemed to have come into force on\nMarch 30, 1948.\nLemm v. Mitchell, [1912] A.C. 400, distinguished,Held, further, that the notices issued by the Income-tax\nOfficer on August 8, 1948, and the assessments based on them\nwere invalid.\nVenkatachalam v. Bombay Dyeing & Mfg. Co., Ltd., [1959]\nS.C.R. 703, applied.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 650 of 1957.\nAppeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954.\nR. Ganapathy Iyer and R. H. Dhebar, for the appellant.\nA. V. Viswanatha Sastri and R. C. Prasad, for the respondent.\n1960. November 29. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is an appeal by the Commissioner of Income-tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under s. 66(1) of the Income-tax Act by the Tribunal, in the negative. Those questions were: \"(1) Whether in the circumstances of the case assessment proceedings were validly initiated under s. 34 of the Indian Income-tax Act?\n(2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?\"\nThe assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944-45 to 1947-48. In assessing his income to income-tax, the authorities did not include in his assessable income interest received by him on arrears of rent. This was presumably so in view of the decision of the Patna High Court. When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income-tax v. Kamakhya Narayan Singh (1), the Income-tax Officer issued notices under S. 34 of the (1) [1948] 16 I.T.R. 325.Indian Income-tax Act for assessing the escaped income.\nThese notices were issued on August 8, 1948. The assessments after the returns were filed, were completed on August 26, 1948. Before the notices were issued, the Income-tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices. Section 34 was amended by the Income-tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor-General on Sep- tember 8, 1948. The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under s. 34 was raised. The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time. In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary.\n The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside.\n The Tribunal then stated a case and raised and referred the two questions, which have been quoted above. The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court.\n Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income-tax Officer to seek the approval of the Commissioner before issuing a notice under s. 34. The amending Act by its first section made ss. 3 to 12 of the amending Act retrospective by providing \"sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948........ Section 8 of the amending Act substituted a new section in place of s.\n 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : \"Provided that- (1) the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice.\"\n The question is whether the notices which were issued were rendered void by the operation of this proviso.-' The Commissioner contends that s. 6 of the General Clauses Act, particularly cls. (b) and (c) saved the assessments as well as the notices. He relies upon a decision of the Privy Council in Lemm v. Mitchell (1), Eyre v. Wynn-Mackenzie (2) and Butcher v. Henderson (3) in support of his proposition.\n The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case. In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right. The Privy Council case is thus entirely different.\n No doubt, under s. 6 of the General Clauses Act it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed. It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed. Now, if the amending Act had repealed the original s. 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of s. 6. But the amending Act goes further than this. It (1) [1912] A.C. 400. (2) (1896) 1 Ch. 135.\n (3) (1868) L.R. 3 Q. B. 335.\n repeals the original s. 34, not from the day on which the Act received the assent of the Governor-General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned. The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of s. 6.\n It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income- tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued The notice were thus invalid. , The principle which was applied by this Court in Venkatachalam v. Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here.\n No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty v.\n Income-tax Officer (2), that the proviso was not mandatory in character. Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued.\n For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs.\n A appeal dismissed.\n (1) [1959] S.C.R. 703. (2) [1959] 35 I.T.R. 388.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "d36ef1fcc5c04505a3f3ddcf88b27a6d",
"to_name": null,
"type": null,
"value": {
"end": 125,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nJHUMMAN SINGH & ORS.\n\n Vs.\n\nRESPONDENT:\nCENTRAL BUREAU OF INVESTIGATION AND ORS.\n\nDATE OF JUDGMENT30/03/1995"
}
},
{
"from_name": null,
"id": "416c7986e7e149cc835e69d270625787",
"to_name": null,
"type": null,
"value": {
"end": 352,
"labels": [
"PREAMBLE"
],
"start": 127,
"text": "BENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nSEN, S.C. (J)\n\nCITATION: 1995 SCC (3) 420\n 1995 AIR 2083 1995 SCALE (2)546\n JT 1995 (3) 360\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\nB.P. JEEVAN REDDY, J.:"
}
},
{
"from_name": null,
"id": "9c1cd37ec04342a4868e7be17a3c7d7a",
"to_name": null,
"type": null,
"value": {
"end": 529,
"labels": [
"FAC"
],
"start": 352,
"text": " 1. This writ petition brings to light a serious abuse of process of court - indeed an abuse of the process of more than one court - indulged in by certain unscrupulous persons."
}
},
{
"from_name": null,
"id": "1d53bd79d52041f18d0b492fb67054dd",
"to_name": null,
"type": null,
"value": {
"end": 666,
"labels": [
"FAC"
],
"start": 530,
"text": "Since the facts of the case are themselves demonstrative of the said abuse perpetrated by Respondent No.3, we, would set them out first."
}
},
{
"from_name": null,
"id": "7ca0f6477b4445058ead277aff12173c",
"to_name": null,
"type": null,
"value": {
"end": 879,
"labels": [
"FAC"
],
"start": 667,
"text": "2. The four writ petitioners are the tenants of four shops comprised in property bearing No. WZ-93, Titarpur, Najafgarh Road, New Delhi-1 10027, while the third respondent is occupying the fifth shop as a tenant."
}
},
{
"from_name": null,
"id": "0c32b1f4d58c4207888194002a1a0135",
"to_name": null,
"type": null,
"value": {
"end": 964,
"labels": [
"FAC"
],
"start": 880,
"text": "According to the petitioners, one Siyaram Gupta was the, own=of the said five shops."
}
},
{
"from_name": null,
"id": "7b2d6593ee0147fd811bfc92e0be7a99",
"to_name": null,
"type": null,
"value": {
"end": 1064,
"labels": [
"FAC"
],
"start": 965,
"text": "On his death in or about 1983, his wife, Smt.Urmila Devi and her three daughters became the owners."
}
},
{
"from_name": null,
"id": "87dcf5dc6256494099aaffe9b19bf1bb",
"to_name": null,
"type": null,
"value": {
"end": 1185,
"labels": [
"FAC"
],
"start": 1065,
"text": "Towards the end of the year 1992, the petitioners say, the landlady offered to sell the shops to the respective tenants."
}
},
{
"from_name": null,
"id": "28207fcd70ac49468c300454567d1233",
"to_name": null,
"type": null,
"value": {
"end": 1253,
"labels": [
"FAC"
],
"start": 1186,
"text": "Three ofthe petitioners purchased the three shops occupied by them."
}
},
{
"from_name": null,
"id": "64370da6e2a64cdfbda18336ba4f662c",
"to_name": null,
"type": null,
"value": {
"end": 1300,
"labels": [
"FAC"
],
"start": 1253,
"text": "\nSale deeds were also executed in their favour."
}
},
{
"from_name": null,
"id": "3861ea5b3a4c47a58ee6a4a65f8700db",
"to_name": null,
"type": null,
"value": {
"end": 1518,
"labels": [
"FAC"
],
"start": 1301,
"text": "After the death of Smt. Urmila Devi, the petitioners say, the third respondent, Sri Sangat Singh started declaring himself as the owner of all the five shops and demanded rent from the petitioners which they resisted."
}
},
{
"from_name": null,
"id": "30bfaea19212489cbed3777c4e3c88df",
"to_name": null,
"type": null,
"value": {
"end": 1705,
"labels": [
"FAC"
],
"start": 1519,
"text": "3. The petitioners complained that with a view to get the writ petitioners evicted from the shops otherwise than by due process of law, the third respondent resorted to a devious device."
}
},
{
"from_name": null,
"id": "aa915deee63e4cf2849b71050b279a0d",
"to_name": null,
"type": null,
"value": {
"end": 1945,
"labels": [
"FAC"
],
"start": 1706,
"text": "Two decrees were, obtained against the Petitioners 1 and 2 - one from the Court of Assistant Dis- trict Judge-1 at Gauhati against the first petitioner and the other from the SubJudge-1, Gaya (Bihar) against the second petitioner's father."
}
},
{
"from_name": null,
"id": "236432669a1848c0a400575ac1a78a14",
"to_name": null,
"type": null,
"value": {
"end": 2074,
"labels": [
"FAC"
],
"start": 1946,
"text": "The decree from the Gauhati court is dated May 18, 1994 in Arbitration Suit No.47 of 1994 making an award the rule of the Court."
}
},
{
"from_name": null,
"id": "8d8e74b5a91149b7b1b374b509386409",
"to_name": null,
"type": null,
"value": {
"end": 2330,
"labels": [
"FAC"
],
"start": 2075,
"text": "The award is said to have been obtained by one Sri Bhupinder Singh, S/o Sri Harcharan Singh, R/o Sri Mantapur, Bhangaghar, Gauhati against Sri Jhumman Singh, S/o Sri Chadda Singh, R/o Titar Pur, New Delhi (the first writ petitioner in this writ petition)."
}
},
{
"from_name": null,
"id": "6addf297dd5f43c89e07cc6abbbef24d",
"to_name": null,
"type": null,
"value": {
"end": 2723,
"labels": [
"FAC"
],
"start": 2331,
"text": "The decree says that the defendant, Sri Jhumman Singh shall pay a sum of Rupees fifty thousand plus interest @ twelve per cent per annum from April 1, 1992 till the day of payment to Sri Bhupinder Singh and shall also hand over peaceful vacant possession of the property bearing Shop No.\n4 forming part of premises WZ 93/4 situated at Titar Pur, Main Najafgarh Road, Tagore Garden, New Delhi."
}
},
{
"from_name": null,
"id": "81a203ffdacb4b98baefeb8a7db18320",
"to_name": null,
"type": null,
"value": {
"end": 2869,
"labels": [
"FAC"
],
"start": 2724,
"text": "A site plan is attached to the said decree specifying Shop No.4 which the defendant to the said decree was to hand over to the plaintiff therein."
}
},
{
"from_name": null,
"id": "81d22bb55a9f4b57abfc8feb3ced08f8",
"to_name": null,
"type": null,
"value": {
"end": 2971,
"labels": [
"FAC"
],
"start": 2870,
"text": "The other decree passed by SubJudge-1st, Gaya is also a decree making an award the rule of the court."
}
},
{
"from_name": null,
"id": "dbb3d95788104a59b88078c2f0e0bd2f",
"to_name": null,
"type": null,
"value": {
"end": 3385,
"labels": [
"FAC"
],
"start": 2971,
"text": "\nThe award which has been made a rule of the Court directs, inter alia, that Sri Ala Noor S/o Sri Amir Bux, R/o Titarpur, New Delhi shall hand over to the plaintiff therein peaceful vacant possession -of the Shop No.3 Conning part of property No. 93/3, Titar Pur, Main Najafgarh Road, Tagore Garden, New Delhi-27 (specified in the annexed plan) within fifteen days of the said Award being made a rule of the Court."
}
},
{
"from_name": null,
"id": "70505a43e2de4695bcbebd3b7c2b39ba",
"to_name": null,
"type": null,
"value": {
"end": 3505,
"labels": [
"FAC"
],
"start": 3386,
"text": "In default, the plaintiff, Sri Ravi Raj Singh, was held entitled to execute the said decree and recover the possession."
}
},
{
"from_name": null,
"id": "7b7dd04f04314f409c056e982954fa76",
"to_name": null,
"type": null,
"value": {
"end": 3598,
"labels": [
"FAC"
],
"start": 3506,
"text": "Execution was taken out of the said two decrees and then transferred to Delhi for execution."
}
},
{
"from_name": null,
"id": "0aea4adaf484456caa926aaf280a7fed",
"to_name": null,
"type": null,
"value": {
"end": 3750,
"labels": [
"FAC"
],
"start": 3599,
"text": "Petitioners 1 and 2 came to know of the said decrees only when the Bailiff came along with the warrants of delivery of possession of the said premises."
}
},
{
"from_name": null,
"id": "a7cf442d86ae4998bab6a3af61475dd0",
"to_name": null,
"type": null,
"value": {
"end": 3890,
"labels": [
"FAC"
],
"start": 3751,
"text": "On account of the resistance put up by the petitioners, supported by the neighbours, the Bailiff could not execute the decrees on that day."
}
},
{
"from_name": null,
"id": "847d0ab1a655458687684748c52d39a5",
"to_name": null,
"type": null,
"value": {
"end": 4002,
"labels": [
"FAC"
],
"start": 3891,
"text": "On verification from the Court records, the petitioners say, they came to know the particulars of said decrees."
}
},
{
"from_name": null,
"id": "e7aeae3afa93401cb54d603d0e0d0859",
"to_name": null,
"type": null,
"value": {
"end": 4224,
"labels": [
"FAC"
],
"start": 4003,
"text": "Petitioners 1 and 2 say that they had nothing to do with the persons shown as plaintiffs in the said decree, had no dealings with them much less was there any dispute between them either at Gauhati, Gaya or anywhere else."
}
},
{
"from_name": null,
"id": "ad24a65f4d9542d798eb3dc7287da963",
"to_name": null,
"type": null,
"value": {
"end": 4279,
"labels": [
"FAC"
],
"start": 4225,
"text": "They even doubt whether any such persons really exist."
}
},
{
"from_name": null,
"id": "e25e6ef8815a405692e7467368ac8cbc",
"to_name": null,
"type": null,
"value": {
"end": 4419,
"labels": [
"FAC"
],
"start": 4280,
"text": "According to them, the whole thing is a fabrication indulged in by third respondent to get the Petitioners 1 and 2 evicted surreptitiously."
}
},
{
"from_name": null,
"id": "295ab8466f2d4626ac6627fad759f3a3",
"to_name": null,
"type": null,
"value": {
"end": 4661,
"labels": [
"FAC"
],
"start": 4420,
"text": "They submit that obtaining the said fraudulent decrees and the manner in which they were, sought to be executed and the petitioners sought to be evicted from their shops is the result of a criminal conspiracy hatched by the third respondent."
}
},
{
"from_name": null,
"id": "8e9b1404982541e197f73f5375632ad4",
"to_name": null,
"type": null,
"value": {
"end": 4739,
"labels": [
"FAC"
],
"start": 4662,
"text": "It amounts to criminal offence besides a gross abuse of process of the Court."
}
},
{
"from_name": null,
"id": "c95d178a5856449cb7469456a7749fde",
"to_name": null,
"type": null,
"value": {
"end": 5006,
"labels": [
"FAC"
],
"start": 4740,
"text": "Accordingly, they pray for issu-ance of an appropriate writ, order or direction directing the C.B.I. to enquire and investigate into the circumstances in which the aforesaid decrees were passed and to take appropriate action against the persons responsible therefor."
}
},
{
"from_name": null,
"id": "88ff2b81399842cdae300c01be3fc40c",
"to_name": null,
"type": null,
"value": {
"end": 5155,
"labels": [
"FAC"
],
"start": 5007,
"text": "4. The writ petition was entertained by this Court on September 5, 1994 and stay of dispossession pursuant to the aforesaid arbitral awards granted."
}
},
{
"from_name": null,
"id": "e8e8642616a44e51af8967d881f59a46",
"to_name": null,
"type": null,
"value": {
"end": 5242,
"labels": [
"ARG_RESPONDENT"
],
"start": 5156,
"text": "5. The third respondent, Sri Sangat Singh, has appeared and filed a counter affidavit."
}
},
{
"from_name": null,
"id": "f98e67e52b1a45a79401a5171643c59e",
"to_name": null,
"type": null,
"value": {
"end": 5426,
"labels": [
"ARG_RESPONDENT"
],
"start": 5243,
"text": "He states that he is the owner of the shops in occupation of the writ petitioners by virtue of the sale deed(s) executed by the aforementioned landlady in his favour in the year 1992."
}
},
{
"from_name": null,
"id": "f29b81e16993478ea4343693b7fb76b9",
"to_name": null,
"type": null,
"value": {
"end": 5566,
"labels": [
"ARG_RESPONDENT"
],
"start": 5427,
"text": "He admits that the petitioners were tenants in respect of the four shops under Smt. Urmila Devi but denies the petitioners' claim of title."
}
},
{
"from_name": null,
"id": "c2d2d9515d654402aed8ca062f2b191e",
"to_name": null,
"type": null,
"value": {
"end": 5695,
"labels": [
"ARG_RESPONDENT"
],
"start": 5566,
"text": "\nAgainst the third writ petitioner, Sri Vijay Kumar Behl, he says, he has filed a suit (Suit No.97 of 1993) seeking his eviction."
}
},
{
"from_name": null,
"id": "ca0512b4ab1348c6ad4c2d26cc856272",
"to_name": null,
"type": null,
"value": {
"end": 5796,
"labels": [
"ARG_RESPONDENT"
],
"start": 5696,
"text": "In the written statement, he states, Vijay Kumar Behl has admitted the ownership of Smt.Urmila Devi."
}
},
{
"from_name": null,
"id": "455a7e88c65c4f8b9f4e8b5aa9e450e0",
"to_name": null,
"type": null,
"value": {
"end": 6017,
"labels": [
"ARG_RESPONDENT"
],
"start": 5797,
"text": "With respect to the circumstances in which he took out execution of the aforesaid two decrees against Petitioners 1 and 2, the third respondent has made the following averments, which an: better set out in his own words:"
}
},
{
"from_name": null,
"id": "c7f40d96592a44b38203cf70d8b82aa9",
"to_name": null,
"type": null,
"value": {
"end": 6318,
"labels": [
"ARG_RESPONDENT"
],
"start": 6018,
"text": "\"(2) It is submitted that one Bhupender Singh of Gauhati and other Rabi Raj from Gaya contacted the replying respondent and told him that they wants to execute a decree against Jhumman Singh and Alanur therefore after execution of decree they will give the shop to some body else and will get pagari."
}
},
{
"from_name": null,
"id": "fc484b4488604cb7b3836309ee9f141b",
"to_name": null,
"type": null,
"value": {
"end": 6558,
"labels": [
"ARG_RESPONDENT"
],
"start": 6319,
"text": "The deponent told them that he is the owner of the shops therefore will not allow any third person to enter in his shops therefore the deponent asked them to sell the decree to th e deponent and execute the Power of Attorney in his favour."
}
},
{
"from_name": null,
"id": "3157a44a3a0b4eb98c963ecfd5b71798",
"to_name": null,
"type": null,
"value": {
"end": 6796,
"labels": [
"ARG_RESPONDENT"
],
"start": 6559,
"text": "The replying respondent paid them Rs. 20,000/- each after taking loan from their friends and filed the case for execution of decree.......\n (9) That the contents of para 11, 12, 13 of the writ petition are denied."
}
},
{
"from_name": null,
"id": "8964652edf3c41c1a5771c5ed0fb77ce",
"to_name": null,
"type": null,
"value": {
"end": 6940,
"labels": [
"ARG_RESPONDENT"
],
"start": 6797,
"text": "It is sub- mitted that Be replying respondent is the owner of the disputed property and the petitioner wants to grab the petitioner's property."
}
},
{
"from_name": null,
"id": "49baeae93ac6450785446b6c9f18bf10",
"to_name": null,
"type": null,
"value": {
"end": 7340,
"labels": [
"ARG_RESPONDENT"
],
"start": 6941,
"text": "It is submitted when he came to know that two persons on Shri Bhupender Singh and Sh.Ravi Raj Singh who both used to come to Shri Jhumman Singh and Allanur occasionally and later on when their relation became very strained they came to the respondent and told him that they had obtained decree against the petitioners and after execution of decree they will give the shops to third person on pagari."
}
},
{
"from_name": null,
"id": "078746e3e7db4be1874711fb7ba111f6",
"to_name": null,
"type": null,
"value": {
"end": 7497,
"labels": [
"ARG_RESPONDENT"
],
"start": 7341,
"text": "The replying respondent then requested them not to execute the decree as the he is owner of the disputed shops but they did not accept the deponent request."
}
},
{
"from_name": null,
"id": "4de855343c2b40309da8ed16bc8f2039",
"to_name": null,
"type": null,
"value": {
"end": 7692,
"labels": [
"ARG_RESPONDENT"
],
"start": 7523,
"text": "The bhupinder Singh and Ravi Raj Singh executed the power of attorney in favour of the replying respondent and gave him the power to executed the decree in their behalf."
}
},
{
"from_name": null,
"id": "d649929c5a2f4908854b65a14d672911",
"to_name": null,
"type": null,
"value": {
"end": 7760,
"labels": [
"ARG_RESPONDENT"
],
"start": 7693,
"text": "It is vehemently denied that any signature or agreement was forged."
}
},
{
"from_name": null,
"id": "e40c623d765f4eb09a5329a7eed1a806",
"to_name": null,
"type": null,
"value": {
"end": 7813,
"labels": [
"ARG_RESPONDENT"
],
"start": 7761,
"text": "Smt. Urmila Devi also given on affidavit on 17.7.92."
}
},
{
"from_name": null,
"id": "6b7fdc34627343a09fb401dca714fa69",
"to_name": null,
"type": null,
"value": {
"end": 7946,
"labels": [
"ARG_RESPONDENT"
],
"start": 7814,
"text": "The true photocopies of power of Attorney as Annexure VI collectively and the true copy of affidavit dated 17.7.92 is Annexure-VII.\""
}
},
{
"from_name": null,
"id": "b783c76c56c44e768a8355119fed074d",
"to_name": null,
"type": null,
"value": {
"end": 7976,
"labels": [
"ARG_RESPONDENT"
],
"start": 7948,
"text": "(Quoted from the paper-book)"
}
},
{
"from_name": null,
"id": "1a47e1d5640346f2adcddb001565033d",
"to_name": null,
"type": null,
"value": {
"end": 8084,
"labels": [
"ANALYSIS"
],
"start": 7976,
"text": " 6. We must say at once that the story put forward by the third respondent is incredulous, to say the least."
}
},
{
"from_name": null,
"id": "3d7bd107d0b645d4bdeb9df70462609a",
"to_name": null,
"type": null,
"value": {
"end": 8134,
"labels": [
"ANALYSIS"
],
"start": 8085,
"text": "It is delightfully vague in relevant particulars."
}
},
{
"from_name": null,
"id": "289dd154e2df4ef2ad0152bf34841888",
"to_name": null,
"type": null,
"value": {
"end": 8583,
"labels": [
"ANALYSIS"
],
"start": 8135,
"text": "It is curious how the two plaintiffs, Bhupinder Singh of Gauhati and Ravi Raj Singh of Gaya, who had obtained two identical de-crees from Gauhati and Gaya courts against Petitioners 1 and 2 respectively, simultaneously contacted the third respondent about the decrees obtained by them and how both of them made identical statements to third respondent that after executing the decrees they will give the shops to some other persons and get 'pagri'."
}
},
{
"from_name": null,
"id": "72984c505e3b4134b341a88b25f22ad8",
"to_name": null,
"type": null,
"value": {
"end": 8978,
"labels": [
"ANALYSIS"
],
"start": 8584,
"text": "What is more curious is that the third respondent, who claims to have become the owner of all the said four shops in the year 1992 itself having purchased them from Smt.Urmila Devi did not protest against the third parties seeking to evict, what according to him, are his tenants from the premises owned by him and their proposal to lease them out to third parties and collect'pagri'themselves."
}
},
{
"from_name": null,
"id": "29652cc35e7e4182905ad11869f3bdbf",
"to_name": null,
"type": null,
"value": {
"end": 9223,
"labels": [
"ANALYSIS"
],
"start": 8979,
"text": "One would have expected the third respondent to question immediately the right of those third parties to evict his tenants and obtain possession of the shops with which they had nothing to do and which, according to him, are his own properties."
}
},
{
"from_name": null,
"id": "33b3e67cf9924522be716dbf80b3d6e8",
"to_name": null,
"type": null,
"value": {
"end": 9453,
"labels": [
"ANALYSIS"
],
"start": 9224,
"text": "Not only did he not do that, he, without any demur, purchased the said decrees from the said two persons paying them Rupees twenty thousand each and obtained Powers of Attorney from them to enable him to execute the said decrees."
}
},
{
"from_name": null,
"id": "040c41f3f34843e083585c2e84a34906",
"to_name": null,
"type": null,
"value": {
"end": 9556,
"labels": [
"ANALYSIS"
],
"start": 9454,
"text": "The whole story, every bit of it, appears to be a fabricated one meriting no consideration whatsoever."
}
},
{
"from_name": null,
"id": "3d31026daeec46dd89d82add80f7b68d",
"to_name": null,
"type": null,
"value": {
"end": 10012,
"labels": [
"ANALYSIS"
],
"start": 9557,
"text": "It is abundantly clear that the said stratagem was resorted to by the third respondent with a view to obtain the surreptitious eviction of the 1st and 2nd petitioners in execution of the said spurious decrees since he may have thought that it would be difficult - at any rate, it will take a long time - for him to obtain eviction of the said writ petitioners in a straight-forward manner, i.e., in accordance with the correct procedure prescribed by law."
}
},
{
"from_name": null,
"id": "129008ec7dd34b3da7740256587c27d8",
"to_name": null,
"type": null,
"value": {
"end": 10222,
"labels": [
"ANALYSIS"
],
"start": 10013,
"text": "We are of the opinion that the manner in which the said decrees were obtained and sought to be put in execution by the third respondent through the Court at Delhi is a clear case of abuse of process of courts."
}
},
{
"from_name": null,
"id": "aa6433b544a94727b5b050a87318178e",
"to_name": null,
"type": null,
"value": {
"end": 10496,
"labels": [
"ARG_PETITIONER"
],
"start": 10223,
"text": "7. Sri M.C.Bhandare, learned counsel appearing for the petitioners, submits that such fraudulent proceedings are becoming rampant in the Courts at Delhi and it is necessary in the interest of justice that persons indulging in such proceedings should be dealt with severely."
}
},
{
"from_name": null,
"id": "025e7f2f3af74b20a9286ecc1595a8b2",
"to_name": null,
"type": null,
"value": {
"end": 10627,
"labels": [
"ARG_PETITIONER"
],
"start": 10497,
"text": "He, therefore, requests that C.B.I. be asked to investigate and prosecute the persons responsible for perpetrating the said fraud."
}
},
{
"from_name": null,
"id": "0508cc3e3a5047d2b989ec7c9867debc",
"to_name": null,
"type": null,
"value": {
"end": 10808,
"labels": [
"ARG_RESPONDENT"
],
"start": 10628,
"text": "On the other hand, Sri K.G.Bhagat, learned counsel for the third respondent, submitted that this writ petition is wholly misconceived a,; also the prayer made in the writ petition."
}
},
{
"from_name": null,
"id": "e120792b96394cdcaec1f6141cf12fe2",
"to_name": null,
"type": null,
"value": {
"end": 11061,
"labels": [
"ARG_RESPONDENT"
],
"start": 10809,
"text": "lie says that the Code of Criminal Procedure prescribes the procedure to be followed in cases of complaint of the nature made by the writ petitioners herein and that a writ petition under Article 32 of the Constitution of India is wholly inappropriate."
}
},
{
"from_name": null,
"id": "631cd2499633421ab12a24237f297a62",
"to_name": null,
"type": null,
"value": {
"end": 11213,
"labels": [
"ARG_RESPONDENT"
],
"start": 11062,
"text": "He says that the petitioners are not seeking to enforce any of their fundamental rights and hence, the writ petition is itself not maintainable in law."
}
},
{
"from_name": null,
"id": "d45c93453829478f8defe18216d010bc",
"to_name": null,
"type": null,
"value": {
"end": 11388,
"labels": [
"ARG_RESPONDENT"
],
"start": 11214,
"text": "He also submits that the third respondent has bonafide purchased the decrees and put them in execution and is not guilty of any criminal offence or abuse of process of Court."
}
},
{
"from_name": null,
"id": "3deef39bff7e41ac8364f779399a7ea5",
"to_name": null,
"type": null,
"value": {
"end": 11574,
"labels": [
"ANALYSIS"
],
"start": 11389,
"text": "8. We are of the opinion that the story put forward by the third respondent with respect to the circumstances in which he claims to have purchased the said decrees are highly tell-tale."
}
},
{
"from_name": null,
"id": "88c5a2a6a37942caa77919322c8b4715",
"to_name": null,
"type": null,
"value": {
"end": 11622,
"labels": [
"ANALYSIS"
],
"start": 11575,
"text": "The whole story appears to be a fabricated one."
}
},
{
"from_name": null,
"id": "4349210906e0428fa6d2a16997d49814",
"to_name": null,
"type": null,
"value": {
"end": 11855,
"labels": [
"RATIO"
],
"start": 11622,
"text": "\nIt is evident that the third respondent has himself ma- nipulated to get the said decrees from Gauhati and Gaya Courts with a view toevict Petitioners 1 and 2 otherwise than in accordance with the proper procedure prescribed by law."
}
},
{
"from_name": null,
"id": "bcf9c862ac704747bc33d514ed68519c",
"to_name": null,
"type": null,
"value": {
"end": 12027,
"labels": [
"RATIO"
],
"start": 11856,
"text": "It is clear beyond any doubt that the third respondent has tried to over-reach the courts and to circumvent and defeat the ends of justice by resorting to the said tactic."
}
},
{
"from_name": null,
"id": "ba3fc9aa7d314d14b23faf5e139ada4d",
"to_name": null,
"type": null,
"value": {
"end": 12162,
"labels": [
"RATIO"
],
"start": 12028,
"text": "It is necessary that not only such tactics be not allowed to succeed but persons indulging in them should be dealt with appropriately."
}
},
{
"from_name": null,
"id": "f0ce09d6f9ee416bbfe58be9e843bb28",
"to_name": null,
"type": null,
"value": {
"end": 12290,
"labels": [
"RATIO"
],
"start": 12163,
"text": "In such a situation, we are not inclined to agree with Sri Bhagat that this writ petition under Article 32 is not maintainable."
}
},
{
"from_name": null,
"id": "a4c1cb042a10419c8786401e039c0ce2",
"to_name": null,
"type": null,
"value": {
"end": 12526,
"labels": [
"RATIO"
],
"start": 12291,
"text": "When such a blatant abuse of process of courts and judicial system comes to the notice of this court, it has the power, indeed the duty, to rectify it whether the power to do so is traced to Articles 32, 136 or 142 of the Constitution."
}
},
{
"from_name": null,
"id": "72f0986da64d4f0788b225ee447e61bd",
"to_name": null,
"type": null,
"value": {
"end": 13107,
"labels": [
"RPC"
],
"start": 12527,
"text": "Accordingly, the following directions are made: (i) The decrees aforementioned, viz., (1) between Sri Bhupinder Singh, S/o Sri Harcharan Singh, R/o Sri Mantapur, Bhangaghar, Gauhati Versus Sri Jhumman Singh, S/o Sri Chadda Singh, R/o Titar Pur, New Delhi in Arbitration Suit No.47 of 1994 passed by the Court of Assistant District Judge-1 at Gauhati and (2) between Sri Ravi Raj Singh, S/o Sri Iqbal Singh, R/ o Church Road, Gaya Versus Ala Noor, S/ o Sri Amir Bux, R/o WZ-42, Titar Pur, New Delhi are declared in executable against Petitioners 1 and 2 through any court in Delhi."
}
},
{
"from_name": null,
"id": "d678b6185d6b42d086e26870795b24ac",
"to_name": null,
"type": null,
"value": {
"end": 13227,
"labels": [
"RPC"
],
"start": 13108,
"text": "Petitioners 1 and 2 shall not be evicted from the shops mentioned in the said decrees in execution of the said decrees."
}
},
{
"from_name": null,
"id": "d7c168f2311e4c8b904f217c4283793a",
"to_name": null,
"type": null,
"value": {
"end": 13339,
"labels": [
"RPC"
],
"start": 13227,
"text": "\n(ii) The third respondent, Sri Sangat Singh, shall pay costs of this writ petition assessed at Rupees one lakh."
}
},
{
"from_name": null,
"id": "243f430f13ab488dbb8a77c709a71696",
"to_name": null,
"type": null,
"value": {
"end": 13417,
"labels": [
"RPC"
],
"start": 13340,
"text": "The said amount shall be deposited in this Court within one month from today."
}
},
{
"from_name": null,
"id": "bfb3e282b27a4114bf78a1c4cefd61b2",
"to_name": null,
"type": null,
"value": {
"end": 13522,
"labels": [
"RPC"
],
"start": 13418,
"text": "On such deposit, the said amount shall be paid to Writ Petitioners 1 and 2 (Rupees fifty thousand each)."
}
},
{
"from_name": null,
"id": "358303f4e14c41d6b508ae803537578b",
"to_name": null,
"type": null,
"value": {
"end": 14367,
"labels": [
"RPC"
],
"start": 13522,
"text": "\nIf the third respondent fails to deposit the said amount within the period prescribed, this order shall be executable and be executed as a decree of the civil court by and at the instance of Petitioners 1 and 2 either jointly or separately, as the case may be.\n(iii)The third respondent and/or any other person claiming under or through him shall not be entitled to evict the Writ Petitioners 1 to 4 from the shops in their occupation forming part of premises No.WZ-93, Titar Pur, Najafgarh Road, New Delhi except in accordance with law, viz., by approaching a court at Delhi having territorial jurisdiction either in accordance with the Rent Control Act or through an ordinary civil action, as the case may be.\n(iv)The petitioners are free to take such proceedings against the third respondent civil or criminal, as are open to them in law.\n9."
}
},
{
"from_name": null,
"id": "fb7b1095dfb84acfa3bd202dd7281e18",
"to_name": null,
"type": null,
"value": {
"end": 14655,
"labels": [
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],
"start": 14368,
"text": "We make it clear that we did not intend to and we do not express any opinion on the pleas of the writ petitioners or of the third respondent with respect to their claim of having purchased the said shop or shops, or with respect to their respective claims of ownership of the said shops."
}
},
{
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"id": "c02893ec3fc849d38a3f885331230173",
"to_name": null,
"type": null,
"value": {
"end": 14708,
"labels": [
"RPC"
],
"start": 14656,
"text": "10. The writ petition is allowed in the above terms."
}
},
{
"from_name": null,
"id": "cdaa9ce99c3548c2bc2cb08caea93170",
"to_name": null,
"type": null,
"value": {
"end": 14734,
"labels": [
"RPC"
],
"start": 14709,
"text": "Costs as indicated above."
}
}
]
}
] | 4,200 | {
"text": "PETITIONER:\nJHUMMAN SINGH & ORS.\n\n Vs.\n\nRESPONDENT:\nCENTRAL BUREAU OF INVESTIGATION AND ORS.\n\nDATE OF JUDGMENT30/03/1995\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nSEN, S.C. (J)\n\nCITATION: 1995 SCC (3) 420\n 1995 AIR 2083 1995 SCALE (2)546\n JT 1995 (3) 360\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\nB.P. JEEVAN REDDY, J.: 1. This writ petition brings to light a serious abuse of process of court - indeed an abuse of the process of more than one court - indulged in by certain unscrupulous persons. Since the facts of the case are themselves demonstrative of the said abuse perpetrated by Respondent No.3, we, would set them out first.\n2. The four writ petitioners are the tenants of four shops comprised in property bearing No. WZ-93, Titarpur, Najafgarh Road, New Delhi-1 10027, while the third respondent is occupying the fifth shop as a tenant. According to the petitioners, one Siyaram Gupta was the, own=of the said five shops. On his death in or about 1983, his wife, Smt.Urmila Devi and her three daughters became the owners. Towards the end of the year 1992, the petitioners say, the landlady offered to sell the shops to the respective tenants. Three ofthe petitioners purchased the three shops occupied by them.\nSale deeds were also executed in their favour. After the death of Smt. Urmila Devi, the petitioners say, the third respondent, Sri Sangat Singh started declaring himself as the owner of all the five shops and demanded rent from the petitioners which they resisted.\n3. The petitioners complained that with a view to get the writ petitioners evicted from the shops otherwise than by due process of law, the third respondent resorted to a devious device. Two decrees were, obtained against the Petitioners 1 and 2 - one from the Court of Assistant Dis- trict Judge-1 at Gauhati against the first petitioner and the other from the SubJudge-1, Gaya (Bihar) against the second petitioner's father. The decree from the Gauhati court is dated May 18, 1994 in Arbitration Suit No.47 of 1994 making an award the rule of the Court. The award is said to have been obtained by one Sri Bhupinder Singh, S/o Sri Harcharan Singh, R/o Sri Mantapur, Bhangaghar, Gauhati against Sri Jhumman Singh, S/o Sri Chadda Singh, R/o Titar Pur, New Delhi (the first writ petitioner in this writ petition). The decree says that the defendant, Sri Jhumman Singh shall pay a sum of Rupees fifty thousand plus interest @ twelve per cent per annum from April 1, 1992 till the day of payment to Sri Bhupinder Singh and shall also hand over peaceful vacant possession of the property bearing Shop No.\n4 forming part of premises WZ 93/4 situated at Titar Pur, Main Najafgarh Road, Tagore Garden, New Delhi. A site plan is attached to the said decree specifying Shop No.4 which the defendant to the said decree was to hand over to the plaintiff therein. The other decree passed by SubJudge-1st, Gaya is also a decree making an award the rule of the court.\nThe award which has been made a rule of the Court directs, inter alia, that Sri Ala Noor S/o Sri Amir Bux, R/o Titarpur, New Delhi shall hand over to the plaintiff therein peaceful vacant possession -of the Shop No.3 Conning part of property No. 93/3, Titar Pur, Main Najafgarh Road, Tagore Garden, New Delhi-27 (specified in the annexed plan) within fifteen days of the said Award being made a rule of the Court. In default, the plaintiff, Sri Ravi Raj Singh, was held entitled to execute the said decree and recover the possession. Execution was taken out of the said two decrees and then transferred to Delhi for execution. Petitioners 1 and 2 came to know of the said decrees only when the Bailiff came along with the warrants of delivery of possession of the said premises. On account of the resistance put up by the petitioners, supported by the neighbours, the Bailiff could not execute the decrees on that day. On verification from the Court records, the petitioners say, they came to know the particulars of said decrees. Petitioners 1 and 2 say that they had nothing to do with the persons shown as plaintiffs in the said decree, had no dealings with them much less was there any dispute between them either at Gauhati, Gaya or anywhere else. They even doubt whether any such persons really exist. According to them, the whole thing is a fabrication indulged in by third respondent to get the Petitioners 1 and 2 evicted surreptitiously. They submit that obtaining the said fraudulent decrees and the manner in which they were, sought to be executed and the petitioners sought to be evicted from their shops is the result of a criminal conspiracy hatched by the third respondent. It amounts to criminal offence besides a gross abuse of process of the Court. Accordingly, they pray for issu-ance of an appropriate writ, order or direction directing the C.B.I. to enquire and investigate into the circumstances in which the aforesaid decrees were passed and to take appropriate action against the persons responsible therefor.\n4. The writ petition was entertained by this Court on September 5, 1994 and stay of dispossession pursuant to the aforesaid arbitral awards granted.\n5. The third respondent, Sri Sangat Singh, has appeared and filed a counter affidavit. He states that he is the owner of the shops in occupation of the writ petitioners by virtue of the sale deed(s) executed by the aforementioned landlady in his favour in the year 1992. He admits that the petitioners were tenants in respect of the four shops under Smt. Urmila Devi but denies the petitioners' claim of title.\nAgainst the third writ petitioner, Sri Vijay Kumar Behl, he says, he has filed a suit (Suit No.97 of 1993) seeking his eviction. In the written statement, he states, Vijay Kumar Behl has admitted the ownership of Smt.Urmila Devi. With respect to the circumstances in which he took out execution of the aforesaid two decrees against Petitioners 1 and 2, the third respondent has made the following averments, which an: better set out in his own words: \"(2) It is submitted that one Bhupender Singh of Gauhati and other Rabi Raj from Gaya contacted the replying respondent and told him that they wants to execute a decree against Jhumman Singh and Alanur therefore after execution of decree they will give the shop to some body else and will get pagari. The deponent told them that he is the owner of the shops therefore will not allow any third person to enter in his shops therefore the deponent asked them to sell the decree to th e deponent and execute the Power of Attorney in his favour. The replying respondent paid them Rs. 20,000/- each after taking loan from their friends and filed the case for execution of decree.......\n (9) That the contents of para 11, 12, 13 of the writ petition are denied. It is sub- mitted that Be replying respondent is the owner of the disputed property and the petitioner wants to grab the petitioner's property. It is submitted when he came to know that two persons on Shri Bhupender Singh and Sh.Ravi Raj Singh who both used to come to Shri Jhumman Singh and Allanur occasionally and later on when their relation became very strained they came to the respondent and told him that they had obtained decree against the petitioners and after execution of decree they will give the shops to third person on pagari. The replying respondent then requested them not to execute the decree as the he is owner of the disputed shops but they did not accept the deponent request.\n The bhupinder Singh and Ravi Raj Singh executed the power of attorney in favour of the replying respondent and gave him the power to executed the decree in their behalf. It is vehemently denied that any signature or agreement was forged. Smt. Urmila Devi also given on affidavit on 17.7.92. The true photocopies of power of Attorney as Annexure VI collectively and the true copy of affidavit dated 17.7.92 is Annexure-VII.\"\n (Quoted from the paper-book) 6. We must say at once that the story put forward by the third respondent is incredulous, to say the least. It is delightfully vague in relevant particulars. It is curious how the two plaintiffs, Bhupinder Singh of Gauhati and Ravi Raj Singh of Gaya, who had obtained two identical de-crees from Gauhati and Gaya courts against Petitioners 1 and 2 respectively, simultaneously contacted the third respondent about the decrees obtained by them and how both of them made identical statements to third respondent that after executing the decrees they will give the shops to some other persons and get 'pagri'. What is more curious is that the third respondent, who claims to have become the owner of all the said four shops in the year 1992 itself having purchased them from Smt.Urmila Devi did not protest against the third parties seeking to evict, what according to him, are his tenants from the premises owned by him and their proposal to lease them out to third parties and collect'pagri'themselves. One would have expected the third respondent to question immediately the right of those third parties to evict his tenants and obtain possession of the shops with which they had nothing to do and which, according to him, are his own properties. Not only did he not do that, he, without any demur, purchased the said decrees from the said two persons paying them Rupees twenty thousand each and obtained Powers of Attorney from them to enable him to execute the said decrees. The whole story, every bit of it, appears to be a fabricated one meriting no consideration whatsoever. It is abundantly clear that the said stratagem was resorted to by the third respondent with a view to obtain the surreptitious eviction of the 1st and 2nd petitioners in execution of the said spurious decrees since he may have thought that it would be difficult - at any rate, it will take a long time - for him to obtain eviction of the said writ petitioners in a straight-forward manner, i.e., in accordance with the correct procedure prescribed by law. We are of the opinion that the manner in which the said decrees were obtained and sought to be put in execution by the third respondent through the Court at Delhi is a clear case of abuse of process of courts.\n7. Sri M.C.Bhandare, learned counsel appearing for the petitioners, submits that such fraudulent proceedings are becoming rampant in the Courts at Delhi and it is necessary in the interest of justice that persons indulging in such proceedings should be dealt with severely. He, therefore, requests that C.B.I. be asked to investigate and prosecute the persons responsible for perpetrating the said fraud. On the other hand, Sri K.G.Bhagat, learned counsel for the third respondent, submitted that this writ petition is wholly misconceived a,; also the prayer made in the writ petition. lie says that the Code of Criminal Procedure prescribes the procedure to be followed in cases of complaint of the nature made by the writ petitioners herein and that a writ petition under Article 32 of the Constitution of India is wholly inappropriate. He says that the petitioners are not seeking to enforce any of their fundamental rights and hence, the writ petition is itself not maintainable in law. He also submits that the third respondent has bonafide purchased the decrees and put them in execution and is not guilty of any criminal offence or abuse of process of Court.\n8. We are of the opinion that the story put forward by the third respondent with respect to the circumstances in which he claims to have purchased the said decrees are highly tell-tale. The whole story appears to be a fabricated one.\nIt is evident that the third respondent has himself ma- nipulated to get the said decrees from Gauhati and Gaya Courts with a view toevict Petitioners 1 and 2 otherwise than in accordance with the proper procedure prescribed by law. It is clear beyond any doubt that the third respondent has tried to over-reach the courts and to circumvent and defeat the ends of justice by resorting to the said tactic. It is necessary that not only such tactics be not allowed to succeed but persons indulging in them should be dealt with appropriately. In such a situation, we are not inclined to agree with Sri Bhagat that this writ petition under Article 32 is not maintainable. When such a blatant abuse of process of courts and judicial system comes to the notice of this court, it has the power, indeed the duty, to rectify it whether the power to do so is traced to Articles 32, 136 or 142 of the Constitution. Accordingly, the following directions are made: (i) The decrees aforementioned, viz., (1) between Sri Bhupinder Singh, S/o Sri Harcharan Singh, R/o Sri Mantapur, Bhangaghar, Gauhati Versus Sri Jhumman Singh, S/o Sri Chadda Singh, R/o Titar Pur, New Delhi in Arbitration Suit No.47 of 1994 passed by the Court of Assistant District Judge-1 at Gauhati and (2) between Sri Ravi Raj Singh, S/o Sri Iqbal Singh, R/ o Church Road, Gaya Versus Ala Noor, S/ o Sri Amir Bux, R/o WZ-42, Titar Pur, New Delhi are declared in executable against Petitioners 1 and 2 through any court in Delhi. Petitioners 1 and 2 shall not be evicted from the shops mentioned in the said decrees in execution of the said decrees.\n(ii) The third respondent, Sri Sangat Singh, shall pay costs of this writ petition assessed at Rupees one lakh. The said amount shall be deposited in this Court within one month from today. On such deposit, the said amount shall be paid to Writ Petitioners 1 and 2 (Rupees fifty thousand each).\nIf the third respondent fails to deposit the said amount within the period prescribed, this order shall be executable and be executed as a decree of the civil court by and at the instance of Petitioners 1 and 2 either jointly or separately, as the case may be.\n(iii)The third respondent and/or any other person claiming under or through him shall not be entitled to evict the Writ Petitioners 1 to 4 from the shops in their occupation forming part of premises No.WZ-93, Titar Pur, Najafgarh Road, New Delhi except in accordance with law, viz., by approaching a court at Delhi having territorial jurisdiction either in accordance with the Rent Control Act or through an ordinary civil action, as the case may be.\n(iv)The petitioners are free to take such proceedings against the third respondent civil or criminal, as are open to them in law.\n9. We make it clear that we did not intend to and we do not express any opinion on the pleas of the writ petitioners or of the third respondent with respect to their claim of having purchased the said shop or shops, or with respect to their respective claims of ownership of the said shops.\n10. The writ petition is allowed in the above terms. Costs as indicated above."
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"end": 143,
"labels": [
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],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA\n KALABURAGI BENCH\n\n DATED THIS THE 2ND DAY OF NOVEMBER 2017\n PRESENT"
}
},
{
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"id": "c7698497e9d24fa0974b2d1cb8b2d236",
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"end": 267,
"labels": [
"PREAMBLE"
],
"start": 143,
"text": "\n\n THE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n AND\n\nTHE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO"
}
},
{
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"end": 307,
"labels": [
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],
"start": 267,
"text": "\n\nCRIMINAL REFERENCE CASE NO.200001/2016"
}
},
{
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"id": "a6a3e6f8cfcd4f1bbee1bfe413350f81",
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"value": {
"end": 429,
"labels": [
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],
"start": 342,
"text": "C/W\n\n CRIMINAL APPEAL No.200033/2016\n\nCRL.RC.No.200001/2016: ..."
}
},
{
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"id": "05207d61e59c475fb987d836a8fd1464",
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"labels": [
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"start": 430,
"text": "Appellant"
}
},
{
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"id": "4c42c85fc7524ba3b7d7ce7af52ceed8",
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"value": {
"end": 734,
"labels": [
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],
"start": 439,
"text": "\n\nBETWEEN:\n\nThe Additional Registrar General,\nHigh Court of Karnataka,\nKalaburagi.\n\n(By Sri Prakash Yeli, Addl. S.P.P.)\n\nAND:\n\nDevendra S/o Sharanappagouda Halamani\nAge: 32 years, Occ: Agriculture\nR/o Chabanur village,\nTq. Basavana Bagewadi\n\nDist: Vijaypur. ... Respondent"
}
},
{
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"id": "a495f2695b824f79bac8ef1603c68dbd",
"to_name": null,
"type": null,
"value": {
"end": 765,
"labels": [
"PREAMBLE"
],
"start": 734,
"text": "\n(By Sri R.S. Lagali, Advocate)"
}
},
{
"from_name": null,
"id": "7c10c7e717f144c0ace11a99fb4fd85f",
"to_name": null,
"type": null,
"value": {
"end": 1258,
"labels": [
"PREAMBLE"
],
"start": 765,
"text": "\n\n This Criminal Reference Case is filed under Section\n366 of Code of Criminal Procedure for confirmation of death\nsentence awarded to accused by the judgment of conviction\ndated 06.02.2016 and order of conviction dated 09.02.2016\npassed in Sessions Case No.96/2012 by the I Addl. Sessions\nJudge, Vijaypur.\n\nCRL.A.No.200033/2016:\n\nBETWEEN:\n\nDevendra S/o Sharanappagouda Halamani ... Appellant\nAge: 32 years, Occ: Agriculture\nR/o Chabanur village,\nTq. Basavana Bagewadi\nDist: Vijaypur."
}
},
{
"from_name": null,
"id": "226a4821af2049d7aff3236121240ff6",
"to_name": null,
"type": null,
"value": {
"end": 1289,
"labels": [
"PREAMBLE"
],
"start": 1258,
"text": "\n\n(By Sri R.S.Lagali, Advocate)"
}
},
{
"from_name": null,
"id": "8dfd9c708ecc4177be33f04f9f2b9462",
"to_name": null,
"type": null,
"value": {
"end": 1350,
"labels": [
"PREAMBLE"
],
"start": 1289,
"text": "\n\nAND:\n\nThe State of Karnataka ... Respondent"
}
},
{
"from_name": null,
"id": "1786e3d272e0406aabcea26f9acf585f",
"to_name": null,
"type": null,
"value": {
"end": 1366,
"labels": [
"PREAMBLE"
],
"start": 1350,
"text": "\nRep. by the PSI"
}
},
{
"from_name": null,
"id": "f48f1246e8a940928fe87971de4480df",
"to_name": null,
"type": null,
"value": {
"end": 1379,
"labels": [
"PREAMBLE"
],
"start": 1366,
"text": "\nTalikoti PS."
}
},
{
"from_name": null,
"id": "fae70a1230544e8f9db948dec87cec5a",
"to_name": null,
"type": null,
"value": {
"end": 1416,
"labels": [
"PREAMBLE"
],
"start": 1381,
"text": "(By Sri Prakash Yeli, Addl. S.P.P.)"
}
},
{
"from_name": null,
"id": "a6617cbf491d4ab4896b0bbc0fcb96a4",
"to_name": null,
"type": null,
"value": {
"end": 1848,
"labels": [
"PREAMBLE"
],
"start": 1416,
"text": "\n\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C. praying to admit this appeal, call for the records from\nthe court below, allow the appeal and thereby set aside the\njudgment of conviction dated 06.02.2016 and order of\nconviction dated 09.02.2016 passed in Sessions Case\nNo.96/2012 by the I Addl. Sessions Judge, Vijaypur and\nacquit the appellant.\n\n This Criminal Reference Case as well as the Appeal\n"
}
},
{
"from_name": null,
"id": "05ce9c3ee766454db0850f57bddfafc3",
"to_name": null,
"type": null,
"value": {
"end": 1957,
"labels": [
"PREAMBLE"
],
"start": 1848,
"text": "having been heard, reserved for judgment on 29.08.2017\nand coming on for pronouncement of judgment this day,\n"
}
},
{
"from_name": null,
"id": "d4738de47e2a4c7989cdd94fe1623b1e",
"to_name": null,
"type": null,
"value": {
"end": 2054,
"labels": [
"PREAMBLE"
],
"start": 1957,
"text": "N.K.Sudhindrarao J., delivered the following:-\n\n JUDGMENT\n "
}
},
{
"from_name": null,
"id": "9ec1080788604bd99ded5ca64204ae87",
"to_name": null,
"type": null,
"value": {
"end": 2089,
"labels": [
"FAC"
],
"start": 2054,
"text": "The accused is in judicial custody."
}
},
{
"from_name": null,
"id": "49638edf26ef4cfbac61b06773af12cb",
"to_name": null,
"type": null,
"value": {
"end": 2328,
"labels": [
"FAC"
],
"start": 2089,
"text": "\n 2. As the facts unfurl the details are that, a criminal case came to be registered in Cr.No.221/2011 on the basis of a complaint lodged by one Mallannagouda, stating that he is the husband of Parvati, father of three daughters and a son."
}
},
{
"from_name": null,
"id": "9eadf6767a9e4301be83ee540b08be2d",
"to_name": null,
"type": null,
"value": {
"end": 2426,
"labels": [
"FAC"
],
"start": 2329,
"text": "He further states that his son Madivalappa aged 6 years was missing from 2.30 p.m. on 15.12.2011."
}
},
{
"from_name": null,
"id": "b8f813781dd24e57a9c8c53d564753c1",
"to_name": null,
"type": null,
"value": {
"end": 2646,
"labels": [
"FAC"
],
"start": 2427,
"text": "The complaint was lodged at 8.30 p.m. on the same day, as his son Madivalappagouda who was attending the school at Heroor did not return on 15.12.2011 despite other students returning to their respective homes as usual."
}
},
{
"from_name": null,
"id": "686d06f3b9404b26b3e3d45a5e7e65e2",
"to_name": null,
"type": null,
"value": {
"end": 2742,
"labels": [
"FAC"
],
"start": 2646,
"text": "\nHe goes to the school and enquires and comes to know that his son had already left at 2.30 p.m."
}
},
{
"from_name": null,
"id": "1246ae46241549c090209f53083d87a3",
"to_name": null,
"type": null,
"value": {
"end": 2800,
"labels": [
"FAC"
],
"start": 2743,
"text": "The complaint came to be registered in Crime No.221/2011."
}
},
{
"from_name": null,
"id": "a36b84a0a46046b89c0bead714c0fe3b",
"to_name": null,
"type": null,
"value": {
"end": 3007,
"labels": [
"FAC"
],
"start": 2800,
"text": "\nHowever, on 18.12.2011 the FIR that was registered in the said crime number \" for missing\" came to be transformed to one in respect of the offence punishable under Sections 364 and 302 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "eb3f68500b1442b591520fc463875d7a",
"to_name": null,
"type": null,
"value": {
"end": 3446,
"labels": [
"FAC"
],
"start": 3009,
"text": "3. The information given on 18.12.2011 by the complainant that Devendra son of Sharanappa kidnapped the his son Madivalappagowda aged 6 years on 15.12.2011 that was registered \"for missing\" from the school in which he was studying at Heroor and was murdered by the accused by beheading the child with a sharp weapon. He refers his previous complaint/statement filed by him on 15.12.2011 wherein he lodged a missing complaint of his son."
}
},
{
"from_name": null,
"id": "20ed00ad425c4f03bfeac6601bf73597",
"to_name": null,
"type": null,
"value": {
"end": 3733,
"labels": [
"FAC"
],
"start": 3447,
"text": "In the complaint dated 18.12.2011 it is stated that the accused kidnapped Madivalappagouda from the school at Heroor and murdered him in the land of Shahhusain Hajisab Inamdar at Hireur village and FIR came to be transformed for the offence punishable under Sections 364 and 302 of IPC."
}
},
{
"from_name": null,
"id": "9013e87bc3cc406aa1666163dd98e75b",
"to_name": null,
"type": null,
"value": {
"end": 4000,
"labels": [
"FAC"
],
"start": 3734,
"text": "He further states that the accused was pressurizing him to give his daughter Basamma in marriage to him, that proposal was ultimately refused by the complainant, and the accused stooped to the level of kidnapping and murdering Madivalappa Gouda as mark of vengeance."
}
},
{
"from_name": null,
"id": "42e10964042542509046a6494be60662",
"to_name": null,
"type": null,
"value": {
"end": 4122,
"labels": [
"FAC"
],
"start": 4000,
"text": "\n 4. The dead body of Madivalappagouda was found at the land of Shahhusain Hajisab in two parts as the child was beheaded."
}
},
{
"from_name": null,
"id": "cc796aada68c443c96bb321f08515813",
"to_name": null,
"type": null,
"value": {
"end": 4284,
"labels": [
"FAC"
],
"start": 4123,
"text": "It is also stated that the accused was also warning that the complainant and his family would learn a lesson only if any one of their family member was murdered."
}
},
{
"from_name": null,
"id": "a249d663882e44918be81cfa7a349430",
"to_name": null,
"type": null,
"value": {
"end": 4493,
"labels": [
"FAC"
],
"start": 4285,
"text": "The complainant went to school and came to know from the teachers Sharada and Shahida Pinjar that a male person took Madivalappagouda at 2.30 p.m. on 15.12.2011 was addressed by the Madivalappagouda as Maama."
}
},
{
"from_name": null,
"id": "97075097a00f453ab92c2482621ed18c",
"to_name": null,
"type": null,
"value": {
"end": 4571,
"labels": [
"FAC"
],
"start": 4494,
"text": "It is that time, the complainant showed the photo of the accused in the case."
}
},
{
"from_name": null,
"id": "d625b5d64d724418b83aad8ad1974401",
"to_name": null,
"type": null,
"value": {
"end": 4753,
"labels": [
"FAC"
],
"start": 4572,
"text": "The teachers on seeing the photo of the accused confirmed the complainant that the person in the said photo was the same one who took Madivalappagouda from the school on 15.12.2011."
}
},
{
"from_name": null,
"id": "4eac8be0c64f405da75bfffed2354b36",
"to_name": null,
"type": null,
"value": {
"end": 4818,
"labels": [
"FAC"
],
"start": 4754,
"text": "He also encloses the copy of the complaint lodged on 15.12.2011."
}
},
{
"from_name": null,
"id": "11d0b465c6dd45c1b6f446c37e4dabef",
"to_name": null,
"type": null,
"value": {
"end": 5020,
"labels": [
"FAC"
],
"start": 4818,
"text": "\n 5. The inquest mahazar as per Ex.P.8 on the dead body of Madivalappagouda was conducted on 18.12.2011 during which the statements of the parents, Ishwarappagouda, the uncle of the child were recorded."
}
},
{
"from_name": null,
"id": "4a3df04f0a3644cba1e220c56ab69bff",
"to_name": null,
"type": null,
"value": {
"end": 5088,
"labels": [
"FAC"
],
"start": 5020,
"text": "\nAfter the said formalities, the dead body was sent for post-mortem."
}
},
{
"from_name": null,
"id": "0604f24f442e4c768d448a5f8af29d8a",
"to_name": null,
"type": null,
"value": {
"end": 5294,
"labels": [
"FAC"
],
"start": 5090,
"text": "6. Upon the completion of investigation, the final report came to be filed for the offence punishable under Sections 364 and 302 of IPC against the accused Devendrappa S/o Sharanappa in CC No.28/2012.\n 7."
}
},
{
"from_name": null,
"id": "d5c53e8011f846719d959a136fbed992",
"to_name": null,
"type": null,
"value": {
"end": 5342,
"labels": [
"FAC"
],
"start": 5295,
"text": "The matter was committed to the Sessions Court."
}
},
{
"from_name": null,
"id": "e447ccf282b7490ca2a9e1a27419fb76",
"to_name": null,
"type": null,
"value": {
"end": 5547,
"labels": [
"FAC"
],
"start": 5343,
"text": "After the case was being presented by the learned Public Prosecutor, the trial Court heard regarding charge and found grounds to frame charges for the offences punishable under Setions 364 and 302 of IPC."
}
},
{
"from_name": null,
"id": "a8c6065db2ce40a7880bea6b0e1ea956",
"to_name": null,
"type": null,
"value": {
"end": 5603,
"labels": [
"FAC"
],
"start": 5548,
"text": "The accused pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "7409fbb1ca7b4fbab708853ce1223e83",
"to_name": null,
"type": null,
"value": {
"end": 6044,
"labels": [
"FAC"
],
"start": 5603,
"text": "\n 8. The prosecution has examined PWs.1 to 20 including the prime witnesses complainant, his brother Mallannagouda S/o Sharanagouda, Shahida Begum, Laxman Bhimappa Badiger, Dr. Satish Tiwari I.O.\nV.R.Yalagi and documents Ex.P.1 to P.26 including complaint, missing complaint, seizure mahazars, post- mortem report, FIR, FSL report, M.O.1 to 16 including shirt, half pant, socks, shoes, kerchief, sickle, sample bloodstained soil were marked."
}
},
{
"from_name": null,
"id": "4f69b39c6cf7490fbe9585da9b55e34c",
"to_name": null,
"type": null,
"value": {
"end": 6087,
"labels": [
"FAC"
],
"start": 6045,
"text": "No witnesses were examined by the defence."
}
},
{
"from_name": null,
"id": "f11a4b41bb024470942b2bd5103c9172",
"to_name": null,
"type": null,
"value": {
"end": 6094,
"labels": [
"FAC"
],
"start": 6088,
"text": "Ex.D.1"
}
},
{
"from_name": null,
"id": "21c686a493d94021b7851db1700259fa",
"to_name": null,
"type": null,
"value": {
"end": 6205,
"labels": [
"FAC"
],
"start": 6095,
"text": "and D.2 are portion of the statement of PW.9 Shivanna Ningappa Basavannavar, PW.17 Devindrappa Tipper Dhannur."
}
},
{
"from_name": null,
"id": "0b0fa35406314233b08efdf0e3e8d227",
"to_name": null,
"type": null,
"value": {
"end": 6392,
"labels": [
"ARG_PETITIONER"
],
"start": 6205,
"text": "\n 9. The learned counsel for the appellant would submit that the very ground of vengeance theory by the complainant cannot be believed taking to the extent of causing death of the victim."
}
},
{
"from_name": null,
"id": "6af6a53aa7d547928d893872cbca0137",
"to_name": null,
"type": null,
"value": {
"end": 6542,
"labels": [
"ARG_PETITIONER"
],
"start": 6393,
"text": "He further submits that the accused was not that cruel nor had any criminal background to commit either kidnapping or the murder of Madivalappagouda."
}
},
{
"from_name": null,
"id": "a99a8ab69bcc41b98ce941629d4eae58",
"to_name": null,
"type": null,
"value": {
"end": 6789,
"labels": [
"ARG_PETITIONER"
],
"start": 6543,
"text": "He would further submit that the sequence of events and documents regarding spot mahazar Ex.P.6 , place of offence Ex.P.7, recovery of clothes Ex.P.11 are imaginary and documents that came out of connivance between the complainant and the police."
}
},
{
"from_name": null,
"id": "bc907b6c8d7c4fc6a6913487d4ad6110",
"to_name": null,
"type": null,
"value": {
"end": 7018,
"labels": [
"ARG_PETITIONER"
],
"start": 6790,
"text": "It is also his contention that the version of the witnesses PW.6 Abdul Gani, Nabisab Mukhiya, PW.8 Shahida Begum, Gudusab Pinjar bear strong layer of falsehood and their version speaks lot of exaggeration and not worth reliable."
}
},
{
"from_name": null,
"id": "9048b0ddb9c74b31a7240c61b5e5b292",
"to_name": null,
"type": null,
"value": {
"end": 7167,
"labels": [
"ARG_PETITIONER"
],
"start": 7019,
"text": "Further the learned trial judge has not properly evaluated the oral and documentary evidence and failed to conclude on the innocence of the accused."
}
},
{
"from_name": null,
"id": "12782a05d35048bcb69be662ab02edc9",
"to_name": null,
"type": null,
"value": {
"end": 7321,
"labels": [
"ARG_PETITIONER"
],
"start": 7168,
"text": "Learned counsel for the appellant would further submit that the judgment wherein the accused was convicted is not justifiable and based on valid reasons."
}
},
{
"from_name": null,
"id": "fc3fde67493344f68550436c11c77924",
"to_name": null,
"type": null,
"value": {
"end": 7483,
"labels": [
"ARG_PETITIONER"
],
"start": 7322,
"text": "The accused being an innocent is not liable for the punishment, rather thinking of death sentence to him by considering the case as the `rarest of the rare' one."
}
},
{
"from_name": null,
"id": "2feae2efc7c249e098515558e881d6a3",
"to_name": null,
"type": null,
"value": {
"end": 7738,
"labels": [
"ARG_PETITIONER"
],
"start": 7484,
"text": "In this connection, he placed reliance on the following decisions: (1) 1973 SCC (Cri) 169 (Jagmohan Singh vs. The State of U.P.) (2) 1979 SCC (Cri) 749 (Rajendra Prasad vs. State of Uttar Pradesh) (3) 1980 SCC (Cri) 580 (Bachan Singh vs. State of Punjab)"
}
},
{
"from_name": null,
"id": "be0851d6e11a433a9696e6da9edb3369",
"to_name": null,
"type": null,
"value": {
"end": 7807,
"labels": [
"ARG_PETITIONER"
],
"start": 7739,
"text": "(4) 1983 SCC (Cri) 681 (Machhi Singh and others vs. State of Punjab)"
}
},
{
"from_name": null,
"id": "da40ca7678904d5ca4644fb86d21f5ef",
"to_name": null,
"type": null,
"value": {
"end": 7970,
"labels": [
"ARG_PETITIONER"
],
"start": 7808,
"text": "(5) (2008) 2 SCC (Cri) 322 (Swamy Shraddananda Alias Murali Manohar Mishra vs. State of Karnataka) (6) (2013) 2 SCC 452 (Sangeet and Another vs. State of Haryana)"
}
},
{
"from_name": null,
"id": "b09f9f7a11e84701a7fa52bc0cb909d9",
"to_name": null,
"type": null,
"value": {
"end": 8028,
"labels": [
"ARG_PETITIONER"
],
"start": 7971,
"text": "(7) 2002 SCC (Cri) 153 (Thanedar Singh vs. State of M.P.)"
}
},
{
"from_name": null,
"id": "5d96788f95c14c9b9b3ab056a5fe4dd7",
"to_name": null,
"type": null,
"value": {
"end": 8289,
"labels": [
"ANALYSIS"
],
"start": 8029,
"text": "10. Learned Additional S.P.P. supporting the judgment and order of conviction passed by the learned Sessions Judge, seeks to confirm the judgment convicting and death sentence imposed on the accused and to dismiss the appeal preferred by the appellant/accused."
}
},
{
"from_name": null,
"id": "dfcd8d341bdc4aa08bc7fda6dda4e0ec",
"to_name": null,
"type": null,
"value": {
"end": 8634,
"labels": [
"ANALYSIS"
],
"start": 8290,
"text": "Learned Addl. S.P.P. on the sentence of death penalty being imposed to the accused would submit that the barbaric way of murder of Madivalappagouda by beheading the child prior to which mouth was stuffed with cloth, create a fearsome situation and frightening atmosphere in the mind of the entire society, more particularly, women and children."
}
},
{
"from_name": null,
"id": "a9022f531e9543b286960e24852ee1b3",
"to_name": null,
"type": null,
"value": {
"end": 8701,
"labels": [
"ANALYSIS"
],
"start": 8634,
"text": "\nThus, prays to confirm the death sentence by rejecting the appeal."
}
},
{
"from_name": null,
"id": "a1d78236941546699b771a72511f8662",
"to_name": null,
"type": null,
"value": {
"end": 8903,
"labels": [
"ISSUE"
],
"start": 8703,
"text": "11. The question before us is that does the accused Devendra kidnapped Madivalappagouda son of the complainant on 15.12.2011 and murdered the said child, as the dead body was discovered on 18.12.2011."
}
},
{
"from_name": null,
"id": "eeb0b8be6c1f45758c445ad94baee441",
"to_name": null,
"type": null,
"value": {
"end": 9036,
"labels": [
"ISSUE"
],
"start": 8903,
"text": "\nIn case the offence under Section 302 of IPC is established, does it fall under rarest of rare categories to attract death sentence."
}
},
{
"from_name": null,
"id": "ed06ed1a8e0e4d7c9699f450e9e57c75",
"to_name": null,
"type": null,
"value": {
"end": 9339,
"labels": [
"ANALYSIS"
],
"start": 9036,
"text": "\n 12. As the offence leveled against the accused is one punishable under Section 302 of IPC, it is incumbent on the part of the prosecution to establish that the death of Madivalappagouda aged 6 years that was traced on 18.12.2011 subsequent to complaint dated 15.12.2011 was homicide and not a natural."
}
},
{
"from_name": null,
"id": "ea952a27b87f4082b7a49f1fcf0e9e41",
"to_name": null,
"type": null,
"value": {
"end": 9642,
"labels": [
"ANALYSIS"
],
"start": 9340,
"text": "In this connection, the complaint dated 15.12.2011 and 18.12.2011, the recovery of the dead body on 18.12.2011 at a distant place with head ripped apart from the body getting decomposed wherein maggots were crawling over the head invariably establish that the death was not a natural one, but homicide."
}
},
{
"from_name": null,
"id": "a648f6b56ae74fd0bf04112805d46f4e",
"to_name": null,
"type": null,
"value": {
"end": 9901,
"labels": [
"ANALYSIS"
],
"start": 9642,
"text": "\n 13. Complainant as PW.1 on oath reiterates the contents of the complaint dated 15.12.2011 and 18.12.2011 to the effect, missing of the child and later finding that the he was being kidnapped by the accused who murdered him between 15.12.2011 and 18.12.2011."
}
},
{
"from_name": null,
"id": "94de13b9db444356a11194a83b7db118",
"to_name": null,
"type": null,
"value": {
"end": 10112,
"labels": [
"ANALYSIS"
],
"start": 9902,
"text": "He further states that the clue was provided by the teacher regarding the person who took the child on 15.12.2011 was the accused, when on seeing photograph the teacher confirmed that it was the accused person."
}
},
{
"from_name": null,
"id": "22220bafd76b4036bd0b43c18678a096",
"to_name": null,
"type": null,
"value": {
"end": 10327,
"labels": [
"ANALYSIS"
],
"start": 10113,
"text": "The complainant also states that the accused was waiting to take vengeance against him, as the complainant and his family members had refused to give in marriage Basamma, the sister of Madivalappagouda, to accused."
}
},
{
"from_name": null,
"id": "c056d6deb598437e97c80a69ebd8a253",
"to_name": null,
"type": null,
"value": {
"end": 10514,
"labels": [
"ANALYSIS"
],
"start": 10327,
"text": "\n 14. In the said connection, the evidence of Gurupadappa PW.7 reveals that the refusal of the complainant to give his daughter in marriage to the accused and the latter's disappointment."
}
},
{
"from_name": null,
"id": "f59b2b6ffce348be9a4d868cd627d4f1",
"to_name": null,
"type": null,
"value": {
"end": 10678,
"labels": [
"ANALYSIS"
],
"start": 10514,
"text": "\n 15. The evidence of the teacher PW.9 is to the effect that she identified the person who took the child from the school at Heroor at 2.30 p.m. on 18.12.2011.\n 16."
}
},
{
"from_name": null,
"id": "fa314770af62476f991c9ab9e611af52",
"to_name": null,
"type": null,
"value": {
"end": 10836,
"labels": [
"ANALYSIS"
],
"start": 10679,
"text": "During inquest mahazar Ex.P.8 Parvati mother of the victim, uncle Eshwargouda, Abdul Rahiman and others were present and their statements also were recorded."
}
},
{
"from_name": null,
"id": "6888c6de5f564d1ba281c6c2ae7d1e14",
"to_name": null,
"type": null,
"value": {
"end": 10856,
"labels": [
"ANALYSIS"
],
"start": 10837,
"text": "Spot mahazar Ex.P.6"
}
},
{
"from_name": null,
"id": "ba3787d9b70d4278a373487e36a1bd65",
"to_name": null,
"type": null,
"value": {
"end": 10960,
"labels": [
"ANALYSIS"
],
"start": 10857,
"text": "dated 19.12.2011 was conducted at the school premises from where victim Madivalappagouda was kidnapped."
}
},
{
"from_name": null,
"id": "23cd4f7e2ed84e8ca0994604d54f42b9",
"to_name": null,
"type": null,
"value": {
"end": 11036,
"labels": [
"ANALYSIS"
],
"start": 10961,
"text": "Ex.P.5 is the mahazar for having seized the clothes found on the dead body."
}
},
{
"from_name": null,
"id": "4d40d80af3bd475ebeeb60cf4eef84ba",
"to_name": null,
"type": null,
"value": {
"end": 11221,
"labels": [
"ANALYSIS"
],
"start": 11037,
"text": "The articles that were seized after the completion of post-mortem are shirt, half pant, underwear, saffron colour underwear, kerchief and black shoes that were produced by the CPC 496."
}
},
{
"from_name": null,
"id": "b3697a54fa5045dbaec44990d7ec9926",
"to_name": null,
"type": null,
"value": {
"end": 11228,
"labels": [
"ANALYSIS"
],
"start": 11222,
"text": "Ex.P.7"
}
},
{
"from_name": null,
"id": "6d0a1342746f49debe3c693d41ddfe40",
"to_name": null,
"type": null,
"value": {
"end": 11336,
"labels": [
"ANALYSIS"
],
"start": 11229,
"text": "is the mahazar dated 19.12.2011 for seizing blood stained soil and ordinary soil from the place of offence."
}
},
{
"from_name": null,
"id": "8ade38550e2d44deb7a98328e72b520f",
"to_name": null,
"type": null,
"value": {
"end": 11420,
"labels": [
"ANALYSIS"
],
"start": 11336,
"text": "\n 17. Blood stained Clothes of the accused were seized on 19.12.2011 as per Ex.P.11."
}
},
{
"from_name": null,
"id": "26513d4a1c14430badbb4d64ca0f43a6",
"to_name": null,
"type": null,
"value": {
"end": 11594,
"labels": [
"ANALYSIS"
],
"start": 11421,
"text": "Seizure of the weapon from the accused Ex.P.4 is said to have been conducted for having recovered from the accused after discovering the same at the instance of the accused."
}
},
{
"from_name": null,
"id": "ddc42b558dd34b5aa327b7a6d4c33c57",
"to_name": null,
"type": null,
"value": {
"end": 11780,
"labels": [
"ANALYSIS"
],
"start": 11594,
"text": "\nFrom the spot cloth like kerchief said to have been used for inserting in the mouth of the victim to block respiration was also seized in addition beer bottle, opener and chilly powder."
}
},
{
"from_name": null,
"id": "2e4883cc3051488baa679ec4a83e4af7",
"to_name": null,
"type": null,
"value": {
"end": 11873,
"labels": [
"ANALYSIS"
],
"start": 11781,
"text": "The sickle said to have been used by the accused for committing the offence was also seized."
}
},
{
"from_name": null,
"id": "f0dec6dd91a84a5aa84bcad3add4e188",
"to_name": null,
"type": null,
"value": {
"end": 11959,
"labels": [
"ANALYSIS"
],
"start": 11874,
"text": "Insofar as the incident of murder is concerned, admittedly there are no eyewitnesses."
}
},
{
"from_name": null,
"id": "db5be06d3e854c6b8538cde4cf0e1d38",
"to_name": null,
"type": null,
"value": {
"end": 12294,
"labels": [
"ANALYSIS"
],
"start": 11961,
"text": "18. Insofar as the dead body of victim as described in Ex.P.15 post-mortem report dated 18.12.2011 conducted between 5.40 p.m. to 6.40 p.m.\nand the doctor who conducted the postmortem states that the dead body was decomposed, distended and disfigured and discoloured emitting foul odder and maggots were found crawling over the head."
}
},
{
"from_name": null,
"id": "d6223181e58547b58ae168353c502621",
"to_name": null,
"type": null,
"value": {
"end": 12449,
"labels": [
"ANALYSIS"
],
"start": 12295,
"text": "The doctor PW.15 Dr. Satish Tiwari who conducted the post- mortem has also concluded that the death was due to asphyxia because of the deep neck injuries."
}
},
{
"from_name": null,
"id": "77a1b60fc17c4586851bca9a69fa257b",
"to_name": null,
"type": null,
"value": {
"end": 12610,
"labels": [
"ANALYSIS"
],
"start": 12450,
"text": "It is also to be stated that the said injury was the one to the maximum worst possible extent one could get inflicted as it is in the form of severance of head."
}
},
{
"from_name": null,
"id": "69bb63d927c54fa5a06de48794d5bc25",
"to_name": null,
"type": null,
"value": {
"end": 12728,
"labels": [
"ANALYSIS"
],
"start": 12610,
"text": "\n 19. The teachers which included PW-9 told him that it was the person in the photo who took the child along with him."
}
},
{
"from_name": null,
"id": "48b6548a60634d90b761ec833cbf14f4",
"to_name": null,
"type": null,
"value": {
"end": 12820,
"labels": [
"ANALYSIS"
],
"start": 12729,
"text": "Moreover, the child Madivalappagouda responded as \"mama\" to that person who is the accused."
}
},
{
"from_name": null,
"id": "001a54c9e58a42b694ebe7419228eb43",
"to_name": null,
"type": null,
"value": {
"end": 12919,
"labels": [
"ANALYSIS"
],
"start": 12821,
"text": "Under such circumstances, one may take that the child and the accused were familiar to each other."
}
},
{
"from_name": null,
"id": "96e99c33891f4b8d90e938bb617dbb47",
"to_name": null,
"type": null,
"value": {
"end": 12987,
"labels": [
"ANALYSIS"
],
"start": 12921,
"text": "20. In substance he neither helps the prosecution nor the accused."
}
},
{
"from_name": null,
"id": "9167325a87f34f1d89193b73b69a9589",
"to_name": null,
"type": null,
"value": {
"end": 13131,
"labels": [
"ANALYSIS"
],
"start": 12989,
"text": "21. Insofar as PW.10 Inamdar is a circumstantial witness who states that he is the neighbouring land owner he came to know about the incident."
}
},
{
"from_name": null,
"id": "a07911c774ef4f31983c318cd80478af",
"to_name": null,
"type": null,
"value": {
"end": 13277,
"labels": [
"ANALYSIS"
],
"start": 13133,
"text": "22. Prabhu PW.12 in his evidence dated 16.4.2015 states having seen the accused running towards Nala on the date of incident holding the sickle."
}
},
{
"from_name": null,
"id": "0fac6dcb031e4d2a8ad9b1cfacd6c3dd",
"to_name": null,
"type": null,
"value": {
"end": 13473,
"labels": [
"ANALYSIS"
],
"start": 13279,
"text": "23. Sajjad Khadri PW.13 in his evidence dated 16.4.2015 states that he has seen the child going along with the accused towards Fatepur road and later for having seen its dead body on 18.12.2011."
}
},
{
"from_name": null,
"id": "587292c61a664c55b26992199e704455",
"to_name": null,
"type": null,
"value": {
"end": 13678,
"labels": [
"ANALYSIS"
],
"start": 13475,
"text": "24. Incidentally PW.13 goes away from his version during the cross-examination that was conducted in the second session regarding hearing sound and seeing the incident in a way beneficial to the accused."
}
},
{
"from_name": null,
"id": "dfa0f4fef04f4262b2b7126b38a3a0fd",
"to_name": null,
"type": null,
"value": {
"end": 13692,
"labels": [
"ANALYSIS"
],
"start": 13679,
"text": "He was cross-"
}
},
{
"from_name": null,
"id": "7117f9a8070a423e83e6e0017ea9164c",
"to_name": null,
"type": null,
"value": {
"end": 13742,
"labels": [
"ANALYSIS"
],
"start": 13692,
"text": "examined by the learned Public Prosecutor as well."
}
},
{
"from_name": null,
"id": "d3661e706139430e911cf7e46e822faf",
"to_name": null,
"type": null,
"value": {
"end": 13763,
"labels": [
"ANALYSIS"
],
"start": 13744,
"text": "25. Dr.Satish PW.15"
}
},
{
"from_name": null,
"id": "6719fe64bf4a446a8a47daa8dd93c805",
"to_name": null,
"type": null,
"value": {
"end": 13792,
"labels": [
"ANALYSIS"
],
"start": 13764,
"text": "who in his evidence dated..."
}
},
{
"from_name": null,
"id": "e3c213dd807d4f15862209aebc37f714",
"to_name": null,
"type": null,
"value": {
"end": 13926,
"labels": [
"ANALYSIS"
],
"start": 13793,
"text": "states about external injuries and the body being divided into two parts with neck injury to the maximum extent because of beheading."
}
},
{
"from_name": null,
"id": "7f8b8735038a49799e14a4a8c6cb8f53",
"to_name": null,
"type": null,
"value": {
"end": 13997,
"labels": [
"ANALYSIS"
],
"start": 13927,
"text": "He also has identified 9 injuries out of which six were stab injuries."
}
},
{
"from_name": null,
"id": "639b2a49acb740968a9ac477d759d167",
"to_name": null,
"type": null,
"value": {
"end": 14051,
"labels": [
"ANALYSIS"
],
"start": 13999,
"text": "26. Evidence of PW.16 is for having carried the FIR."
}
},
{
"from_name": null,
"id": "da7dee8e56484b5ab18afed14d8e6ba7",
"to_name": null,
"type": null,
"value": {
"end": 14197,
"labels": [
"ANALYSIS"
],
"start": 14052,
"text": "PW.17 examined on 18.6.2016 states that on 3 to 3 years back having seen the accused with bloodstained clothe wandering here and there in shock."
}
},
{
"from_name": null,
"id": "336112ceab5044e18f4c673b526f5cf6",
"to_name": null,
"type": null,
"value": {
"end": 14324,
"labels": [
"ANALYSIS"
],
"start": 14197,
"text": "\n 27. Sangangouda PW.18 states for having seen the accused in M.Os.11 and 12 blood stained and the accused in a state of shock."
}
},
{
"from_name": null,
"id": "b893fa6eaba246e890088ab60af97a18",
"to_name": null,
"type": null,
"value": {
"end": 14441,
"labels": [
"ANALYSIS"
],
"start": 14324,
"text": "\n 28. PW.19 Police Officer states about the investigation, recording statement, receiving FSL report and the related."
}
},
{
"from_name": null,
"id": "ae2668e96b054a1fa4907d09dc2394e1",
"to_name": null,
"type": null,
"value": {
"end": 14710,
"labels": [
"ANALYSIS"
],
"start": 14441,
"text": "\n 29. The father of the victim noticing non-arrival of his son Madivalappagouda to home from the school on 15.12.2011 lodged complaint-Ex.P.1 to the police and it was registered in Cr.No.221/2011 and the said version is corroborated by the evidence of the teacher PW.8."
}
},
{
"from_name": null,
"id": "4db8945180534049a4f4078423b2c9d2",
"to_name": null,
"type": null,
"value": {
"end": 14899,
"labels": [
"ANALYSIS"
],
"start": 14710,
"text": "\n 30. From the evidence of PWs.11 and 12 it is seen that the accused with a bag in his hand was seen walking along with Madivalappagouda on 15.12.2011 at the outskirts towards Fatepur road."
}
},
{
"from_name": null,
"id": "9f29bd8ff3b5482facba15d76db48d62",
"to_name": null,
"type": null,
"value": {
"end": 15008,
"labels": [
"ANALYSIS"
],
"start": 14899,
"text": "\n 31. Further both accused and Madivalappagouda were seen in the land of Abbasali Kambar by PWs.11 and 12."
}
},
{
"from_name": null,
"id": "a4849550f3bd4019a6852f00b829dce0",
"to_name": null,
"type": null,
"value": {
"end": 15151,
"labels": [
"ANALYSIS"
],
"start": 15009,
"text": "However, their exaggerated version goes beyond believable portion regarding the description of the incident as they are not eyewitnesses.\n 32."
}
},
{
"from_name": null,
"id": "c53f2cd24ae84455989d79845bdf5d5a",
"to_name": null,
"type": null,
"value": {
"end": 15257,
"labels": [
"ANALYSIS"
],
"start": 15152,
"text": "The accused was seen rushing towards nala in blood stained clothes is confirmed by the evidence of PW.12."
}
},
{
"from_name": null,
"id": "042500ad76264663af693d3aecef82e4",
"to_name": null,
"type": null,
"value": {
"end": 15373,
"labels": [
"ANALYSIS"
],
"start": 15257,
"text": "\n 33. Further the accused alone was seen in bloodstained clothes in a state of shock at the Bus Stand by PW.18.\n 34."
}
},
{
"from_name": null,
"id": "d589d4b5738343b789bed969ae3e17f0",
"to_name": null,
"type": null,
"value": {
"end": 15630,
"labels": [
"ANALYSIS"
],
"start": 15374,
"text": "The accused and the complainant have their own grouse and vengeance for exchanging against each other insofar as complainant, he asserts that the accused developed vengeance on him as the former did not give his daughter Basamma in marriage to the accused."
}
},
{
"from_name": null,
"id": "5f3ee7dd1bf04cc09841922c6f6deb74",
"to_name": null,
"type": null,
"value": {
"end": 15864,
"labels": [
"ANALYSIS"
],
"start": 15631,
"text": "The accused claims that the complainant was owing Rs.10,00,000/- to him and he wanted to escape from the liability of repayment and was waiting for an opportunity and has used the incident by filing the complaint against the accused."
}
},
{
"from_name": null,
"id": "1bdce3be46f54b25bce6127f1e1400c0",
"to_name": null,
"type": null,
"value": {
"end": 16090,
"labels": [
"ANALYSIS"
],
"start": 15866,
"text": "35. No doubt, a person who commits an offence, more particularly, the heinous one may keep the cause or the purpose in dark, rather, make the people around and the officials who are conducting the investigation of that case."
}
},
{
"from_name": null,
"id": "6573cc7b9988490d8ffa4113baa2e6b9",
"to_name": null,
"type": null,
"value": {
"end": 16188,
"labels": [
"ANALYSIS"
],
"start": 16091,
"text": "More often, that is not when the offender apprehends backfiring if the object is known to others."
}
},
{
"from_name": null,
"id": "fc0a94a780fd45c9a701453808d64271",
"to_name": null,
"type": null,
"value": {
"end": 16244,
"labels": [
"ANALYSIS"
],
"start": 16188,
"text": "\nThus, the others may go on by presuming a wrong object."
}
},
{
"from_name": null,
"id": "5ed3824072ed46cd95a7a06d38470e44",
"to_name": null,
"type": null,
"value": {
"end": 16398,
"labels": [
"ANALYSIS"
],
"start": 16245,
"text": "Thus, whether the main motive or the material motive for committing the offence may not be known to the other or not, the motive cannot get extinguished."
}
},
{
"from_name": null,
"id": "c73a465f8d6e4ca7866b7f5906bfbc61",
"to_name": null,
"type": null,
"value": {
"end": 16502,
"labels": [
"ANALYSIS"
],
"start": 16398,
"text": "\nFurther, the commission of offence may itself can be the object or may be even to hide the real object."
}
},
{
"from_name": null,
"id": "dff1e37356e84787a19ff8ed6cc77fff",
"to_name": null,
"type": null,
"value": {
"end": 16700,
"labels": [
"ANALYSIS"
],
"start": 16504,
"text": "36. The concept of motive for committing a crime may also depend upon the nature and wisdom of a person who commits offence under particular circumstances and some go on offensive on the innocent."
}
},
{
"from_name": null,
"id": "d3b2efa4544649cabbb057c873553803",
"to_name": null,
"type": null,
"value": {
"end": 16819,
"labels": [
"ANALYSIS"
],
"start": 16701,
"text": "Thus, just because the motive is not established in fool proof, it cannot be concluded that offence was not committed."
}
},
{
"from_name": null,
"id": "ec922cd6693f43acbb16365c2d35cf90",
"to_name": null,
"type": null,
"value": {
"end": 16946,
"labels": [
"ANALYSIS"
],
"start": 16820,
"text": "Further behind every offence there will be an offender and the court takes the cognizance of the offence and not the offender."
}
},
{
"from_name": null,
"id": "9a8e02b0b9634e7cbc8742a63ee12a3f",
"to_name": null,
"type": null,
"value": {
"end": 17082,
"labels": [
"ANALYSIS"
],
"start": 16947,
"text": "There are cases where motive or design to commit an offence is by a sadist, is nothing but his mindset that drives into commit offence."
}
},
{
"from_name": null,
"id": "981975ebd0bd4a56acf52a87d1ded3e8",
"to_name": null,
"type": null,
"value": {
"end": 17137,
"labels": [
"ANALYSIS"
],
"start": 17082,
"text": "\n 37. The child when alive disappeared from the school."
}
},
{
"from_name": null,
"id": "51454ea97e3a4c6b898a0eafac79358e",
"to_name": null,
"type": null,
"value": {
"end": 17485,
"labels": [
"ANALYSIS"
],
"start": 17138,
"text": "Insofar as the memory of the witnesses are concerned, due to limited development and limited population in rural side, people therein have a tendency to have the familiarity of each other and also identify the land or garden with particular name and even persons to refer with their status or avocation when they do not know or remember the names."
}
},
{
"from_name": null,
"id": "5bca5d9011bc46cd9c40a81429ff1676",
"to_name": null,
"type": null,
"value": {
"end": 17742,
"labels": [
"ANALYSIS"
],
"start": 17487,
"text": "38. Insofar as the scene of offence on 18.12.2011 has been so ghastly that it was worst form of punishment to anybody to see his offspring of six years, the only male issue lying dead after being beheaded, is a nightmare for remaining portion of his life."
}
},
{
"from_name": null,
"id": "9befe0c0c30246ec95ab7e7c754128e2",
"to_name": null,
"type": null,
"value": {
"end": 18044,
"labels": [
"ANALYSIS"
],
"start": 17742,
"text": "\n 39. Insofar as the witness in connection with the recovery of weapon or soil turning hostile does not leave any impact of affecting the case as it is corroborated by the documentary evidence issued by the expert in respect of soil, blood and the weapon used for offence and the Investigating Officer."
}
},
{
"from_name": null,
"id": "e67ebab710ac46e3af216cedebf47bd8",
"to_name": null,
"type": null,
"value": {
"end": 18515,
"labels": [
"ANALYSIS"
],
"start": 18044,
"text": "\n 40. There need not be a second occasion to conclude that the child Madivalappagouda was kidnapped by the accused Devendra from the school on 15.12.2011 and discovered dead on 18.12.2011 and the death was homicidal and ghastly and the mode of causing death was so barbaric it is even horrible to imagine that a child of six year was shown the highest form of fear and terror by inserting clothes into its mouth to make it help and speechless before he was done to death."
}
},
{
"from_name": null,
"id": "f717d4ce1e2249b68c42f557ad8b43f9",
"to_name": null,
"type": null,
"value": {
"end": 18635,
"labels": [
"ANALYSIS"
],
"start": 18515,
"text": "\n 41. The sole defence of the accused is indebtedness of the complainant to the extent of Rs.10,00,000/- to the accused."
}
},
{
"from_name": null,
"id": "9c7497d186474991a0bbec33a8e92642",
"to_name": null,
"type": null,
"value": {
"end": 18715,
"labels": [
"ANALYSIS"
],
"start": 18636,
"text": "This version is totally unreliable and ignored in the context of circumstances."
}
},
{
"from_name": null,
"id": "832d9f4fbd384ac69dfde2961206eb07",
"to_name": null,
"type": null,
"value": {
"end": 18738,
"labels": [
"ANALYSIS"
],
"start": 18715,
"text": "\nThus, not relied upon."
}
},
{
"from_name": null,
"id": "3125c1279d1b4aa1b2620454007b2aa9",
"to_name": null,
"type": null,
"value": {
"end": 18914,
"labels": [
"ANALYSIS"
],
"start": 18739,
"text": "The sighting of accused with the son of the complainant is identified by the reliable and natural witnesses PWs.6, 7, 8, 11, 13 and 18 and has all the efficacy of legal force."
}
},
{
"from_name": null,
"id": "845b7bb9cca24577a316941d32a82535",
"to_name": null,
"type": null,
"value": {
"end": 19109,
"labels": [
"ANALYSIS"
],
"start": 18914,
"text": "\n 42. The accused kidnapped the child on 15.12.2011 as stated above and took it to unknown place and murdered him by beheading in a most fearsome way and creating dangerous and unimaginable fear."
}
},
{
"from_name": null,
"id": "2b0ef25de82c4594bab40d482f3397ec",
"to_name": null,
"type": null,
"value": {
"end": 19210,
"labels": [
"ANALYSIS"
],
"start": 19110,
"text": "Fear and threat to the core was employed by the accused on the child just prior to getting murdered."
}
},
{
"from_name": null,
"id": "81b0132298294540b67e6d5d89c18d0f",
"to_name": null,
"type": null,
"value": {
"end": 19441,
"labels": [
"ANALYSIS"
],
"start": 19210,
"text": "\nThe version of the prosecution is corroborated by the complaint-Ex.P.1, inquest mahazar-Ex.P.8, spot mahazar-Ex.6, evidence of PW.1, school teacher PW.-8 recovery of dead body in two parts further strengthens the prosecution case."
}
},
{
"from_name": null,
"id": "eee1af5c9f084f9c8e93d467785976f3",
"to_name": null,
"type": null,
"value": {
"end": 19644,
"labels": [
"ANALYSIS"
],
"start": 19443,
"text": "43. The child was put to fear and cloth was inserted in its mouth to make it speech and helpless, even otherwise, the child was in a no match in terms of power of the offender possessed weapon as well."
}
},
{
"from_name": null,
"id": "683dae93022d4235a7cdcb36bb704ee7",
"to_name": null,
"type": null,
"value": {
"end": 19731,
"labels": [
"ANALYSIS"
],
"start": 19644,
"text": "\n 44. The child was in the school uniform when he was murdered after getting kidnapped."
}
},
{
"from_name": null,
"id": "0672fb95dcd547868b1c40b45699893c",
"to_name": null,
"type": null,
"value": {
"end": 19887,
"labels": [
"ANALYSIS"
],
"start": 19731,
"text": "\n 45. Kidnapping a minor child happens for various aspects example, abusing, ransom, trafficking, beggar which are punishable under various sections of IPC."
}
},
{
"from_name": null,
"id": "ce7229730c9e436e9c7662de3ca925b3",
"to_name": null,
"type": null,
"value": {
"end": 20003,
"labels": [
"ANALYSIS"
],
"start": 19887,
"text": "\n 46. In the present case, the offences charged against the accused are punishable under Section 364 and 302 of IPC."
}
},
{
"from_name": null,
"id": "d14143db53db496aae38a38f6fa0d689",
"to_name": null,
"type": null,
"value": {
"end": 20158,
"labels": [
"ANALYSIS"
],
"start": 20004,
"text": "Further the kidnapping may not be for any of said purposes or even it may be for the refusal of marriage with Basamma aspect as stated by the complainant."
}
},
{
"from_name": null,
"id": "36b0b81750424e6c98883a1d120916a8",
"to_name": null,
"type": null,
"value": {
"end": 20453,
"labels": [
"ANALYSIS"
],
"start": 20158,
"text": "\n 47. The accused after the brutal act of murdering the child has gone clueless and terribly upset apprehending of being caught and entered shock and panic, thereby appears to have decided that the only way out is to murder the child and committed the gruesome act of murdering Madivalappagouda."
}
},
{
"from_name": null,
"id": "e483c1744ad64c0da802f469380bafc2",
"to_name": null,
"type": null,
"value": {
"end": 20760,
"labels": [
"ANALYSIS"
],
"start": 20453,
"text": "\n 48. The prosecution has proved the commission of the offence punishable under Section 364 and 302 of IPC beyond reasonable doubt to the effect that the accused kidnapped Madivalappagouda aged 6 years on 15.12.2011 and murdered the said boy somewhere at a particular time between the evening of 15.12.2011."
}
},
{
"from_name": null,
"id": "52bf8c79958a492fbff295b151da1b71",
"to_name": null,
"type": null,
"value": {
"end": 20944,
"labels": [
"ANALYSIS"
],
"start": 20760,
"text": "\n 49. We do not find any infirmity, irregularity or breach of legal barriers in the judgment of the trial Court holding the accused guilty of kidnapping and murdering Madivalappagouda."
}
},
{
"from_name": null,
"id": "66a5a0e4f6f34544aa04a9d583dff3e4",
"to_name": null,
"type": null,
"value": {
"end": 21019,
"labels": [
"ANALYSIS"
],
"start": 20944,
"text": "\n 50. The learned trial judge has sentenced the accused with death penalty."
}
},
{
"from_name": null,
"id": "b8f4743526b9475cb284df93ee8f757b",
"to_name": null,
"type": null,
"value": {
"end": 21158,
"labels": [
"STA"
],
"start": 21020,
"text": "As the offence under Section 300 defines the murder and section 302 provides for punishment, it is necessary to mention both the sections."
}
},
{
"from_name": null,
"id": "d7b750fbc4ac466cbb5ee065717169bb",
"to_name": null,
"type": null,
"value": {
"end": 21330,
"labels": [
"STA"
],
"start": 21158,
"text": "\n \"300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of cause death, or"
}
},
{
"from_name": null,
"id": "4c444c0134f24083ae7d4eb89cd05f57",
"to_name": null,
"type": null,
"value": {
"end": 21341,
"labels": [
"STA"
],
"start": 21331,
"text": "Secondly "
}
},
{
"from_name": null,
"id": "a446cf0e437946bc8301d21d248ba6dc",
"to_name": null,
"type": null,
"value": {
"end": 22018,
"labels": [
"STA"
],
"start": 21341,
"text": "If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.\n 302. Punishment for murder "
}
},
{
"from_name": null,
"id": "31f5cb12a70b4313a0102c49f64b9b3f",
"to_name": null,
"type": null,
"value": {
"end": 22136,
"labels": [
"STA"
],
"start": 22018,
"text": "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.\"\n 51."
}
},
{
"from_name": null,
"id": "68a48400ddc44ea7a8dda9b8ea4643fb",
"to_name": null,
"type": null,
"value": {
"end": 22274,
"labels": [
"ANALYSIS"
],
"start": 22137,
"text": "The offence punishable under Section 302 IPC relates to murder which is punishable with imprisonment for life and fine or death sentence."
}
},
{
"from_name": null,
"id": "de413e8a78a74d23a8e633a95c974f1b",
"to_name": null,
"type": null,
"value": {
"end": 22361,
"labels": [
"ANALYSIS"
],
"start": 22275,
"text": "In the present case the learned trial Judge has ordered death sentence to the accused."
}
},
{
"from_name": null,
"id": "f68954565b784cc4addbb72dad024ae5",
"to_name": null,
"type": null,
"value": {
"end": 22549,
"labels": [
"ANALYSIS"
],
"start": 22362,
"text": "Under Section 366 of the Code of Criminal Procedure, whenever, the Sessions Judge that the accused to be sentenced to death, has to send the finding to the High Court by way of reference."
}
},
{
"from_name": null,
"id": "e2aaeebed3854240b5d580bd861e9cf4",
"to_name": null,
"type": null,
"value": {
"end": 22758,
"labels": [
"ANALYSIS"
],
"start": 22549,
"text": "\n 52. Thus, we are under duty to peruse and decide whether the case in the circumstances and the offence committed by the accused falls under the category of rarest of the rare cases to attract death sentence."
}
},
{
"from_name": null,
"id": "6c9cf5a774ff4deaab18a8e789bab43b",
"to_name": null,
"type": null,
"value": {
"end": 22852,
"labels": [
"ANALYSIS"
],
"start": 22758,
"text": "\n 53. At the same time the accused has preferred appeal against the judgment in SC No.96/2012."
}
},
{
"from_name": null,
"id": "c178309383ec415588b09896692c1110",
"to_name": null,
"type": null,
"value": {
"end": 22946,
"labels": [
"ANALYSIS"
],
"start": 22853,
"text": "Thus, both the matters related to same case and judgment, both of them are taken up together."
}
},
{
"from_name": null,
"id": "282f1c636f3c47ad81f23365f3a24047",
"to_name": null,
"type": null,
"value": {
"end": 23125,
"labels": [
"ANALYSIS"
],
"start": 22946,
"text": "\n 54. Before proceeding to discuss on the order of sentence, we find it necessary to mention Section 303 of IPC which runs as under; \"303. Punishment for murder by life- convict "
}
},
{
"from_name": null,
"id": "8a17326e5425424e97bdf2e61c9de8b7",
"to_name": null,
"type": null,
"value": {
"end": 23226,
"labels": [
"ANALYSIS"
],
"start": 23125,
"text": "Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death."
}
},
{
"from_name": null,
"id": "b3456cd52cb34966afc300b14240cfb4",
"to_name": null,
"type": null,
"value": {
"end": 23672,
"labels": [
"ANALYSIS"
],
"start": 23226,
"text": "\n 55. Thus, whenever a convict undergoing life imprisonment as punishment in a case where the punishment prescribed was life imprisonment or death sentence, the learned Judge selects to restrict for life imprisonment in case and such convict further commits the offence which is punishable with life imprisonment or death sentence, there was no discretion available to the Court on finding the guilty of such offence, to impose life imprisonment."
}
},
{
"from_name": null,
"id": "a6297df63f0f45a38e8a44268788c20d",
"to_name": null,
"type": null,
"value": {
"end": 23852,
"labels": [
"ANALYSIS"
],
"start": 23673,
"text": "On the other hand, such convict of the first case was liable to be punished with death sentence in case of his guilt of committing the said kind of offence in the subsequent case."
}
},
{
"from_name": null,
"id": "608512f0360f441f994cb9441e402e98",
"to_name": null,
"type": null,
"value": {
"end": 24003,
"labels": [
"ANALYSIS"
],
"start": 23852,
"text": "\n 56. However, the said section was declared unconstitutional by the Apex court in the case of Mithu vs. State of Punjab reported in AIR 1983 473.\n 57."
}
},
{
"from_name": null,
"id": "9a7373f6f841403ba0b73abb6fb1d24b",
"to_name": null,
"type": null,
"value": {
"end": 24323,
"labels": [
"ANALYSIS"
],
"start": 24004,
"text": "The society has progressed time to time and the right to life has been considered as the one with dignity and the theories of punishment in majority number of nations across the world believing combination of reformative and preventive rather than a cluster of countries which believe in deterrent theory of punishment."
}
},
{
"from_name": null,
"id": "44ec4eaa1bd64786a1bff74bcb7e1a43",
"to_name": null,
"type": null,
"value": {
"end": 24499,
"labels": [
"ANALYSIS"
],
"start": 24325,
"text": "58. The society with its dynamic nature of getting reformed from the previous phase to the next witnessed better maturity in consideration of the punishment for the offences."
}
},
{
"from_name": null,
"id": "de5045609b184b9bbcc22d0e0cb33192",
"to_name": null,
"type": null,
"value": {
"end": 24602,
"labels": [
"ANALYSIS"
],
"start": 24501,
"text": "59. In 16th century AD there were more than 300 felonies for which the punishment was death sentence."
}
},
{
"from_name": null,
"id": "9fb2a4ab13244270888c7254e54a5a79",
"to_name": null,
"type": null,
"value": {
"end": 24724,
"labels": [
"ANALYSIS"
],
"start": 24602,
"text": "\nIn 18th century AD the Code of King Hammurabi of Babilonia identified 25 felonies that were punished with death sentence."
}
},
{
"from_name": null,
"id": "5c1a963d6be44c2abef5bb03b5e41755",
"to_name": null,
"type": null,
"value": {
"end": 25020,
"labels": [
"PRE_RELIED"
],
"start": 24726,
"text": "60. The few of the cases which earmarks the concept of rarest of rare case are Bachansingh Vs. State of Punjab, Billa and Ranga in a case wherein rape and murder of victim was committed and her younger brother who in his tender age showed bravery to stand against the accused was also murdered."
}
},
{
"from_name": null,
"id": "b64583c2b9594e94b8c09823d43ef5bc",
"to_name": null,
"type": null,
"value": {
"end": 25135,
"labels": [
"PRE_RELIED"
],
"start": 25021,
"text": "More particularly both of the victims were the children of Officer from Defence guarding the border of motherland."
}
},
{
"from_name": null,
"id": "05feac17e95f4bc9ac687ddd69d775d3",
"to_name": null,
"type": null,
"value": {
"end": 25452,
"labels": [
"PRE_RELIED"
],
"start": 25135,
"text": "\n 61. In the judgment rendered by His Lordship Justice Sarkaria and His Lordship Chandrachud and Justice A.C.Gupta and N.L.Untwualia wherein His Lordship Sarkaria rendered the judgment which was the majority view holding the constitutional validity of the death sentence with reference to Art. 19 of the Constitution."
}
},
{
"from_name": null,
"id": "72ac087147924e70a989cf313fcf4ded",
"to_name": null,
"type": null,
"value": {
"end": 25657,
"labels": [
"ANALYSIS"
],
"start": 25452,
"text": "\n 62. No doubt that the accused committed a gruesome murder sending harsh message of fear with devastating consequences, the punishment has to be assessed before ordering a person to be hanged until death."
}
},
{
"from_name": null,
"id": "e2fad28760f84ae19aabc1c0c2b327b4",
"to_name": null,
"type": null,
"value": {
"end": 25823,
"labels": [
"ANALYSIS"
],
"start": 25657,
"text": "\n 63. Further the preparation in committing offence, terror outfit, criminals who are psychopaths are also the aspects to be seriously considered in the case on hand."
}
},
{
"from_name": null,
"id": "14d4685e047b4727afbefdf2164c4fff",
"to_name": null,
"type": null,
"value": {
"end": 25931,
"labels": [
"ANALYSIS"
],
"start": 25824,
"text": "The offence, mode of its commission, the object and it fearsome impact on the society are to be considered."
}
},
{
"from_name": null,
"id": "49d19e5df36f433f8d0a4322a2e4b058",
"to_name": null,
"type": null,
"value": {
"end": 26144,
"labels": [
"ANALYSIS"
],
"start": 25931,
"text": "\n 64. No doubt, the manner of murder in this case is wretched, ghastly besides alarming as murder by beheading a child who was helpless from beginning of the offence of kidnapping the till the last moment of life."
}
},
{
"from_name": null,
"id": "57467be2e9a845a7bd1cc419f4a959b6",
"to_name": null,
"type": null,
"value": {
"end": 26270,
"labels": [
"ANALYSIS"
],
"start": 26144,
"text": "\nIt did not anticipate such a terroristic end to its life in the hands of a criminal who was known to the family of the child."
}
},
{
"from_name": null,
"id": "a09abf33f1b1401f9af8e070557a05d8",
"to_name": null,
"type": null,
"value": {
"end": 26339,
"labels": [
"ANALYSIS"
],
"start": 26271,
"text": "However, the offence and the manner has to be assessed meticulously."
}
},
{
"from_name": null,
"id": "885025aa583b432984775e06e49132ab",
"to_name": null,
"type": null,
"value": {
"end": 26493,
"labels": [
"ANALYSIS"
],
"start": 26339,
"text": "\n 65. The punishment of death is not prescribed as it was done in case of Shah of Iran and Zulfikar Ali Bhutto who was a Barrister by himself in Pakistan."
}
},
{
"from_name": null,
"id": "b3fec8a11d27426284e25a3300841013",
"to_name": null,
"type": null,
"value": {
"end": 26616,
"labels": [
"ANALYSIS"
],
"start": 26493,
"text": "\nEven death sentence is certain Islamic country the punishment is carried out by pelting stone till death of the condemned."
}
},
{
"from_name": null,
"id": "f30bab46a7e649fa98bac1250a49f6b6",
"to_name": null,
"type": null,
"value": {
"end": 26752,
"labels": [
"ANALYSIS"
],
"start": 26617,
"text": "It cannot be forgotten for a while principles of natural justice and human rights are not only recognized, but also respected in India."
}
},
{
"from_name": null,
"id": "7c0184b6d7b7429b8b90344360c94de5",
"to_name": null,
"type": null,
"value": {
"end": 27069,
"labels": [
"ANALYSIS"
],
"start": 26754,
"text": "66. The notable examples of imposing for the recent time are the cases of Afzal Guru in the matter of attempting to blow the Parliament of India, and the matter of Kasab, a Pakistan national where the acts of the said criminals themselves proved that they require no less than death sentence for their dreaded acts."
}
},
{
"from_name": null,
"id": "223ff26210c14d3b91fdff64a93027a4",
"to_name": null,
"type": null,
"value": {
"end": 27278,
"labels": [
"ANALYSIS"
],
"start": 27069,
"text": "\n 67. Thus, in the circumstance the real and the worst punishment is being and will be suffered by the unfortunate parents of the departed soul whose loneliness is by many time worse than solitary confinement."
}
},
{
"from_name": null,
"id": "7082278707a5478e85c9b62d0ebd917b",
"to_name": null,
"type": null,
"value": {
"end": 27490,
"labels": [
"ANALYSIS"
],
"start": 27278,
"text": "\n 68. It is they who suffer the shock of the death of their lovely sole male issue and their grief touches the peak of a rock in seeing their beloved a school going child murdered by dastardly act of the accused."
}
},
{
"from_name": null,
"id": "446d2ca3c9f243799987ed93ab19a66e",
"to_name": null,
"type": null,
"value": {
"end": 27705,
"labels": [
"RATIO"
],
"start": 27490,
"text": "\n 69. However, the offence committed by the accused for the offence punishable under Section 302 IPC, in our considered finding does not fall under the category of rarest of the rare cases to attract death sentence."
}
},
{
"from_name": null,
"id": "8409e708ca3340f1b174aeb86e0c59e2",
"to_name": null,
"type": null,
"value": {
"end": 27837,
"labels": [
"PRE_RELIED"
],
"start": 27705,
"text": "\n 70. The Hon'ble Apex Court in the case of Machhi Singh vs. State of Punjab reported in 1983 SCC (Cri.) 681 has held as under: \"38."
}
},
{
"from_name": null,
"id": "ee90b93a219f402db566186f34b53a21",
"to_name": null,
"type": null,
"value": {
"end": 28046,
"labels": [
"PRE_RELIED"
],
"start": 27838,
"text": "In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises."
}
},
{
"from_name": null,
"id": "7021211daa8c4a5c99a0fbe5f83416a0",
"to_name": null,
"type": null,
"value": {
"end": 28209,
"labels": [
"PRE_RELIED"
],
"start": 28047,
"text": "The following propositions emerge from Bachan Singh's case: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability."
}
},
{
"from_name": null,
"id": "df7805b01b5348a880388056d7e4ffb5",
"to_name": null,
"type": null,
"value": {
"end": 28376,
"labels": [
"PRE_RELIED"
],
"start": 28209,
"text": "\n (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'."
}
},
{
"from_name": null,
"id": "4f22cd90693e4fddbb09b3aae7a710c5",
"to_name": null,
"type": null,
"value": {
"end": 28449,
"labels": [
"PRE_RELIED"
],
"start": 28376,
"text": "\n (iii) Life imprisonment is the rule and death sentence is an exception."
}
},
{
"from_name": null,
"id": "be7f11e5dc404a4480bcbb58d2f3af88",
"to_name": null,
"type": null,
"value": {
"end": 29141,
"labels": [
"PRE_RELIED"
],
"start": 28450,
"text": "In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.\n (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.\""
}
},
{
"from_name": null,
"id": "5caeb5fc6584452790609f57b5e2aced",
"to_name": null,
"type": null,
"value": {
"end": 29544,
"labels": [
"PRE_RELIED"
],
"start": 29141,
"text": "\n 71. In the case of Jagmohan Singh vs. The State of U.P., reported in 1973 SCC (Cri.) 169 the Hon'ble Apex Court has held as under: \"Constitution of India Article 19 (1) Death sentence if violative of Article 19 (1) Validity of Section 302 IPC Relevance of decision of U.S.\n Supreme Court based on Eighth Amendment and due process of law Freedom to live if included in Article 19(1).\"\n 72."
}
},
{
"from_name": null,
"id": "be4f85c051b240739428118f734992cf",
"to_name": null,
"type": null,
"value": {
"end": 29825,
"labels": [
"RATIO"
],
"start": 29545,
"text": "We, however, concur with the learned Sessions Judge regarding conviction for the offence punishable under Section 302 IPC and restrict the punishment to rigorous imprisonment for life and a fine of Rs.2,50,000/- in default to undergo simple imprisonment for a period of two years."
}
},
{
"from_name": null,
"id": "3bb7a816a0f2443a908ece5a24b6613a",
"to_name": null,
"type": null,
"value": {
"end": 30074,
"labels": [
"RATIO"
],
"start": 29825,
"text": "\n 73. Thus, we are not inclined to grant confirmation for death sentence to the accused under Section 366 of the Code of Criminal Procedure and we hereby reject the reference made by the learned District & Sessions Judge, Vijayapur dated 06.02.2016."
}
},
{
"from_name": null,
"id": "b0d9efd6922f4e5eacb5c83868290e01",
"to_name": null,
"type": null,
"value": {
"end": 30259,
"labels": [
"RATIO"
],
"start": 30075,
"text": "At the same time, we confirm the judgment in the said case whereby the accused was convicted for the offence punishable under Section 302 IPC by the learned Sessions Judge, Vijayapura."
}
},
{
"from_name": null,
"id": "ad06a9cd4355491198f3e6ff12ceabe8",
"to_name": null,
"type": null,
"value": {
"end": 30395,
"labels": [
"RATIO"
],
"start": 30260,
"text": "But do no consider the offence as the one falling under rarest of the rare cases and thus restrict the punishment to life imprisonment."
}
},
{
"from_name": null,
"id": "28736537d1464d1f9ec1e2937851ff73",
"to_name": null,
"type": null,
"value": {
"end": 30447,
"labels": [
"RPC"
],
"start": 30395,
"text": "\n 74. Hence, we proceed to pass the following: ORDER"
}
},
{
"from_name": null,
"id": "0d9a17c14515498a8b0f7fd60994b52c",
"to_name": null,
"type": null,
"value": {
"end": 30607,
"labels": [
"RPC"
],
"start": 30448,
"text": "The appeal preferred under Section 374(2) of Cr.P.C. by the appellant-accused against the judgment in S.C.No.96/2012 dated 06.02.2016 is hereby partly allowed."
}
},
{
"from_name": null,
"id": "f3ce97540bb6451ba8d65604b47bb7be",
"to_name": null,
"type": null,
"value": {
"end": 30828,
"labels": [
"RPC"
],
"start": 30608,
"text": "However, the order of conviction is confirmed and the accused is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,50,000/- in default to undergo simple imprisonment for a period of two years."
}
},
{
"from_name": null,
"id": "10082d89d4284b86b4404596c6f3ca5f",
"to_name": null,
"type": null,
"value": {
"end": 30968,
"labels": [
"RPC"
],
"start": 30829,
"text": "The appeal against the order of convicting and sentencing the accused for the offence punishable under Section 364 IPC is hereby dismissed."
}
},
{
"from_name": null,
"id": "b63dc39103c54acfadd46e7ba007ab42",
"to_name": null,
"type": null,
"value": {
"end": 31107,
"labels": [
"RPC"
],
"start": 30968,
"text": "\n The reference made by the learned I Additional Sessions Judge, Vijaypur seeking confirmation of the death sentence, is hereby rejected.\n "
}
},
{
"from_name": null,
"id": "9c1b1aeda7834e19b99e2912f2dff3b0",
"to_name": null,
"type": null,
"value": {
"end": 31260,
"labels": [
"RPC"
],
"start": 31107,
"text": "The learned Sessions Judge is hereby directed to secure the accused from the concerned Jail where he is lodged and issue necessary warrant of conviction."
}
},
{
"from_name": null,
"id": "ce5497d9f4234d83b8d7f2e1f15f6871",
"to_name": null,
"type": null,
"value": {
"end": 31287,
"labels": [
"NONE"
],
"start": 31260,
"text": "\n Sd/- JUDGE Sd/- JUDGE NSP"
}
}
]
}
] | 4,174 | {
"text": "IN THE HIGH COURT OF KARNATAKA\n KALABURAGI BENCH\n\n DATED THIS THE 2ND DAY OF NOVEMBER 2017\n PRESENT\n\n THE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n AND\n\nTHE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO\n\nCRIMINAL REFERENCE CASE NO.200001/2016\n C/W\n\n CRIMINAL APPEAL No.200033/2016\n\nCRL.RC.No.200001/2016: ... Appellant\n\nBETWEEN:\n\nThe Additional Registrar General,\nHigh Court of Karnataka,\nKalaburagi.\n\n(By Sri Prakash Yeli, Addl. S.P.P.)\n\nAND:\n\nDevendra S/o Sharanappagouda Halamani\nAge: 32 years, Occ: Agriculture\nR/o Chabanur village,\nTq. Basavana Bagewadi\n\nDist: Vijaypur. ... Respondent\n(By Sri R.S. Lagali, Advocate)\n\n This Criminal Reference Case is filed under Section\n366 of Code of Criminal Procedure for confirmation of death\nsentence awarded to accused by the judgment of conviction\ndated 06.02.2016 and order of conviction dated 09.02.2016\npassed in Sessions Case No.96/2012 by the I Addl. Sessions\nJudge, Vijaypur.\n\nCRL.A.No.200033/2016:\n\nBETWEEN:\n\nDevendra S/o Sharanappagouda Halamani ... Appellant\nAge: 32 years, Occ: Agriculture\nR/o Chabanur village,\nTq. Basavana Bagewadi\nDist: Vijaypur.\n\n(By Sri R.S.Lagali, Advocate)\n\nAND:\n\nThe State of Karnataka ... Respondent\nRep. by the PSI\nTalikoti PS.\n\n(By Sri Prakash Yeli, Addl. S.P.P.)\n\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C. praying to admit this appeal, call for the records from\nthe court below, allow the appeal and thereby set aside the\njudgment of conviction dated 06.02.2016 and order of\nconviction dated 09.02.2016 passed in Sessions Case\nNo.96/2012 by the I Addl. Sessions Judge, Vijaypur and\nacquit the appellant.\n\n This Criminal Reference Case as well as the Appeal\nhaving been heard, reserved for judgment on 29.08.2017\nand coming on for pronouncement of judgment this day,\nN.K.Sudhindrarao J., delivered the following:-\n\n JUDGMENT\n The accused is in judicial custody.\n 2. As the facts unfurl the details are that, a criminal case came to be registered in Cr.No.221/2011 on the basis of a complaint lodged by one Mallannagouda, stating that he is the husband of Parvati, father of three daughters and a son. He further states that his son Madivalappa aged 6 years was missing from 2.30 p.m. on 15.12.2011. The complaint was lodged at 8.30 p.m. on the same day, as his son Madivalappagouda who was attending the school at Heroor did not return on 15.12.2011 despite other students returning to their respective homes as usual.\nHe goes to the school and enquires and comes to know that his son had already left at 2.30 p.m. The complaint came to be registered in Crime No.221/2011.\nHowever, on 18.12.2011 the FIR that was registered in the said crime number \" for missing\" came to be transformed to one in respect of the offence punishable under Sections 364 and 302 of Indian Penal Code.\n 3. The information given on 18.12.2011 by the complainant that Devendra son of Sharanappa kidnapped the his son Madivalappagowda aged 6 years on 15.12.2011 that was registered \"for missing\" from the school in which he was studying at Heroor and was murdered by the accused by beheading the child with a sharp weapon. He refers his previous complaint/statement filed by him on 15.12.2011 wherein he lodged a missing complaint of his son. In the complaint dated 18.12.2011 it is stated that the accused kidnapped Madivalappagouda from the school at Heroor and murdered him in the land of Shahhusain Hajisab Inamdar at Hireur village and FIR came to be transformed for the offence punishable under Sections 364 and 302 of IPC. He further states that the accused was pressurizing him to give his daughter Basamma in marriage to him, that proposal was ultimately refused by the complainant, and the accused stooped to the level of kidnapping and murdering Madivalappa Gouda as mark of vengeance.\n 4. The dead body of Madivalappagouda was found at the land of Shahhusain Hajisab in two parts as the child was beheaded. It is also stated that the accused was also warning that the complainant and his family would learn a lesson only if any one of their family member was murdered. The complainant went to school and came to know from the teachers Sharada and Shahida Pinjar that a male person took Madivalappagouda at 2.30 p.m. on 15.12.2011 was addressed by the Madivalappagouda as Maama. It is that time, the complainant showed the photo of the accused in the case. The teachers on seeing the photo of the accused confirmed the complainant that the person in the said photo was the same one who took Madivalappagouda from the school on 15.12.2011. He also encloses the copy of the complaint lodged on 15.12.2011.\n 5. The inquest mahazar as per Ex.P.8 on the dead body of Madivalappagouda was conducted on 18.12.2011 during which the statements of the parents, Ishwarappagouda, the uncle of the child were recorded.\nAfter the said formalities, the dead body was sent for post-mortem.\n 6. Upon the completion of investigation, the final report came to be filed for the offence punishable under Sections 364 and 302 of IPC against the accused Devendrappa S/o Sharanappa in CC No.28/2012.\n 7. The matter was committed to the Sessions Court. After the case was being presented by the learned Public Prosecutor, the trial Court heard regarding charge and found grounds to frame charges for the offences punishable under Setions 364 and 302 of IPC. The accused pleaded not guilty and claimed to be tried.\n 8. The prosecution has examined PWs.1 to 20 including the prime witnesses complainant, his brother Mallannagouda S/o Sharanagouda, Shahida Begum, Laxman Bhimappa Badiger, Dr. Satish Tiwari I.O.\nV.R.Yalagi and documents Ex.P.1 to P.26 including complaint, missing complaint, seizure mahazars, post- mortem report, FIR, FSL report, M.O.1 to 16 including shirt, half pant, socks, shoes, kerchief, sickle, sample bloodstained soil were marked. No witnesses were examined by the defence. Ex.D.1 and D.2 are portion of the statement of PW.9 Shivanna Ningappa Basavannavar, PW.17 Devindrappa Tipper Dhannur.\n 9. The learned counsel for the appellant would submit that the very ground of vengeance theory by the complainant cannot be believed taking to the extent of causing death of the victim. He further submits that the accused was not that cruel nor had any criminal background to commit either kidnapping or the murder of Madivalappagouda. He would further submit that the sequence of events and documents regarding spot mahazar Ex.P.6 , place of offence Ex.P.7, recovery of clothes Ex.P.11 are imaginary and documents that came out of connivance between the complainant and the police. It is also his contention that the version of the witnesses PW.6 Abdul Gani, Nabisab Mukhiya, PW.8 Shahida Begum, Gudusab Pinjar bear strong layer of falsehood and their version speaks lot of exaggeration and not worth reliable. Further the learned trial judge has not properly evaluated the oral and documentary evidence and failed to conclude on the innocence of the accused. Learned counsel for the appellant would further submit that the judgment wherein the accused was convicted is not justifiable and based on valid reasons. The accused being an innocent is not liable for the punishment, rather thinking of death sentence to him by considering the case as the `rarest of the rare' one. In this connection, he placed reliance on the following decisions: (1) 1973 SCC (Cri) 169 (Jagmohan Singh vs. The State of U.P.) (2) 1979 SCC (Cri) 749 (Rajendra Prasad vs. State of Uttar Pradesh) (3) 1980 SCC (Cri) 580 (Bachan Singh vs. State of Punjab) (4) 1983 SCC (Cri) 681 (Machhi Singh and others vs. State of Punjab) (5) (2008) 2 SCC (Cri) 322 (Swamy Shraddananda Alias Murali Manohar Mishra vs. State of Karnataka) (6) (2013) 2 SCC 452 (Sangeet and Another vs. State of Haryana) (7) 2002 SCC (Cri) 153 (Thanedar Singh vs. State of M.P.) 10. Learned Additional S.P.P. supporting the judgment and order of conviction passed by the learned Sessions Judge, seeks to confirm the judgment convicting and death sentence imposed on the accused and to dismiss the appeal preferred by the appellant/accused. Learned Addl. S.P.P. on the sentence of death penalty being imposed to the accused would submit that the barbaric way of murder of Madivalappagouda by beheading the child prior to which mouth was stuffed with cloth, create a fearsome situation and frightening atmosphere in the mind of the entire society, more particularly, women and children.\nThus, prays to confirm the death sentence by rejecting the appeal.\n 11. The question before us is that does the accused Devendra kidnapped Madivalappagouda son of the complainant on 15.12.2011 and murdered the said child, as the dead body was discovered on 18.12.2011.\nIn case the offence under Section 302 of IPC is established, does it fall under rarest of rare categories to attract death sentence.\n 12. As the offence leveled against the accused is one punishable under Section 302 of IPC, it is incumbent on the part of the prosecution to establish that the death of Madivalappagouda aged 6 years that was traced on 18.12.2011 subsequent to complaint dated 15.12.2011 was homicide and not a natural. In this connection, the complaint dated 15.12.2011 and 18.12.2011, the recovery of the dead body on 18.12.2011 at a distant place with head ripped apart from the body getting decomposed wherein maggots were crawling over the head invariably establish that the death was not a natural one, but homicide.\n 13. Complainant as PW.1 on oath reiterates the contents of the complaint dated 15.12.2011 and 18.12.2011 to the effect, missing of the child and later finding that the he was being kidnapped by the accused who murdered him between 15.12.2011 and 18.12.2011. He further states that the clue was provided by the teacher regarding the person who took the child on 15.12.2011 was the accused, when on seeing photograph the teacher confirmed that it was the accused person. The complainant also states that the accused was waiting to take vengeance against him, as the complainant and his family members had refused to give in marriage Basamma, the sister of Madivalappagouda, to accused.\n 14. In the said connection, the evidence of Gurupadappa PW.7 reveals that the refusal of the complainant to give his daughter in marriage to the accused and the latter's disappointment.\n 15. The evidence of the teacher PW.9 is to the effect that she identified the person who took the child from the school at Heroor at 2.30 p.m. on 18.12.2011.\n 16. During inquest mahazar Ex.P.8 Parvati mother of the victim, uncle Eshwargouda, Abdul Rahiman and others were present and their statements also were recorded. Spot mahazar Ex.P.6 dated 19.12.2011 was conducted at the school premises from where victim Madivalappagouda was kidnapped. Ex.P.5 is the mahazar for having seized the clothes found on the dead body. The articles that were seized after the completion of post-mortem are shirt, half pant, underwear, saffron colour underwear, kerchief and black shoes that were produced by the CPC 496. Ex.P.7 is the mahazar dated 19.12.2011 for seizing blood stained soil and ordinary soil from the place of offence.\n 17. Blood stained Clothes of the accused were seized on 19.12.2011 as per Ex.P.11. Seizure of the weapon from the accused Ex.P.4 is said to have been conducted for having recovered from the accused after discovering the same at the instance of the accused.\nFrom the spot cloth like kerchief said to have been used for inserting in the mouth of the victim to block respiration was also seized in addition beer bottle, opener and chilly powder. The sickle said to have been used by the accused for committing the offence was also seized. Insofar as the incident of murder is concerned, admittedly there are no eyewitnesses.\n 18. Insofar as the dead body of victim as described in Ex.P.15 post-mortem report dated 18.12.2011 conducted between 5.40 p.m. to 6.40 p.m.\nand the doctor who conducted the postmortem states that the dead body was decomposed, distended and disfigured and discoloured emitting foul odder and maggots were found crawling over the head. The doctor PW.15 Dr. Satish Tiwari who conducted the post- mortem has also concluded that the death was due to asphyxia because of the deep neck injuries. It is also to be stated that the said injury was the one to the maximum worst possible extent one could get inflicted as it is in the form of severance of head.\n 19. The teachers which included PW-9 told him that it was the person in the photo who took the child along with him. Moreover, the child Madivalappagouda responded as \"mama\" to that person who is the accused. Under such circumstances, one may take that the child and the accused were familiar to each other.\n 20. In substance he neither helps the prosecution nor the accused.\n 21. Insofar as PW.10 Inamdar is a circumstantial witness who states that he is the neighbouring land owner he came to know about the incident.\n 22. Prabhu PW.12 in his evidence dated 16.4.2015 states having seen the accused running towards Nala on the date of incident holding the sickle.\n 23. Sajjad Khadri PW.13 in his evidence dated 16.4.2015 states that he has seen the child going along with the accused towards Fatepur road and later for having seen its dead body on 18.12.2011.\n 24. Incidentally PW.13 goes away from his version during the cross-examination that was conducted in the second session regarding hearing sound and seeing the incident in a way beneficial to the accused. He was cross-examined by the learned Public Prosecutor as well.\n 25. Dr.Satish PW.15 who in his evidence dated...\nstates about external injuries and the body being divided into two parts with neck injury to the maximum extent because of beheading. He also has identified 9 injuries out of which six were stab injuries.\n 26. Evidence of PW.16 is for having carried the FIR. PW.17 examined on 18.6.2016 states that on 3 to 3 years back having seen the accused with bloodstained clothe wandering here and there in shock.\n 27. Sangangouda PW.18 states for having seen the accused in M.Os.11 and 12 blood stained and the accused in a state of shock.\n 28. PW.19 Police Officer states about the investigation, recording statement, receiving FSL report and the related.\n 29. The father of the victim noticing non-arrival of his son Madivalappagouda to home from the school on 15.12.2011 lodged complaint-Ex.P.1 to the police and it was registered in Cr.No.221/2011 and the said version is corroborated by the evidence of the teacher PW.8.\n 30. From the evidence of PWs.11 and 12 it is seen that the accused with a bag in his hand was seen walking along with Madivalappagouda on 15.12.2011 at the outskirts towards Fatepur road.\n 31. Further both accused and Madivalappagouda were seen in the land of Abbasali Kambar by PWs.11 and 12. However, their exaggerated version goes beyond believable portion regarding the description of the incident as they are not eyewitnesses.\n 32. The accused was seen rushing towards nala in blood stained clothes is confirmed by the evidence of PW.12.\n 33. Further the accused alone was seen in bloodstained clothes in a state of shock at the Bus Stand by PW.18.\n 34. The accused and the complainant have their own grouse and vengeance for exchanging against each other insofar as complainant, he asserts that the accused developed vengeance on him as the former did not give his daughter Basamma in marriage to the accused. The accused claims that the complainant was owing Rs.10,00,000/- to him and he wanted to escape from the liability of repayment and was waiting for an opportunity and has used the incident by filing the complaint against the accused.\n 35. No doubt, a person who commits an offence, more particularly, the heinous one may keep the cause or the purpose in dark, rather, make the people around and the officials who are conducting the investigation of that case. More often, that is not when the offender apprehends backfiring if the object is known to others.\nThus, the others may go on by presuming a wrong object. Thus, whether the main motive or the material motive for committing the offence may not be known to the other or not, the motive cannot get extinguished.\nFurther, the commission of offence may itself can be the object or may be even to hide the real object.\n 36. The concept of motive for committing a crime may also depend upon the nature and wisdom of a person who commits offence under particular circumstances and some go on offensive on the innocent. Thus, just because the motive is not established in fool proof, it cannot be concluded that offence was not committed. Further behind every offence there will be an offender and the court takes the cognizance of the offence and not the offender. There are cases where motive or design to commit an offence is by a sadist, is nothing but his mindset that drives into commit offence.\n 37. The child when alive disappeared from the school. Insofar as the memory of the witnesses are concerned, due to limited development and limited population in rural side, people therein have a tendency to have the familiarity of each other and also identify the land or garden with particular name and even persons to refer with their status or avocation when they do not know or remember the names.\n 38. Insofar as the scene of offence on 18.12.2011 has been so ghastly that it was worst form of punishment to anybody to see his offspring of six years, the only male issue lying dead after being beheaded, is a nightmare for remaining portion of his life.\n 39. Insofar as the witness in connection with the recovery of weapon or soil turning hostile does not leave any impact of affecting the case as it is corroborated by the documentary evidence issued by the expert in respect of soil, blood and the weapon used for offence and the Investigating Officer.\n 40. There need not be a second occasion to conclude that the child Madivalappagouda was kidnapped by the accused Devendra from the school on 15.12.2011 and discovered dead on 18.12.2011 and the death was homicidal and ghastly and the mode of causing death was so barbaric it is even horrible to imagine that a child of six year was shown the highest form of fear and terror by inserting clothes into its mouth to make it help and speechless before he was done to death.\n 41. The sole defence of the accused is indebtedness of the complainant to the extent of Rs.10,00,000/- to the accused. This version is totally unreliable and ignored in the context of circumstances.\nThus, not relied upon. The sighting of accused with the son of the complainant is identified by the reliable and natural witnesses PWs.6, 7, 8, 11, 13 and 18 and has all the efficacy of legal force.\n 42. The accused kidnapped the child on 15.12.2011 as stated above and took it to unknown place and murdered him by beheading in a most fearsome way and creating dangerous and unimaginable fear. Fear and threat to the core was employed by the accused on the child just prior to getting murdered.\nThe version of the prosecution is corroborated by the complaint-Ex.P.1, inquest mahazar-Ex.P.8, spot mahazar-Ex.6, evidence of PW.1, school teacher PW.-8 recovery of dead body in two parts further strengthens the prosecution case.\n 43. The child was put to fear and cloth was inserted in its mouth to make it speech and helpless, even otherwise, the child was in a no match in terms of power of the offender possessed weapon as well.\n 44. The child was in the school uniform when he was murdered after getting kidnapped.\n 45. Kidnapping a minor child happens for various aspects example, abusing, ransom, trafficking, beggar which are punishable under various sections of IPC.\n 46. In the present case, the offences charged against the accused are punishable under Section 364 and 302 of IPC. Further the kidnapping may not be for any of said purposes or even it may be for the refusal of marriage with Basamma aspect as stated by the complainant.\n 47. The accused after the brutal act of murdering the child has gone clueless and terribly upset apprehending of being caught and entered shock and panic, thereby appears to have decided that the only way out is to murder the child and committed the gruesome act of murdering Madivalappagouda.\n 48. The prosecution has proved the commission of the offence punishable under Section 364 and 302 of IPC beyond reasonable doubt to the effect that the accused kidnapped Madivalappagouda aged 6 years on 15.12.2011 and murdered the said boy somewhere at a particular time between the evening of 15.12.2011.\n 49. We do not find any infirmity, irregularity or breach of legal barriers in the judgment of the trial Court holding the accused guilty of kidnapping and murdering Madivalappagouda.\n 50. The learned trial judge has sentenced the accused with death penalty. As the offence under Section 300 defines the murder and section 302 provides for punishment, it is necessary to mention both the sections.\n \"300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of cause death, or Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.\n 302. Punishment for murder Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.\"\n 51. The offence punishable under Section 302 IPC relates to murder which is punishable with imprisonment for life and fine or death sentence. In the present case the learned trial Judge has ordered death sentence to the accused. Under Section 366 of the Code of Criminal Procedure, whenever, the Sessions Judge that the accused to be sentenced to death, has to send the finding to the High Court by way of reference.\n 52. Thus, we are under duty to peruse and decide whether the case in the circumstances and the offence committed by the accused falls under the category of rarest of the rare cases to attract death sentence.\n 53. At the same time the accused has preferred appeal against the judgment in SC No.96/2012. Thus, both the matters related to same case and judgment, both of them are taken up together.\n 54. Before proceeding to discuss on the order of sentence, we find it necessary to mention Section 303 of IPC which runs as under; \"303. Punishment for murder by life- convict Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.\n 55. Thus, whenever a convict undergoing life imprisonment as punishment in a case where the punishment prescribed was life imprisonment or death sentence, the learned Judge selects to restrict for life imprisonment in case and such convict further commits the offence which is punishable with life imprisonment or death sentence, there was no discretion available to the Court on finding the guilty of such offence, to impose life imprisonment. On the other hand, such convict of the first case was liable to be punished with death sentence in case of his guilt of committing the said kind of offence in the subsequent case.\n 56. However, the said section was declared unconstitutional by the Apex court in the case of Mithu vs. State of Punjab reported in AIR 1983 473.\n 57. The society has progressed time to time and the right to life has been considered as the one with dignity and the theories of punishment in majority number of nations across the world believing combination of reformative and preventive rather than a cluster of countries which believe in deterrent theory of punishment.\n 58. The society with its dynamic nature of getting reformed from the previous phase to the next witnessed better maturity in consideration of the punishment for the offences.\n 59. In 16th century AD there were more than 300 felonies for which the punishment was death sentence.\nIn 18th century AD the Code of King Hammurabi of Babilonia identified 25 felonies that were punished with death sentence.\n 60. The few of the cases which earmarks the concept of rarest of rare case are Bachansingh Vs. State of Punjab, Billa and Ranga in a case wherein rape and murder of victim was committed and her younger brother who in his tender age showed bravery to stand against the accused was also murdered. More particularly both of the victims were the children of Officer from Defence guarding the border of motherland.\n 61. In the judgment rendered by His Lordship Justice Sarkaria and His Lordship Chandrachud and Justice A.C.Gupta and N.L.Untwualia wherein His Lordship Sarkaria rendered the judgment which was the majority view holding the constitutional validity of the death sentence with reference to Art. 19 of the Constitution.\n 62. No doubt that the accused committed a gruesome murder sending harsh message of fear with devastating consequences, the punishment has to be assessed before ordering a person to be hanged until death.\n 63. Further the preparation in committing offence, terror outfit, criminals who are psychopaths are also the aspects to be seriously considered in the case on hand. The offence, mode of its commission, the object and it fearsome impact on the society are to be considered.\n 64. No doubt, the manner of murder in this case is wretched, ghastly besides alarming as murder by beheading a child who was helpless from beginning of the offence of kidnapping the till the last moment of life.\nIt did not anticipate such a terroristic end to its life in the hands of a criminal who was known to the family of the child. However, the offence and the manner has to be assessed meticulously.\n 65. The punishment of death is not prescribed as it was done in case of Shah of Iran and Zulfikar Ali Bhutto who was a Barrister by himself in Pakistan.\nEven death sentence is certain Islamic country the punishment is carried out by pelting stone till death of the condemned. It cannot be forgotten for a while principles of natural justice and human rights are not only recognized, but also respected in India.\n 66. The notable examples of imposing for the recent time are the cases of Afzal Guru in the matter of attempting to blow the Parliament of India, and the matter of Kasab, a Pakistan national where the acts of the said criminals themselves proved that they require no less than death sentence for their dreaded acts.\n 67. Thus, in the circumstance the real and the worst punishment is being and will be suffered by the unfortunate parents of the departed soul whose loneliness is by many time worse than solitary confinement.\n 68. It is they who suffer the shock of the death of their lovely sole male issue and their grief touches the peak of a rock in seeing their beloved a school going child murdered by dastardly act of the accused.\n 69. However, the offence committed by the accused for the offence punishable under Section 302 IPC, in our considered finding does not fall under the category of rarest of the rare cases to attract death sentence.\n 70. The Hon'ble Apex Court in the case of Machhi Singh vs. State of Punjab reported in 1983 SCC (Cri.) 681 has held as under: \"38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.\n (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.\n (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.\n (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.\"\n 71. In the case of Jagmohan Singh vs. The State of U.P., reported in 1973 SCC (Cri.) 169 the Hon'ble Apex Court has held as under: \"Constitution of India Article 19 (1) Death sentence if violative of Article 19 (1) Validity of Section 302 IPC Relevance of decision of U.S.\n Supreme Court based on Eighth Amendment and due process of law Freedom to live if included in Article 19(1).\"\n 72. We, however, concur with the learned Sessions Judge regarding conviction for the offence punishable under Section 302 IPC and restrict the punishment to rigorous imprisonment for life and a fine of Rs.2,50,000/- in default to undergo simple imprisonment for a period of two years.\n 73. Thus, we are not inclined to grant confirmation for death sentence to the accused under Section 366 of the Code of Criminal Procedure and we hereby reject the reference made by the learned District & Sessions Judge, Vijayapur dated 06.02.2016. At the same time, we confirm the judgment in the said case whereby the accused was convicted for the offence punishable under Section 302 IPC by the learned Sessions Judge, Vijayapura. But do no consider the offence as the one falling under rarest of the rare cases and thus restrict the punishment to life imprisonment.\n 74. Hence, we proceed to pass the following: ORDER The appeal preferred under Section 374(2) of Cr.P.C. by the appellant-accused against the judgment in S.C.No.96/2012 dated 06.02.2016 is hereby partly allowed. However, the order of conviction is confirmed and the accused is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,50,000/- in default to undergo simple imprisonment for a period of two years. The appeal against the order of convicting and sentencing the accused for the offence punishable under Section 364 IPC is hereby dismissed.\n The reference made by the learned I Additional Sessions Judge, Vijaypur seeking confirmation of the death sentence, is hereby rejected.\n The learned Sessions Judge is hereby directed to secure the accused from the concerned Jail where he is lodged and issue necessary warrant of conviction.\n Sd/- JUDGE Sd/- JUDGE NSP "
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"text": "$~56\n*IN THE HIGH COURT OF DELHI AT NEW DELHI\n% Judgment delivered on: 17.01.2017\n\n+ W.P.(C) 8374/2016\nSELECT INFRASTRUCTURE PRIVATE LIMITED ..... Petitioner\n\n versus\nCOMMISSIONER, VALUE ADDED\n TAX & ORS. ..... Respondents\nAdvocates who appeared in this case:\n\nFor the Petitioner : Mr Harsh Sethi and Mr Ruchir Bhatia\n\nFor the Respondents : Mr P.Roychaudhuri for R-1.\n Mr Rahul Malhotra for R-2.\nCORAM:-\nHON’BLE MR JUSTICE SANJEEV SACHDEVA\n\n JUDGMENT\n 17.01.2017 SANJEEV SACHDEVA, J. (ORAL) 1."
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"end": 1043,
"labels": [
"FAC"
],
"start": 764,
"text": "The petitioner seeks quashing of the sealing order under Section 60 of the Delhi Value Added Tax Act, 2004 dated 11.12.2015 in respect of the premises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi, and for de- sealing of the premises."
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"start": 1043,
"text": "\n 2. It is contended that the petitioner is the owner of the Select City Walk as also the said premises bearing No. S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi.\n 3. It is submitted that by Agreement of Licence dated 06.03.2007, the premises was licensed to respondent No.2 to open and run a restaurant and Bar in the name and style of “Geoffreys’.\n 4. It is contended that on 11.12.2015, the officers of respondent No.1 – Commissioner Value Added Tax, came and sealed the said premises on account of alleged violation of the provisions of Delhi Value Added Tax by respondent No.2.\n 5"
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{
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"to_name": null,
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"value": {
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"labels": [
"FAC"
],
"start": 1678,
"text": ". It is contended that respondent No.2 was a mere licensee and has no right, title or interest in the said premises."
}
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{
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"id": "9c81921dc88140f1b6e565abc6a97887",
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"text": "6. "
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"end": 2042,
"labels": [
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],
"start": 1809,
"text": "Learned counsel for the petitioner submits that the petitioner is willing to make available some space in the same Complex where the goods of the respondent No.2 can be shifted so that the premises of the petitioner can be de-sealed."
}
},
{
"from_name": null,
"id": "8384521c9fff457fa4f9bd7d17528e4e",
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"text": "7. "
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"value": {
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"start": 2052,
"text": "Learned counsel for the respondent No.2 submits that respondent No.2 has no objection to the goods being shifted to another premises within the same Complex."
}
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{
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"id": "c1db14ac242b41c78c4ebf273ba03637",
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"value": {
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"text": " He further submits that respondent No.2 has no right, title or claim to the said premises and is also not seeking to enforce the rights granted under the Licence Agreement any further."
}
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{
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"id": "21687e91b2e0422ba7971f37e1bbe276",
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"labels": [
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"start": 2409,
"text": "8. "
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{
"from_name": null,
"id": "40a4e71b95f648639019640abd2c172d",
"to_name": null,
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"value": {
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"labels": [
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"start": 2417,
"text": "Learned counsel appearing for the Commissioner, Value Added Tax, submits that the Commissioner has no objection to the goods being shifted to some other portion in the same Complex provided that the respondent No.2 is not permitted to deal with the goods till the Commissioner, Value Added Tax is in a position to take appropriate step with regard to attachment/seizure of the same."
}
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{
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"text": "It is submitted that since the premises had been sealed, the Commissioner did not take any step for initiating any action for attachment/seizure of the goods as the goods were lying in the sealed premises."
}
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{
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"start": 3007,
"text": "9. "
}
},
{
"from_name": null,
"id": "954af2088db04843873e6ddc41e4123b",
"to_name": null,
"type": null,
"value": {
"end": 3256,
"labels": [
"ARG_RESPONDENT"
],
"start": 3015,
"text": "He further submits that the petitioner should ensure that the goods, that are shifted, are secured till further action is taken by the Commissioner, Value Added Tax and further the respondent No.2 is not permitted to deal with the goods.\n 10"
}
},
{
"from_name": null,
"id": "4ea85f8295e341a7acf146911c85cce2",
"to_name": null,
"type": null,
"value": {
"end": 3541,
"labels": [
"RPC"
],
"start": 3256,
"text": ". In view of the above submission, the petitioner is directed to make an appropriate arrangement of space in the same complex for shifting the goods of respondent No.2 lying in the premises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi."
}
},
{
"from_name": null,
"id": "b3f6a984b26442ed9b6250732a704532",
"to_name": null,
"type": null,
"value": {
"end": 3678,
"labels": [
"RPC"
],
"start": 3541,
"text": "\n 11. The petitioner should ensure that the location where the goods are shifted are of a condition, which can be sealed and secured."
}
},
{
"from_name": null,
"id": "52ca41bc98a545229926a8e11fba7834",
"to_name": null,
"type": null,
"value": {
"end": 3977,
"labels": [
"RPC"
],
"start": 3678,
"text": "\n 12. Accordingly, Ms Sumedha Dang, Advocate, who is present in Court, (Mobile No. 9717325769), is appointed as a Local Commissioner to supervise the dismantling of equipment and shifting of the equipment and goods, furniture, fittings and fixtures to a secured location within the same complex."
}
},
{
"from_name": null,
"id": "a1b0ad8fa2ac47c79d118bec3abe51e5",
"to_name": null,
"type": null,
"value": {
"end": 4067,
"labels": [
"RPC"
],
"start": 3977,
"text": "\n 13. The Commission shall be executed commencing from Friday, the 20th January, 2017."
}
},
{
"from_name": null,
"id": "4f4d1cbcad3449a6a3c67f6d498a91a5",
"to_name": null,
"type": null,
"value": {
"end": 4213,
"labels": [
"RPC"
],
"start": 4068,
"text": "In case the dismantling and shifting cannot take place in a day, the Commissioner shall ensure that the shifting carries on, on day to day basis."
}
},
{
"from_name": null,
"id": "7dd9b51417a544aca3657829f4385581",
"to_name": null,
"type": null,
"value": {
"end": 4485,
"labels": [
"RPC"
],
"start": 4213,
"text": "\n 14. The officers of the respondent No.1 and representative of respondent No. 2 shall also be permitted to be present at the time of the dismantling and shifting of the equipment, fittings & fixtures and furniture belonging to respondent No. 2 from the said premises."
}
},
{
"from_name": null,
"id": "a9e59d86f75d4938905c2bd9fd5e32aa",
"to_name": null,
"type": null,
"value": {
"end": 4650,
"labels": [
"RPC"
],
"start": 4485,
"text": "\n 15. The Local Commissioner shall also prepare an inventory of the equipment, fittings & fixtures and furniture belonging to respondent No. 2, which is shifted."
}
},
{
"from_name": null,
"id": "675bc04346dd4764b6e2ff1e0b0b86b7",
"to_name": null,
"type": null,
"value": {
"end": 4729,
"labels": [
"RPC"
],
"start": 4651,
"text": "The petitioner shall make arrangement for video-graphy of the entire exercise."
}
},
{
"from_name": null,
"id": "1837a15c935343f09c0fcd6caa3d1449",
"to_name": null,
"type": null,
"value": {
"end": 4813,
"labels": [
"RPC"
],
"start": 4730,
"text": "Copy of the video-graph shall also be deposited in Court by the Local Commissioner."
}
},
{
"from_name": null,
"id": "d40fdaa0b03c43dcbe743d5f79a8e87a",
"to_name": null,
"type": null,
"value": {
"end": 4997,
"labels": [
"RPC"
],
"start": 4813,
"text": "\n 16. The Local Commissioner shall ensure that the premises, where the equipment, fittings & fixtures and furniture belonging to respondent No. 2 is shifted, is secured and sealed."
}
},
{
"from_name": null,
"id": "d532120d50594c54bc5e01a8f4cfc140",
"to_name": null,
"type": null,
"value": {
"end": 5067,
"labels": [
"RPC"
],
"start": 4998,
"text": "The keys shall be deposited with the Registrar General of this Court."
}
},
{
"from_name": null,
"id": "3b151eef40a94ca59eace6c864be3404",
"to_name": null,
"type": null,
"value": {
"end": 5210,
"labels": [
"RPC"
],
"start": 5067,
"text": "\n 17. The fee of the Local Commissioner shall be Rs.75,000/- per day, to be borne equally by the petitioner as well as the respondent No.2."
}
},
{
"from_name": null,
"id": "e2bc9d4e6af14a759c69a3d965c97c62",
"to_name": null,
"type": null,
"value": {
"end": 5414,
"labels": [
"RPC"
],
"start": 5210,
"text": "\n 18. Respondent No.1 is granted four weeks time to take appropriate steps, as may be permissible in law, with regard to the equipment, fittings & fixtures and furniture belonging to respondent No. 2."
}
},
{
"from_name": null,
"id": "305cecc5499d448f903d0a4465c9cb65",
"to_name": null,
"type": null,
"value": {
"end": 5686,
"labels": [
"RPC"
],
"start": 5414,
"text": "\n 19. In case no steps are taken by respondent No.1 for seizure/attachment of the said equipment, fittings & fixtures and furniture belonging to respondent No. 2, within the period of four weeks, the same shall be liable to be handed over to respondent No.2.\n 20. "
}
},
{
"from_name": null,
"id": "35fe10dc655e4331a47d488b78ed85fe",
"to_name": null,
"type": null,
"value": {
"end": 5879,
"labels": [
"RPC"
],
"start": 5686,
"text": "The officers of respondent No.1 shall be present on the said premises at 11 A.M. on 20th January, 2017 for the purposes of desealing of the premises and commencement of the process of shifting."
}
},
{
"from_name": null,
"id": "07279f900d6540899598fd8bae306546",
"to_name": null,
"type": null,
"value": {
"end": 6149,
"labels": [
"RPC"
],
"start": 5879,
"text": "\n 21. After the process of shifting is completed the said premises i.e.\npremises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi shall not be sealed and the possession of the premises shall be handed over to the Petitioner."
}
},
{
"from_name": null,
"id": "c6bb92aa41d244b8a8de316775145716",
"to_name": null,
"type": null,
"value": {
"end": 6285,
"labels": [
"RPC"
],
"start": 6149,
"text": "\n 22. The Writ Petition is accordingly disposed of in the above terms.\n 23. List for reporting compliance on 22nd February, 2017"
}
},
{
"from_name": null,
"id": "24b4964636da4e4285fedebeca393f6a",
"to_name": null,
"type": null,
"value": {
"end": 6339,
"labels": [
"NONE"
],
"start": 6285,
"text": ".\n 24. Dasti under signatures of the Court Master."
}
},
{
"from_name": null,
"id": "30149a4c793f40839c8a880b6bf7a219",
"to_name": null,
"type": null,
"value": {
"end": 6382,
"labels": [
"NONE"
],
"start": 6339,
"text": "\n SANJEEV SACHDEVA, J JANUARY 17, 2017 ‘Sn’"
}
}
]
}
] | 4,248 | {
"text": "$~56\n*IN THE HIGH COURT OF DELHI AT NEW DELHI\n% Judgment delivered on: 17.01.2017\n\n+ W.P.(C) 8374/2016\nSELECT INFRASTRUCTURE PRIVATE LIMITED ..... Petitioner\n\n versus\nCOMMISSIONER, VALUE ADDED\n TAX & ORS. ..... Respondents\nAdvocates who appeared in this case:\n\nFor the Petitioner : Mr Harsh Sethi and Mr Ruchir Bhatia\n\nFor the Respondents : Mr P.Roychaudhuri for R-1.\n Mr Rahul Malhotra for R-2.\nCORAM:-\nHON’BLE MR JUSTICE SANJEEV SACHDEVA\n\n JUDGMENT\n 17.01.2017 SANJEEV SACHDEVA, J. (ORAL) 1. The petitioner seeks quashing of the sealing order under Section 60 of the Delhi Value Added Tax Act, 2004 dated 11.12.2015 in respect of the premises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi, and for de- sealing of the premises.\n 2. It is contended that the petitioner is the owner of the Select City Walk as also the said premises bearing No. S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi.\n 3. It is submitted that by Agreement of Licence dated 06.03.2007, the premises was licensed to respondent No.2 to open and run a restaurant and Bar in the name and style of “Geoffreys’.\n 4. It is contended that on 11.12.2015, the officers of respondent No.1 – Commissioner Value Added Tax, came and sealed the said premises on account of alleged violation of the provisions of Delhi Value Added Tax by respondent No.2.\n 5. It is contended that respondent No.2 was a mere licensee and has no right, title or interest in the said premises.\n 6. Learned counsel for the petitioner submits that the petitioner is willing to make available some space in the same Complex where the goods of the respondent No.2 can be shifted so that the premises of the petitioner can be de-sealed.\n 7. Learned counsel for the respondent No.2 submits that respondent No.2 has no objection to the goods being shifted to another premises within the same Complex. He further submits that respondent No.2 has no right, title or claim to the said premises and is also not seeking to enforce the rights granted under the Licence Agreement any further.\n 8. Learned counsel appearing for the Commissioner, Value Added Tax, submits that the Commissioner has no objection to the goods being shifted to some other portion in the same Complex provided that the respondent No.2 is not permitted to deal with the goods till the Commissioner, Value Added Tax is in a position to take appropriate step with regard to attachment/seizure of the same. It is submitted that since the premises had been sealed, the Commissioner did not take any step for initiating any action for attachment/seizure of the goods as the goods were lying in the sealed premises.\n 9. He further submits that the petitioner should ensure that the goods, that are shifted, are secured till further action is taken by the Commissioner, Value Added Tax and further the respondent No.2 is not permitted to deal with the goods.\n 10. In view of the above submission, the petitioner is directed to make an appropriate arrangement of space in the same complex for shifting the goods of respondent No.2 lying in the premises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi.\n 11. The petitioner should ensure that the location where the goods are shifted are of a condition, which can be sealed and secured.\n 12. Accordingly, Ms Sumedha Dang, Advocate, who is present in Court, (Mobile No. 9717325769), is appointed as a Local Commissioner to supervise the dismantling of equipment and shifting of the equipment and goods, furniture, fittings and fixtures to a secured location within the same complex.\n 13. The Commission shall be executed commencing from Friday, the 20th January, 2017. In case the dismantling and shifting cannot take place in a day, the Commissioner shall ensure that the shifting carries on, on day to day basis.\n 14. The officers of the respondent No.1 and representative of respondent No. 2 shall also be permitted to be present at the time of the dismantling and shifting of the equipment, fittings & fixtures and furniture belonging to respondent No. 2 from the said premises.\n 15. The Local Commissioner shall also prepare an inventory of the equipment, fittings & fixtures and furniture belonging to respondent No. 2, which is shifted. The petitioner shall make arrangement for video-graphy of the entire exercise. Copy of the video-graph shall also be deposited in Court by the Local Commissioner.\n 16. The Local Commissioner shall ensure that the premises, where the equipment, fittings & fixtures and furniture belonging to respondent No. 2 is shifted, is secured and sealed. The keys shall be deposited with the Registrar General of this Court.\n 17. The fee of the Local Commissioner shall be Rs.75,000/- per day, to be borne equally by the petitioner as well as the respondent No.2.\n 18. Respondent No.1 is granted four weeks time to take appropriate steps, as may be permissible in law, with regard to the equipment, fittings & fixtures and furniture belonging to respondent No. 2.\n 19. In case no steps are taken by respondent No.1 for seizure/attachment of the said equipment, fittings & fixtures and furniture belonging to respondent No. 2, within the period of four weeks, the same shall be liable to be handed over to respondent No.2.\n 20. The officers of respondent No.1 shall be present on the said premises at 11 A.M. on 20th January, 2017 for the purposes of desealing of the premises and commencement of the process of shifting.\n 21. After the process of shifting is completed the said premises i.e.\npremises bearing No.S-21&22 on the Second Floor, Select City Walk, District Centre Saket, New Delhi shall not be sealed and the possession of the premises shall be handed over to the Petitioner.\n 22. The Writ Petition is accordingly disposed of in the above terms.\n 23. List for reporting compliance on 22nd February, 2017.\n 24. Dasti under signatures of the Court Master.\n SANJEEV SACHDEVA, J JANUARY 17, 2017 ‘Sn’ "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "adfec3dae6ba42bba9e1f272e2a4569f",
"to_name": null,
"type": null,
"value": {
"end": 112,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, NEW DELHI\n\n Vs.\n\nRESPONDENT:\nANANT RAO B. KAMAT\n\nDATE OF JUDGMENT:"
}
},
{
"from_name": null,
"id": "24b30338183d45cf90e2aa54037d6f65",
"to_name": null,
"type": null,
"value": {
"end": 123,
"labels": [
"PREAMBLE"
],
"start": 112,
"text": "\n08/05/1964"
}
},
{
"from_name": null,
"id": "3b733b55aae14cd1bd39bf68fa6eedcd",
"to_name": null,
"type": null,
"value": {
"end": 670,
"labels": [
"PREAMBLE"
],
"start": 123,
"text": "\n\nBENCH:\nSIKRI, S.M.\nBENCH:\nSIKRI, S.M.\nSUBBARAO, K.\nSHAH, J.C.\n\nCITATION: 1964 SCR (8) 263\n 1966 AIR 279\n\nACT:\nIncome-tax-Devidend declared and paid in different years-\nRate of which year applicable-Meaning of 'rebate'-Is there\nany distinction between rebate under Finance Act and the\nrebate under other statutes-Indian Income-tax Act, 1922 (11\nof 1922), ss. 16(5), 6OA-Part B States (Taxation Concession)\nOrder, 1950.\n\nHEADNOTE:\n\nThe assessee had received in the previous years (1950-51 and\n\n1951-52) dividends from two companies."
}
},
{
"from_name": null,
"id": "fcca21c9025e41af8bab981293ec7414",
"to_name": null,
"type": null,
"value": {
"end": 771,
"labels": [
"PREAMBLE"
],
"start": 671,
"text": "These companies had\n\nbeen allowed rebate under the Part B States (Taxation\n\nConcession) Order, 1950."
}
},
{
"from_name": null,
"id": "ee506b53d55c4bbebd728aa9ed7c6963",
"to_name": null,
"type": null,
"value": {
"end": 1067,
"labels": [
"PREAMBLE"
],
"start": 772,
"text": "For the assessment years 1951-52\n\nand 1952-53, the assessee claimed before the Income-tax\n\nOfficer that the dividend received by him should be \"grossed\n\nup\" under s. 16(2) of the Act, without taking into con-\n\nsideration the rebate allowed to the said companies under\n\nthe said concession order."
}
},
{
"from_name": null,
"id": "5803b7008183437b8c140e4ed1217b2d",
"to_name": null,
"type": null,
"value": {
"end": 1248,
"labels": [
"PREAMBLE"
],
"start": 1068,
"text": "On a construction of s. 16(2)\n\nthe assessee pleaded that the rate applicable to the total\n\nincome of the said companies was the rate prescribed by the\n\nrelevant Indian Finance Act."
}
},
{
"from_name": null,
"id": "a5832b39bba3432bbb13c87a1b7813d0",
"to_name": null,
"type": null,
"value": {
"end": 1362,
"labels": [
"PREAMBLE"
],
"start": 1249,
"text": "The Income-tax Officer grossed\n\nup at the State rate and not at the rate prescribed by the\n\nrelevant Finance Act."
}
},
{
"from_name": null,
"id": "11193236a10341158d20aa63c529dd82",
"to_name": null,
"type": null,
"value": {
"end": 1619,
"labels": [
"PREAMBLE"
],
"start": 1363,
"text": "Before the Tribunal and the High\n\nCourt the assessee succeeded.\n\nHeld: (i) In interpreting s. 16(2) effect must be given\n\nto these words occurring in the said section 'without taking\n\ninto account any rebate\n\nallowed or additional income-tax charged'."
}
},
{
"from_name": null,
"id": "f95e3a6d5189402c8702b91253ddc6d0",
"to_name": null,
"type": null,
"value": {
"end": 1679,
"labels": [
"PREAMBLE"
],
"start": 1620,
"text": "If these words\n\nare ignored, it will be rewriting s. 16(2)."
}
},
{
"from_name": null,
"id": "f4b933aaee6040b884e14ebb2e54e7e9",
"to_name": null,
"type": null,
"value": {
"end": 1825,
"labels": [
"PREAMBLE"
],
"start": 1680,
"text": "Section 16(2)\n\napplies the rate of the year in which the dividend is paid,\n\netc., and not of the year when the profits were made by the\n\ncompany."
}
},
{
"from_name": null,
"id": "057ac5a696b34d908a038131fc1491e6",
"to_name": null,
"type": null,
"value": {
"end": 1924,
"labels": [
"PREAMBLE"
],
"start": 1826,
"text": "On the fact of this case it was held that the\n\nrates prescribed by the relevant Finance Act apply."
}
},
{
"from_name": null,
"id": "2ee01e45716e48379d60eb5d099f71d3",
"to_name": null,
"type": null,
"value": {
"end": 2332,
"labels": [
"PREAMBLE"
],
"start": 1924,
"text": "\n\nRajputana Agencies Ltd. v. Commissioner of Income-tax,\n\n[1959] Supp. 1 S.C.R. 142, distinguished.\n\n(ii) The word 'rebate' in s. 16(2) not only relates to\n\nrebate granted under the Indian Finance Act but is wide\n\nenough to include any rebate which may be granted by other\n\nstatutory orders.\n\nThe form of the certificate prescribed under the Income-tax\n\n\nRules cannot change the meaning of the word 'rebate'."
}
},
{
"from_name": null,
"id": "5a9cfc9ac8d045a6adb2f9672146970b",
"to_name": null,
"type": null,
"value": {
"end": 2398,
"labels": [
"PREAMBLE"
],
"start": 2333,
"text": "The\n\nword 'rebate' is an apt word to use in respect of remission."
}
},
{
"from_name": null,
"id": "f2e9da505e784eb1bbf58ebc1d0a7843",
"to_name": null,
"type": null,
"value": {
"end": 2490,
"labels": [
"PREAMBLE"
],
"start": 2400,
"text": "M/s. Maganlal Sankalchand v. Commissioner of Income-tax,\n\nNew Delhi, C.A. No. 703 of 1963."
}
},
{
"from_name": null,
"id": "e3ced545f0ba4a249190ec8e717f2ca9",
"to_name": null,
"type": null,
"value": {
"end": 2547,
"labels": [
"PREAMBLE"
],
"start": 2491,
"text": "Judgment, dated May 8,\n\n1964 distinguished.\n\n(iii) "
}
},
{
"from_name": null,
"id": "a90ec9f357eb4596b4017e6208365bfd",
"to_name": null,
"type": null,
"value": {
"end": 2717,
"labels": [
"PREAMBLE"
],
"start": 2547,
"text": "The words 'exemption' or 'other modification' in\n\ns. 60A are wide enough to enable the Central Government to\n\ngive rebate such as been allowed under the Concession Order."
}
},
{
"from_name": null,
"id": "87151653842042cda315a1c451273f49",
"to_name": null,
"type": null,
"value": {
"end": 2795,
"labels": [
"NONE"
],
"start": 2717,
"text": "\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 687-688 of 1963."
}
},
{
"from_name": null,
"id": "2003f845d35b44269bef355eb3e1d5d9",
"to_name": null,
"type": null,
"value": {
"end": 2924,
"labels": [
"NONE"
],
"start": 2797,
"text": "Appeals from the judgment and order dated February 3, 1962 of the Rajasthan High Court in D. B. Civil Reference No. 13 of 1958."
}
},
{
"from_name": null,
"id": "fa0378eabefd49fe95e8ec7ad71ab2f3",
"to_name": null,
"type": null,
"value": {
"end": 2976,
"labels": [
"NONE"
],
"start": 2924,
"text": "\n S. K. Kapur and R. N. Sachthey, for the appellant."
}
},
{
"from_name": null,
"id": "ae410cf5b00e42569862257be0873f85",
"to_name": null,
"type": null,
"value": {
"end": 3032,
"labels": [
"NONE"
],
"start": 2976,
"text": "\n N. S. Palkhivala, S. P. Mehta, J. B. Dadachanji, O. C."
}
},
{
"from_name": null,
"id": "abf68a9b7ee04217a47d7ab0004c4172",
"to_name": null,
"type": null,
"value": {
"end": 3082,
"labels": [
"NONE"
],
"start": 3032,
"text": "\n Mathur and Ravinder Narain, for the respondents."
}
},
{
"from_name": null,
"id": "e924f2498d63460798eeddcd71fbf56a",
"to_name": null,
"type": null,
"value": {
"end": 3096,
"labels": [
"NONE"
],
"start": 3082,
"text": "\n May 8, 1964."
}
},
{
"from_name": null,
"id": "04ead86a7044423ca5e230b061f4678f",
"to_name": null,
"type": null,
"value": {
"end": 3149,
"labels": [
"NONE"
],
"start": 3097,
"text": "The Judgment of the Court was delivered by SIKRI, J."
}
},
{
"from_name": null,
"id": "3a12ee466b974e6ea7e14f4726879cf2",
"to_name": null,
"type": null,
"value": {
"end": 3447,
"labels": [
"FAC"
],
"start": 3149,
"text": "These are appeals by the Commissioner of Income Tax on certificates granted by the Rajasthan High Court under S. 66A(2) of the Indian Income Tax Act, 1922 (11 of 1922), hereinafter referred to as the Act, against the judgment of the High Court in a consolidated reference under s. 66(1) of the Act."
}
},
{
"from_name": null,
"id": "26fc9a0cc47c4bee88fcc944339f712d",
"to_name": null,
"type": null,
"value": {
"end": 3522,
"labels": [
"FAC"
],
"start": 3448,
"text": "The High Court answered the question,reproduced below, in the affirmative."
}
},
{
"from_name": null,
"id": "d489728f3b52407ea009ffb2fdd6d686",
"to_name": null,
"type": null,
"value": {
"end": 3613,
"labels": [
"FAC"
],
"start": 3523,
"text": "The reference was made by the Income Tax Appellate Tribunal in the following circumstances"
}
},
{
"from_name": null,
"id": "601bf563b3264440a7901d94674c38ca",
"to_name": null,
"type": null,
"value": {
"end": 3855,
"labels": [
"FAC"
],
"start": 3614,
"text": "The respondent, Anant Rao B. Kamat, hereinafter referred to as the assessee, had received in the previous years (1950-51 and 1951-52) dividends from two companies, Associated Stone Industries (Kotah) Ltd. and Rajputana Mining Agencies Ltd.\n "
}
},
{
"from_name": null,
"id": "b7c147e56f144ce4a663b7f48198bc30",
"to_name": null,
"type": null,
"value": {
"end": 4210,
"labels": [
"FAC"
],
"start": 3855,
"text": "For assessment years 1951-52, and 1952-53, the assessee claimed before the Income Tax Officer that the dividends received by him should he grossed up' under s. 16(2,) of the Act, without taking into consideration the rebate allowed to the said companies under the Part, B States (Taxation Concessions) Order, 1950, hereinafter called the Concession Order."
}
},
{
"from_name": null,
"id": "82591757393d4b9db0d15f1d5694d82a",
"to_name": null,
"type": null,
"value": {
"end": 4382,
"labels": [
"FAC"
],
"start": 4211,
"text": "According to the assessee, on a true of S. 16(2) of the Act, the rate applicabl, to the total income of the said companies was the rateby the relevant Indian Finance Acts."
}
},
{
"from_name": null,
"id": "abd93af2819e42f4a16b08d1ed681be6",
"to_name": null,
"type": null,
"value": {
"end": 4519,
"labels": [
"FAC"
],
"start": 4383,
"text": "TheTax Officer disallowed the grossing up at the Indianbut allowed at the State rate, defined by paragraph 3 (v)of the Conclusion Order."
}
},
{
"from_name": null,
"id": "3164b5e37ee14c09b1832e6f0ed2f94e",
"to_name": null,
"type": null,
"value": {
"end": 4668,
"labels": [
"FAC"
],
"start": 4519,
"text": "The Appellate Assistant Commissioner upheld the order of, the Income Tax Officer, but the assesse succeeded before the Income Tax Appellate Tribunal."
}
},
{
"from_name": null,
"id": "bdf2a710de39466f875b05f019389234",
"to_name": null,
"type": null,
"value": {
"end": 5328,
"labels": [
"ISSUE"
],
"start": 4669,
"text": "On the application of the Commissioner of Income Tax, the tribunalreferred the following question to the High Court.\n \"Whether the appropriate portion ofdividend received by the assessee fromof the said two companies in the financialyear 1950- 51/1951-52 is to he increased at the rate applicable to the total income of the respective companies for the financial year 1950-51/195152 and without regard to and benefit conferred by the T. C. 07-order 1950 that the companies would get in the matter of payment of tax by them on their profit-, ,accruing or arising to then, in a r)art 'B' State and assessable for the assessment year 1950-51/1951-52?\""
}
},
{
"from_name": null,
"id": "67f392e1af064d689b71556083ffdd93",
"to_name": null,
"type": null,
"value": {
"end": 5401,
"labels": [
"FAC"
],
"start": 5328,
"text": "\n The High Court, after asking for a supplementary statement of the case."
}
},
{
"from_name": null,
"id": "cac22f330f714ef984cd3b8b14498283",
"to_name": null,
"type": null,
"value": {
"end": 5457,
"labels": [
"FAC"
],
"start": 5402,
"text": "answered, as we have already said in favour of the ass "
}
},
{
"from_name": null,
"id": "268c8a65b8a34db1b55487f0567b3442",
"to_name": null,
"type": null,
"value": {
"end": 5680,
"labels": [
"ARG_PETITIONER"
],
"start": 5457,
"text": "The learned counsel for the appellant has contended before us that the rate applicable to total income of thesaid companies was the rate as finally applied after taking into consideration the effect of the Concession Order."
}
},
{
"from_name": null,
"id": "e5f1ea5fb7d54c5f9f7bc070653bc471",
"to_name": null,
"type": null,
"value": {
"end": 5952,
"labels": [
"ARG_PETITIONER"
],
"start": 5681,
"text": "He has further urged that the word 'rebate' occurring in s.\n16(2) does not include the relief given to the said companies under the Concession Order for the Concession Order is not concerned with granting rebate but is concerned with the determination of the tax payable."
}
},
{
"from_name": null,
"id": "a0ebe7d7a49d4d0cba3b0d421f8f5c3f",
"to_name": null,
"type": null,
"value": {
"end": 6218,
"labels": [
"ARG_PETITIONER"
],
"start": 5953,
"text": "In this connection, he relied on s. 60A of the Act under which the Concession Order was made, and said that this section enabled the Central Government to make an exemption, reduction in rate or other modification in respect of income tax but not to grant a rebate."
}
},
{
"from_name": null,
"id": "c803055caf0d41e8b39fd6efebe50bbe",
"to_name": null,
"type": null,
"value": {
"end": 6332,
"labels": [
"ARG_RESPONDENT"
],
"start": 6219,
"text": "The learned counsel for the respondent controverted these arguments and supported the judgment of the High Court."
}
},
{
"from_name": null,
"id": "434b5c73e85340538af406b498644ec7",
"to_name": null,
"type": null,
"value": {
"end": 6457,
"labels": [
"ANALYSIS"
],
"start": 6332,
"text": "\nBefore addressing ourselves to the contentions at the Bar, it is necessary to reproduce the relevant statutory provi- sions."
}
},
{
"from_name": null,
"id": "c0e0fa72fb104799a6a06ba9214bb8be",
"to_name": null,
"type": null,
"value": {
"end": 8648,
"labels": [
"STA"
],
"start": 6458,
"text": "These read thus: S. 16(2)-For the purposes of inclusion in the total income of an assessee any dividend &hall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him, and shall be increased to such amount as would, if income tax (but not supertax) at the rate applicable to the total income of the company (without taking into account any rebate allowed or additional income-tax charged) for the financial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend: Provided that when the sum out of which the dividend has been paid, credited or distributed or deemed to have been paid, credited or distributed includes- (i) any profits and gains of the company not included in its total income, or (ii) any income of the company on which income-tax was not payable, or (iii) any amount attributable to any allowance made in computing the profits and gains of the company, the increase to be made under this section shall be calculated only upon such proportion of the dividend as the said sum after deduction of the inclusions enumerated above bears to the whole of that sum.\n S. 18(5)-Any deduction made and paid to the account of the Central Government in accord- ance with the provisions of this section and any sum by which a dividend has been increased under sub-section (2) of section 16 shall be treated as a payment of income-tax or supertax on behalf of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate furnished under sub-section (9) or section 20, as the case may be, in the assessment, if any, made for the following year under this Act: Provided........\n S. 60A. Power to make exemption, etc., in relation to merged territories or to the territories which immediately before the 1st November, 1956. were comprised in any Part B State."
}
},
{
"from_name": null,
"id": "72d8833674d144bc9a0a8a898ed17b6a",
"to_name": null,
"type": null,
"value": {
"end": 10572,
"labels": [
"STA"
],
"start": 8648,
"text": "\nIf the Central Government considers it necessary or expedient so to do for avoiding any hardship or anomaly, or removing any difficulty, that may arise as a result of the extension of this Act to the merged territories or to the territories which immediately before the 1st November. 1956, were comprised in any Part B State, the Central Government may , by general or special order, make an exemption, reduction in rate or other modification in respect of Income-tax in favour of any class of income, or in regardto the whole or any part of the income of any person or class of persons: Provided that the power conferred by this section shall not be exercisable in the case of merged territories and the territories which immediately before the 1st November.\n1956, were comprised in Part B States other than the State of Jammu and Kashmir, after the 31st day of March, 1955, and, in the case. of the State of 'Jammu and Kashmir ,after the 31st day of March, 1959, .except for the purpose of rescinding an exemption, reduction or modification already made.\nPara 3(iii) of the Concession Order---The expression \"Indian rate of tax\" means the rate determined by dividing the amount of i,come-tax and super-tax payable in the taxable territories on the total income for the year in question in accordance, with the rates prescribed by the relevant Finance Act of the Central Government, by the amount of such total income.\nPara 3(v) of the Concession Order--The expression 'State rate of tax' means the rate determined by dividing the amount of income-tax and supertax and payable on the total income according to the rates of tax in force in the State immediately before the appointed .day, or for the year in question, as the case may be, by the amount of such total income and where under any State law, the' rates of tax in force in the State are prescribed with reference to the total income including agricultural income"
}
},
{
"from_name": null,
"id": "15392d33f0674dd790f0746dfcf6dba6",
"to_name": null,
"type": null,
"value": {
"end": 10605,
"labels": [
"STA"
],
"start": 10572,
"text": ", the State rate of tax shall be."
}
},
{
"from_name": null,
"id": "1470b1bcec3849e081c51b1f3b5f3d59",
"to_name": null,
"type": null,
"value": {
"end": 10881,
"labels": [
"STA"
],
"start": 10606,
"text": "the rate determined by dividing the amount of income-tax and supertax on the total income including the agricultural income without taking into account any reduction of tax allowed on the agricultural income by the State' law by the amount of such total 'income; Explanation."
}
},
{
"from_name": null,
"id": "e48a2e81617e40578c612500595db31d",
"to_name": null,
"type": null,
"value": {
"end": 11147,
"labels": [
"STA"
],
"start": 10882,
"text": "Where there was no State law relating to charge of income-tax.and super-tax therates of income-tax and super-tax in force in that State immediately before the appointed day shall, for the purposes of this clause, be deemed to be the rates specified in the Schedule."
}
},
{
"from_name": null,
"id": "b35a134b9b654c29959d1d994f44879c",
"to_name": null,
"type": null,
"value": {
"end": 11243,
"labels": [
"STA"
],
"start": 11147,
"text": "\nPara 6 of the Concession Order Income of a previous year which does not fall under paragraph 5."
}
},
{
"from_name": null,
"id": "0281fe2861104a3a8f24a8d48cd5abfb",
"to_name": null,
"type": null,
"value": {
"end": 11343,
"labels": [
"ANALYSIS"
],
"start": 11251,
"text": "The income, profits and gains of any previous year ending after the 31st day of March, 1949."
}
},
{
"from_name": null,
"id": "e98069a869cf446fa4b217ccd390ae28",
"to_name": null,
"type": null,
"value": {
"end": 11634,
"labels": [
"ANALYSIS"
],
"start": 11344,
"text": "which does not fail within paragraph 5 of this Order shall be assessed under the Act for the year ending on the 31st day of March, 1951, or on/he 31st day of March, 1952, as the ease may be, and the tax payable thereon shall be determined as hereunder: In respect of 'so much of the income."
}
},
{
"from_name": null,
"id": "cc6aa885a10d446db0cdad57959434ab",
"to_name": null,
"type": null,
"value": {
"end": 12457,
"labels": [
"ANALYSIS"
],
"start": 11635,
"text": "profits and gains included in the total income, as accrue or arise in any State other than the States of Patiala and East Punjab States Union and Travancore-Cochin- (i) the tax shall be computed (a) at the Indian rate of tax and (b) at the State rate of tax in force immediately before the appointed day; (ii) where the amount of tax computed under subclause (a) of clause (i) is less than or is equal to the amount of tax computed under subclause (b) of clause (i), the amount of the first-mentioned tax shall be the tax payable; (iii) where the amount of tax computed under subclause (a) of clause (i) exceeds the tax computed under sub-clause (b) of clause (i), the excess shall be allowed as a rebate from the first-mentioned tax and the amount of the first- mentioned tax as so reduced shall be the tax payable ......"
}
},
{
"from_name": null,
"id": "2a2fbe736efe40ae9c137d59384054a5",
"to_name": null,
"type": null,
"value": {
"end": 12588,
"labels": [
"ANALYSIS"
],
"start": 12458,
"text": "Para 6A of the Concession Order--Income, profits and gains chargeable to tax in the assessment year 1952-53, 1953-54 and 1954-55--"
}
},
{
"from_name": null,
"id": "8d78859f341a4515a0cf6f649b863149",
"to_name": null,
"type": null,
"value": {
"end": 13238,
"labels": [
"ANALYSIS"
],
"start": 12589,
"text": "The income, profits and gains of any previous year which is a previous year for the assessment for the year end-ing on the 31st day of March, 1953, 1954 and 1955, shall be charged to tax at the Indian rates of tax, provided that from the tax so computed, there shall be allowed in each year, rebate at the percentage thereof specified thereunder: in respect of so much of the income, profits and gains as accrue or arise- (a) in the States of Saurashtra, Madhya Bharat or Rajasthan, to any assessee at the rate of 40per cent and 10 per cent, respectively, for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955. . . .\"."
}
},
{
"from_name": null,
"id": "13614cd102a6452fa55463d7d72bf76c",
"to_name": null,
"type": null,
"value": {
"end": 13300,
"labels": [
"ANALYSIS"
],
"start": 13239,
"text": "The scheme underlying s. 16(2) and s. 18(5) seems to be this."
}
},
{
"from_name": null,
"id": "66be59b363314e20bc6bfeb5026e0043",
"to_name": null,
"type": null,
"value": {
"end": 13486,
"labels": [
"ANALYSIS"
],
"start": 13301,
"text": "Under s. 16 (2) the dividends are grossed up and under s. 18(5) any sum by which a dividend is increased under s. 16(2) is treated as payment of income-tax on behalf of the shareholder."
}
},
{
"from_name": null,
"id": "12fb9639988a40429507cc969c16a350",
"to_name": null,
"type": null,
"value": {
"end": 13572,
"labels": [
"ANALYSIS"
],
"start": 13487,
"text": "In this setting, let us examine what is the true construction of s. 16(2) of the Act."
}
},
{
"from_name": null,
"id": "a12c35c4adc54dc9a9327fc723753700",
"to_name": null,
"type": null,
"value": {
"end": 13644,
"labels": [
"ANALYSIS"
],
"start": 13573,
"text": "It is common ground that 'grossing up' has to be effected in this case."
}
},
{
"from_name": null,
"id": "6dbd7e49eefa4bcbada70b16b5658599",
"to_name": null,
"type": null,
"value": {
"end": 13743,
"labels": [
"ANALYSIS"
],
"start": 13644,
"text": "\nThe real point of controversy between the parties is regarding the rate at which it is to be done."
}
},
{
"from_name": null,
"id": "a2e919473bf246a1999607e4735e94c3",
"to_name": null,
"type": null,
"value": {
"end": 14227,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13744,
"text": "The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd., v. Commissioner of Income Tax(1) urged that the same meaning should be attributed to the expression \"rate applicable to the total income of the company\" in s. 16(2), as was attributed bv this Court to the same expression occurring in sub-clause(b) of clause (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951."
}
},
{
"from_name": null,
"id": "ef7718ab888d4f54b97ff1ea4643c7c5",
"to_name": null,
"type": null,
"value": {
"end": 14265,
"labels": [
"PRE_NOT_RELIED"
],
"start": 14228,
"text": "We are unable to accept this argument"
}
},
{
"from_name": null,
"id": "2339ee7b2251427ca627afe31d13808d",
"to_name": null,
"type": null,
"value": {
"end": 14580,
"labels": [
"ANALYSIS"
],
"start": 14265,
"text": ". It is true that the same expression occurs in s. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words 'without taking into account any rebate allowed or additional income-tax charged' occur in s. 16(2) and not in the said sub-clause, and effect must be given to these words."
}
},
{
"from_name": null,
"id": "f9729cf32418480bb6388fc16c67b88d",
"to_name": null,
"type": null,
"value": {
"end": 14638,
"labels": [
"ANALYSIS"
],
"start": 14581,
"text": "If we ignore these words, we would be rewriting s.\n16(2)."
}
},
{
"from_name": null,
"id": "fadcda397d7e4bce9f2e5950b107fa39",
"to_name": null,
"type": null,
"value": {
"end": 14829,
"labels": [
"ANALYSIS"
],
"start": 14639,
"text": "It will be noticed that s. 16(2) applies the rate of the year in which the dividend is paid, etc., and (1) [1959] Supp. 1 S.C.R. 142not of the year when the profits were made by the company."
}
},
{
"from_name": null,
"id": "c43f64a4b9ff4106ae1f93997f8340ef",
"to_name": null,
"type": null,
"value": {
"end": 14975,
"labels": [
"ANALYSIS"
],
"start": 14829,
"text": "\nThe legislature has devised a mechanical test which has to be -Applied regardless of the hardship or the benefit which may accrue to an assessee."
}
},
{
"from_name": null,
"id": "2d9ffc65733040bd8c21c8d0f9266a0f",
"to_name": null,
"type": null,
"value": {
"end": 15182,
"labels": [
"ANALYSIS"
],
"start": 14976,
"text": "Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company, has not to be, as directed by s. 16(2), taken into account."
}
},
{
"from_name": null,
"id": "05885a8e5667448ea5ded59149449fdb",
"to_name": null,
"type": null,
"value": {
"end": 15281,
"labels": [
"ANALYSIS"
],
"start": 15182,
"text": "\nThis takes us next to the point that benefit given by the Concession Order is not a rebate at all."
}
},
{
"from_name": null,
"id": "8c6e90d38f9e43dc8c6f68ac31473aaa",
"to_name": null,
"type": null,
"value": {
"end": 15315,
"labels": [
"ANALYSIS"
],
"start": 15282,
"text": "We cannot accept this contention."
}
},
{
"from_name": null,
"id": "ea7b3bea19a74456bd628c6ceab41948",
"to_name": null,
"type": null,
"value": {
"end": 15389,
"labels": [
"ANALYSIS"
],
"start": 15316,
"text": "The Concession Order itself uses the word 'rebate' in paras 5, 6, and 6A."
}
},
{
"from_name": null,
"id": "5ce79dfe643f4922bd4632e67f34bf2e",
"to_name": null,
"type": null,
"value": {
"end": 15468,
"labels": [
"ANALYSIS"
],
"start": 15390,
"text": "Indeed, though it may be possible to urge something while dealing with para 6."
}
},
{
"from_name": null,
"id": "dfac1e680181440d9920a0d4892a61eb",
"to_name": null,
"type": null,
"value": {
"end": 15631,
"labels": [
"ANALYSIS"
],
"start": 15469,
"text": "no argument is possible regarding para 6A, for it expressely says that 'there shall be allowed in each year rebate at the percentage thereof specified hereunder'."
}
},
{
"from_name": null,
"id": "28224fcb0ac8470c98c9a85847bf3188",
"to_name": null,
"type": null,
"value": {
"end": 15740,
"labels": [
"ANALYSIS"
],
"start": 15632,
"text": "The learned coun- sel for the appellant laid great stress on the language of para 6 of the Concession Order."
}
},
{
"from_name": null,
"id": "afb33eec6a1f44b5b82fde8b0257c996",
"to_name": null,
"type": null,
"value": {
"end": 15921,
"labels": [
"ANALYSIS"
],
"start": 15741,
"text": "He said that clause (i) directed the computation of tax and clause (iii) was equally directing computation of tax, and that in this context the word 'rebate' has been loosely used."
}
},
{
"from_name": null,
"id": "8207ba0b3e9f4625820af7ed32b3179a",
"to_name": null,
"type": null,
"value": {
"end": 15988,
"labels": [
"ANALYSIS"
],
"start": 15922,
"text": "We are unable to say that the word 'rebate' has been loosely used."
}
},
{
"from_name": null,
"id": "81ce0105ce914ae8bc25f804b9a0a0ec",
"to_name": null,
"type": null,
"value": {
"end": 16084,
"labels": [
"ANALYSIS"
],
"start": 15989,
"text": "In para 6A the meaning is clear and the word 'rebate' must have the same meaning in both paras."
}
},
{
"from_name": null,
"id": "bc9817d60f4443be9658851784a59def",
"to_name": null,
"type": null,
"value": {
"end": 16093,
"labels": [
"ANALYSIS"
],
"start": 16085,
"text": "Further."
}
},
{
"from_name": null,
"id": "87da2f6e54bc47f0ac10236087a5c135",
"to_name": null,
"type": null,
"value": {
"end": 16141,
"labels": [
"ANALYSIS"
],
"start": 16094,
"text": "but for the provisions of the Concession Order."
}
},
{
"from_name": null,
"id": "325f941abe33491faf806f3624791f50",
"to_name": null,
"type": null,
"value": {
"end": 16236,
"labels": [
"ANALYSIS"
],
"start": 16142,
"text": "the said companies would 'have been taxed at the rates prescribed bv the relevant Finance Act."
}
},
{
"from_name": null,
"id": "baae1abf9b5a41659ebd6d6515143be9",
"to_name": null,
"type": null,
"value": {
"end": 16336,
"labels": [
"ANALYSIS"
],
"start": 16236,
"text": "\nThe Concession Order remits 'what would otherwise be the proper tax leviable under the Finance Act."
}
},
{
"from_name": null,
"id": "e72b9027bcf84157a2a97a2a3eb7926a",
"to_name": null,
"type": null,
"value": {
"end": 16369,
"labels": [
"ANALYSIS"
],
"start": 16337,
"text": "read with Indian Income Tax Act."
}
},
{
"from_name": null,
"id": "2bf9bb5a9ce748faa0157afd62fee4e7",
"to_name": null,
"type": null,
"value": {
"end": 16531,
"labels": [
"ANALYSIS"
],
"start": 16370,
"text": "The word 'rebate' is an apt word to use in respect of a remission- That a rebate as such can be directed to be allowed under s.\n60A of the Act seems clear to us."
}
},
{
"from_name": null,
"id": "2348e302252e49cbab1c8b3659aa15c1",
"to_name": null,
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"value": {
"end": 16692,
"labels": [
"ANALYSIS"
],
"start": 16532,
"text": "'Me words 'exemption' or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order."
}
},
{
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"value": {
"end": 16988,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16693,
"text": "During the course of the hearing of the connected Civil Appeal in M/s. Maganlal Sankalchand v. The Commissioner of Income Tax, New Delhi(1), the learned counsel (1) Civil Appeal NO. 703 of 1963-judgment delivered on May 8, 1964.for the Commissioner of Income Tax raised two additional arguments."
}
},
{
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"to_name": null,
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"value": {
"end": 17156,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16989,
"text": "First, he urged that the word 'rebate' in s.\n16(2) only related to rebate granted under the Indian Finance Act,and not any rebate granted under the Conces- sion Order."
}
},
{
"from_name": null,
"id": "67f7ec31b5474ef395fb3e2fdc4f7d9a",
"to_name": null,
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"value": {
"end": 17329,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17157,
"text": "He further referred us to r. 14 of the Indian Income TaxRules, which prescribes the certificate to be furnished bythe principal officer of a company under s.\n20 of the Act."
}
},
{
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"id": "36c9765667fd43409d0e021e0fdd9b9c",
"to_name": null,
"type": null,
"value": {
"end": 17620,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17330,
"text": "The relevant portion of the certificate is as follows : I/We certify:--- (A) (1) that the Company estimates that out of the profits of the said period-- (a) .... per cent., is chargeable a, full Indian rate; (b) per cent.. is chargeable at the reduced rate of . . .\n (Name of Part B State)."
}
},
{
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"id": "f94a07aa131243b0acef9a9095f66f7a",
"to_name": null,
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"value": {
"end": 17630,
"labels": [
"ANALYSIS"
],
"start": 17621,
"text": "and ....\n"
}
},
{
"from_name": null,
"id": "a2f8057517e0400d8c21bf1d53e3214a",
"to_name": null,
"type": null,
"value": {
"end": 17661,
"labels": [
"ANALYSIS"
],
"start": 17630,
"text": "Regarding his first contention."
}
},
{
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"id": "4ed67557b6bf4f838ee17dd30e80508c",
"to_name": null,
"type": null,
"value": {
"end": 17765,
"labels": [
"ANALYSIS"
],
"start": 17662,
"text": "we are unable to limit the meaning of the word 'rebate' to rebate granted under the Indian Finance Act."
}
},
{
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"id": "d6bcebbabdc0492f886b9345d6014bf7",
"to_name": null,
"type": null,
"value": {
"end": 17889,
"labels": [
"ANALYSIS"
],
"start": 17766,
"text": "The word 'rebate' is not qualified and is wide enough to include any rebate which may be granted by other statutory orders."
}
},
{
"from_name": null,
"id": "903addb7786f4f549d4956f91d16eda1",
"to_name": null,
"type": null,
"value": {
"end": 18006,
"labels": [
"RATIO"
],
"start": 17890,
"text": "The form of the certificate refer-, red to us which mentions reduction of rate cannot change the meaning of the word"
}
},
{
"from_name": null,
"id": "d0e5edbb8e524b6fa5d28aff26f56d44",
"to_name": null,
"type": null,
"value": {
"end": 18117,
"labels": [
"RATIO"
],
"start": 18007,
"text": "In the result, we agree with the High Court that answer to the question referred should be in the affirmative."
}
},
{
"from_name": null,
"id": "0f80a6c7ef8c4f4c937c5b30a9863855",
"to_name": null,
"type": null,
"value": {
"end": 18177,
"labels": [
"RPC"
],
"start": 18118,
"text": "The appeals accordingly, fail and are dismissed with costs."
}
},
{
"from_name": null,
"id": "434026817f4a4f29a7d0cf9a3ec6d439",
"to_name": null,
"type": null,
"value": {
"end": 18202,
"labels": [
"RPC"
],
"start": 18178,
"text": "One set of hearing fees."
}
},
{
"from_name": null,
"id": "17d849cdb58240deac2dd8daf399e35b",
"to_name": null,
"type": null,
"value": {
"end": 18221,
"labels": [
"RPC"
],
"start": 18202,
"text": "\nAppeals dismissed."
}
}
]
}
] | 4,265 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, NEW DELHI\n\n Vs.\n\nRESPONDENT:\nANANT RAO B. KAMAT\n\nDATE OF JUDGMENT:\n08/05/1964\n\nBENCH:\nSIKRI, S.M.\nBENCH:\nSIKRI, S.M.\nSUBBARAO, K.\nSHAH, J.C.\n\nCITATION: 1964 SCR (8) 263\n 1966 AIR 279\n\nACT:\nIncome-tax-Devidend declared and paid in different years-\nRate of which year applicable-Meaning of 'rebate'-Is there\nany distinction between rebate under Finance Act and the\nrebate under other statutes-Indian Income-tax Act, 1922 (11\nof 1922), ss. 16(5), 6OA-Part B States (Taxation Concession)\nOrder, 1950.\n\nHEADNOTE:\n\nThe assessee had received in the previous years (1950-51 and\n\n1951-52) dividends from two companies. These companies had\n\nbeen allowed rebate under the Part B States (Taxation\n\nConcession) Order, 1950. For the assessment years 1951-52\n\nand 1952-53, the assessee claimed before the Income-tax\n\nOfficer that the dividend received by him should be \"grossed\n\nup\" under s. 16(2) of the Act, without taking into con-\n\nsideration the rebate allowed to the said companies under\n\nthe said concession order. On a construction of s. 16(2)\n\nthe assessee pleaded that the rate applicable to the total\n\nincome of the said companies was the rate prescribed by the\n\nrelevant Indian Finance Act. The Income-tax Officer grossed\n\nup at the State rate and not at the rate prescribed by the\n\nrelevant Finance Act. Before the Tribunal and the High\n\nCourt the assessee succeeded.\n\nHeld: (i) In interpreting s. 16(2) effect must be given\n\nto these words occurring in the said section 'without taking\n\ninto account any rebate\n\nallowed or additional income-tax charged'. If these words\n\nare ignored, it will be rewriting s. 16(2). Section 16(2)\n\napplies the rate of the year in which the dividend is paid,\n\netc., and not of the year when the profits were made by the\n\ncompany. On the fact of this case it was held that the\n\nrates prescribed by the relevant Finance Act apply.\n\nRajputana Agencies Ltd. v. Commissioner of Income-tax,\n\n[1959] Supp. 1 S.C.R. 142, distinguished.\n\n(ii) The word 'rebate' in s. 16(2) not only relates to\n\nrebate granted under the Indian Finance Act but is wide\n\nenough to include any rebate which may be granted by other\n\nstatutory orders.\n\nThe form of the certificate prescribed under the Income-tax\n\n\nRules cannot change the meaning of the word 'rebate'. The\n\nword 'rebate' is an apt word to use in respect of remission.\n\nM/s. Maganlal Sankalchand v. Commissioner of Income-tax,\n\nNew Delhi, C.A. No. 703 of 1963. Judgment, dated May 8,\n\n1964 distinguished.\n\n(iii) The words 'exemption' or 'other modification' in\n\ns. 60A are wide enough to enable the Central Government to\n\ngive rebate such as been allowed under the Concession Order.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 687-688 of 1963.\n Appeals from the judgment and order dated February 3, 1962 of the Rajasthan High Court in D. B. Civil Reference No. 13 of 1958.\n S. K. Kapur and R. N. Sachthey, for the appellant.\n N. S. Palkhivala, S. P. Mehta, J. B. Dadachanji, O. C.\n Mathur and Ravinder Narain, for the respondents.\n May 8, 1964. The Judgment of the Court was delivered by SIKRI, J.These are appeals by the Commissioner of Income Tax on certificates granted by the Rajasthan High Court under S. 66A(2) of the Indian Income Tax Act, 1922 (11 of 1922), hereinafter referred to as the Act, against the judgment of the High Court in a consolidated reference under s. 66(1) of the Act. The High Court answered the question,reproduced below, in the affirmative. The reference was made by the Income Tax Appellate Tribunal in the following circumstances The respondent, Anant Rao B. Kamat, hereinafter referred to as the assessee, had received in the previous years (1950-51 and 1951-52) dividends from two companies, Associated Stone Industries (Kotah) Ltd. and Rajputana Mining Agencies Ltd.\n For assessment years 1951-52, and 1952-53, the assessee claimed before the Income Tax Officer that the dividends received by him should he grossed up' under s. 16(2,) of the Act, without taking into consideration the rebate allowed to the said companies under the Part, B States (Taxation Concessions) Order, 1950, hereinafter called the Concession Order. According to the assessee, on a true of S. 16(2) of the Act, the rate applicabl, to the total income of the said companies was the rateby the relevant Indian Finance Acts. TheTax Officer disallowed the grossing up at the Indianbut allowed at the State rate, defined by paragraph 3 (v)of the Conclusion Order.The Appellate Assistant Commissioner upheld the order of, the Income Tax Officer, but the assesse succeeded before the Income Tax Appellate Tribunal. On the application of the Commissioner of Income Tax, the tribunalreferred the following question to the High Court.\n \"Whether the appropriate portion ofdividend received by the assessee fromof the said two companies in the financialyear 1950- 51/1951-52 is to he increased at the rate applicable to the total income of the respective companies for the financial year 1950-51/195152 and without regard to and benefit conferred by the T. C. 07-order 1950 that the companies would get in the matter of payment of tax by them on their profit-, ,accruing or arising to then, in a r)art 'B' State and assessable for the assessment year 1950-51/1951-52?\"\n The High Court, after asking for a supplementary statement of the case. answered, as we have already said in favour of the ass The learned counsel for the appellant has contended before us that the rate applicable to total income of thesaid companies was the rate as finally applied after taking into consideration the effect of the Concession Order. He has further urged that the word 'rebate' occurring in s.\n16(2) does not include the relief given to the said companies under the Concession Order for the Concession Order is not concerned with granting rebate but is concerned with the determination of the tax payable. In this connection, he relied on s. 60A of the Act under which the Concession Order was made, and said that this section enabled the Central Government to make an exemption, reduction in rate or other modification in respect of income tax but not to grant a rebate. The learned counsel for the respondent controverted these arguments and supported the judgment of the High Court.\nBefore addressing ourselves to the contentions at the Bar, it is necessary to reproduce the relevant statutory provi- sions. These read thus: S. 16(2)-For the purposes of inclusion in the total income of an assessee any dividend &hall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him, and shall be increased to such amount as would, if income tax (but not supertax) at the rate applicable to the total income of the company (without taking into account any rebate allowed or additional income-tax charged) for the financial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend: Provided that when the sum out of which the dividend has been paid, credited or distributed or deemed to have been paid, credited or distributed includes- (i) any profits and gains of the company not included in its total income, or (ii) any income of the company on which income-tax was not payable, or (iii) any amount attributable to any allowance made in computing the profits and gains of the company, the increase to be made under this section shall be calculated only upon such proportion of the dividend as the said sum after deduction of the inclusions enumerated above bears to the whole of that sum.\n S. 18(5)-Any deduction made and paid to the account of the Central Government in accord- ance with the provisions of this section and any sum by which a dividend has been increased under sub-section (2) of section 16 shall be treated as a payment of income-tax or supertax on behalf of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate furnished under sub-section (9) or section 20, as the case may be, in the assessment, if any, made for the following year under this Act: Provided........\n S. 60A. Power to make exemption, etc., in relation to merged territories or to the territories which immediately before the 1st November, 1956. were comprised in any Part B State.\nIf the Central Government considers it necessary or expedient so to do for avoiding any hardship or anomaly, or removing any difficulty, that may arise as a result of the extension of this Act to the merged territories or to the territories which immediately before the 1st November. 1956, were comprised in any Part B State, the Central Government may , by general or special order, make an exemption, reduction in rate or other modification in respect of Income-tax in favour of any class of income, or in regardto the whole or any part of the income of any person or class of persons: Provided that the power conferred by this section shall not be exercisable in the case of merged territories and the territories which immediately before the 1st November.\n1956, were comprised in Part B States other than the State of Jammu and Kashmir, after the 31st day of March, 1955, and, in the case. of the State of 'Jammu and Kashmir ,after the 31st day of March, 1959, .except for the purpose of rescinding an exemption, reduction or modification already made.\nPara 3(iii) of the Concession Order---The expression \"Indian rate of tax\" means the rate determined by dividing the amount of i,come-tax and super-tax payable in the taxable territories on the total income for the year in question in accordance, with the rates prescribed by the relevant Finance Act of the Central Government, by the amount of such total income.\nPara 3(v) of the Concession Order--The expression 'State rate of tax' means the rate determined by dividing the amount of income-tax and supertax and payable on the total income according to the rates of tax in force in the State immediately before the appointed .day, or for the year in question, as the case may be, by the amount of such total income and where under any State law, the' rates of tax in force in the State are prescribed with reference to the total income including agricultural income, the State rate of tax shall be. the rate determined by dividing the amount of income-tax and supertax on the total income including the agricultural income without taking into account any reduction of tax allowed on the agricultural income by the State' law by the amount of such total 'income; Explanation. Where there was no State law relating to charge of income-tax.and super-tax therates of income-tax and super-tax in force in that State immediately before the appointed day shall, for the purposes of this clause, be deemed to be the rates specified in the Schedule.\nPara 6 of the Concession Order Income of a previous year which does not fall under paragraph 5.\n The income, profits and gains of any previous year ending after the 31st day of March, 1949. which does not fail within paragraph 5 of this Order shall be assessed under the Act for the year ending on the 31st day of March, 1951, or on/he 31st day of March, 1952, as the ease may be, and the tax payable thereon shall be determined as hereunder: In respect of 'so much of the income. profits and gains included in the total income, as accrue or arise in any State other than the States of Patiala and East Punjab States Union and Travancore-Cochin- (i) the tax shall be computed (a) at the Indian rate of tax and (b) at the State rate of tax in force immediately before the appointed day; (ii) where the amount of tax computed under subclause (a) of clause (i) is less than or is equal to the amount of tax computed under subclause (b) of clause (i), the amount of the first-mentioned tax shall be the tax payable; (iii) where the amount of tax computed under subclause (a) of clause (i) exceeds the tax computed under sub-clause (b) of clause (i), the excess shall be allowed as a rebate from the first-mentioned tax and the amount of the first- mentioned tax as so reduced shall be the tax payable ......\nPara 6A of the Concession Order--Income, profits and gains chargeable to tax in the assessment year 1952-53, 1953-54 and 1954-55-- The income, profits and gains of any previous year which is a previous year for the assessment for the year end-ing on the 31st day of March, 1953, 1954 and 1955, shall be charged to tax at the Indian rates of tax, provided that from the tax so computed, there shall be allowed in each year, rebate at the percentage thereof specified thereunder: in respect of so much of the income, profits and gains as accrue or arise- (a) in the States of Saurashtra, Madhya Bharat or Rajasthan, to any assessee at the rate of 40per cent and 10 per cent, respectively, for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955. . . .\".\nThe scheme underlying s. 16(2) and s. 18(5) seems to be this. Under s. 16 (2) the dividends are grossed up and under s. 18(5) any sum by which a dividend is increased under s. 16(2) is treated as payment of income-tax on behalf of the shareholder. In this setting, let us examine what is the true construction of s. 16(2) of the Act. It is common ground that 'grossing up' has to be effected in this case.\nThe real point of controversy between the parties is regarding the rate at which it is to be done. The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd., v. Commissioner of Income Tax(1) urged that the same meaning should be attributed to the expression \"rate applicable to the total income of the company\" in s. 16(2), as was attributed bv this Court to the same expression occurring in sub-clause(b) of clause (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951. We are unable to accept this argument. It is true that the same expression occurs in s. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words 'without taking into account any rebate allowed or additional income-tax charged' occur in s. 16(2) and not in the said sub-clause, and effect must be given to these words. If we ignore these words, we would be rewriting s.\n16(2). It will be noticed that s. 16(2) applies the rate of the year in which the dividend is paid, etc., and (1) [1959] Supp. 1 S.C.R. 142not of the year when the profits were made by the company.\nThe legislature has devised a mechanical test which has to be -Applied regardless of the hardship or the benefit which may accrue to an assessee. Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company, has not to be, as directed by s. 16(2), taken into account.\nThis takes us next to the point that benefit given by the Concession Order is not a rebate at all. We cannot accept this contention. The Concession Order itself uses the word 'rebate' in paras 5, 6, and 6A. Indeed, though it may be possible to urge something while dealing with para 6. no argument is possible regarding para 6A, for it expressely says that 'there shall be allowed in each year rebate at the percentage thereof specified hereunder'. The learned coun- sel for the appellant laid great stress on the language of para 6 of the Concession Order. He said that clause (i) directed the computation of tax and clause (iii) was equally directing computation of tax, and that in this context the word 'rebate' has been loosely used. We are unable to say that the word 'rebate' has been loosely used. In para 6A the meaning is clear and the word 'rebate' must have the same meaning in both paras. Further. but for the provisions of the Concession Order. the said companies would 'have been taxed at the rates prescribed bv the relevant Finance Act.\nThe Concession Order remits 'what would otherwise be the proper tax leviable under the Finance Act. read with Indian Income Tax Act. The word 'rebate' is an apt word to use in respect of a remission- That a rebate as such can be directed to be allowed under s.\n60A of the Act seems clear to us. 'Me words 'exemption' or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order.\nDuring the course of the hearing of the connected Civil Appeal in M/s. Maganlal Sankalchand v. The Commissioner of Income Tax, New Delhi(1), the learned counsel (1) Civil Appeal NO. 703 of 1963-judgment delivered on May 8, 1964.for the Commissioner of Income Tax raised two additional arguments. First, he urged that the word 'rebate' in s.\n16(2) only related to rebate granted under the Indian Finance Act,and not any rebate granted under the Conces- sion Order. He further referred us to r. 14 of the Indian Income TaxRules, which prescribes the certificate to be furnished bythe principal officer of a company under s.\n20 of the Act. The relevant portion of the certificate is as follows : I/We certify:--- (A) (1) that the Company estimates that out of the profits of the said period-- (a) .... per cent., is chargeable a, full Indian rate; (b) per cent.. is chargeable at the reduced rate of . . .\n (Name of Part B State). and ....\nRegarding his first contention. we are unable to limit the meaning of the word 'rebate' to rebate granted under the Indian Finance Act. The word 'rebate' is not qualified and is wide enough to include any rebate which may be granted by other statutory orders. The form of the certificate refer-, red to us which mentions reduction of rate cannot change the meaning of the word In the result, we agree with the High Court that answer to the question referred should be in the affirmative. The appeals accordingly, fail and are dismissed with costs. One set of hearing fees.\nAppeals dismissed."
} |
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"text": "\n WRIT PETITION NO.4834 OF 1989\n\n1) National Organic Chemical Industries )\n\nLtd., being a Company registered )\n\nunder the provisions of the Companies )\n\nAct 1956, and having its registered )\n\nOffice at Mafatlal Centre, Nariman )\n\nPoint, Mumbai - 400 021. )\n\n )\n\n )"
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"text": "CORAM : V.C.DAGA AND\n J.P.DEVADHAR, JJ.\n\n DATED : 26TH APRIL, 2005."
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{
"from_name": null,
"id": "5510816604bd44ff89af98b9ab5ebf7c",
"to_name": null,
"type": null,
"value": {
"end": 1342,
"labels": [
"PREAMBLE"
],
"start": 1327,
"text": "ORAL JUDGMENT ("
}
},
{
"from_name": null,
"id": "f60c119d041444c5ac110894dbbcd14f",
"to_name": null,
"type": null,
"value": {
"end": 1363,
"labels": [
"PREAMBLE"
],
"start": 1342,
"text": "PER J.P.DEVADHAR, J.)"
}
},
{
"from_name": null,
"id": "e42b42a8357c4d039159c95560bbd249",
"to_name": null,
"type": null,
"value": {
"end": 1627,
"labels": [
"ISSUE"
],
"start": 1364,
"text": "1. The short point raised in this petition is, whether the demand and collection of central excise duty in the absence of any adjudication order and without issuing a show cause notice under the provisions of the Central Excise Act, 1944 can be sustained in law."
}
},
{
"from_name": null,
"id": "a2febf914b95448f9048cd40bab11fdc",
"to_name": null,
"type": null,
"value": {
"end": 1724,
"labels": [
"FAC"
],
"start": 1627,
"text": "\n 2. The facts having a bearing on the subject matter of the present petition are as follows:- ."
}
},
{
"from_name": null,
"id": "31605d2a18b74ee2b58102bbc758435a",
"to_name": null,
"type": null,
"value": {
"end": 1797,
"labels": [
"FAC"
],
"start": 1727,
"text": "The petitioners manufacture PVC compounds and PVC Master Batches, etc."
}
},
{
"from_name": null,
"id": "5201fff915404bf8baf187ab45c86132",
"to_name": null,
"type": null,
"value": {
"end": 1879,
"labels": [
"FAC"
],
"start": 1798,
"text": "The PVC Master Batches are predominantly PVC compounds with 7% to 10% of pigment."
}
},
{
"from_name": null,
"id": "944c99bf9c484c12a5c48455d7607379",
"to_name": null,
"type": null,
"value": {
"end": 1956,
"labels": [
"FAC"
],
"start": 1879,
"text": "\n These PVC Master Batches are used for imparting colour to the PVC compound."
}
},
{
"from_name": null,
"id": "f4c1edeb55b8431e8234a70fd5457f8c",
"to_name": null,
"type": null,
"value": {
"end": 2215,
"labels": [
"FAC"
],
"start": 1957,
"text": "Prior to May, 1979, the PVC Master Batches manufactured by the petitioners were classified as PVC compounds under TI-15A-1(ii) of the Central Excise Tariff and were cleared at Nil rate of duty under the Exemption Notification No.206/77 dated 29th June, 1977."
}
},
{
"from_name": null,
"id": "5cf347d27dd848aabab063a5c314cc46",
"to_name": null,
"type": null,
"value": {
"end": 2397,
"labels": [
"FAC"
],
"start": 2215,
"text": "\n 3. On 7th May, 1979 a show cause notice was issued to the petitioners alleging that the PVC Master Batches manufactured by the petitioners were wrongly and incorrectly classified."
}
},
{
"from_name": null,
"id": "8aa05f880aa64194ab4d984e422c0bb1",
"to_name": null,
"type": null,
"value": {
"end": 2651,
"labels": [
"FAC"
],
"start": 2398,
"text": "On 29th September, 1980 in supersession of the above, another show cause notice was issued to the petitioners stating that the PVC Master Batches manufactured by the petitioners were correctly classifiable under TI-14(1)(ii) with the rate of duty at 5%."
}
},
{
"from_name": null,
"id": "68a42ac8ead645d1931e8684a18c0af7",
"to_name": null,
"type": null,
"value": {
"end": 2852,
"labels": [
"FAC"
],
"start": 2652,
"text": "By the said show cause notice, the petitioners were called upon to pay excise duty under TI-14(1)(ii) in respect of the PVC Master Batches cleared during the period from November, 1978 to April, 1979."
}
},
{
"from_name": null,
"id": "eae44cb5550c48758ec0f1bd84a2c7c5",
"to_name": null,
"type": null,
"value": {
"end": 3078,
"labels": [
"FAC"
],
"start": 2853,
"text": "The petitioners while objecting to the classification proposed by the department filed a classification list in May, 1979 classifying Master Batches under TI-14(1)(ii) under protest and cleared the same on payment of 5% duty."
}
},
{
"from_name": null,
"id": "7bb1ba07451d47af969e4e5ef92a55e3",
"to_name": null,
"type": null,
"value": {
"end": 3263,
"labels": [
"FAC"
],
"start": 3078,
"text": "\n 4. In reply to the show cause notice dated 29/9/1980 the petitioners submitted that the PVC Master Batches were correctly classifiable under TI 15A-1(ii) and not under TI -14(1)(ii)."
}
},
{
"from_name": null,
"id": "9c0a36881dbc49da868990077534632c",
"to_name": null,
"type": null,
"value": {
"end": 3514,
"labels": [
"FAC"
],
"start": 3264,
"text": "Rejecting the contention of the petitioners, the Assistant Collector of Central Excise passed an order in original holding that PVC Master Batches were classifiable under TI-14(1)(ii) and accordingly upheld the demand raised in the show cause notice."
}
},
{
"from_name": null,
"id": "2d420fe9bd6f4e4594d329a0a1c28f98",
"to_name": null,
"type": null,
"value": {
"end": 3637,
"labels": [
"FAC"
],
"start": 3515,
"text": "On an appeal filed by the petitioners, the Collector of Central Excise (A) confirmed the order of the Assistant Collector."
}
},
{
"from_name": null,
"id": "48f6a49b32884f93a32eebb27821d0da",
"to_name": null,
"type": null,
"value": {
"end": 3882,
"labels": [
"RLC"
],
"start": 3638,
"text": "On further appeal filed by the petitioners, the CEGAT by its order dated 31-3-1987 held that PVC Master Batches were classifiable neither under TI-15A-1(ii) nor under TI-14 (1)(ii) but were classifiable under TI-68 of the Central Excise Tariff."
}
},
{
"from_name": null,
"id": "62b46a8d0e494791bd377f0d1e1d6af1",
"to_name": null,
"type": null,
"value": {
"end": 4352,
"labels": [
"RLC"
],
"start": 3883,
"text": "The Tribunal held that the first show cause notice dated 7/5/1979 was invalid and the second show cause notice dated 29/9/1980 as amended by a letter dated 18/4/1981 though valid, the amount of excise duty claimed in the show cause notice in respect of Master Batches cleared during November, 1978 to April, 1979 is time barred because the show cause notice issued is for the period beyond six months and there is no suppression of facts on the part of the petitioners."
}
},
{
"from_name": null,
"id": "c10f3e19ce33484b830f2e79d31c2662",
"to_name": null,
"type": null,
"value": {
"end": 4478,
"labels": [
"FAC"
],
"start": 4353,
"text": "Challenging the order of CEGAT the petitioners filed an S.L.P. before the Apex Court and the same was dismissed on 21-3-1995."
}
},
{
"from_name": null,
"id": "b2117efc1fc241269ccfa31098c0d08b",
"to_name": null,
"type": null,
"value": {
"end": 4735,
"labels": [
"FAC"
],
"start": 4479,
"text": "Thus, the decision of the Tribunal dated 31st March, 1987 classifying PVC Master Batches under Tariff Item 68 and holding that the claim for excise duty for the clearances effected during November, 1978 to April, 1979 as time barred have attained finality."
}
},
{
"from_name": null,
"id": "c1fd489f476343eabccc2b0cb1d1ecc4",
"to_name": null,
"type": null,
"value": {
"end": 5106,
"labels": [
"FAC"
],
"start": 4735,
"text": "\n 5. In the meantime, by a letter dated 26th February, 1988, the Superintendent of Central Excise, in the light of the decision of the Tribunal dated 31/3/1987 called upon the petitioner to pay excise duty applicable to TI-68 in respect of Master Batches cleared during the period 1st March, 1980 to 28th February, 1986 within 7 days from the receipt of the said letter."
}
},
{
"from_name": null,
"id": "3e9c08b7db394a84a6e1f10497a3efc9",
"to_name": null,
"type": null,
"value": {
"end": 5264,
"labels": [
"FAC"
],
"start": 5107,
"text": "By a letter dated 3rd March, 1988 the petitioners contended that without initiating proceedings by issue of a show cause notice, the demand cannot be raised."
}
},
{
"from_name": null,
"id": "482f286465164604ab307da8b948a1db",
"to_name": null,
"type": null,
"value": {
"end": 5547,
"labels": [
"FAC"
],
"start": 5265,
"text": "By a letter dated 9th March, 1988 the Superintendent of Central Excise quantified the excise duty at Rs.9,60,865.07 being the differential amount of duty payable by the petitioners in respect of the clearances effected during the period from 20th April, 1979 to 28th February, 1986."
}
},
{
"from_name": null,
"id": "ff8d7b018fc9472daec31c1219c4d6b2",
"to_name": null,
"type": null,
"value": {
"end": 5732,
"labels": [
"FAC"
],
"start": 5548,
"text": "In the said letter it was stated that there was no need to issue a show cause notice and that the petitioners should comply with the letter of the Superintendent dated 9th March, 1988."
}
},
{
"from_name": null,
"id": "efaab47ba9b7485e96302b7be2bbd7c9",
"to_name": null,
"type": null,
"value": {
"end": 5936,
"labels": [
"FAC"
],
"start": 5733,
"text": "By a letter dated 4th April, 1988 the Superintendent, Central Excise informed the petitioners that the demand quantified in the letter dated 9/3/1988 be read as Rs.10,39.664.98 instead of Rs.9,60,865.07."
}
},
{
"from_name": null,
"id": "20ca413f11b44f9c9f59221d3e351b1d",
"to_name": null,
"type": null,
"value": {
"end": 6116,
"labels": [
"FAC"
],
"start": 5937,
"text": "By a letter dated 15th April, 1988 the Superintendent of the Central Excise threatened the petitioners with coercive action if the amount of demand was not paid within three days."
}
},
{
"from_name": null,
"id": "5032346d3b894b548476eb2b856ac598",
"to_name": null,
"type": null,
"value": {
"end": 6212,
"labels": [
"FAC"
],
"start": 6117,
"text": "However, the said letter was withdrawn by another letter of the same day i.e. 15th April, 1988."
}
},
{
"from_name": null,
"id": "77babe5df1194f7380b33f57120df913",
"to_name": null,
"type": null,
"value": {
"end": 6446,
"labels": [
"FAC"
],
"start": 6212,
"text": "\n 6. Thereafter by a letter dated 27th April, 1988 the Superintendent of Central Excise once again called upon the petitioners to pay the differential duty amounting to Rs.10,39,664.98 within 5 days of the receipt of the said letter."
}
},
{
"from_name": null,
"id": "bbeb227ba19b45ce8d1e8df68fc5be18",
"to_name": null,
"type": null,
"value": {
"end": 6671,
"labels": [
"FAC"
],
"start": 6447,
"text": "The petitioners objected to the demand, however, ultimately on 16th December, 1988 the petitioners paid the said amount of Rs.10,39,664.98 under protest and without prejudice to the rights and contentions of the petitioners."
}
},
{
"from_name": null,
"id": "b19ac0afdc794a97b2437e55e154776d",
"to_name": null,
"type": null,
"value": {
"end": 6902,
"labels": [
"FAC"
],
"start": 6672,
"text": "Hence the present petition is filed in June, 1989 inter alia on the ground that the demand and collection of duty is without authority of law and accordingly sought refund of the said amount illegally collected by the respondents."
}
},
{
"from_name": null,
"id": "b3aee9ca08cd43d194d618e23b375a5f",
"to_name": null,
"type": null,
"value": {
"end": 7222,
"labels": [
"ARG_PETITIONER"
],
"start": 6902,
"text": "\n 7. Mr.H.C.Daruwala, learned counsel for the petitioners submitted that under section 11A of the Central Excise Act, it was obligatory on the part of the department to issue a show cause notice for recovery of the excise duty allegedly not levied or not paid or short levied or short paid under the Central Excise Act."
}
},
{
"from_name": null,
"id": "9a45836756804497a1ba32f22adbc0fd",
"to_name": null,
"type": null,
"value": {
"end": 7331,
"labels": [
"ARG_PETITIONER"
],
"start": 7223,
"text": "He submitted that without issuing any show cause notice, demand could not be raised against the petitioners."
}
},
{
"from_name": null,
"id": "4807c0294ade4c5ebc15bdef9027f48e",
"to_name": null,
"type": null,
"value": {
"end": 7510,
"labels": [
"ARG_PETITIONER"
],
"start": 7332,
"text": "He submitted that the illegal demand and the collection of the amount by coercive method is in contravention of the statutory provision and is liable to be quashed and set aside."
}
},
{
"from_name": null,
"id": "1cfcc0d7467745b6bfb3de5a1f8b098e",
"to_name": null,
"type": null,
"value": {
"end": 7832,
"labels": [
"ARG_PETITIONER"
],
"start": 7511,
"text": "In this connection, he relied upon the decision of the Apex Court in the case of Gokak Patel Volkart Ltd.\nV/s. Collector of Central Excise, Belgaum reported in 1987 (28) E.L.T. 53 (S.C.), wherein it is held that the demand notice served in contravention of the statutory requirement is liable to be quashed and set aside."
}
},
{
"from_name": null,
"id": "420ce05c748144edb4e3c8479d512c03",
"to_name": null,
"type": null,
"value": {
"end": 8120,
"labels": [
"ARG_PETITIONER"
],
"start": 7832,
"text": "\n 8. Mr.Daruwala further submitted that in a case where a particular classification is rescinded and a show cause notice is issued for change of classification, then such a change in classification and demand pursuant thereto has to be prospective from the date of the show cause notice."
}
},
{
"from_name": null,
"id": "930ea509859248f081c5f0f8a244c0b1",
"to_name": null,
"type": null,
"value": {
"end": 8271,
"labels": [
"ARG_PETITIONER"
],
"start": 8122,
"text": "He submitted that in the present case, upto 1979 the PVC Master Batches manufactured by the petitioners were assessed at nil rate under TI-15A-1(ii)."
}
},
{
"from_name": null,
"id": "98e7adb00123415fbb18e64ebb5a77ef",
"to_name": null,
"type": null,
"value": {
"end": 8376,
"labels": [
"ARG_PETITIONER"
],
"start": 8272,
"text": "By a show cause notice dated 29/9/1980 the revenue sought to classify Master Batches under TI-14(1)(ii)."
}
},
{
"from_name": null,
"id": "0bfc8503fd844d1eb6b251bf98036428",
"to_name": null,
"type": null,
"value": {
"end": 8529,
"labels": [
"ARG_PETITIONER"
],
"start": 8377,
"text": "The Assistant Collector as well as the Collector (A) upheld the contention of the revenue that the Master Batches were classifiable under TI-14 (1)(ii)."
}
},
{
"from_name": null,
"id": "e47f12b9ebe54577b8b2272b3984ee73",
"to_name": null,
"type": null,
"value": {
"end": 8835,
"labels": [
"ARG_PETITIONER"
],
"start": 8530,
"text": "It is only the CEGAT by its order dated 31st March, 1987 for the first time held that the PVC Master Batches manufactured by the petitioners are classifiable under TI-68 of the Central Excise Tariff and at the same time rejected the claim for recovery of duty for the period November, 1978 to April, 1979."
}
},
{
"from_name": null,
"id": "6d22bd6a69234af39fa1e256cb1aa171",
"to_name": null,
"type": null,
"value": {
"end": 8917,
"labels": [
"ARG_PETITIONER"
],
"start": 8836,
"text": "In the light of the decision of the Apex Court in the case of Union of India V/s."
}
},
{
"from_name": null,
"id": "c7bf1e4c1eb844049104ef9e6a4cc303",
"to_name": null,
"type": null,
"value": {
"end": 8928,
"labels": [
"ARG_PETITIONER"
],
"start": 8918,
"text": "Madhumilan"
}
},
{
"from_name": null,
"id": "63d15c739d104543949035055229a08a",
"to_name": null,
"type": null,
"value": {
"end": 8935,
"labels": [
"ARG_PETITIONER"
],
"start": 8929,
"text": "Syntex"
}
},
{
"from_name": null,
"id": "6a979ec44901404b911119d6019ac87f",
"to_name": null,
"type": null,
"value": {
"end": 9515,
"labels": [
"ARG_PETITIONER"
],
"start": 8936,
"text": "Pvt.\nLtd. reported in 1988 (35) E.L.T.349 (S.C.) and Collector of Central Excise V/s. Giridhara Supply Co. reported in 1997 (94) E.L.T.14 (S.C.), the learned counsel for the petitioners submitted that the claim of duty under TI-68 of the Central Excise Tariff for the period prior to the date of decision of the Tribunal dated 31st March, 1987 is not maintainable and in any event in the absence of show cause notice, the excise authorities were not justified in demanding and collecting the differential excise duty under TI-68 for the period from April, 1979 to February, 1986."
}
},
{
"from_name": null,
"id": "1c806bdf7b86415784504a4f61ecaa71",
"to_name": null,
"type": null,
"value": {
"end": 9762,
"labels": [
"ARG_PETITIONER"
],
"start": 9516,
"text": "Accordingly, the counsel for the petitioners submitted that the entire action on the part of the respondents is wholly illegal and contrary to law and, therefore, the respondents be directed to refund the illegally collected amount with interest."
}
},
{
"from_name": null,
"id": "f827a245dcb64bb380479f27b2408c5d",
"to_name": null,
"type": null,
"value": {
"end": 10083,
"labels": [
"ARG_RESPONDENT"
],
"start": 9762,
"text": "\n 9. Mr.R.V.Desai, learned senior advocate appearing on behalf of the respondents submitted that the demand raised in the present case is only as a consequence to the order of the Tribunal dated 31st March, 1987 classifying the PVC Master Batches manufactured by the petitioners under TI-68 of the Central Excise Tariff."
}
},
{
"from_name": null,
"id": "bbce4619ec774aa887defcab8c48f1c2",
"to_name": null,
"type": null,
"value": {
"end": 10371,
"labels": [
"ARG_RESPONDENT"
],
"start": 10084,
"text": "He submitted that once the Tribunal holds that the goods are classifiable under TI-68, there is no question of passing any quasi judicial order and on quantification of the amount found due and payable pursuant to the order of CEGAT, the petitioners are bound and liable to pay the same."
}
},
{
"from_name": null,
"id": "592c2b51075c4c43b351dcdf93f166a3",
"to_name": null,
"type": null,
"value": {
"end": 10487,
"labels": [
"ARG_RESPONDENT"
],
"start": 10372,
"text": "He submitted that for quantifying duty as per the order of CEGAT, it is not necessary to issue a show cause notice."
}
},
{
"from_name": null,
"id": "62f58a56c5e947e0a06b447d1aa45b44",
"to_name": null,
"type": null,
"value": {
"end": 10728,
"labels": [
"ARG_RESPONDENT"
],
"start": 10488,
"text": "He submitted that once the Tribunal decides the classification, the natural consequence is that whatever the differential duty payable in view of the order passed by the CEGAT has only to be quantified and has to be paid by the petitioners."
}
},
{
"from_name": null,
"id": "608f80c2060c4ba89b7e8a19123376f9",
"to_name": null,
"type": null,
"value": {
"end": 10964,
"labels": [
"ARG_RESPONDENT"
],
"start": 10730,
"text": "10. In any event, Mr.Desai submitted that under the Central Excise Law, once an amount is paid as duty, refund of that amount can be allowed only in accordance with the procedure prescribed under section 11B of the Central Excise Act."
}
},
{
"from_name": null,
"id": "a6a433dbcc9f4de884250819430a3178",
"to_name": null,
"type": null,
"value": {
"end": 11319,
"labels": [
"ARG_RESPONDENT"
],
"start": 10965,
"text": "Accordingly, Mr.Desai submitted that the amount of duty paid by the petitioners in accordance with the order passed by CEGAT is not liable to be refunded and even if it is held that the petitioners are entitled to refund of that amount, then, the same can be granted only by following the procedure prescribed under section 11B of the Central Excise Act."
}
},
{
"from_name": null,
"id": "12282c08d4e242088d987c7f49bb72f9",
"to_name": null,
"type": null,
"value": {
"end": 11426,
"labels": [
"ARG_RESPONDENT"
],
"start": 11320,
"text": "Accordingly, Mr.Desai submitted that there is no merit in the petition and same is liable to be dismissed."
}
},
{
"from_name": null,
"id": "6d348cde948b40bab2b0a0e3511d04fa",
"to_name": null,
"type": null,
"value": {
"end": 11483,
"labels": [
"NONE"
],
"start": 11426,
"text": "\n 11. We have carefully considered the rival submissions."
}
},
{
"from_name": null,
"id": "3e46b132fbff40c885deb3dd5fe47027",
"to_name": null,
"type": null,
"value": {
"end": 11687,
"labels": [
"ANALYSIS"
],
"start": 11483,
"text": "\nIn the present case, the dispute between the parties was whether the Master Batches manufactured by the petitioners are classifiable under TI-15A-1(ii) or under TI-14(1)(ii) of the Central Excise Tariff."
}
},
{
"from_name": null,
"id": "42c3b189115444debad21bd6cedf457c",
"to_name": null,
"type": null,
"value": {
"end": 11874,
"labels": [
"ANALYSIS"
],
"start": 11688,
"text": "On adjudcition of the show cause notice dated 29th September, 1980, the Assistant Collector held that Master Batches manufactured by the petitioners were classifiable under TI-14(1)(ii)."
}
},
{
"from_name": null,
"id": "3063be86341a4efb962032b73acbe224",
"to_name": null,
"type": null,
"value": {
"end": 11923,
"labels": [
"ANALYSIS"
],
"start": 11875,
"text": "The Collector (A) upheld the adjudication order."
}
},
{
"from_name": null,
"id": "91872b74b7ac4840b0045e0222b5ffef",
"to_name": null,
"type": null,
"value": {
"end": 12102,
"labels": [
"ANALYSIS"
],
"start": 11924,
"text": "However, contrary to the contention of the revenue, the Tribunal for the first time in its order dated 31st March, 1987 held that the Master Batches are classifiable under TI-68."
}
},
{
"from_name": null,
"id": "2169d44a28784750a5b5831b17e37891",
"to_name": null,
"type": null,
"value": {
"end": 12368,
"labels": [
"ANALYSIS"
],
"start": 12102,
"text": "\nIt is pertinent to note that the Tribunal has rejected the claim of the Revenue under the show cause notice dated 29/9/1980 for recovery of excise duty under TI-14(1) (ii) for the period from November, 1978 to April, 1979 on the ground that the same is time barred."
}
},
{
"from_name": null,
"id": "9bc25ff288054606bfc47c00806271e8",
"to_name": null,
"type": null,
"value": {
"end": 12563,
"labels": [
"ANALYSIS"
],
"start": 12369,
"text": "In other words, even after holding that the Master Batches are classifiable under TI-68 the Tribunal held that the excise duty for the past period cannot be sustained as the same is time barred."
}
},
{
"from_name": null,
"id": "d0d8d02788614ceebdd6867d41dec438",
"to_name": null,
"type": null,
"value": {
"end": 12833,
"labels": [
"ISSUE"
],
"start": 12565,
"text": "12. The question, therefore, to be considered in the present petition is, whether the Excise authorities were justified in demanding excise duty under TI-68 in the year 1988 in respect of the Master Batches cleared during the period from April, 1979 to February, 1986."
}
},
{
"from_name": null,
"id": "2046f336262b48729fb111c1cc1dbd78",
"to_name": null,
"type": null,
"value": {
"end": 13003,
"labels": [
"ANALYSIS"
],
"start": 12834,
"text": "As stated earlier, till the decision of the Tribunal on 31st March, 1987, it was not even the contention of the Revenue that Master Batches are classifiable under TI-68."
}
},
{
"from_name": null,
"id": "4ee03ce25a6e4edc936923a0b7feb16d",
"to_name": null,
"type": null,
"value": {
"end": 13174,
"labels": [
"ANALYSIS"
],
"start": 13004,
"text": "Even the Tribunal in its order dated 31st March, 1987 has not held that the respondents are entitled to recover excise duty under TI-68 in respect of the past clearances."
}
},
{
"from_name": null,
"id": "bd18453a5f3745f98a6876d370eac579",
"to_name": null,
"type": null,
"value": {
"end": 13401,
"labels": [
"ANALYSIS"
],
"start": 13175,
"text": "Therefore, the contention of the respondents that the demand for recovery under TI-68 for the period from April, 1979 to February, 1986 is in the light of the decision of the Tribunal dated 31st March, 1987 cannot be accepted."
}
},
{
"from_name": null,
"id": "0a48ea3b922d44efbcceb93b41371e99",
"to_name": null,
"type": null,
"value": {
"end": 13812,
"labels": [
"ANALYSIS"
],
"start": 13403,
"text": "13. In the present case, it is not in dispute that in May, 1979 the petitioners had filed classification list under protest classifying the Master Batches under TI-14 (1)(ii) as claimed by the revenue and since then the Master Batches have been cleared on payment of duty under TI-14(1)(ii) and that the assessment in respect of clearances effected during April, 1979 to February, 1986 have attained finality."
}
},
{
"from_name": null,
"id": "4cf340213df64f2db04007ae028d2d26",
"to_name": null,
"type": null,
"value": {
"end": 14213,
"labels": [
"PRE_RELIED"
],
"start": 13813,
"text": "It is well settled in law that in the absence of reopening of the completed assessment by a show cause notice within the period of limitation prescribed under the Act, no demand can be raised and if the show cause notice issued is beyond time, then the said show cause notice issued is liable to be quashed and set aside [See Sarabai Chemicals V/s. Collector of Central Excise (2005 (2) S.C.C. 168)]."
}
},
{
"from_name": null,
"id": "411e1ac6ab7c4a7cad89fac3d771d7ae",
"to_name": null,
"type": null,
"value": {
"end": 14368,
"labels": [
"ANALYSIS"
],
"start": 14214,
"text": "It is also now well settled that the extended period of 5 years is not available where the classification list is duly approved by the excise authorities."
}
},
{
"from_name": null,
"id": "7b0c7bf2106b412fa8afc1bb55dcd88b",
"to_name": null,
"type": null,
"value": {
"end": 14521,
"labels": [
"PRE_RELIED"
],
"start": 14369,
"text": "We may refer to the decision of the Apex Court in the case of Commissioner of Central Excise V/s. Dabur India Ltd. (183 E.L.T. 308 S.C.) in that behalf."
}
},
{
"from_name": null,
"id": "cebe943738154f12aadcccf9918e0dac",
"to_name": null,
"type": null,
"value": {
"end": 14681,
"labels": [
"ANALYSIS"
],
"start": 14522,
"text": "In the present case, the respondents have not even issued a show cause notice to reopen the concluded assessment by invoking the extended period of limitation."
}
},
{
"from_name": null,
"id": "38ddf3be63bb4b81b9b650dfc350857b",
"to_name": null,
"type": null,
"value": {
"end": 14820,
"labels": [
"ANALYSIS"
],
"start": 14682,
"text": "In these circumstances, the demand and collection of the amount by the Central Excise authorities in the present case cannot be sustained."
}
},
{
"from_name": null,
"id": "edf13fe35c2c4d78b365846ba80d0a4b",
"to_name": null,
"type": null,
"value": {
"end": 15015,
"labels": [
"ANALYSIS"
],
"start": 14820,
"text": "\n 14. The contention of the respondents that since the amount is paid as duty, the refund of that amount can be granted only under section 11B of the Central Excise Act is also without any merit."
}
},
{
"from_name": null,
"id": "3c3f0f2b15b648819d6f323c58030af2",
"to_name": null,
"type": null,
"value": {
"end": 15101,
"labels": [
"ANALYSIS"
],
"start": 15016,
"text": "As stated earlier, the petitioners have been objecting to the demand since inception."
}
},
{
"from_name": null,
"id": "b762d4292ce24eae801958192fdbafe1",
"to_name": null,
"type": null,
"value": {
"end": 15194,
"labels": [
"ANALYSIS"
],
"start": 15102,
"text": "It is only because of the coercive action threatened by the respondents the amount was paid."
}
},
{
"from_name": null,
"id": "2f61c59d642f4f20ab3c9b63dc3a2393",
"to_name": null,
"type": null,
"value": {
"end": 15601,
"labels": [
"ANALYSIS"
],
"start": 15195,
"text": "In the present case, the question of the petitioners passing on the duty element to the customers does not arise because the goods in question were cleared during the period from 1979 to 1986 on payment of duty under TI- 14(1)(ii) as claimed by the revenue and the differential duty under TI-68 is claimed in the year 1988 and on account of persistent demand the differential duty is paid in the year 1989."
}
},
{
"from_name": null,
"id": "a2d486f9c3e24a33b8803b95ae55cdb9",
"to_name": null,
"type": null,
"value": {
"end": 15870,
"labels": [
"ANALYSIS"
],
"start": 15602,
"text": "In other words, in respect of goods cleared on payment of duty under TI-14(1)(ii) during 1979 to 1986, the question of the petitioners recovering duty under TI-68 from their customers in the year 1987 in the light of the decision of the Tribunal does not arise at all."
}
},
{
"from_name": null,
"id": "d2463a474ea941d2bdf2259d6cbbaf02",
"to_name": null,
"type": null,
"value": {
"end": 16056,
"labels": [
"ANALYSIS"
],
"start": 15870,
"text": "\nTherefore, the contention of the revenue that the refund should be ordered subject to enquiry of unjust enrichment under section 11B of the Central Excise Act is also without any merit."
}
},
{
"from_name": null,
"id": "4892a856fe024c18bfe4b5256e6106ca",
"to_name": null,
"type": null,
"value": {
"end": 16282,
"labels": [
"RATIO"
],
"start": 16056,
"text": "\n 15. For all the aforesaid reasons, we hold that the demand and recovery of excise duty under TI-68 in respect of the clearances of Master Batches effected during 1979 to 1986 is totally improper, illegal and contrary to law."
}
},
{
"from_name": null,
"id": "511893d20e4644d29cebe1bb562c66ac",
"to_name": null,
"type": null,
"value": {
"end": 16380,
"labels": [
"RATIO"
],
"start": 16282,
"text": "\nIn fact, the demand and recovery of duty is in gross abuse of the process of law and high-handed."
}
},
{
"from_name": null,
"id": "75f52b0798744bcb8a0f84cf7ad2d479",
"to_name": null,
"type": null,
"value": {
"end": 16640,
"labels": [
"RATIO"
],
"start": 16381,
"text": "By collecting the amount unauthorisedly and illegally the respondents have deprived the petitioners their valuable right to utilise the amount belonging to them and, therefore, the respondents are liable to refund the illegally collected amount with interest."
}
},
{
"from_name": null,
"id": "fbbd1b53a94f46d79fa3913b179ee99d",
"to_name": null,
"type": null,
"value": {
"end": 16681,
"labels": [
"RPC"
],
"start": 16640,
"text": "\n 16. Accordingly, the petition succeeds."
}
},
{
"from_name": null,
"id": "01817146d4284b6b9e87b27a09b1666f",
"to_name": null,
"type": null,
"value": {
"end": 16734,
"labels": [
"RPC"
],
"start": 16682,
"text": "Rule is made absolute in terms of prayer clause (a)."
}
},
{
"from_name": null,
"id": "5c5e43ba657648dcafa3289fcbaff9af",
"to_name": null,
"type": null,
"value": {
"end": 16936,
"labels": [
"RPC"
],
"start": 16735,
"text": "The respondents are directed to refund the amount of Rs.10,39,664.98 to the petitioners within 12 weeks from today with interest at the rate of 6% p.a. from the date of collection of duty till payment."
}
},
{
"from_name": null,
"id": "78e7f129581f4b17984eaee9bd1f4ccb",
"to_name": null,
"type": null,
"value": {
"end": 17055,
"labels": [
"RPC"
],
"start": 16937,
"text": "In case of non compliance of the above, refund will carry interest at the rate of 10% p.a.\nfrom 1/7/2005 till payment."
}
},
{
"from_name": null,
"id": "56380475bcda4920b1fcfe2360e90cf7",
"to_name": null,
"type": null,
"value": {
"end": 17130,
"labels": [
"RPC"
],
"start": 17055,
"text": "\n 17. Petition is disposed of in the above terms with no order as to costs."
}
},
{
"from_name": null,
"id": "8687f63cfff64b2bb6ca3630d2adb16f",
"to_name": null,
"type": null,
"value": {
"end": 17166,
"labels": [
"NONE"
],
"start": 17130,
"text": "\n (V.C. DAGA, J.) (J.P.DEVADHAR, J.)"
}
}
]
}
] | 4,250 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CIVIL APPELLATE JURISDICTION\n WRIT PETITION NO.4834 OF 1989\n\n1) National Organic Chemical Industries )\n\nLtd., being a Company registered )\n\nunder the provisions of the Companies )\n\nAct 1956, and having its registered )\n\nOffice at Mafatlal Centre, Nariman )\n\nPoint, Mumbai - 400 021. )\n\n )\n\n )\n\n2) Mr.N.C.Majumdar of Bombay, residing )\n\nat Hansraj Wadi, Tagore Road, Santa )\n\nCruz (W), Mumbai - 400 058 )..Petitioners.\n\nV/s.\n\n1) Union of India )\n )\n2) Superintendent of Central Excise )\n Range III, Belapur Division, Thane )\n having his office at CGO building, )\n 3rd floor, New Bombay. )\n )..Respondents.\n\nMr.H.C.Daruwala, Advocate i/b. M/s.Crawford Bayley & Co.\nfor petitioners.\n\nMr.R.V.Desai, senior Advocate with A.S.Rao i/b. Mr.A.S.\nKhan for respondents.\n\n CORAM : V.C.DAGA AND\n J.P.DEVADHAR, JJ.\n\n DATED : 26TH APRIL, 2005.\nORAL JUDGMENT (PER J.P.DEVADHAR, J.) 1. The short point raised in this petition is, whether the demand and collection of central excise duty in the absence of any adjudication order and without issuing a show cause notice under the provisions of the Central Excise Act, 1944 can be sustained in law.\n 2. The facts having a bearing on the subject matter of the present petition are as follows:- . The petitioners manufacture PVC compounds and PVC Master Batches, etc. The PVC Master Batches are predominantly PVC compounds with 7% to 10% of pigment.\n These PVC Master Batches are used for imparting colour to the PVC compound. Prior to May, 1979, the PVC Master Batches manufactured by the petitioners were classified as PVC compounds under TI-15A-1(ii) of the Central Excise Tariff and were cleared at Nil rate of duty under the Exemption Notification No.206/77 dated 29th June, 1977.\n 3. On 7th May, 1979 a show cause notice was issued to the petitioners alleging that the PVC Master Batches manufactured by the petitioners were wrongly and incorrectly classified. On 29th September, 1980 in supersession of the above, another show cause notice was issued to the petitioners stating that the PVC Master Batches manufactured by the petitioners were correctly classifiable under TI-14(1)(ii) with the rate of duty at 5%. By the said show cause notice, the petitioners were called upon to pay excise duty under TI-14(1)(ii) in respect of the PVC Master Batches cleared during the period from November, 1978 to April, 1979. The petitioners while objecting to the classification proposed by the department filed a classification list in May, 1979 classifying Master Batches under TI-14(1)(ii) under protest and cleared the same on payment of 5% duty.\n 4. In reply to the show cause notice dated 29/9/1980 the petitioners submitted that the PVC Master Batches were correctly classifiable under TI 15A-1(ii) and not under TI -14(1)(ii). Rejecting the contention of the petitioners, the Assistant Collector of Central Excise passed an order in original holding that PVC Master Batches were classifiable under TI-14(1)(ii) and accordingly upheld the demand raised in the show cause notice. On an appeal filed by the petitioners, the Collector of Central Excise (A) confirmed the order of the Assistant Collector. On further appeal filed by the petitioners, the CEGAT by its order dated 31-3-1987 held that PVC Master Batches were classifiable neither under TI-15A-1(ii) nor under TI-14 (1)(ii) but were classifiable under TI-68 of the Central Excise Tariff. The Tribunal held that the first show cause notice dated 7/5/1979 was invalid and the second show cause notice dated 29/9/1980 as amended by a letter dated 18/4/1981 though valid, the amount of excise duty claimed in the show cause notice in respect of Master Batches cleared during November, 1978 to April, 1979 is time barred because the show cause notice issued is for the period beyond six months and there is no suppression of facts on the part of the petitioners. Challenging the order of CEGAT the petitioners filed an S.L.P. before the Apex Court and the same was dismissed on 21-3-1995. Thus, the decision of the Tribunal dated 31st March, 1987 classifying PVC Master Batches under Tariff Item 68 and holding that the claim for excise duty for the clearances effected during November, 1978 to April, 1979 as time barred have attained finality.\n 5. In the meantime, by a letter dated 26th February, 1988, the Superintendent of Central Excise, in the light of the decision of the Tribunal dated 31/3/1987 called upon the petitioner to pay excise duty applicable to TI-68 in respect of Master Batches cleared during the period 1st March, 1980 to 28th February, 1986 within 7 days from the receipt of the said letter. By a letter dated 3rd March, 1988 the petitioners contended that without initiating proceedings by issue of a show cause notice, the demand cannot be raised. By a letter dated 9th March, 1988 the Superintendent of Central Excise quantified the excise duty at Rs.9,60,865.07 being the differential amount of duty payable by the petitioners in respect of the clearances effected during the period from 20th April, 1979 to 28th February, 1986. In the said letter it was stated that there was no need to issue a show cause notice and that the petitioners should comply with the letter of the Superintendent dated 9th March, 1988. By a letter dated 4th April, 1988 the Superintendent, Central Excise informed the petitioners that the demand quantified in the letter dated 9/3/1988 be read as Rs.10,39.664.98 instead of Rs.9,60,865.07. By a letter dated 15th April, 1988 the Superintendent of the Central Excise threatened the petitioners with coercive action if the amount of demand was not paid within three days. However, the said letter was withdrawn by another letter of the same day i.e. 15th April, 1988.\n 6. Thereafter by a letter dated 27th April, 1988 the Superintendent of Central Excise once again called upon the petitioners to pay the differential duty amounting to Rs.10,39,664.98 within 5 days of the receipt of the said letter. The petitioners objected to the demand, however, ultimately on 16th December, 1988 the petitioners paid the said amount of Rs.10,39,664.98 under protest and without prejudice to the rights and contentions of the petitioners. Hence the present petition is filed in June, 1989 inter alia on the ground that the demand and collection of duty is without authority of law and accordingly sought refund of the said amount illegally collected by the respondents.\n 7. Mr.H.C.Daruwala, learned counsel for the petitioners submitted that under section 11A of the Central Excise Act, it was obligatory on the part of the department to issue a show cause notice for recovery of the excise duty allegedly not levied or not paid or short levied or short paid under the Central Excise Act. He submitted that without issuing any show cause notice, demand could not be raised against the petitioners. He submitted that the illegal demand and the collection of the amount by coercive method is in contravention of the statutory provision and is liable to be quashed and set aside. In this connection, he relied upon the decision of the Apex Court in the case of Gokak Patel Volkart Ltd.\nV/s. Collector of Central Excise, Belgaum reported in 1987 (28) E.L.T. 53 (S.C.), wherein it is held that the demand notice served in contravention of the statutory requirement is liable to be quashed and set aside.\n 8. Mr.Daruwala further submitted that in a case where a particular classification is rescinded and a show cause notice is issued for change of classification, then such a change in classification and demand pursuant thereto has to be prospective from the date of the show cause notice.\n He submitted that in the present case, upto 1979 the PVC Master Batches manufactured by the petitioners were assessed at nil rate under TI-15A-1(ii). By a show cause notice dated 29/9/1980 the revenue sought to classify Master Batches under TI-14(1)(ii). The Assistant Collector as well as the Collector (A) upheld the contention of the revenue that the Master Batches were classifiable under TI-14 (1)(ii). It is only the CEGAT by its order dated 31st March, 1987 for the first time held that the PVC Master Batches manufactured by the petitioners are classifiable under TI-68 of the Central Excise Tariff and at the same time rejected the claim for recovery of duty for the period November, 1978 to April, 1979. In the light of the decision of the Apex Court in the case of Union of India V/s. Madhumilan Syntex Pvt.\nLtd. reported in 1988 (35) E.L.T.349 (S.C.) and Collector of Central Excise V/s. Giridhara Supply Co. reported in 1997 (94) E.L.T.14 (S.C.), the learned counsel for the petitioners submitted that the claim of duty under TI-68 of the Central Excise Tariff for the period prior to the date of decision of the Tribunal dated 31st March, 1987 is not maintainable and in any event in the absence of show cause notice, the excise authorities were not justified in demanding and collecting the differential excise duty under TI-68 for the period from April, 1979 to February, 1986. Accordingly, the counsel for the petitioners submitted that the entire action on the part of the respondents is wholly illegal and contrary to law and, therefore, the respondents be directed to refund the illegally collected amount with interest.\n 9. Mr.R.V.Desai, learned senior advocate appearing on behalf of the respondents submitted that the demand raised in the present case is only as a consequence to the order of the Tribunal dated 31st March, 1987 classifying the PVC Master Batches manufactured by the petitioners under TI-68 of the Central Excise Tariff. He submitted that once the Tribunal holds that the goods are classifiable under TI-68, there is no question of passing any quasi judicial order and on quantification of the amount found due and payable pursuant to the order of CEGAT, the petitioners are bound and liable to pay the same. He submitted that for quantifying duty as per the order of CEGAT, it is not necessary to issue a show cause notice. He submitted that once the Tribunal decides the classification, the natural consequence is that whatever the differential duty payable in view of the order passed by the CEGAT has only to be quantified and has to be paid by the petitioners.\n 10. In any event, Mr.Desai submitted that under the Central Excise Law, once an amount is paid as duty, refund of that amount can be allowed only in accordance with the procedure prescribed under section 11B of the Central Excise Act. Accordingly, Mr.Desai submitted that the amount of duty paid by the petitioners in accordance with the order passed by CEGAT is not liable to be refunded and even if it is held that the petitioners are entitled to refund of that amount, then, the same can be granted only by following the procedure prescribed under section 11B of the Central Excise Act. Accordingly, Mr.Desai submitted that there is no merit in the petition and same is liable to be dismissed.\n 11. We have carefully considered the rival submissions.\nIn the present case, the dispute between the parties was whether the Master Batches manufactured by the petitioners are classifiable under TI-15A-1(ii) or under TI-14(1)(ii) of the Central Excise Tariff. On adjudcition of the show cause notice dated 29th September, 1980, the Assistant Collector held that Master Batches manufactured by the petitioners were classifiable under TI-14(1)(ii). The Collector (A) upheld the adjudication order. However, contrary to the contention of the revenue, the Tribunal for the first time in its order dated 31st March, 1987 held that the Master Batches are classifiable under TI-68.\nIt is pertinent to note that the Tribunal has rejected the claim of the Revenue under the show cause notice dated 29/9/1980 for recovery of excise duty under TI-14(1) (ii) for the period from November, 1978 to April, 1979 on the ground that the same is time barred. In other words, even after holding that the Master Batches are classifiable under TI-68 the Tribunal held that the excise duty for the past period cannot be sustained as the same is time barred.\n 12. The question, therefore, to be considered in the present petition is, whether the Excise authorities were justified in demanding excise duty under TI-68 in the year 1988 in respect of the Master Batches cleared during the period from April, 1979 to February, 1986. As stated earlier, till the decision of the Tribunal on 31st March, 1987, it was not even the contention of the Revenue that Master Batches are classifiable under TI-68. Even the Tribunal in its order dated 31st March, 1987 has not held that the respondents are entitled to recover excise duty under TI-68 in respect of the past clearances. Therefore, the contention of the respondents that the demand for recovery under TI-68 for the period from April, 1979 to February, 1986 is in the light of the decision of the Tribunal dated 31st March, 1987 cannot be accepted.\n 13. In the present case, it is not in dispute that in May, 1979 the petitioners had filed classification list under protest classifying the Master Batches under TI-14 (1)(ii) as claimed by the revenue and since then the Master Batches have been cleared on payment of duty under TI-14(1)(ii) and that the assessment in respect of clearances effected during April, 1979 to February, 1986 have attained finality. It is well settled in law that in the absence of reopening of the completed assessment by a show cause notice within the period of limitation prescribed under the Act, no demand can be raised and if the show cause notice issued is beyond time, then the said show cause notice issued is liable to be quashed and set aside [See Sarabai Chemicals V/s. Collector of Central Excise (2005 (2) S.C.C. 168)]. It is also now well settled that the extended period of 5 years is not available where the classification list is duly approved by the excise authorities. We may refer to the decision of the Apex Court in the case of Commissioner of Central Excise V/s. Dabur India Ltd. (183 E.L.T. 308 S.C.) in that behalf. In the present case, the respondents have not even issued a show cause notice to reopen the concluded assessment by invoking the extended period of limitation. In these circumstances, the demand and collection of the amount by the Central Excise authorities in the present case cannot be sustained.\n 14. The contention of the respondents that since the amount is paid as duty, the refund of that amount can be granted only under section 11B of the Central Excise Act is also without any merit. As stated earlier, the petitioners have been objecting to the demand since inception. It is only because of the coercive action threatened by the respondents the amount was paid. In the present case, the question of the petitioners passing on the duty element to the customers does not arise because the goods in question were cleared during the period from 1979 to 1986 on payment of duty under TI- 14(1)(ii) as claimed by the revenue and the differential duty under TI-68 is claimed in the year 1988 and on account of persistent demand the differential duty is paid in the year 1989. In other words, in respect of goods cleared on payment of duty under TI-14(1)(ii) during 1979 to 1986, the question of the petitioners recovering duty under TI-68 from their customers in the year 1987 in the light of the decision of the Tribunal does not arise at all.\nTherefore, the contention of the revenue that the refund should be ordered subject to enquiry of unjust enrichment under section 11B of the Central Excise Act is also without any merit.\n 15. For all the aforesaid reasons, we hold that the demand and recovery of excise duty under TI-68 in respect of the clearances of Master Batches effected during 1979 to 1986 is totally improper, illegal and contrary to law.\nIn fact, the demand and recovery of duty is in gross abuse of the process of law and high-handed. By collecting the amount unauthorisedly and illegally the respondents have deprived the petitioners their valuable right to utilise the amount belonging to them and, therefore, the respondents are liable to refund the illegally collected amount with interest.\n 16. Accordingly, the petition succeeds. Rule is made absolute in terms of prayer clause (a). The respondents are directed to refund the amount of Rs.10,39,664.98 to the petitioners within 12 weeks from today with interest at the rate of 6% p.a. from the date of collection of duty till payment. In case of non compliance of the above, refund will carry interest at the rate of 10% p.a.\nfrom 1/7/2005 till payment.\n 17. Petition is disposed of in the above terms with no order as to costs.\n (V.C. DAGA, J.) (J.P.DEVADHAR, J.) "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "cb48e88496694fc0bc2d356d64296436",
"to_name": null,
"type": null,
"value": {
"end": 853,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nSARVESHWAR PRASAD SHARMA\n\n Vs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT26/09/1977\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nSINGH, JASWANT\n\nCITATION:\n\n1977 AIR 2423 1978 SCR (1) 560\n (193)\n1977 SCC (4) 596\n\nCITATOR INFO :\n\nRF 1979 SC 916\n\nACT:\nSentence--Sentence of death, special reasons as required\nunder s. 354(3) of the Criminal Procedure Code (Act If of\n1974), 1973 recorded by the Sessions and the High Court-\nInterference by the Supreme Court under Art. 136 only in\nspecial cases.\n\nHEADNOTE:\nThe appellant, a qualified medical practitioner, was\nconvicted for nine gruesome, murders of his friend, the\nlatter's wife, aged parents, two sons and three daughters of\nthe age of 16, 13, 8, 5 and 3 respectively, entirely on\ncircumstantial evidence and was sentenced to death."
}
},
{
"from_name": null,
"id": "232c331902fb490ab1e0162ad1dcff30",
"to_name": null,
"type": null,
"value": {
"end": 942,
"labels": [
"PREAMBLE"
],
"start": 854,
"text": "The\nentire family was exterminated due to greed for cash,\nornaments and other valuables."
}
},
{
"from_name": null,
"id": "fdf04fa99c0e4b8bb9eeba5bc4c80468",
"to_name": null,
"type": null,
"value": {
"end": 1042,
"labels": [
"PREAMBLE"
],
"start": 943,
"text": "The Sessions and the High\nCourt gave convincing and special reasons for passing the\ndeath sentence."
}
},
{
"from_name": null,
"id": "fc7290da4e294b398b9f3ded665955ba",
"to_name": null,
"type": null,
"value": {
"end": 1172,
"labels": [
"PREAMBLE"
],
"start": 1042,
"text": "\nDismissing the special leave which is limited to the\nquestion of sentence, the Court,\nHELD : Law directs the course of the court."
}
},
{
"from_name": null,
"id": "c7a2d37d1366423ea284e247166eda5c",
"to_name": null,
"type": null,
"value": {
"end": 1431,
"labels": [
"PREAMBLE"
],
"start": 1173,
"text": "After enactment\nof the Criminal Procedure Code in 1973 (Act 2 of 1974), the\njudgment in a murder case \"shall state the special reasons\"\nfor a sentence of death, only in special cases with\nrecording of reasons so that these may be examined by\nsuperior courts."
}
},
{
"from_name": null,
"id": "915ec2de35a64d69b21100ba086e5073",
"to_name": null,
"type": null,
"value": {
"end": 1608,
"labels": [
"PREAMBLE"
],
"start": 1432,
"text": "None of the guidelines indicated by this\ncourt in several decisions in this is problem area of life\nand death as a result of judicial verdict can be cut and dry\nnor exhaustive."
}
},
{
"from_name": null,
"id": "1dcab4be3af1431aa8a79c7fc6dae831",
"to_name": null,
"type": null,
"value": {
"end": 1707,
"labels": [
"PREAMBLE"
],
"start": 1609,
"text": "Each case will depend upon the totality of\nthe facts and circumstances and other matters revealed."
}
},
{
"from_name": null,
"id": "74b3fce746764dd59d358417063391f4",
"to_name": null,
"type": null,
"value": {
"end": 1865,
"labels": [
"PREAMBLE"
],
"start": 1708,
"text": "In\nthe instant case the horrid enormity of the crime with a\ndeliberate motive of wrongful gain cannot be minimised when\nconsidering the appropriate sentence."
}
},
{
"from_name": null,
"id": "bc1274a9db5142038d2d2c01370dd8a6",
"to_name": null,
"type": null,
"value": {
"end": 2091,
"labels": [
"PREAMBLE"
],
"start": 1866,
"text": "The special reasons\nmandated under the law are duly recorded by both the High\nCourt and the Trial Court and those are adequate to justify\nthe sentence of death in these cruet and diabolical murders\n[561 E-F, 562 F]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "6db56dcf7eda47109a22224bc8a89299",
"to_name": null,
"type": null,
"value": {
"end": 2317,
"labels": [
"NONE"
],
"start": 2091,
"text": "\n CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 342 of 1971, Appeal by Special Leave from the Judgment and Order dated 13-4-77 of the Madhya Pradesh High Court in Criminal Appeal No. 37/77 and Death Reference No. 1/77."
}
},
{
"from_name": null,
"id": "52e884438cc34b06833a4176a7454f56",
"to_name": null,
"type": null,
"value": {
"end": 2369,
"labels": [
"NONE"
],
"start": 2317,
"text": "\nMohan Behari Lal (amicus curiae) for the Appellant."
}
},
{
"from_name": null,
"id": "fd37c7569e43474b9ad126d4855d7c55",
"to_name": null,
"type": null,
"value": {
"end": 2402,
"labels": [
"NONE"
],
"start": 2369,
"text": "\nI. N. Shroff for the Respondent."
}
},
{
"from_name": null,
"id": "402bd48dff534d1a9e7d9e3498355e98",
"to_name": null,
"type": null,
"value": {
"end": 2457,
"labels": [
"NONE"
],
"start": 2402,
"text": "\nThe Judgment of the Court was delivered by GOSWAMI, J."
}
},
{
"from_name": null,
"id": "36f38098996a4fe1afd9e46166fc6b32",
"to_name": null,
"type": null,
"value": {
"end": 2618,
"labels": [
"NONE"
],
"start": 2458,
"text": "We have granted special leave in this case limited to the question of sentence and heard the learned counsel, appearing as amicus curiae and also for the State."
}
},
{
"from_name": null,
"id": "c4acd7351d114ae182fd58cf3e6fada3",
"to_name": null,
"type": null,
"value": {
"end": 2713,
"labels": [
"FAC"
],
"start": 2618,
"text": "\nThese are gruesome murders wiping out all entire family of nine persons including two infants."
}
},
{
"from_name": null,
"id": "c9b7549ef31c4f90b643c42ca94c02c7",
"to_name": null,
"type": null,
"value": {
"end": 2970,
"labels": [
"FAC"
],
"start": 2715,
"text": "The accused (31), Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.), a qualified medical practitioner, was a close friend of one of the deceased, Ram Swaroop (40), who was an Upper Division Clerk in the Madhya Pradesh Girls N.\nC. Battalion at Gwalior."
}
},
{
"from_name": null,
"id": "fc1a1c9ddf8f49b78ff270c423e67f00",
"to_name": null,
"type": null,
"value": {
"end": 3032,
"labels": [
"FAC"
],
"start": 2971,
"text": "Theaccused lived only about a furlong away from the deceased."
}
},
{
"from_name": null,
"id": "5a5d62cf622448a694a1a4fba19c7246",
"to_name": null,
"type": null,
"value": {
"end": 3095,
"labels": [
"FAC"
],
"start": 3032,
"text": "\nDeceased Ram Swaroop used to practice Homeopathy as his hobby."
}
},
{
"from_name": null,
"id": "3fef6f8474f049eca4a0aca905b8c901",
"to_name": null,
"type": null,
"value": {
"end": 3192,
"labels": [
"FAC"
],
"start": 3096,
"text": "There was thus a certain degree of common interest between the accused and deceased Ram Swaroop."
}
},
{
"from_name": null,
"id": "ae01ab8ca3e2477481d1aee49839f476",
"to_name": null,
"type": null,
"value": {
"end": 3333,
"labels": [
"FAC"
],
"start": 3192,
"text": "\nRam Swaroop had his parents, aged 60 years, his wife (35), their two sons and three daughters of the age of 16, 13, 8, 5 and 3 respectively."
}
},
{
"from_name": null,
"id": "cf699496c9c541f6b041f7a0092e7400",
"to_name": null,
"type": null,
"value": {
"end": 3388,
"labels": [
"FAC"
],
"start": 3334,
"text": "As stated earlier, the entire family was exterminated."
}
},
{
"from_name": null,
"id": "d648f63ec5d84076b448993407552f55",
"to_name": null,
"type": null,
"value": {
"end": 3460,
"labels": [
"FAC"
],
"start": 3389,
"text": "Cash, ornaments and other valuables were also removed at the same time."
}
},
{
"from_name": null,
"id": "60ed0a3922e94ca88303a60fce602f4d",
"to_name": null,
"type": null,
"value": {
"end": 3602,
"labels": [
"FAC"
],
"start": 3461,
"text": "Murder was committed on the night of 4th July, 1976 and the dead bodies were locked up inside the room and the house was locked from outside."
}
},
{
"from_name": null,
"id": "3413f83726334224a093b8ce933a8745",
"to_name": null,
"type": null,
"value": {
"end": 3689,
"labels": [
"FAC"
],
"start": 3603,
"text": "On 6th July foul. smell was emitted from the closed house and the police was informed."
}
},
{
"from_name": null,
"id": "1f05678cb8b4485a962abb02f4564860",
"to_name": null,
"type": null,
"value": {
"end": 3770,
"labels": [
"FAC"
],
"start": 3690,
"text": "The house was broken open by the police and the nine dead bodies were recovered."
}
},
{
"from_name": null,
"id": "2b2c24dbbdd549a8ad4cdd336a715ac3",
"to_name": null,
"type": null,
"value": {
"end": 3922,
"labels": [
"FAC"
],
"start": 3770,
"text": "\nThere is no direct evidence as to who actually committed the crimp, or even whether there was more than one person taking part in this dastardly crime."
}
},
{
"from_name": null,
"id": "f7f9862b646f4ac68eba8658a8df821f",
"to_name": null,
"type": null,
"value": {
"end": 4030,
"labels": [
"FAC"
],
"start": 3923,
"text": "The accused stood convicted entirely on circumstantial evidence and his conviction is, now beyond question."
}
},
{
"from_name": null,
"id": "c1f6390c136a4daebcb4a6da2b978160",
"to_name": null,
"type": null,
"value": {
"end": 4103,
"labels": [
"NONE"
],
"start": 4030,
"text": "\nWe have heard learned counsel of both sides on the question of sentence."
}
},
{
"from_name": null,
"id": "96b0a05d1064451384d68cbdd2d93bbf",
"to_name": null,
"type": null,
"value": {
"end": 4270,
"labels": [
"ANALYSIS"
],
"start": 4104,
"text": "The recent benign direction of the penal law is towards life sentence, as a rule, and death as an exception awarding of which must be accompanied by recorded reasons."
}
},
{
"from_name": null,
"id": "a6b59ffdc0774e72bfc5524646e0da39",
"to_name": null,
"type": null,
"value": {
"end": 4462,
"labels": [
"ANALYSIS"
],
"start": 4270,
"text": "\nThis Court has in several decisions indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive."
}
},
{
"from_name": null,
"id": "51e6eeaf41484eef9b066600b78038e0",
"to_name": null,
"type": null,
"value": {
"end": 4558,
"labels": [
"ANALYSIS"
],
"start": 4463,
"text": "Each case will depend upon the totality of the facts, circumstances and other matters revealed."
}
},
{
"from_name": null,
"id": "f34eb6bc443b41b58bad2693e9e1ece2",
"to_name": null,
"type": null,
"value": {
"end": 4595,
"labels": [
"ANALYSIS"
],
"start": 4559,
"text": "Law directs the course of the court."
}
},
{
"from_name": null,
"id": "795deb7e0c364660a9a149dd6a9ed1bb",
"to_name": null,
"type": null,
"value": {
"end": 4757,
"labels": [
"ANALYSIS"
],
"start": 4596,
"text": "After, enactment of the Criminal Procedure Code in 1973 (Act 2 of 1974), the judgment in a murder case \"shall state the special reasons\"\nfor a sentence of death."
}
},
{
"from_name": null,
"id": "acd73ff703574920a75943f67c991761",
"to_name": null,
"type": null,
"value": {
"end": 4903,
"labels": [
"ANALYSIS"
],
"start": 4758,
"text": "That is to say, there will be sentence of death only in special cases with recording of reasons so that these may be examined by superior courts."
}
},
{
"from_name": null,
"id": "dbaa1ec7bcc74d4194a4945c71f75708",
"to_name": null,
"type": null,
"value": {
"end": 5087,
"labels": [
"ANALYSIS"
],
"start": 4903,
"text": "\nThe trial court dealing with the question of sentence observed as follows : - \"Even beasts do not show unfaithfulness but this case is a shining example of the heinous unfaithfulness."
}
},
{
"from_name": null,
"id": "32e47934c06340df8c0e6aea166b3ea6",
"to_name": null,
"type": null,
"value": {
"end": 5445,
"labels": [
"ANALYSIS"
],
"start": 5088,
"text": "Firstly to commit nine murders and that to(, of small children committed by inflicting more than one injury which is sufficient in the ordinary course of nature and therefore gravity of the offence has surpassed its last limit due to which it would be proper to say that the acts of accused are not only beastly but ghastly injoined with extreme greediness."
}
},
{
"from_name": null,
"id": "565629c35cd641beb37ab9b7b4e35023",
"to_name": null,
"type": null,
"value": {
"end": 5638,
"labels": [
"ANALYSIS"
],
"start": 5446,
"text": "There being 12-930SCI/77 total lack of extenuating circumstances the accused deserves to be punished with extreme penalty without hesitation\".\n "
}
},
{
"from_name": null,
"id": "500f313779cd407dbe1edbbfcef6b491",
"to_name": null,
"type": null,
"value": {
"end": 5781,
"labels": [
"ANALYSIS"
],
"start": 5638,
"text": "The High Court dealing with the same question made the following observation :- \"The accused was a trusted friend of the deceased Rain Swaroop."
}
},
{
"from_name": null,
"id": "12462d0946c047e3b0518b4da466345c",
"to_name": null,
"type": null,
"value": {
"end": 6060,
"labels": [
"ANALYSIS"
],
"start": 5782,
"text": "But, for achievement of Ms vicious object to relieve him of his cash and valuables he not only killed Ram Swaroop but also exterminated his whole family including his aged parents, his wife and five children two of whom were infants aged five years and three years respectively."
}
},
{
"from_name": null,
"id": "4ced479a99eb45e4ad556cc8b10aa2c6",
"to_name": null,
"type": null,
"value": {
"end": 6211,
"labels": [
"ANALYSIS"
],
"start": 6061,
"text": "He com- mitted these blood-chilling murders of the nine innocent persons for monetary gain and to destroy. the evidence of the crime he had committed."
}
},
{
"from_name": null,
"id": "dbeb31309f7b40499a8d63e689369695",
"to_name": null,
"type": null,
"value": {
"end": 6304,
"labels": [
"ANALYSIS"
],
"start": 6212,
"text": "It is difficult to find words strong enough to condemn these gruesome and dastardly murders."
}
},
{
"from_name": null,
"id": "f50bed7d2ada4335908cc5a3de2c1f65",
"to_name": null,
"type": null,
"value": {
"end": 6510,
"labels": [
"ANALYSIS"
],
"start": 6305,
"text": "Ironically the accused chose not to spare even the two infant daughters of Ram Swaroop who dearly used to address him as `Dr. Chacha' and were incapable of giving evidence even if they had been left alive."
}
},
{
"from_name": null,
"id": "7b8615db71b849e1b85c1f6a2af9367d",
"to_name": null,
"type": null,
"value": {
"end": 6540,
"labels": [
"ANALYSIS"
],
"start": 6511,
"text": "The tragedy has few parallels"
}
},
{
"from_name": null,
"id": "6e761d5660214922808ffb3188ba3271",
"to_name": null,
"type": null,
"value": {
"end": 6592,
"labels": [
"ANALYSIS"
],
"start": 6541,
"text": "The accused was neither demented nor mentally sick."
}
},
{
"from_name": null,
"id": "bef1f7e70969450b90ac626897b7a57f",
"to_name": null,
"type": null,
"value": {
"end": 6673,
"labels": [
"ANALYSIS"
],
"start": 6593,
"text": "There are absolutely no extenuating circumstances for passing a lesser sentence."
}
},
{
"from_name": null,
"id": "c9eb7268f45f4d5ba7bda689a83f639f",
"to_name": null,
"type": null,
"value": {
"end": 6777,
"labels": [
"ANALYSIS"
],
"start": 6674,
"text": "On the other hand, the case, in our opinion, is eminently fit for imposing the extreme penalty of law\"."
}
},
{
"from_name": null,
"id": "eb5683df462a4e85871951fd034be05f",
"to_name": null,
"type": null,
"value": {
"end": 6957,
"labels": [
"RATIO"
],
"start": 6777,
"text": "\nIt is submitted that the accused was financially in straits with wife and two small children and this should be taken into consideration to merit clemency for the lesser sentence."
}
},
{
"from_name": null,
"id": "18b0bce2a0a1454aa55a966de67211d3",
"to_name": null,
"type": null,
"value": {
"end": 7165,
"labels": [
"RATIO"
],
"start": 6958,
"text": "These grounds had also been urged earlier before the trial court, but the horrid enormity of the crime with a deliberate motive of wrongful gain cannot be minimised when considering the appropriate sentence."
}
},
{
"from_name": null,
"id": "dfb67433c0fd44f1bb8317b794e30a69",
"to_name": null,
"type": null,
"value": {
"end": 7271,
"labels": [
"RATIO"
],
"start": 7166,
"text": "We agree with the courts below that there are no extenuating circumstances to justify the lesser penalty."
}
},
{
"from_name": null,
"id": "d9643ab9534f45a8a036fb0953516fd5",
"to_name": null,
"type": null,
"value": {
"end": 7509,
"labels": [
"RATIO"
],
"start": 7272,
"text": "The special reasons mandated under the law are duly recorded by both the High Court and the trial court and we are not in a position to say that those are inadequate to justify the sentence of death in these cruel and diabolical murders."
}
},
{
"from_name": null,
"id": "8d9220d93132465d8f6084ca32b1fca2",
"to_name": null,
"type": null,
"value": {
"end": 7546,
"labels": [
"RPC"
],
"start": 7510,
"text": "The appeal is accordingly dismissed."
}
},
{
"from_name": null,
"id": "cd0677e406344d2ca122b17a255bde93",
"to_name": null,
"type": null,
"value": {
"end": 7569,
"labels": [
"NONE"
],
"start": 7546,
"text": "\nS.R.\nAppeal dismissed."
}
}
]
}
] | 4,222 | {
"text": "PETITIONER:\nSARVESHWAR PRASAD SHARMA\n\n Vs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT26/09/1977\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nSINGH, JASWANT\n\nCITATION:\n\n1977 AIR 2423 1978 SCR (1) 560\n (193)\n1977 SCC (4) 596\n\nCITATOR INFO :\n\nRF 1979 SC 916\n\nACT:\nSentence--Sentence of death, special reasons as required\nunder s. 354(3) of the Criminal Procedure Code (Act If of\n1974), 1973 recorded by the Sessions and the High Court-\nInterference by the Supreme Court under Art. 136 only in\nspecial cases.\n\nHEADNOTE:\nThe appellant, a qualified medical practitioner, was\nconvicted for nine gruesome, murders of his friend, the\nlatter's wife, aged parents, two sons and three daughters of\nthe age of 16, 13, 8, 5 and 3 respectively, entirely on\ncircumstantial evidence and was sentenced to death. The\nentire family was exterminated due to greed for cash,\nornaments and other valuables. The Sessions and the High\nCourt gave convincing and special reasons for passing the\ndeath sentence.\nDismissing the special leave which is limited to the\nquestion of sentence, the Court,\nHELD : Law directs the course of the court. After enactment\nof the Criminal Procedure Code in 1973 (Act 2 of 1974), the\njudgment in a murder case \"shall state the special reasons\"\nfor a sentence of death, only in special cases with\nrecording of reasons so that these may be examined by\nsuperior courts. None of the guidelines indicated by this\ncourt in several decisions in this is problem area of life\nand death as a result of judicial verdict can be cut and dry\nnor exhaustive. Each case will depend upon the totality of\nthe facts and circumstances and other matters revealed. In\nthe instant case the horrid enormity of the crime with a\ndeliberate motive of wrongful gain cannot be minimised when\nconsidering the appropriate sentence. The special reasons\nmandated under the law are duly recorded by both the High\nCourt and the Trial Court and those are adequate to justify\nthe sentence of death in these cruet and diabolical murders\n[561 E-F, 562 F]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 342 of 1971, Appeal by Special Leave from the Judgment and Order dated 13-4-77 of the Madhya Pradesh High Court in Criminal Appeal No. 37/77 and Death Reference No. 1/77.\nMohan Behari Lal (amicus curiae) for the Appellant.\nI. N. Shroff for the Respondent.\nThe Judgment of the Court was delivered by GOSWAMI, J. We have granted special leave in this case limited to the question of sentence and heard the learned counsel, appearing as amicus curiae and also for the State.\nThese are gruesome murders wiping out all entire family of nine persons including two infants.\n The accused (31), Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.), a qualified medical practitioner, was a close friend of one of the deceased, Ram Swaroop (40), who was an Upper Division Clerk in the Madhya Pradesh Girls N.\nC. Battalion at Gwalior. Theaccused lived only about a furlong away from the deceased.\nDeceased Ram Swaroop used to practice Homeopathy as his hobby. There was thus a certain degree of common interest between the accused and deceased Ram Swaroop.\nRam Swaroop had his parents, aged 60 years, his wife (35), their two sons and three daughters of the age of 16, 13, 8, 5 and 3 respectively. As stated earlier, the entire family was exterminated. Cash, ornaments and other valuables were also removed at the same time.\nMurder was committed on the night of 4th July, 1976 and the dead bodies were locked up inside the room and the house was locked from outside. On 6th July foul. smell was emitted from the closed house and the police was informed. The house was broken open by the police and the nine dead bodies were recovered.\nThere is no direct evidence as to who actually committed the crimp, or even whether there was more than one person taking part in this dastardly crime. The accused stood convicted entirely on circumstantial evidence and his conviction is, now beyond question.\nWe have heard learned counsel of both sides on the question of sentence. The recent benign direction of the penal law is towards life sentence, as a rule, and death as an exception awarding of which must be accompanied by recorded reasons.\nThis Court has in several decisions indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive. Each case will depend upon the totality of the facts, circumstances and other matters revealed.\nLaw directs the course of the court. After, enactment of the Criminal Procedure Code in 1973 (Act 2 of 1974), the judgment in a murder case \"shall state the special reasons\"\nfor a sentence of death. That is to say, there will be sentence of death only in special cases with recording of reasons so that these may be examined by superior courts.\nThe trial court dealing with the question of sentence observed as follows : - \"Even beasts do not show unfaithfulness but this case is a shining example of the heinous unfaithfulness. Firstly to commit nine murders and that to(, of small children committed by inflicting more than one injury which is sufficient in the ordinary course of nature and therefore gravity of the offence has surpassed its last limit due to which it would be proper to say that the acts of accused are not only beastly but ghastly injoined with extreme greediness. There being 12-930SCI/77 total lack of extenuating circumstances the accused deserves to be punished with extreme penalty without hesitation\".\n The High Court dealing with the same question made the following observation :- \"The accused was a trusted friend of the deceased Rain Swaroop. But, for achievement of Ms vicious object to relieve him of his cash and valuables he not only killed Ram Swaroop but also exterminated his whole family including his aged parents, his wife and five children two of whom were infants aged five years and three years respectively. He com- mitted these blood-chilling murders of the nine innocent persons for monetary gain and to destroy. the evidence of the crime he had committed. It is difficult to find words strong enough to condemn these gruesome and dastardly murders. Ironically the accused chose not to spare even the two infant daughters of Ram Swaroop who dearly used to address him as `Dr. Chacha' and were incapable of giving evidence even if they had been left alive. The tragedy has few parallels The accused was neither demented nor mentally sick. There are absolutely no extenuating circumstances for passing a lesser sentence. On the other hand, the case, in our opinion, is eminently fit for imposing the extreme penalty of law\".\nIt is submitted that the accused was financially in straits with wife and two small children and this should be taken into consideration to merit clemency for the lesser sentence. These grounds had also been urged earlier before the trial court, but the horrid enormity of the crime with a deliberate motive of wrongful gain cannot be minimised when considering the appropriate sentence. We agree with the courts below that there are no extenuating circumstances to justify the lesser penalty. The special reasons mandated under the law are duly recorded by both the High Court and the trial court and we are not in a position to say that those are inadequate to justify the sentence of death in these cruel and diabolical murders. The appeal is accordingly dismissed.\nS.R.\nAppeal dismissed."
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"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 10TH DAY OF JUNE, 2013\n\n BEFORE"
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"text": "\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR\n\n WRIT PETITION NO. 7064/2013 (T-IT)"
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"text": "\n\nBETWEEN:\n\nSri. Dilip Surana, ... Petitioner"
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"text": "\nLR of late Ghevarchand Surana,"
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"text": "\nAged about 43 years,\nNo.45/3, Fairfield Layout,\nRace Course Road,\nBangalore-560 001.\n\n(By Sri.Malla Rao, Advocate for Sri.S.Parthasarathi,\nAssociates, Advocates)\n\nAND:\n\n1. The Commissioner of Income-Tax,\n Bangalore-II,\n C.R.Building, Queen's Road,\n Bangalore-560 001.\n\n2."
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"text": "The Deputy Commissioner,\n\n Of Income-Tax, Circle 3(1),\n\n 4th Floor, Unity Building Annexe,\n\n P.Kalinga Rao Road,\n\n Bangalore-560 027."
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"text": ".....Respondents\n\n"
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"text": "(By Sri. M.Thirumahesh, Advocate)"
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"start": 839,
"text": "Writ petition is filed under Article 226 and 227 of the\nConstitution of India, praying to quash the order of R-2\n\npassed under section 240 of the Act, dated 24.07.2002 vide\nAnnexure-F.\n\n "
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"text": "This petition coming on for preliminary hearing"
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"end": 1170,
"labels": [
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"text": "this\nday, the Court made the following:\n\n O R D E R"
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"labels": [
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],
"start": 1172,
"text": "Petitioner is seeking for issue of a writ of certiorari to quash the order dated 24.07.2002 passed by second respondent - Annexure-F, order dated 30.03.2004- Annexure-G and order dated 08.01.2013- Annexure-H."
}
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"start": 1380,
"text": "\n 2. I have heard the arguments of Mr.Malhara Rao, learned Advocate appearing for petitioner and Sri M. Thirumalesh, learned Advocate and Junior Standing Counsel appearing for respondents."
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{
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"labels": [
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],
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"text": "\n 3. Petitioner contends that pursuant to the search conducted under Section 132 of Income Tax Act, 1961 (hereinafter referred to as the `Act'), notice was issued to the petitioner on 15.12.1997 under Section 158 BC of the Act calling upon the petitioner to file returns for the block period 1988-89 to 1998-99 and same came to be filed on 29.06.1999 declaring the undisclosed income at ` 10 lakhs for the block period and after tax liability at ` 6 lakhs, a sum of ` 2,82,000/- was paid by way of tax as self assessment under Section 140A of the Act and remaining amount of ` 3,18,000/- which had been paid under the Voluntary Disclosure Income Scheme (hereinafter referred to as `VDIS') was adjusted at the request of the assessee.\n 4."
}
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"labels": [
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],
"start": 2306,
"text": "The return of income filed by petitioner- assessee came to be accepted and an assessment order came to be passed on 02.09.1999 - Annexure-A determining total undisclosed taxable income for the block period at ` 15,36,960/- and tax thereon at ` 9,22,176/- ."
}
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"end": 2989,
"labels": [
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],
"start": 2563,
"text": "Being aggrieved by this order, appeal came to be filed by the assessee before Commissioner of Income Tax (Appeals) and said appeal came to be allowed vide order dated 08.05.2002 holding that notice issued under Section 158BC(a)(ii) of the Act is invalid on account of sufficient time prescribed under the Act having not been given to the assessee to file return of income and consequently, block assessment order was annulled."
}
},
{
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"value": {
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"labels": [
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],
"start": 2990,
"text": "Being aggrieved by this order, revenue filed an appeal in ITA Nos.149 & 150/Bang/2002 before the Income Tax Appellate Tribunal and Revenue's appeal came to be dismissed by order dated 06.05.2005."
}
},
{
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"labels": [
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],
"start": 3185,
"text": "\nRevenue pursued the matter by filing an appeal under Section 260A of the Act before this Court in ITA No.3053/2005 which also came to be dismissed by answering the substantial question of law formulated therein in favour of the assessee vide order dated 14.09.2011-Annexure-E.\n 5."
}
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"labels": [
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],
"start": 3467,
"text": "In the meanwhile, assessee filed an application on account of introduction of Voluntary Disclosure Income Scheme being brought, contending that he is entitled to the benefit envisaged under said Scheme, which was turned down by the Revenue."
}
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{
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"end": 3862,
"labels": [
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],
"start": 3707,
"text": "\nAggrieved by the same, assessee filed a writ petition before this Court and he was unsuccessful and undaunted by such dismissal a Writ Appeal No.6502/1997"
}
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{
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"id": "8ba0d11cc6d14ca996fe87c15df97955",
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"labels": [
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"text": "which also"
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"end": 4132,
"labels": [
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],
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"text": "came to be dismissed on 08.06.1999 and it was observed by Division Bench that if the assessee has not been given the benefit of the Scheme under Section 64(2)(ii) of the Act, the amounts paid thereof may be adjusted against the tax liability of the assessee."
}
},
{
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"end": 4400,
"labels": [
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],
"start": 4133,
"text": "Proceedings giving effect to the order passed by this Court in W.A.No.6502/1997 came to be initiated and a demand for ` 6,43,352/- was raised on the assessee vide order dated 16.01.2002 Annexure-B holding thereunder that assessee would not be entitled to refund.\n 6."
}
},
{
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"end": 4635,
"labels": [
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],
"start": 4401,
"text": "After the Commissioner of Income Tax (Appeals) allowed the appeal of the assessee on 08.05.2002, an application was filed by the assessee before the Deputy Commissioner of Income Tax, Circle 3(1), Bangalore for refund of the tax paid."
}
},
{
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"end": 4733,
"labels": [
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],
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"text": "Deputy Commissioner of Income Tax, after adjudicating the said claim, vide order dated 24.07.2002"
}
},
{
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"value": {
"end": 4889,
"labels": [
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],
"start": 4734,
"text": " Annexure-F ordered for refund of a sum of `1,91,236/- which had been adjusted in excess of what has been declared by the assessee in the return of income."
}
},
{
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"id": "ffcdd59e4020426a8047a3470a962054",
"to_name": "text",
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"value": {
"end": 5215,
"labels": [
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],
"start": 4890,
"text": "It is thereafter petition under Section 264 of the Act in No.LRP/5/02- 03/II was filed before Commissioner of Income Tax, Bangalore-II, Bangalore on 25.09.2002 seeking for refund of the tax paid under the return of income which came to be adjudicated and prayer of the assessee came to be rejected vide order dated 30.03.2004"
}
},
{
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"to_name": "text",
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"labels": [
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],
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"text": " Annexure- G."
}
},
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"value": {
"end": 5316,
"labels": [
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],
"start": 5230,
"text": "This order was not pursued by the assessee and was virtually accepted by the assessee."
}
},
{
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"to_name": "text",
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"end": 5519,
"labels": [
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],
"start": 5317,
"text": "Thereafter, on the revenue's appeal being dismissed before this Court in ITA No.3053/2005 on 14.09.2011 assessee sought to revive the cause of action by submitting one more representation on 15.11.2012."
}
},
{
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"id": "24765f24cf864de3997d9a271ea9c0a2",
"to_name": "text",
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"value": {
"end": 5738,
"labels": [
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],
"start": 5520,
"text": "This representation came to be considered and assessee was intimated about the earlier order passed on 30.03.2004 Annexure-G rejecting his prayer for refund of the tax vide communication dated 08.01.2013 - Annexure-H."
}
},
{
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"id": "b8f9b52d10ce49e18a28627883505c21",
"to_name": "text",
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"value": {
"end": 5851,
"labels": [
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],
"start": 5739,
"text": "It is these orders of rejection of refund of tax which have been assailed in this writ petition by the assessee."
}
},
{
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"id": "561e201d2e854f3c92f1465efe636b64",
"to_name": "text",
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"value": {
"end": 6158,
"labels": [
"ARG_PETITIONER"
],
"start": 5853,
"text": "7. The contention of Sri Malhara Rao is when assessment order having been annulled by the Commissioner of Income Tax (Appeals), the very foundation has crumbled and as such, nothing remained and as such revenue could not have retained the amount paid by the assessee pursuant to the block assessment made."
}
},
{
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"id": "3555d70266a14714aa7beb9c1651e04a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6215,
"labels": [
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],
"start": 6159,
"text": "Hence, he contends that assessee is entitled for refund."
}
},
{
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"id": "a373467d52e0496d9ebf7dd14076d8e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 6519,
"labels": [
"ARG_PETITIONER"
],
"start": 6216,
"text": "In support of his submission, he has relied upon the judgment of this Court in the case of COMMISSIONER OF INCOME TAX AND ANOTHER vs.\nMICRO LABS LTD. reported in 2012 (348) ITR 75 and COMMISSIONER OF INCOME TAX & ANOTHER VS MICRO NOVA PHARMACEUTICALS (P) LTD. reported in 2012 (340) ITR 118 (Karnataka)."
}
},
{
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"id": "e7446e5b5c724ff8a8c3894ea22a2696",
"to_name": "text",
"type": "labels",
"value": {
"end": 7044,
"labels": [
"ARG_RESPONDENT"
],
"start": 6521,
"text": "8. Per contra, Sri. Thirumalesh, learned Advocate appearing for respondent would contend that under Section 240(b) of the Act, the assessee would not be entitled for refund of the tax paid voluntarily under the return of income submitted by the assessee and adjustments made by the revenue in excess of what had been declared by the assessee has been ordered to be refunded to the extent of `1,91,236/- by the order dated 24.07.2012 and as such, question of refunding a sum of `6 lakhs paid by the assessee would not arise."
}
},
{
"from_name": "label",
"id": "19a2ab14cdec4274883902dd82ad5ce3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7268,
"labels": [
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],
"start": 7045,
"text": "He contends, it is only such tax assessed by the assessing officer in excess of what has been declared by the assessee would become refundable and not the tax paid under return of income as declared by the assessee himself."
}
},
{
"from_name": "label",
"id": "7e118f8043e04dc698674f078f40f104",
"to_name": "text",
"type": "labels",
"value": {
"end": 7411,
"labels": [
"ARG_RESPONDENT"
],
"start": 7269,
"text": "He would submit that two judgments relied upon by the petitioner is distinguishable on facts and same are not applicable to the facts on hand."
}
},
{
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"id": "397b9eb4928b40cd96bcbbd5e0d7d8e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7660,
"labels": [
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],
"start": 7412,
"text": "He would contend that writ petition is liable to be dismissed on account of delay and latches inasmuch as, order passed by the Commissioner of Income Tax, Bangalore-II, Bangalore is of the year 2004 and same is questioned after a period of 9 years."
}
},
{
"from_name": "label",
"id": "cadf5dc0fc89409eab2f43053c10a0a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7812,
"labels": [
"ARG_RESPONDENT"
],
"start": 7661,
"text": "In support of his submission, he has relied upon judgment of COMMISSIONER OF INCOME TAX vs SHELLEY PRODUCTS AND ANOTHER reported in 2003 (261) ITR 367."
}
},
{
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"id": "b914a520c91b487c98242df920ced1fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7853,
"labels": [
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],
"start": 7813,
"text": "He prays for dismissal of writ petition."
}
},
{
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"id": "35b3c664ec104e2091dfba89b5170984",
"to_name": "text",
"type": "labels",
"value": {
"end": 7970,
"labels": [
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],
"start": 7853,
"text": "\n 9. Having heard the learned Advocates appearing for parties, the following points would arise for consideration: 1."
}
},
{
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"id": "2f06453c18184225ba9ae61ced55a7a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 8054,
"labels": [
"ISSUE"
],
"start": 7971,
"text": "Whether writ petition is liable to be dismissed on the ground of delay and latches?"
}
},
{
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"id": "f6d865dfdb864e8e91eba97e6b55f88e",
"to_name": "text",
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"value": {
"end": 8141,
"labels": [
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],
"start": 8054,
"text": "\n 2. Whether the petitioner is entitled for the relief sought for in the writ petition?"
}
},
{
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"id": "8bc62837eb0f4976940afe70f9826127",
"to_name": "text",
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"value": {
"end": 8162,
"labels": [
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],
"start": 8141,
"text": "\n FACTUAL MATRIX: 10."
}
},
{
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"value": {
"end": 8200,
"labels": [
"FAC"
],
"start": 8163,
"text": "Petitioner is an individual assessee."
}
},
{
"from_name": "label",
"id": "1e455f180e3a4eb3808c415c02f947f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 8533,
"labels": [
"FAC"
],
"start": 8201,
"text": "Search proceedings were carried out under Section 132 of the Act in the residential premises of the assessee on 10.09.1997 pursuant to which notice under Section 158 BC of the Act was issued on 15.12.1997 calling upon the petitioner to file the returns within 15 days from the date of notice for the block period 1988-89 to 1998-99."
}
},
{
"from_name": "label",
"id": "3c9813ff36d342dcb04559ff43f7e2fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 8724,
"labels": [
"FAC"
],
"start": 8534,
"text": "After seeking for time, assessee filed return of income on 29.06.1999 declaring undisclosed income as `10 lakhs and in the said returns, tax liability was shown as ` 6 lakhs by the assessee."
}
},
{
"from_name": "label",
"id": "11288214b6e341c7b464f34b344ca99f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9068,
"labels": [
"FAC"
],
"start": 8725,
"text": "Under the said return of income, assessee also paid a sum of `2,82,000/- as self assessment under Section 140A of the Act and remaining amount of `3,18,000/- was requested to be adjusted by the assessee under the VDIS since by that time, said Scheme has come into vogue and petitioner/ assessee had opted to seek umbrage under the said Scheme."
}
},
{
"from_name": "label",
"id": "43a318fa91234ee684a118a261920dff",
"to_name": "text",
"type": "labels",
"value": {
"end": 9218,
"labels": [
"FAC"
],
"start": 9069,
"text": "On the basis of return of income filed, same came to be adjudicated by the assessing officer and an assessment order came to be passed on 02.09.1999."
}
},
{
"from_name": "label",
"id": "3724e6377e984305a4891dd8345bb76a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9418,
"labels": [
"FAC"
],
"start": 9218,
"text": "\nUndisputedly, notice under Sections 142(1) & 143(2) had also been issued to the assessee along with detailed questionnaire calling upon the assessee to explain with reference to the seized documents."
}
},
{
"from_name": "label",
"id": "470e0b50e7124d6f8740029fb9162677",
"to_name": "text",
"type": "labels",
"value": {
"end": 9690,
"labels": [
"FAC"
],
"start": 9419,
"text": "Under the assessment order dated 02.09.1999 the undisclosed income for the block period was arrived at as ` 15,36,960/- and tax demand therein was raised which was to the tune of ` 9,22,176/- and consequently interest under Section 158BFA of the Act was also raised.\n 11."
}
},
{
"from_name": "label",
"id": "a1c9e43d87114c6c8917017c193bd787",
"to_name": "text",
"type": "labels",
"value": {
"end": 9975,
"labels": [
"FAC"
],
"start": 9691,
"text": "In the meanwhile, as noted herein supra, Voluntary Disclosure Income Scheme has come into force and as such, petitioner/assessee made an application under the said scheme and same was not accepted by the revenue authorities and it was rejected on the ground that it was a search case."
}
},
{
"from_name": "label",
"id": "e588b6d013e7478aace747476d792651",
"to_name": "text",
"type": "labels",
"value": {
"end": 10118,
"labels": [
"FAC"
],
"start": 9976,
"text": "Being aggrieved by the same, petitioner approached this Court in W.P.Nos.32454/1997 which also came to be dismissed by order dated 20-11-1997."
}
},
{
"from_name": "label",
"id": "830a9888d54c469db32cb006f7e213c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10228,
"labels": [
"FAC"
],
"start": 10119,
"text": "Said order of dismissal of writ petition came to be affirmed in W.A.No.6506/1007 vide order dated 08.06.1999."
}
},
{
"from_name": "label",
"id": "8b270b7d0df946fda3095869da3cd273",
"to_name": "text",
"type": "labels",
"value": {
"end": 10491,
"labels": [
"RLC"
],
"start": 10229,
"text": "Liberty was granted by the Division Bench to the revenue to adjust the amount paid under the VDIS by the assessee against any tax liability of the assessee in the event of Department coming to the conclusion that assessee is not entitled for the benefit of VDIS."
}
},
{
"from_name": "label",
"id": "4106460c4cf44b368c020a0f452d7e28",
"to_name": "text",
"type": "labels",
"value": {
"end": 10786,
"labels": [
"FAC"
],
"start": 10491,
"text": "\n 12. Being aggrieved by the assessment order dated 02.09.1999, assessee filed an appeal before Commissioner of Income Tax (Appeals) but, by order dated 08.05.2002 allowed the appeal by annulling the block assessment order on the ground that notice issued under Section 158 BC(a)(ii) is invalid."
}
},
{
"from_name": "label",
"id": "a1d186ff0d4d4ed18a8e98f300adf719",
"to_name": "text",
"type": "labels",
"value": {
"end": 10890,
"labels": [
"FAC"
],
"start": 10787,
"text": "Said order came to be affirmed by the Income Tax Appellate Tribunal, Bangalore Bench `B' on 06.05.2005."
}
},
{
"from_name": "label",
"id": "d071865220a44d79aa13d9aa9e65c7e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11380,
"labels": [
"FAC"
],
"start": 10891,
"text": "After order came to be passed by Commissioner of Income Tax (Appeals) allowing the appeal of the assessee, an application has been filed by the assessee seeking for refund, which came to be adjudicated by Deputy Commissioner of Income Tax and taking into consideration Section 240(b) of the Income Tax Act, it was held that assessee is entitled for adjustment made in excess of what has been declared by the assessee himself vide order dated 24.07.2002 - Annexure-F.\n RE: POINT NO.(1): 13."
}
},
{
"from_name": "label",
"id": "83bdad1c9c56413aa4e87d6d9b9966c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11454,
"labels": [
"ANALYSIS"
],
"start": 11381,
"text": "The order rejecting application for refund has been passed on 30.03.2004."
}
},
{
"from_name": "label",
"id": "e1cd1f0acf7e49b1963d946cee79a95f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11522,
"labels": [
"ANALYSIS"
],
"start": 11455,
"text": "Assessee has not challenged the same and has virtually accepted it."
}
},
{
"from_name": "label",
"id": "50aa4add60054f3283e631c0c3df0f0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11921,
"labels": [
"ANALYSIS"
],
"start": 11523,
"text": "It is only after revenue's appeal filed challenging the order of ITAT and CIT(A) whereunder assessment order had been annulled, came to be dismissed on 06.05.2005 assessee has attempted to revive dead cause of action by submitting representation and there is delay and latches which is clearly attributable to the assessee.\nPrayer of the assessee is liable to be rejected on this ground alone.\n 14."
}
},
{
"from_name": "label",
"id": "0491b2a160394ec993d5c876b2a05bef",
"to_name": "text",
"type": "labels",
"value": {
"end": 12225,
"labels": [
"ANALYSIS"
],
"start": 11922,
"text": "Since Point No.1 formulated herein above is answered in favour of revenue, I am of the considered view that in view of the contentions raised by the respective learned Advocates appearing for both the parties on merits, point No.(2) formulated herein above is also adjudicated and answered herein below."
}
},
{
"from_name": "label",
"id": "b21af81a04164447a9d063c3ce55e24a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12248,
"labels": [
"ANALYSIS"
],
"start": 12227,
"text": "RE: POINT NO.(2): 15."
}
},
{
"from_name": "label",
"id": "17079e02584649ff8a595ab1bd051c7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12532,
"labels": [
"ARG_PETITIONER"
],
"start": 12249,
"text": "It is contended by the assessee that under similar circumstances, Division Bench has held when assessment order has been annulled, assessee would be entitled to refund of the tax paid in the case of COMMISSIONER OF INCOME TAX & ANOTHER vs MICRO LABS LTD reported in 2012(348) ITR 75."
}
},
{
"from_name": "label",
"id": "724b12c806c146b7933b4044be628199",
"to_name": "text",
"type": "labels",
"value": {
"end": 12755,
"labels": [
"ANALYSIS"
],
"start": 12533,
"text": "In the said case, it is held while answering issue No.3 as to whether assessee is entitled for refund of the tax, it was held as under: \"The assessee has not paid the tax along with the income declared in the block return."
}
},
{
"from_name": "label",
"id": "06a4a72719ca4a20b379209f2c4da7c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12970,
"labels": [
"ANALYSIS"
],
"start": 12756,
"text": "It is only by way of adjustment of tax paid under the Voluntary Disclosure of Income Scheme and the refund due to the assessee for the other assessment years, that are adjusted against the so- called demand raised."
}
},
{
"from_name": "label",
"id": "3689ef34bddd453eb4c84140a9375910",
"to_name": "text",
"type": "labels",
"value": {
"end": 13086,
"labels": [
"ANALYSIS"
],
"start": 12971,
"text": "For clause (b) of the proviso to section 240 to apply, the taxes should have been paid by the assessee voluntarily."
}
},
{
"from_name": "label",
"id": "0437830448634c9b8f7096f41256216a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13268,
"labels": [
"ANALYSIS"
],
"start": 13087,
"text": "Therefore, the Revenue cannot contend that the refund adjusted is to be treated as tax paid, so as to deny the assessee the refund due, subsequently, due to annulment of assessment."
}
},
{
"from_name": "label",
"id": "9c91322676864ee9a784e572788fd316",
"to_name": "text",
"type": "labels",
"value": {
"end": 13374,
"labels": [
"ANALYSIS"
],
"start": 13269,
"text": "Payment of taxes voluntarily is different from adjusting the refund without reference to the assessee.\"\n "
}
},
{
"from_name": "label",
"id": "f346f1abb7c54e4facb06d6cef5f4ae2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13482,
"labels": [
"ANALYSIS"
],
"start": 13374,
"text": "In the said case, undisputedly, assessee had not paid tax with regard to income written in the block return."
}
},
{
"from_name": "label",
"id": "7caf8aa8c20046a5935de4de6efb5bad",
"to_name": "text",
"type": "labels",
"value": {
"end": 13659,
"labels": [
"ANALYSIS"
],
"start": 13482,
"text": "\nTax paid under the VDIS scheme and refund due to the assessee for different assessment years was sought to be adjusted by assessing officer after assessment order was annulled."
}
},
{
"from_name": "label",
"id": "7bd2c41f824f4b358852a368557f53b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 14023,
"labels": [
"ANALYSIS"
],
"start": 13660,
"text": "Though revenue contended that such adjustment is permissible under clause (b) of Section 240 of the Act, it came to be negatived by Division Bench of this Court on the ground that admittedly taxes had not been paid by the assessee voluntarily and department had adjusted the tax paid by assessee under VDIS, as such, payment of tax was held to be not voluntarily."
}
},
{
"from_name": "label",
"id": "72ea1fb6109748aa97a67343ca494bd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14296,
"labels": [
"ANALYSIS"
],
"start": 14023,
"text": "\n 16. In the present case, undisputedly, assessee has voluntarily filed return of income pursuant to the notice issued under Section 158BC of the Act and has declared the undisclosed income for the block assessment period as ` 10 lakhs and tax payable therein as ` 6 lakhs."
}
},
{
"from_name": "label",
"id": "9002203e379e4a61afc236eb92adc987",
"to_name": "text",
"type": "labels",
"value": {
"end": 14392,
"labels": [
"ANALYSIS"
],
"start": 14297,
"text": "The assessee has also paid a sum of ` 2,82,000/- at the time of filing of the return of income."
}
},
{
"from_name": "label",
"id": "c9d351ed58b9407786078c087a392399",
"to_name": "text",
"type": "labels",
"value": {
"end": 14545,
"labels": [
"ANALYSIS"
],
"start": 14393,
"text": "For the balance amount of ` 3,18,000/-, assessee as noted herein above, had attempted to take umbrage under the VDIS which come into vogue by that time."
}
},
{
"from_name": "label",
"id": "aa3854e9757e4f208d9c86319916fdae",
"to_name": "text",
"type": "labels",
"value": {
"end": 14929,
"labels": [
"ANALYSIS"
],
"start": 14546,
"text": "In fact, return filed under VDIS was not accepted by the revenue and it was rejected and as such, assessee had approached this Court in W.P.No.32454/1997 which petition came to be dismissed by order dated 20.11.1997 and same came to be affirmed in W.A.No.6506/1997 on 08.06.1999 by reserving liberty to the revenue to adjust the said amount against any tax liability of the assessee."
}
},
{
"from_name": "label",
"id": "72689f69a4ed4102930f513e130b84a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 15307,
"labels": [
"ANALYSIS"
],
"start": 14929,
"text": "\n 17. Giving effect to the order of Commissioner of Income Tax (Appeals) and while considering the claim of the assessee for refund, the Deputy commissioner of Income Tax was of the view and rightly so, that assessee would be entitled for refund of `1,91,236/- which had been adjusted giving effect to the assessment order which was in excess of the tax declared and determined."
}
},
{
"from_name": "label",
"id": "4a8127c3bb3b4e23bd60588fa8a358ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 15636,
"labels": [
"ANALYSIS"
],
"start": 15307,
"text": "\nHowever, in the order of refund, it has been categorically held under Section 240(b) of the Act, assessee would not be entitled for the tax declared under the return of income filed on 29.06.1999 and assessee would be entitled only for refund of tax paid in excess of tax chargeable on the total income returned by the assessee."
}
},
{
"from_name": "label",
"id": "f02866c0d5244c7287abad7d7d9fb98b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15930,
"labels": [
"ANALYSIS"
],
"start": 15637,
"text": "In other words, after determination by the assessing officer, if the assessee had paid tax in excess of what has been declared in the return of income, it is only that excess or difference to which amount assessee would be entitled to and not the amount of tax paid under the return of income."
}
},
{
"from_name": "label",
"id": "887a8a8e57b54d2b91b11e7c7f520e42",
"to_name": "text",
"type": "labels",
"value": {
"end": 16177,
"labels": [
"ANALYSIS"
],
"start": 15932,
"text": "18. In the instant case, assessing officer while giving effect to the assessment order had in fact adjusted a sum of `1,91,236/- by construing the total taxable undisclosed income at `15,36,960/- after having raised a tax demand at ` 9,22,176/-."
}
},
{
"from_name": "label",
"id": "b5c573981e904fd5aace5aaed4928c58",
"to_name": "text",
"type": "labels",
"value": {
"end": 16552,
"labels": [
"ANALYSIS"
],
"start": 16177,
"text": "\n Subsequently, after the assessment order came to be annulled by Commissioner of Income Tax (Appeals) and while giving effect to the said order in refund proceedings, it has been held that assessee would be entitled for the excess amount of tax adjusted namely to the tune of `1,91,236/- and not on the declared income and tax paid thereon which was to the tune of `6 lakhs."
}
},
{
"from_name": "label",
"id": "a0fddb7a5d004b2d8a822cf52d11b363",
"to_name": "text",
"type": "labels",
"value": {
"end": 16698,
"labels": [
"ANALYSIS"
],
"start": 16552,
"text": "\nThis order dated 24.07.2002 is in consonance with statutory provision namely 240(b) of the Act and there is no error committed by the respondent."
}
},
{
"from_name": "label",
"id": "5a3feb87284f4318b50982a8ab802cd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 17264,
"labels": [
"PRE_RELIED"
],
"start": 16698,
"text": "\n 19. In COMMISSIONER OF INCOME TAX vs SHELLY PRODUCTS AND ANOTHER reported in 2003(261) ITR 367 referred to supra, it has been opined by their Lorships that when the Act enjoins upon the assessee a duty to file return of income disclosing his true income and on the basis of such return of income, if assessment is made, it would not be permissible for the assessee to contend at a later point of time that such return of income filed voluntarily by declaring income thereon and tax paid thereon has to be ignored by the assessing officer and refund has to be made."
}
},
{
"from_name": "label",
"id": "127492e6435043708a8ca2f77c6d292c",
"to_name": "text",
"type": "labels",
"value": {
"end": 17445,
"labels": [
"ANALYSIS"
],
"start": 17265,
"text": "In the event of assessing officer adjudicating the return of income, he may not accept the income declared and may make addition thereon, based on which tax demand would be raised."
}
},
{
"from_name": "label",
"id": "149d3cc5e9864723bb28696fd5669f2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17660,
"labels": [
"ANALYSIS"
],
"start": 17446,
"text": "In such circumstances, assessee would be entitled to the difference thereof namely, tax demanded based on income determined by the assessing officer minus tax declared in the return of income filed by the assessee."
}
},
{
"from_name": "label",
"id": "97ee7a3f0aaf428894c4586f2efdce1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17761,
"labels": [
"ANALYSIS"
],
"start": 17661,
"text": "In the instant case, it is this precise exercise which has been undertaken by the second respondent."
}
},
{
"from_name": "label",
"id": "26e1b742847b47298ce6e3d3216f014d",
"to_name": "text",
"type": "labels",
"value": {
"end": 18301,
"labels": [
"ANALYSIS"
],
"start": 17762,
"text": "when the assessment order came to be set aside by the CIT (A) and while giving effect to said order of CIT(A), second respondent has held that assessee is entitled to refund of ` 1,91,236/- only which had been adjusted namely ` 1,77,986/- adjusted vide intimation dated 22.03.1998, refund W.T for the assessment year 1998-99 and refund under Section 143(1) for assessment year 2000-01 in all, ` 1,91,236/- and not the amount of tax paid on undisclosed income of ` 10,00,000/- declared in return of income since Section 240(b) is attracted."
}
},
{
"from_name": "label",
"id": "1a589f49952f4ed7959583ae3dfb9c01",
"to_name": "text",
"type": "labels",
"value": {
"end": 18426,
"labels": [
"RATIO"
],
"start": 18302,
"text": "As such, I am of the considered view that there is no error committed by the authorities in rejecting claim of the assessee."
}
},
{
"from_name": "label",
"id": "c3e701b19cd748e5b586a07784a083cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 18707,
"labels": [
"RPC"
],
"start": 18426,
"text": "\n 20. Hence, the following order is passed: (1) Writ petition is hereby dismissed.\n (2) Order dated 24.07.2002 passed by second respondent Annexure-F, order dated 30.03.2004- Annexure-G and order dated 08.01.2013-Annexure-H are hereby affirmed.\n (3) No order as to costs."
}
},
{
"from_name": "label",
"id": "5ddfb20678704e7faf7ad300325bc035",
"to_name": "text",
"type": "labels",
"value": {
"end": 18723,
"labels": [
"NONE"
],
"start": 18707,
"text": "\n Sd/- JUDGE *sp"
}
}
]
}
] | 1,784 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 10TH DAY OF JUNE, 2013\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR\n\n WRIT PETITION NO. 7064/2013 (T-IT)\n\nBETWEEN:\n\nSri. Dilip Surana, ... Petitioner\nLR of late Ghevarchand Surana,\nAged about 43 years,\nNo.45/3, Fairfield Layout,\nRace Course Road,\nBangalore-560 001.\n\n(By Sri.Malla Rao, Advocate for Sri.S.Parthasarathi,\nAssociates, Advocates)\n\nAND:\n\n1. The Commissioner of Income-Tax,\n Bangalore-II,\n C.R.Building, Queen's Road,\n Bangalore-560 001.\n\n2. The Deputy Commissioner,\n\n Of Income-Tax, Circle 3(1),\n\n 4th Floor, Unity Building Annexe,\n\n P.Kalinga Rao Road,\n\n Bangalore-560 027. .....Respondents\n\n(By Sri. M.Thirumahesh, Advocate)\n\n Writ petition is filed under Article 226 and 227 of the\nConstitution of India, praying to quash the order of R-2\n\npassed under section 240 of the Act, dated 24.07.2002 vide\nAnnexure-F.\n\n This petition coming on for preliminary hearing this\nday, the Court made the following:\n\n O R D E R\n Petitioner is seeking for issue of a writ of certiorari to quash the order dated 24.07.2002 passed by second respondent - Annexure-F, order dated 30.03.2004- Annexure-G and order dated 08.01.2013- Annexure-H.\n 2. I have heard the arguments of Mr.Malhara Rao, learned Advocate appearing for petitioner and Sri M. Thirumalesh, learned Advocate and Junior Standing Counsel appearing for respondents.\n 3. Petitioner contends that pursuant to the search conducted under Section 132 of Income Tax Act, 1961 (hereinafter referred to as the `Act'), notice was issued to the petitioner on 15.12.1997 under Section 158 BC of the Act calling upon the petitioner to file returns for the block period 1988-89 to 1998-99 and same came to be filed on 29.06.1999 declaring the undisclosed income at ` 10 lakhs for the block period and after tax liability at ` 6 lakhs, a sum of ` 2,82,000/- was paid by way of tax as self assessment under Section 140A of the Act and remaining amount of ` 3,18,000/- which had been paid under the Voluntary Disclosure Income Scheme (hereinafter referred to as `VDIS') was adjusted at the request of the assessee.\n 4. The return of income filed by petitioner- assessee came to be accepted and an assessment order came to be passed on 02.09.1999 - Annexure-A determining total undisclosed taxable income for the block period at ` 15,36,960/- and tax thereon at ` 9,22,176/- . Being aggrieved by this order, appeal came to be filed by the assessee before Commissioner of Income Tax (Appeals) and said appeal came to be allowed vide order dated 08.05.2002 holding that notice issued under Section 158BC(a)(ii) of the Act is invalid on account of sufficient time prescribed under the Act having not been given to the assessee to file return of income and consequently, block assessment order was annulled. Being aggrieved by this order, revenue filed an appeal in ITA Nos.149 & 150/Bang/2002 before the Income Tax Appellate Tribunal and Revenue's appeal came to be dismissed by order dated 06.05.2005.\nRevenue pursued the matter by filing an appeal under Section 260A of the Act before this Court in ITA No.3053/2005 which also came to be dismissed by answering the substantial question of law formulated therein in favour of the assessee vide order dated 14.09.2011-Annexure-E.\n 5. In the meanwhile, assessee filed an application on account of introduction of Voluntary Disclosure Income Scheme being brought, contending that he is entitled to the benefit envisaged under said Scheme, which was turned down by the Revenue.\nAggrieved by the same, assessee filed a writ petition before this Court and he was unsuccessful and undaunted by such dismissal a Writ Appeal No.6502/1997 which also came to be dismissed on 08.06.1999 and it was observed by Division Bench that if the assessee has not been given the benefit of the Scheme under Section 64(2)(ii) of the Act, the amounts paid thereof may be adjusted against the tax liability of the assessee. Proceedings giving effect to the order passed by this Court in W.A.No.6502/1997 came to be initiated and a demand for ` 6,43,352/- was raised on the assessee vide order dated 16.01.2002 Annexure-B holding thereunder that assessee would not be entitled to refund.\n 6. After the Commissioner of Income Tax (Appeals) allowed the appeal of the assessee on 08.05.2002, an application was filed by the assessee before the Deputy Commissioner of Income Tax, Circle 3(1), Bangalore for refund of the tax paid. Deputy Commissioner of Income Tax, after adjudicating the said claim, vide order dated 24.07.2002 Annexure-F ordered for refund of a sum of `1,91,236/- which had been adjusted in excess of what has been declared by the assessee in the return of income. It is thereafter petition under Section 264 of the Act in No.LRP/5/02- 03/II was filed before Commissioner of Income Tax, Bangalore-II, Bangalore on 25.09.2002 seeking for refund of the tax paid under the return of income which came to be adjudicated and prayer of the assessee came to be rejected vide order dated 30.03.2004 Annexure- G. This order was not pursued by the assessee and was virtually accepted by the assessee. Thereafter, on the revenue's appeal being dismissed before this Court in ITA No.3053/2005 on 14.09.2011 assessee sought to revive the cause of action by submitting one more representation on 15.11.2012. This representation came to be considered and assessee was intimated about the earlier order passed on 30.03.2004 Annexure-G rejecting his prayer for refund of the tax vide communication dated 08.01.2013 - Annexure-H. It is these orders of rejection of refund of tax which have been assailed in this writ petition by the assessee.\n 7. The contention of Sri Malhara Rao is when assessment order having been annulled by the Commissioner of Income Tax (Appeals), the very foundation has crumbled and as such, nothing remained and as such revenue could not have retained the amount paid by the assessee pursuant to the block assessment made. Hence, he contends that assessee is entitled for refund. In support of his submission, he has relied upon the judgment of this Court in the case of COMMISSIONER OF INCOME TAX AND ANOTHER vs.\nMICRO LABS LTD. reported in 2012 (348) ITR 75 and COMMISSIONER OF INCOME TAX & ANOTHER VS MICRO NOVA PHARMACEUTICALS (P) LTD. reported in 2012 (340) ITR 118 (Karnataka).\n 8. Per contra, Sri. Thirumalesh, learned Advocate appearing for respondent would contend that under Section 240(b) of the Act, the assessee would not be entitled for refund of the tax paid voluntarily under the return of income submitted by the assessee and adjustments made by the revenue in excess of what had been declared by the assessee has been ordered to be refunded to the extent of `1,91,236/- by the order dated 24.07.2012 and as such, question of refunding a sum of `6 lakhs paid by the assessee would not arise. He contends, it is only such tax assessed by the assessing officer in excess of what has been declared by the assessee would become refundable and not the tax paid under return of income as declared by the assessee himself. He would submit that two judgments relied upon by the petitioner is distinguishable on facts and same are not applicable to the facts on hand. He would contend that writ petition is liable to be dismissed on account of delay and latches inasmuch as, order passed by the Commissioner of Income Tax, Bangalore-II, Bangalore is of the year 2004 and same is questioned after a period of 9 years. In support of his submission, he has relied upon judgment of COMMISSIONER OF INCOME TAX vs SHELLEY PRODUCTS AND ANOTHER reported in 2003 (261) ITR 367. He prays for dismissal of writ petition.\n 9. Having heard the learned Advocates appearing for parties, the following points would arise for consideration: 1. Whether writ petition is liable to be dismissed on the ground of delay and latches?\n 2. Whether the petitioner is entitled for the relief sought for in the writ petition?\n FACTUAL MATRIX: 10. Petitioner is an individual assessee. Search proceedings were carried out under Section 132 of the Act in the residential premises of the assessee on 10.09.1997 pursuant to which notice under Section 158 BC of the Act was issued on 15.12.1997 calling upon the petitioner to file the returns within 15 days from the date of notice for the block period 1988-89 to 1998-99.\nAfter seeking for time, assessee filed return of income on 29.06.1999 declaring undisclosed income as `10 lakhs and in the said returns, tax liability was shown as ` 6 lakhs by the assessee. Under the said return of income, assessee also paid a sum of `2,82,000/- as self assessment under Section 140A of the Act and remaining amount of `3,18,000/- was requested to be adjusted by the assessee under the VDIS since by that time, said Scheme has come into vogue and petitioner/ assessee had opted to seek umbrage under the said Scheme. On the basis of return of income filed, same came to be adjudicated by the assessing officer and an assessment order came to be passed on 02.09.1999.\nUndisputedly, notice under Sections 142(1) & 143(2) had also been issued to the assessee along with detailed questionnaire calling upon the assessee to explain with reference to the seized documents. Under the assessment order dated 02.09.1999 the undisclosed income for the block period was arrived at as ` 15,36,960/- and tax demand therein was raised which was to the tune of ` 9,22,176/- and consequently interest under Section 158BFA of the Act was also raised.\n 11. In the meanwhile, as noted herein supra, Voluntary Disclosure Income Scheme has come into force and as such, petitioner/assessee made an application under the said scheme and same was not accepted by the revenue authorities and it was rejected on the ground that it was a search case. Being aggrieved by the same, petitioner approached this Court in W.P.Nos.32454/1997 which also came to be dismissed by order dated 20-11-1997. Said order of dismissal of writ petition came to be affirmed in W.A.No.6506/1007 vide order dated 08.06.1999. Liberty was granted by the Division Bench to the revenue to adjust the amount paid under the VDIS by the assessee against any tax liability of the assessee in the event of Department coming to the conclusion that assessee is not entitled for the benefit of VDIS.\n 12. Being aggrieved by the assessment order dated 02.09.1999, assessee filed an appeal before Commissioner of Income Tax (Appeals) but, by order dated 08.05.2002 allowed the appeal by annulling the block assessment order on the ground that notice issued under Section 158 BC(a)(ii) is invalid. Said order came to be affirmed by the Income Tax Appellate Tribunal, Bangalore Bench `B' on 06.05.2005. After order came to be passed by Commissioner of Income Tax (Appeals) allowing the appeal of the assessee, an application has been filed by the assessee seeking for refund, which came to be adjudicated by Deputy Commissioner of Income Tax and taking into consideration Section 240(b) of the Income Tax Act, it was held that assessee is entitled for adjustment made in excess of what has been declared by the assessee himself vide order dated 24.07.2002 - Annexure-F.\n RE: POINT NO.(1): 13. The order rejecting application for refund has been passed on 30.03.2004. Assessee has not challenged the same and has virtually accepted it. It is only after revenue's appeal filed challenging the order of ITAT and CIT(A) whereunder assessment order had been annulled, came to be dismissed on 06.05.2005 assessee has attempted to revive dead cause of action by submitting representation and there is delay and latches which is clearly attributable to the assessee.\nPrayer of the assessee is liable to be rejected on this ground alone.\n 14. Since Point No.1 formulated herein above is answered in favour of revenue, I am of the considered view that in view of the contentions raised by the respective learned Advocates appearing for both the parties on merits, point No.(2) formulated herein above is also adjudicated and answered herein below.\n RE: POINT NO.(2): 15. It is contended by the assessee that under similar circumstances, Division Bench has held when assessment order has been annulled, assessee would be entitled to refund of the tax paid in the case of COMMISSIONER OF INCOME TAX & ANOTHER vs MICRO LABS LTD reported in 2012(348) ITR 75. In the said case, it is held while answering issue No.3 as to whether assessee is entitled for refund of the tax, it was held as under: \"The assessee has not paid the tax along with the income declared in the block return. It is only by way of adjustment of tax paid under the Voluntary Disclosure of Income Scheme and the refund due to the assessee for the other assessment years, that are adjusted against the so- called demand raised. For clause (b) of the proviso to section 240 to apply, the taxes should have been paid by the assessee voluntarily. Therefore, the Revenue cannot contend that the refund adjusted is to be treated as tax paid, so as to deny the assessee the refund due, subsequently, due to annulment of assessment. Payment of taxes voluntarily is different from adjusting the refund without reference to the assessee.\"\n In the said case, undisputedly, assessee had not paid tax with regard to income written in the block return.\nTax paid under the VDIS scheme and refund due to the assessee for different assessment years was sought to be adjusted by assessing officer after assessment order was annulled. Though revenue contended that such adjustment is permissible under clause (b) of Section 240 of the Act, it came to be negatived by Division Bench of this Court on the ground that admittedly taxes had not been paid by the assessee voluntarily and department had adjusted the tax paid by assessee under VDIS, as such, payment of tax was held to be not voluntarily.\n 16. In the present case, undisputedly, assessee has voluntarily filed return of income pursuant to the notice issued under Section 158BC of the Act and has declared the undisclosed income for the block assessment period as ` 10 lakhs and tax payable therein as ` 6 lakhs. The assessee has also paid a sum of ` 2,82,000/- at the time of filing of the return of income. For the balance amount of ` 3,18,000/-, assessee as noted herein above, had attempted to take umbrage under the VDIS which come into vogue by that time. In fact, return filed under VDIS was not accepted by the revenue and it was rejected and as such, assessee had approached this Court in W.P.No.32454/1997 which petition came to be dismissed by order dated 20.11.1997 and same came to be affirmed in W.A.No.6506/1997 on 08.06.1999 by reserving liberty to the revenue to adjust the said amount against any tax liability of the assessee.\n 17. Giving effect to the order of Commissioner of Income Tax (Appeals) and while considering the claim of the assessee for refund, the Deputy commissioner of Income Tax was of the view and rightly so, that assessee would be entitled for refund of `1,91,236/- which had been adjusted giving effect to the assessment order which was in excess of the tax declared and determined.\nHowever, in the order of refund, it has been categorically held under Section 240(b) of the Act, assessee would not be entitled for the tax declared under the return of income filed on 29.06.1999 and assessee would be entitled only for refund of tax paid in excess of tax chargeable on the total income returned by the assessee. In other words, after determination by the assessing officer, if the assessee had paid tax in excess of what has been declared in the return of income, it is only that excess or difference to which amount assessee would be entitled to and not the amount of tax paid under the return of income.\n 18. In the instant case, assessing officer while giving effect to the assessment order had in fact adjusted a sum of `1,91,236/- by construing the total taxable undisclosed income at `15,36,960/- after having raised a tax demand at ` 9,22,176/-.\n Subsequently, after the assessment order came to be annulled by Commissioner of Income Tax (Appeals) and while giving effect to the said order in refund proceedings, it has been held that assessee would be entitled for the excess amount of tax adjusted namely to the tune of `1,91,236/- and not on the declared income and tax paid thereon which was to the tune of `6 lakhs.\nThis order dated 24.07.2002 is in consonance with statutory provision namely 240(b) of the Act and there is no error committed by the respondent.\n 19. In COMMISSIONER OF INCOME TAX vs SHELLY PRODUCTS AND ANOTHER reported in 2003(261) ITR 367 referred to supra, it has been opined by their Lorships that when the Act enjoins upon the assessee a duty to file return of income disclosing his true income and on the basis of such return of income, if assessment is made, it would not be permissible for the assessee to contend at a later point of time that such return of income filed voluntarily by declaring income thereon and tax paid thereon has to be ignored by the assessing officer and refund has to be made. In the event of assessing officer adjudicating the return of income, he may not accept the income declared and may make addition thereon, based on which tax demand would be raised. In such circumstances, assessee would be entitled to the difference thereof namely, tax demanded based on income determined by the assessing officer minus tax declared in the return of income filed by the assessee. In the instant case, it is this precise exercise which has been undertaken by the second respondent. when the assessment order came to be set aside by the CIT (A) and while giving effect to said order of CIT(A), second respondent has held that assessee is entitled to refund of ` 1,91,236/- only which had been adjusted namely ` 1,77,986/- adjusted vide intimation dated 22.03.1998, refund W.T for the assessment year 1998-99 and refund under Section 143(1) for assessment year 2000-01 in all, ` 1,91,236/- and not the amount of tax paid on undisclosed income of ` 10,00,000/- declared in return of income since Section 240(b) is attracted. As such, I am of the considered view that there is no error committed by the authorities in rejecting claim of the assessee.\n 20. Hence, the following order is passed: (1) Writ petition is hereby dismissed.\n (2) Order dated 24.07.2002 passed by second respondent Annexure-F, order dated 30.03.2004- Annexure-G and order dated 08.01.2013-Annexure-H are hereby affirmed.\n (3) No order as to costs.\n Sd/- JUDGE *sp "
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"text": "The accused was produced before the ld. JMFC."
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"text": "Initially, he was remanded to police custody from 09.12.2000 to 11.12.2000 and thereafter he was remanded to MCR."
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"text": "The Investigating Officer visited the spot and drew spot panchanama."
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"text": "Some pieces of bangle were seized from the spot."
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"text": "A rope prepared from Saree found on the spot was seized."
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"text": "The Investigating Officer recorded the statements of material witnesses and collected medical evidence."
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"text": "On 07.01.2001, Kamalbai died without regaining consciousness."
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"text": "The postmortem was conducted on her dead body which discloses that there was one ligature mark and two abrasions on her neck."
}
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"text": "There was internal damage to the brain and dislocation of cervical spine C1C2."
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"text": "She died due to complications of spinal injury due to fracture dislocation of cervical spine C1C2 associated with ligature compression of neck."
}
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"text": "On 14.03.2001, the Investigating Officer submitted a report to the ld.JMFC, Georai that the accused should be referred to medical examination about his mental condition and he was accordingly referred to Mental Hospital at Pune and he was accordingly in mental hospital from 21.03.2001 to 18.06.2001."
}
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"text": "He was declared fit to face trial and defend himself."
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"text": "Thereafter, chargesheet came to be filed."
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"text": "\n In due course, the case was committed to the court of sessions."
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"text": "The accused could not engage advocate and advocate appointed on state expenses was provided to him."
}
},
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"start": 4369,
"text": "The charge Exh. 4 was explained to the accused to which he pleaded not guilty."
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"text": "The prosecution examined six witnesses."
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"start": 4488,
"text": "The accused has admitted that he and his wife were alone in the house during the fateful night but claimed that due to unsoundness of mind he was unable to understand what has happened during that night."
}
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"start": 4692,
"text": "The ld. trial Judge accepted the prosecution evidence to hold the accused guilty u/s 307 IPC but also accepted evidence of accused about insanity and therefore the accused was acquitted but he was detained in the Jail with direction to the Jail authorities to submit report to the Government whether the accused could be released without danger to himself or to any other person."
}
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"text": "It is reported that soon thereafter the accused was released from the Jail."
}
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"text": "\n 3. Shri. S. D. Ghayal, learned APP for the State has deposed that, there is convincing evidence both ocular as well as circumstantial to show that the accused and his wife Kamalbai were alone in the house and Kamalbai sustained throttling and strangulation whereby she became unconscious and later she died due to injuries on 07.01.2001."
}
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"end": 5669,
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"text": "He argued that, the medical evidence and evidence of material witnesses has not been challenged and the same is sufficient to show that the accused has committed murder of his wife."
}
},
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"text": "The ld. trial Judge has rightly held him guilty u/s 302 IPC.\n 4."
}
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],
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"text": " However, Shri. Ghayal argued that, the ld. trial Judge erred in holding that the accused committed murder under insanity and was covered by the exception u/s 84 of IPC."
}
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"start": 5905,
"text": "He relied on judgments in Sudhakaran v. State of Kerala 2011 Cri.L.J. 292 and Santosh S/o Shridharrao Bhatambrekar v. The State of Maharashtra (Cri.\n Appeal No. 173 of 2001) delivered by Division Bench of this Court to which one of us (T.V. Nalawade, J.) was party, on 06.09.2017."
}
},
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"text": "He argued that, the conduct of the accused at the time of commission of offence or soon before or after the crime is relevant to determine whether he was legally insane or not or whether his case would fall under exception to Section 84 of IPC."
}
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"end": 6582,
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],
"start": 6431,
"text": "He relied on Section 105 of Evidence Act and submits that the burden was on the accused to prove that his case falls under exception to Section 84 IPC."
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"end": 6724,
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"text": "He fairly conceded that the burden is on the accused that he has to show by preponderance of probability that his case falls under exception."
}
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"text": "He pointed out that, there is no such evidence to show that the accused was suffering from mental insanity at the time of commission of offence."
}
},
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"end": 7130,
"labels": [
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],
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"text": "There is also no expert evidence to show that the accused was suffering from some mental insanity and unsoundness of mind which would deprive him of powers to realize what he was doing was wrong or contrary to law or that what he was committing was an offence."
}
},
{
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"end": 7269,
"labels": [
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],
"start": 7131,
"text": "Mr. Ghayal submitted that the accused used to assault his wife and while she was proceeding to her maternal house he had brought her back."
}
},
{
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"value": {
"end": 7301,
"labels": [
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],
"start": 7270,
"text": "He had wrongfully confined her."
}
},
{
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"end": 7367,
"labels": [
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],
"start": 7302,
"text": "He was in senses and he was knowing the consequences of his acts."
}
},
{
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"id": "06822cb58e3c4cfab9f0e8a6e914ba8b",
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"labels": [
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],
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"text": "The ld. trial Judge erred in relying on the evidence regarding previous and subsequent behaviour of the accused which was not in close proximity with the date of incident."
}
},
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"text": "He submitted that, the case of the accused does not fall under exception to Section 84 IPC."
}
},
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"labels": [
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],
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"text": "Therefore, the accused should be convicted u/s 302 IPC.\n 5."
}
},
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"end": 7708,
"labels": [
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],
"start": 7693,
"text": "Per contra, ld."
}
},
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"labels": [
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"start": 7709,
"text": "Counsel Shri. N. B. Jadhav for respondent supported the judgment of the trial court."
}
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],
"start": 7794,
"text": "He relied on State of Rajasthan Vs Shera Ram. AIR 2012 SC 1 and Ratan Lal v The State of Madhya Pradesh AIR 1971 SC 778."
}
},
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"text": "He submitted that, even if the accused succeeds in creating reasonable doubt in the mind of the Judge about the mens rea, the accused is entitled for acquittal."
}
},
{
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"labels": [
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"text": "\n He has to prove the defence of case falling under exception by preponderance of probability."
}
},
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"text": "He submitted that, right from FIR and evidence of the witnesses there is ample material to show that the accused was suffering from insanity and was under treatment of psychiatrist."
}
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{
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"text": "Even after the incident, he was required to be sent to mental hospital where after treatment of three months, he was declared fit to face the trial."
}
},
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],
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"text": "According to ld. advocate, there is sufficient material to show that at the time of the incident as well, the accused was not understanding the consequences or that whatever he was doing was wrong or contrary to law."
}
},
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"text": "He therefore submitted that the ld. trial Judge has properly appreciated the evidence and no interference is called for."
}
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"end": 8960,
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"text": "\n 6. On the basis of the evidence on record, the points for our consideration with findings thereon are as follows :"
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"text": "Sr. Points Findings"
}
},
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"text": "No. "
}
},
{
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"value": {
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"labels": [
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"text": "In the affirmative."
}
},
{
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"value": {
"end": 9149,
"labels": [
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],
"start": 9088,
"text": "\n 1 Whether the deceased Kamalbai met with a homicidal death?"
}
},
{
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"id": "cebc414c256746a8bbab837c53d20922",
"to_name": "text",
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"labels": [
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"text": "\n 2 Whether the accused has committed Proved.\n murder of deceased Kamalbai?"
}
},
{
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],
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"text": "3 Whether the accused committed "
}
},
{
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"text": "Proved."
}
},
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"id": "b366638b18d7413ca109b6b15b310a23",
"to_name": "text",
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"value": {
"end": 9404,
"labels": [
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],
"start": 9306,
"text": "\n murder due to unsoundness of mind and his case falls under exception to Section 84 IPC?"
}
},
{
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"id": "77db0246ee1e41d8b86206e1b5777272",
"to_name": "text",
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"value": {
"end": 9419,
"labels": [
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],
"start": 9404,
"text": "\n 4 What order?"
}
},
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"end": 9475,
"labels": [
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],
"start": 9420,
"text": " The appeal is dismissed."
}
},
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"value": {
"end": 9494,
"labels": [
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],
"start": 9477,
"text": "REASONS 7. "
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 9656,
"labels": [
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],
"start": 9494,
"text": "The prosecution has examined following witnesses and produced documents which can be conveniently grouped as follows: (I) Homicidal Death: PW1 Anil Jinturkar."
}
},
{
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"id": "d3ff9fab8aac4740a86fce0e995da3fe",
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"value": {
"end": 9710,
"labels": [
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],
"start": 9657,
"text": "Provisional Certificate Exh. 13 and PM notes Exh. 14."
}
},
{
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"to_name": "text",
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"end": 9748,
"labels": [
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],
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"text": "Inquest panchanama Exh.10 (admitted)."
}
},
{
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"value": {
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],
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"text": "\n (II) Evidence on last seen together and custodial death: PW2 Laxman, Police Patil."
}
},
{
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"to_name": "text",
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"value": {
"end": 9872,
"labels": [
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],
"start": 9837,
"text": "PW3 Sonaji, father of the accused."
}
},
{
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"value": {
"end": 9978,
"labels": [
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],
"start": 9872,
"text": "\n PW4 Madhukar, spot panch with panchanama Exh. 24.\n Evidence of Investigating Officer API Waghmare PW6."
}
},
{
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"end": 10059,
"labels": [
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"start": 9980,
"text": "(III) Plea of insanity : (a) Evidence of Sonaji and FIR Exh"
}
},
{
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"value": {
"end": 10112,
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"start": 10059,
"text": ". 20.\n (b) Evidence of PW2 Laxman."
}
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{
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"id": "1f3ef688bb1543b6886301c516de3f14",
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"value": {
"end": 10155,
"labels": [
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"start": 10114,
"text": "(c) PW5 Psychiatrist "
}
},
{
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"id": "27ec8ff78f1a4cd2956c2c50807f23da",
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"value": {
"end": 10166,
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"text": "Mr Stanley."
}
},
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"text": "(d) "
}
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"value": {
"end": 10211,
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],
"start": 10191,
"text": "First remand report."
}
},
{
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"value": {
"end": 10298,
"labels": [
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],
"start": 10211,
"text": "\n (e) Application dt. 17.3.2001 by prosecution and was passed by ld."
}
},
{
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"id": "f7f2df499468483ba828a1a3cd8819c3",
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"value": {
"end": 10314,
"labels": [
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],
"start": 10299,
"text": "JMFC, Exh.30.\n "
}
},
{
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"id": "a01db2f2ebb240a4925fea7bedbd3b55",
"to_name": "text",
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"value": {
"end": 10401,
"labels": [
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],
"start": 10314,
"text": "(f) Certificate of fitness issued by Pshychiatrist (PW5) Exh. 29.\n ("
}
},
{
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"id": "0f0d68061ab54c3280ee82f0fb55b65a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10533,
"labels": [
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],
"start": 10401,
"text": "g) Application by APP for referring the accused to the Mental Hospital dt. 14.3.2001 and order of JMFC (Exh. 51)."
}
},
{
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"id": "658d716cd71b417fae38ac044e993f75",
"to_name": "text",
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"value": {
"end": 10571,
"labels": [
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],
"start": 10533,
"text": "\n 8. Point No. 1 Homicidal Death."
}
},
{
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"id": "4b2d31bb8cfb43868c239943c0b741f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 10699,
"labels": [
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],
"start": 10573,
"text": "Evidence of PW1 Anil Jinturkar shows that on 07.01.2001, he conducted PM between 12:30 to 1:30 p.m. on the dead body of Nanda."
}
},
{
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"id": "e324de3b507944aba32c19f3e83e529f",
"to_name": "text",
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"value": {
"end": 10742,
"labels": [
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],
"start": 10700,
"text": "He found following injuries on her person."
}
},
{
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"id": "a6a6e251886248f392aa925af19dc4f9",
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"value": {
"end": 10888,
"labels": [
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],
"start": 10742,
"text": "\n (i) Abrasions over the region of right and left angle of mandible of sizes 3 cm x 2 cm and 3 cm x 3 cm., respectively with black scab over them."
}
},
{
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"id": "6e7536634c98428fa4f989b2947c36b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10919,
"labels": [
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],
"start": 10889,
"text": "Scab was falling from margins."
}
},
{
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"id": "500ef344f2af494aa5401292378eed82",
"to_name": "text",
"type": "labels",
"value": {
"end": 11045,
"labels": [
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],
"start": 10919,
"text": "\n (ii) Whitish scar of 5 cm. length seen over right side of neck antero lateral aspect above thyroid cartilage width was 2 cm."
}
},
{
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"id": "fb8d85cc80dd451cbf7810c38b52e3ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 11130,
"labels": [
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],
"start": 11045,
"text": "\n (iii) Bed sores seen over both buttock and sacral region gralululation tissue seen."
}
},
{
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"id": "45d292f3403846178a486880b8895d47",
"to_name": "text",
"type": "labels",
"value": {
"end": 11308,
"labels": [
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],
"start": 11130,
"text": "\n 9. Injury no. 2 referred above is a ligature mark around the neck whereas; injury no. 1 is the abrasions found on the right and left side of angel of mandible with black scab."
}
},
{
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"id": "9ab26582c66c488dbd40f5e4269acd91",
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"value": {
"end": 11370,
"labels": [
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],
"start": 11309,
"text": "These are obviously the injuries caused on the fateful night."
}
},
{
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"id": "0772d3c5b12d4ac08622382c24079f9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 11430,
"labels": [
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],
"start": 11371,
"text": "Injury no. 3 bed sores is not attributable to the incident."
}
},
{
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"id": "2affb214c4674a128ed762537bd60750",
"to_name": "text",
"type": "labels",
"value": {
"end": 11537,
"labels": [
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],
"start": 11431,
"text": "Dr. Jinturkar deposed that, on examination of spine and spinal cord he found deformity in cervical region."
}
},
{
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"id": "5a77ff7414ad4e709ca08f6a34d1b64b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11648,
"labels": [
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],
"start": 11538,
"text": "There was fracture of body of cervical 1 with evidence of dislocation of intervertebral joint between C1 & C2."
}
},
{
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"id": "bc82df0adf5e4edcac959aad15a224a4",
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"value": {
"end": 11821,
"labels": [
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],
"start": 11649,
"text": "Paraspinat muscles were contused and showed haemorrhages, spinal cord in respect of fractured vertebra was soft and showed dark blackish tiny hemorrhages after cut section."
}
},
{
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"id": "464e6c8e0b0e43378681c684e3458759",
"to_name": "text",
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"value": {
"end": 12027,
"labels": [
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],
"start": 11822,
"text": "Dr. Jinturkar opined that the cause of death was delayed complications of spinal injury due to fractured dislocation of cervical spinal C1 & C2 associated with evidence of ligature and compression of neck."
}
},
{
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"id": "3952c4d2be2c48d196ffe357a6032b95",
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"value": {
"end": 12129,
"labels": [
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],
"start": 12028,
"text": "He has sent the viscera and organs for histopathology and received report thereof which is on record."
}
},
{
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"id": "daf88e632ab440daacc75f903cc511b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12255,
"labels": [
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],
"start": 12129,
"text": "\n After referring to the report, he had given his opinion in provisional death certificate at Exh. 13 and PM notes at Exh. 14."
}
},
{
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"id": "4cb74805097348de93d3fb8e18619e9f",
"to_name": "text",
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"value": {
"end": 12346,
"labels": [
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],
"start": 12256,
"text": "He deposed that, no fracture of odontoid process of second cervical verterior was noticed."
}
},
{
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"id": "cbf047a451fb45b59b023b1806290a99",
"to_name": "text",
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"value": {
"end": 12511,
"labels": [
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],
"start": 12347,
"text": "He opined that, besides the hanging manual pressure was applied around the neck and such injury was possible by applying pressure by means of Saree around the neck."
}
},
{
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"id": "85cd0ad9db70410e850299e3dc9147c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12705,
"labels": [
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],
"start": 12513,
"text": "10. The evidence of PW2 Laxman and PW3 Sonaji disclosed that, after the fateful night, in the morning deceased Nanda was lying unconscious inside the house and the accused was beside her."
}
},
{
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"id": "25108609fd2044b3b99f8c9b1e2e8873",
"to_name": "text",
"type": "labels",
"value": {
"end": 12818,
"labels": [
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],
"start": 12706,
"text": "They were in a house latched from inside and Nanda was taken out by making entry from the roof by removing tins."
}
},
{
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"id": "ef17943b89874dde867bcf885c556a1b",
"to_name": "text",
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"value": {
"end": 12884,
"labels": [
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],
"start": 12819,
"text": "In the light of these facts, it is clear case of homicidal death."
}
},
{
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"id": "99802e8d7a554ede9d3b463fb3b41795",
"to_name": "text",
"type": "labels",
"value": {
"end": 12951,
"labels": [
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],
"start": 12885,
"text": "There is no possibility whatsoever of suicide or accidental death."
}
},
{
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"id": "14696e812e41487493e646c3836c24cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 12994,
"labels": [
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],
"start": 12952,
"text": "Even the defence has not denied this fact."
}
},
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"id": "b41bf988e35f4e80a003abb2acbb4b16",
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"value": {
"end": 13058,
"labels": [
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],
"start": 12995,
"text": "We therefore hold that deceased Nanda met with homicidal death."
}
},
{
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"id": "0f64192df8d6442e9b8e97393bcb1c78",
"to_name": "text",
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"value": {
"end": 13124,
"labels": [
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],
"start": 13058,
"text": "\n 11. Point No. 2 : whether the accused has committed murder?"
}
},
{
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"id": "380e7f15fd6a4fc8b7a73b501f71fe6f",
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"type": "labels",
"value": {
"end": 13229,
"labels": [
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],
"start": 13124,
"text": "\n In this regard, we find that the accused and deceased Nanda were the only two persons inside the house."
}
},
{
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"id": "1c1f36516f074f9f8d72b9bd6fe35e53",
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"value": {
"end": 13263,
"labels": [
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],
"start": 13230,
"text": "The room was latched from inside."
}
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"id": "5a0c653cf9e1480baa5943dda4de634f",
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"value": {
"end": 13360,
"labels": [
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],
"start": 13264,
"text": "In the morning, when father of the accused Sonaji knocked the door, the accused did not open it."
}
},
{
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"id": "6fc16aee86fa4752a2f615d2637a4ef0",
"to_name": "text",
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"value": {
"end": 13444,
"labels": [
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],
"start": 13361,
"text": "PW3 Sonaji called the neighbours and made entry in the room by removing tin sheets."
}
},
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"id": "50ec6f1fdd594981bb2e68597ecd27f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13525,
"labels": [
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],
"start": 13445,
"text": "They found that Kamal was lying unconscious with ligature marks around her neck."
}
},
{
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"id": "7e8f5c1885ac4ed395f00c49e0a4ea51",
"to_name": "text",
"type": "labels",
"value": {
"end": 13563,
"labels": [
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],
"start": 13526,
"text": "The accused was sleeping by her side."
}
},
{
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"id": "d39ce3737410426096f32d1fbe1e7abd",
"to_name": "text",
"type": "labels",
"value": {
"end": 13625,
"labels": [
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],
"start": 13564,
"text": "She and the accused were immediately shifted to the hospital."
}
},
{
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"id": "05156d69c7c4442c9f538df3e80d08cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 13716,
"labels": [
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],
"start": 13626,
"text": "PW3 Sonaji has stated that Kamal was alright when she and the accused were gone for sleep."
}
},
{
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"id": "508b4e6b795d4a21b5929ecdefe82c00",
"to_name": "text",
"type": "labels",
"value": {
"end": 13820,
"labels": [
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],
"start": 13717,
"text": "According to his evidence, his son used to assault Kamalbai and hence Kamal stayed at a maternal house."
}
},
{
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"id": "8541e78195e244dfbfba4d74a9c5a0a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13889,
"labels": [
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],
"start": 13821,
"text": "She had taken to her matrimonial house few days before the incident."
}
},
{
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"id": "d3ce9ba243384f9e9940da3b84ac394c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14059,
"labels": [
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],
"start": 13890,
"text": "Due to fear of the accused, she was proceeding to her maternal house but the accused went to the S.T. Stand, Shirsala and brought her back and confined her in the house."
}
},
{
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"id": "e1b4e7cfecac4dec8b669a223e293416",
"to_name": "text",
"type": "labels",
"value": {
"end": 14249,
"labels": [
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],
"start": 14060,
"text": "Thus, it is clear that on the night intervening 07.12.2001 to 08.12.2001 Kamal sustained fatal injuries to her neck and spinal cord which ultimately resulted into her death after one month."
}
},
{
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"id": "8e4d1a744e1a41b0bb83108fabe4ef5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14284,
"labels": [
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],
"start": 14250,
"text": "This is a case of custodial death."
}
},
{
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"id": "302f7225009e40a6b44c8f5ff895c463",
"to_name": "text",
"type": "labels",
"value": {
"end": 14402,
"labels": [
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],
"start": 14285,
"text": "PW2 Laxman, Police Patil and PW3 Sonaji father of the accused have deposed that the accused used to assault Kamalbai."
}
},
{
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"id": "62667d1ca0344f47a8f94425a643c8db",
"to_name": "text",
"type": "labels",
"value": {
"end": 14456,
"labels": [
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],
"start": 14403,
"text": "They have no reason to falsely implicate the accused."
}
},
{
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"id": "bf4d8a52e8df4059a6253a8355a8d7ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 14537,
"labels": [
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],
"start": 14457,
"text": "The accused alone had opportunity to commit murder of Kamalbai during the night."
}
},
{
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"id": "87daf10f3b9c4b2cb6fc832665c5d715",
"to_name": "text",
"type": "labels",
"value": {
"end": 14573,
"labels": [
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],
"start": 14538,
"text": "She has met with a homicidal death."
}
},
{
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"id": "50bbbef6deb84ccc91498cbe35c3aa4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14703,
"labels": [
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],
"start": 14574,
"text": "In the light of these facts, we rely upon the judgment in Trimukh Maroti Kirkan Versus State of Maharashtra (2006) 10 SCC 681.\n ."
}
},
{
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"id": "fe119a8ef7c54744a1e882ad9d7cdb69",
"to_name": "text",
"type": "labels",
"value": {
"end": 14784,
"labels": [
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],
"start": 14704,
"text": " This was the case where bride Revata was subjected to dowry and illtreatment."
}
},
{
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"id": "19f708a7c2ad4962948699a3f8743ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 14820,
"labels": [
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],
"start": 14785,
"text": "Shed died in her matrimonial house."
}
},
{
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"id": "ab49f6786d1c4208b5bcc16ecc38caef",
"to_name": "text",
"type": "labels",
"value": {
"end": 14966,
"labels": [
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],
"start": 14821,
"text": "Her husband disclosed that she died due to snake bite but the medical evidence disclose that she died due to asphyxia due to compression of neck."
}
},
{
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"id": "0b24810ed9c64049b38e45a0ae8f667b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15223,
"labels": [
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],
"start": 14967,
"text": "Explaining the scope of Section 106 of Evidence Act regarding the burden to proof of the accused, it was held that these crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence."
}
},
{
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"id": "9d6462dffa0e445b802d9199e8c39815",
"to_name": "text",
"type": "labels",
"value": {
"end": 15327,
"labels": [
"ANALYSIS"
],
"start": 15224,
"text": "..... But, it does not mean that a crime committed in secrecy or inside the house should go unpunished."
}
},
{
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"id": "59302b5c25304d88b53f9ec614b52d72",
"to_name": "text",
"type": "labels",
"value": {
"end": 15430,
"labels": [
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],
"start": 15328,
"text": "..... In such case, strict principle of circumstantial evidence should not be insisted upon by courts."
}
},
{
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"id": "fb632d5dcd9c46fb96ba38f9d8e193e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 15525,
"labels": [
"ANALYSIS"
],
"start": 15431,
"text": "...... The prosecution is not expected to plead evidence which is almost impossible to be led."
}
},
{
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"id": "8e463547078e46e7a35615820cd226c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 16123,
"labels": [
"ANALYSIS"
],
"start": 15526,
"text": "............ After reporting to various judgments, it was observed that when the accused has committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
}
},
{
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"id": "d04de5d125404a8f99ae32ccb0b514ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 16202,
"labels": [
"ANALYSIS"
],
"start": 16124,
"text": "The conviction awarded by the High Court u/s 302 was upheld by the Apex Court."
}
},
{
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"id": "1445d77216f94a4babeb4ac1a587beba",
"to_name": "text",
"type": "labels",
"value": {
"end": 16333,
"labels": [
"ANALYSIS"
],
"start": 16202,
"text": "\n 12. The evidence of custodial death against the accused rules out possibility of murder by anybody else except the accused."
}
},
{
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"value": {
"end": 16453,
"labels": [
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],
"start": 16334,
"text": "We find that chain of evidence is so complete as to leave no other hypothesis consistent with the guilt of the accused."
}
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{
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"end": 16562,
"labels": [
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"start": 16454,
"text": "The accused in his statement u/s 313 also has not disputed the material facts which point towards his guilt."
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{
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"start": 16563,
"text": "We therefore hold that the homicidal death has been proved."
}
},
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"start": 16622,
"text": "\n 13. The plea of insanity: The accused has taken plea of insanity."
}
},
{
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"end": 16809,
"labels": [
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],
"start": 16691,
"text": "Even when a person has committed any offence if the case falls u/s 84 under exception at Section 84 IPC is not guilty."
}
},
{
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"end": 17108,
"labels": [
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],
"start": 16810,
"text": "Section 84 IPC reads as follows: Section 84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
}
},
{
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"value": {
"end": 17221,
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],
"start": 17108,
"text": "\n 14. The law with regard to scope of Section 84 IPC has been explained in various rulings, which is as follows."
}
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{
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"value": {
"end": 17272,
"labels": [
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],
"start": 17223,
"text": "(a) Bhikari v The State of U.P. AIR 1966 SC 1.\n "
}
},
{
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"id": "a0d0489a21d34d43a3339757b204bbea",
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"value": {
"end": 17341,
"labels": [
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],
"start": 17272,
"text": "Every person is presumed to know the natural consequences of his act."
}
},
{
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"id": "d1a2618a4ef6425ebec428351092a9cf",
"to_name": "text",
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"value": {
"end": 17398,
"labels": [
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],
"start": 17342,
"text": "Similarly every person is also presumed to know the law."
}
},
{
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"id": "077a63372d784a18abc9ff7627da298f",
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"value": {
"end": 17539,
"labels": [
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],
"start": 17399,
"text": "It is for this reason that S. 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him."
}
},
{
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"id": "d8858346cbf24047a9384fab3336d1ba",
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"value": {
"end": 17730,
"labels": [
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],
"start": 17539,
"text": "\n (b) State of M.P. v. Ahmadulla AIR 1961 SC 998 & Jay Lal v.\n Delhi Administration AIR 1969 SC 15.\n State of mind of the accused just before or just after commission of the act is relevant."
}
},
{
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"id": "ff616ff50bb844eeacddf0115847620d",
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"value": {
"end": 17807,
"labels": [
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],
"start": 17730,
"text": "\n (C) Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.\n "
}
},
{
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"id": "41a0a5a45be5408fb96235f860f4382e",
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"value": {
"end": 17892,
"labels": [
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],
"start": 17807,
"text": "The evidence shows that the accused gave several blows is not indicative of insanity."
}
},
{
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"id": "bc433c93c75b49808905070938f57e2d",
"to_name": "text",
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"value": {
"end": 17984,
"labels": [
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],
"start": 17893,
"text": "It reflects of his vengeful mood or his determination to see that the victim had no escape."
}
},
{
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"id": "39444a9f4536465b8bf84180b47d3790",
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"value": {
"end": 18134,
"labels": [
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],
"start": 17986,
"text": "(d) Ratan Lal v The State of Madhya Pradesh AIR 1971 SC 778.\n Tendency to set fire to one's own clothes and house is more than mere irrationality."
}
},
{
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"value": {
"end": 18171,
"labels": [
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],
"start": 18135,
"text": "It is prima facie proof of insanity."
}
},
{
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"end": 18310,
"labels": [
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],
"start": 18172,
"text": "Testimony of defence witnesses as to unsoundness of mind of accused should not be disbelieved merely because they are relation of accused."
}
},
{
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"end": 18389,
"labels": [
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],
"start": 18311,
"text": "It is not necessary that every insane person should have homicidal tendencies."
}
},
{
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"end": 18466,
"labels": [
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],
"start": 18390,
"text": "What is material is behaviour of the appellant on the day of the occurrence."
}
},
{
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"to_name": "text",
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"end": 18608,
"labels": [
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],
"start": 18466,
"text": "\n 15. The material evidence with regard to previous and subsequent conduct of the accused just before the incident may be stated as follows."
}
},
{
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"labels": [
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],
"start": 18610,
"text": "(i) PW2 Laxman, a villager and PW3 Sonaji, father of the accused have deposed that, on the earlier day, Kamal was frightened that the accused would beat her and therefore she was returning home."
}
},
{
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"value": {
"end": 18951,
"labels": [
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],
"start": 18805,
"text": "The accused went to the ST stand and persuaded her and brought her back to his house and thereafter confined her in the house by bolting the door."
}
},
{
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"value": {
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"labels": [
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],
"start": 18951,
"text": "\n (ii) The accused and deceased Kamal had slept inside the house but the door was not opened till 09:00 a.m."
}
},
{
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"id": "b6af01864d6a4967b765063d9a0b4e86",
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"value": {
"end": 19111,
"labels": [
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],
"start": 19060,
"text": "Then PW3 knocked the door, still it was not opened."
}
},
{
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"id": "c46cafbd0c3b47428f749d1ed5e4ff97",
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"value": {
"end": 19212,
"labels": [
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],
"start": 19112,
"text": "Hence, he called the neighbours and the neighbours made entry in the room by removing the roof tins."
}
},
{
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"id": "d135271f3ab5407c88c0030db616d67d",
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"value": {
"end": 19307,
"labels": [
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],
"start": 19213,
"text": "Kamalbai was found in unconscious condition in the house and accused was sleeping by her side."
}
},
{
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"id": "0fad2e091ead486ca021b9a6cce29d6d",
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"labels": [
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],
"start": 19307,
"text": "\n (iii) Thereafter, Kamalbai and the accused were put in a Jeep and were taken to Police Chowki."
}
},
{
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"id": "4b89942f273f4df9bbb1a33ebd00b56b",
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"end": 19474,
"labels": [
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],
"start": 19403,
"text": "\n (iv) PW6API Waghmare arrested the accused on 08.12.2000 at 10:30 p.m."
}
},
{
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"id": "4f852fc8399e4e49b43df54c03a33b3e",
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"end": 19525,
"labels": [
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"start": 19475,
"text": "Thereafter, he was produced before the Magistrate."
}
},
{
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"id": "c5fb1d99d2864746ae589b1d7a0860a5",
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"value": {
"end": 19627,
"labels": [
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],
"start": 19526,
"text": "There is no evidence that, PW6 Magistrate saw any symptoms of insanity in the conduct of the accused."
}
},
{
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"value": {
"end": 19792,
"labels": [
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],
"start": 19627,
"text": "\n (v) The evidence shows that, the accused has used hands for throttling as well as rope for strangulation so as to ensure that his wife Kamalbai should not survive."
}
},
{
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"value": {
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"labels": [
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],
"start": 19793,
"text": "The evidence of Medical Officer PW1 shows that there were scratch injuries on the neck showing throttling and besides there was a scar on the neck right side above thyroid cartilage."
}
},
{
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"id": "d61e65f8c8dd4cdb8cb42ec7e5182eb8",
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"end": 20045,
"labels": [
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],
"start": 19976,
"text": "There was also dislocation of intra vertebral joints between C1 & C2."
}
},
{
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"labels": [
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],
"start": 20045,
"text": "\n He has opined that, the cause of death was delayed complications of spinal injury due to fracture dislocation of cervical spine C1C2 associated with evidence of ligature of compression of neck.\n (vi) PW2 & PW3 Sonaji have not deposed any specific conduct or behaviour of the accused immediately after the incident disclosing signs of insanity when they entered the house.\n "
}
},
{
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"value": {
"end": 20480,
"labels": [
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],
"start": 20435,
"text": "Even the FIR does not disclose such material."
}
},
{
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"labels": [
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],
"start": 20480,
"text": "\n (vii) Evidence of PW5 Psychiatrist Dr. Ivan Stanley Neto does not show the nature of mental insanity of the accused when he examined him on 21.03.2001 much later from the date of incident."
}
},
{
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"value": {
"end": 20808,
"labels": [
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],
"start": 20670,
"text": "\n (viii)There is no evidence that, the accused had shown any homicidal or suicidal tendency or tendencies of setting on fire any property."
}
},
{
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"labels": [
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],
"start": 20808,
"text": "\n 16. The ld. Sessions Judge, Beed considered the evidence on record showing symptoms of insanity much before or much after the time of incident."
}
},
{
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"end": 21049,
"labels": [
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"start": 20955,
"text": "These circumstances are not relevant for determining whether the case falls u/s 84 IPC or not."
}
},
{
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"end": 21268,
"labels": [
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],
"start": 21050,
"text": "When the conduct of the accused at the time of incident is relevant and no evidence is possible to disclose his conduct at the time of incident, his conduct just before or just after the incident becomes more relevant."
}
},
{
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"id": "cefb267867e24cd48e78ae05b28883f0",
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"end": 21438,
"labels": [
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],
"start": 21268,
"text": "\n If the above circumstances are taken into consideration in the light of the various rulings, we are tempted to hold that the accused has failed to discharge his burden."
}
},
{
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"id": "c748ec459376445ab9969c982bc76f92",
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"labels": [
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],
"start": 21439,
"text": "However, the evidence on record of father of the accused and PW6 Dr. Ivan Stanley Neto shows that the accused was suffering from insanity both much before and much after the time of incident."
}
},
{
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"id": "78271973f0554bd68d043cd7eb380a98",
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"end": 21789,
"labels": [
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],
"start": 21631,
"text": "There are some symptoms showing that the accused was sleeping with the deceased and did not open the house till 09:00 a.m. suggesting that he might be insane."
}
},
{
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"id": "d4e70a3672634ce29a84c5b3e7fae18a",
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"end": 21940,
"labels": [
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],
"start": 21790,
"text": "There was specific FIR by the father of the accused showing that the accused was suffering from insanity and the murder was committed in the insanity."
}
},
{
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"labels": [
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],
"start": 21941,
"text": "The FIR shows that, the accused was under medical treatment."
}
},
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"end": 22131,
"labels": [
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],
"start": 22001,
"text": "\n 17. In the light of these facts, the judgment in Siddhapal Kamala Yadav v State of Maharashtra AIR 2009 SC 97 is most relevant."
}
},
{
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"value": {
"end": 22188,
"labels": [
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],
"start": 22132,
"text": "In this case it is held in para 8 as follows: 8. ......."
}
},
{
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"end": 22247,
"labels": [
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],
"start": 22189,
"text": "The onus of proving unsoundness of mind is on the accused."
}
},
{
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"end": 22591,
"labels": [
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],
"start": 22248,
"text": "But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused."
}
},
{
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"end": 22839,
"labels": [
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],
"start": 22592,
"text": "The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors."
}
},
{
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"id": "2b868d241484403f92397577f8a0a137",
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"value": {
"end": 22914,
"labels": [
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],
"start": 22839,
"text": "\n Every person is presumed to know the natural consequences of his act."
}
},
{
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"id": "a94d9c8354bc4c3d95754f7524ad6d82",
"to_name": "text",
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"value": {
"end": 22972,
"labels": [
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],
"start": 22915,
"text": "Similarly, every person is also presumed to know the law."
}
},
{
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"id": "bf8a9554ffb748c9bf91fc960812b3ab",
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"end": 23022,
"labels": [
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],
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"text": "The prosecution has not to establish these facts."
}
},
{
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"id": "a1f5893ee19d473ebe44b8714ba8a592",
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"end": 23275,
"labels": [
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],
"start": 23022,
"text": "\n 18. In the present case, it is material lacunae that the Investigation Officer did not produce the accused before the Medical Officer to obtain opinion about his mental status nor made inquiry with the Mental Hospital whether he was taking treatment."
}
},
{
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"id": "c7409b5df9784de4ab0a308487ad5e9a",
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"value": {
"end": 23467,
"labels": [
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],
"start": 23276,
"text": "In the light of the facts, the accused is entitled to get benefit of doubt and therefore we though do not agree with the findings of the ld. trial Judge based on the evidence discussed by him"
}
},
{
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"id": "479c9bdc2858483da41de8b3daf27589",
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"value": {
"end": 23723,
"labels": [
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],
"start": 23467,
"text": ", in view of the serious infirmity of non production of the accused before the medical officer & in the light of the previous and subsequent history, we grant the benefit of doubt to the accused and hold that at the time of incident he was probably insane."
}
},
{
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"id": "23370e093d76497dae12c1a16eaf52c7",
"to_name": "text",
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"value": {
"end": 23881,
"labels": [
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],
"start": 23723,
"text": "\n 19. One more lacunae in the present case is that, the accused was unrepresented and learned Sessions Judge had provided him a lawyer at the state expenses."
}
},
{
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"id": "976241bcfd844d57835b192969a4d41d",
"to_name": "text",
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"value": {
"end": 24033,
"labels": [
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],
"start": 23882,
"text": "It seems that, the lawyer was not sufficiently experienced particularly with regard to the conduct of cases involving point of insanity of the accused."
}
},
{
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"id": "dc82cefcde6841478ad1750e4dfb2161",
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"value": {
"end": 24166,
"labels": [
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],
"start": 24034,
"text": "There is no proper crossexamination of the witnesses to find out the conduct of the accused just before and just after the incident."
}
},
{
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"id": "a14c94c525f8482bb470a139a9146198",
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"labels": [
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],
"start": 24167,
"text": "The law regarding necessity of appointment of the advocate for the accused may be stated as follows.\n . "
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 24500,
"labels": [
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],
"start": 24274,
"text": "In Md. Sukur Ali v. State of Assam AIR 2011 SC 1222, it is held if the advocate for the accused either negligently or deliberately remains absent, still the Court is bound to appoint counsel for the accused in a criminal case."
}
},
{
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"end": 24560,
"labels": [
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],
"start": 24501,
"text": "The accused should not suffer for the fault of his counsel."
}
},
{
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"id": "62923788ff924e209bb5cdfe491b94f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 24712,
"labels": [
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],
"start": 24561,
"text": "Proper legal assistance is a part of guarantee of protection of life and liberty under article 21, which is 'heart and soul' of the fundamental rights."
}
},
{
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"id": "5cf9c120c2cc44158be921db4e3fa0e1",
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"value": {
"end": 24783,
"labels": [
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],
"start": 24713,
"text": "Relying on US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932)and"
}
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"value": {
"end": 24851,
"labels": [
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],
"start": 24784,
"text": "Maneka Gandhi vs. Union of India AIR 1978 SC 597, it is held; 22. "
}
},
{
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"end": 25158,
"labels": [
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],
"start": 24851,
"text": "We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him."
}
},
{
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"id": "e0dd870484554d859447ac32b170dd5e",
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"value": {
"end": 25381,
"labels": [
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],
"start": 25160,
"text": "20. In Mohd. Hussain v. State (Govt. of NCT), Delhi 2012 Cri. L. J. 1069, it is held that denial of assistance of counsel to the accused charged with serious offences amounts to negation of concept of due process of law."
}
},
{
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"id": "7f2dc289bda6407990c31d39ff68e336",
"to_name": "text",
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"value": {
"end": 25476,
"labels": [
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],
"start": 25382,
"text": "The conviction and sentence of death penalty were set aside for want of assistance of counsel."
}
},
{
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"id": "e10c162c5792466c8b1d027278cfc3fe",
"to_name": "text",
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"value": {
"end": 25687,
"labels": [
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],
"start": 25476,
"text": "\n 21. In Ranchod Mathur v. State of Gujarat AIR 1974 SC 1143, it is observed that, Sessions Judge should view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases."
}
},
{
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"end": 25763,
"labels": [
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],
"start": 25688,
"text": "Indigence should never be a ground for denying fair trial or equal justice."
}
},
{
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"value": {
"end": 25932,
"labels": [
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],
"start": 25764,
"text": "Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar."
}
},
{
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"end": 26237,
"labels": [
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"start": 25932,
"text": "\n Sufficient time and complete papers should also be made available to the advocate chosen so that he may serve the cause of justice with all the ability at his command, and the accused also may feel confident that his counsel chosen by the court has had adequate time and material to defend him properly."
}
},
{
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"end": 26539,
"labels": [
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],
"start": 26237,
"text": "\n 22. In Sunil Gaikwad v State 2009(3) BCR (Cri.) 504, the Division Bench of this Court in a case of triple murder found that advocate of 9 years standing was appointed for the accused, he had conducted sessions cases but had no experience to conduct sessions cases of this magnitude and complexities."
}
},
{
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"value": {
"end": 27093,
"labels": [
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],
"start": 26540,
"text": "It was observed that, by referring to observations from Jahira Shaikh v State of Gujarat AIR 2006 SC 1367 regarding concept of fair trial and the role of Judicial Officer as a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality to both the parties, \"we have minutely considered the evidence on record more particularly the cross examination of the witnesses conducted by the defence."
}
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"end": 27502,
"labels": [
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],
"start": 27094,
"text": "In the facts of the case, we are not of the opinion that, this is a fit case for setting aside the judgment and order of conviction and sentence and remanding the matter back to the court for holding fresh trial but certainly we are of the opinion that, some of the witnesses already examined are required to be crossexamined afresh maintaining the earlier crossexamination conducted by the defence counsel\"."
}
},
{
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"value": {
"end": 27717,
"labels": [
"ANALYSIS"
],
"start": 27503,
"text": "There was direction issued for appointment of an advocate for the accused having sufficient experience of conducting such cases and permitting the accused to take further crossexamination of the material witnesses."
}
},
{
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"id": "085c5a647ea242349c4f3647a573c6a9",
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"end": 28124,
"labels": [
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],
"start": 27717,
"text": "\n . (The case where the accused has appointed advocate of his own choice will be governed by the ratio in AG v. Shiv Kumar Yadav & Anr. 2015 Cr.L.J. 4640 SC).\n 23. It is necessary to issue directions to all the police officers through Director General of Police and to all the Judicial Magistrates, Sessions Judges/Special Judges through the Registrar General of the High Court of Bombay as follows : i."
}
},
{
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"end": 28461,
"labels": [
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],
"start": 28125,
"text": "Whenever any accused person is arrested and there is any history or the conduct of the accused indicating that he is not mentally sound, it is the duty of the Police Officer who has arrested him to produce him before the Medical Officer for his examination with regard to his unsoundness of mind and to obtain the necessary certificate."
}
},
{
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"value": {
"end": 28651,
"labels": [
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],
"start": 28462,
"text": "If he is suffering from any unsoundness of mind, he should be forwarded to mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further."
}
},
{
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"id": "0ed43aaab7c44c049433fc77e919cca4",
"to_name": "text",
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"value": {
"end": 28842,
"labels": [
"STA"
],
"start": 28651,
"text": "\n ii. If the Investigating Officer fails to perform his duty of getting the accused person examined, it is the obligation of Judicial Magistrate before whom he is produced for the first time."
}
},
{
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"to_name": "text",
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"value": {
"end": 29097,
"labels": [
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],
"start": 28843,
"text": "If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not."
}
},
{
"from_name": "label",
"id": "3b38b3d4bf0d456094be5a130c986c35",
"to_name": "text",
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"value": {
"end": 29178,
"labels": [
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],
"start": 29098,
"text": "In case of mental insanity, he should be provided with appropriate medical help."
}
},
{
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"id": "a64a280781314d96a63a9a296ebecb00",
"to_name": "text",
"type": "labels",
"value": {
"end": 29184,
"labels": [
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],
"start": 29178,
"text": "\n iii."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 29358,
"labels": [
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],
"start": 29185,
"text": "It should be also born in mind by the trial Judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate."
}
},
{
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"id": "aaf31b6c6e784a6e8851c3a05adeb25c",
"to_name": "text",
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"value": {
"end": 29471,
"labels": [
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],
"start": 29359,
"text": "If the accused is not represented, appropriate legal assistance should be provided to him at the state expenses."
}
},
{
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"id": "08ecddb595454bc389eec29fe0e01b3f",
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"value": {
"end": 29649,
"labels": [
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],
"start": 29473,
"text": "iv. In case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer should be provided for conducting the case of accused person."
}
},
{
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"id": "61d3bd7c4e094c6d8eec1099b75e8962",
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"end": 29789,
"labels": [
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],
"start": 29650,
"text": "The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment."
}
},
{
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"id": "34032ef86b61414c9064a79a69f06561",
"to_name": "text",
"type": "labels",
"value": {
"end": 29909,
"labels": [
"STA"
],
"start": 29790,
"text": "In case of sessions cases of complex or peculiar facts it should be esquired whether he has conducted such case or not."
}
},
{
"from_name": "label",
"id": "68470d4a19e043b39969b40bbbf708ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 29985,
"labels": [
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],
"start": 29910,
"text": "Legal aid to be provided at state expenses should not be for the name sake."
}
},
{
"from_name": "label",
"id": "72ce47786ccc4803a07fd07deaaeb527",
"to_name": "text",
"type": "labels",
"value": {
"end": 30114,
"labels": [
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],
"start": 29986,
"text": "Then only he should be appointed as advocate for the accused and after recording his satisfaction of competency of the advocate."
}
},
{
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"id": "837831cd40f7402d8bb737c64567e3e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 30269,
"labels": [
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],
"start": 30115,
"text": "Copies of this judgment may be forwarded to Registrar General and Director General of Police, Maharashtra for issuing necessary directions in this regard."
}
},
{
"from_name": "label",
"id": "74cdcc208ed7443086a3c31abe4f16d3",
"to_name": "text",
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"value": {
"end": 30499,
"labels": [
"RATIO"
],
"start": 30269,
"text": "\n 24. When the cases in which advocate is appointed at state expenses at the trial stage comes before this Court in appeal, it becomes difficult for the appellate court to find out the competency of the lawyer or otherwise."
}
},
{
"from_name": "label",
"id": "bf128d88deb641349f0fd253947c6269",
"to_name": "text",
"type": "labels",
"value": {
"end": 30957,
"labels": [
"RATIO"
],
"start": 30500,
"text": "It is therefore advisable that while appointing a lawyer at state expenses, the trial court should disclose in its order the length of practice of the advocate appointed and his/her experience in conducting the criminal cases, sessions cases or sessions of particular types and his opinion that in the situation he/she was the competent person to be appointed for the accused particularly in cases where there is likelihood of conviction for major offences."
}
},
{
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"id": "a23a9a09633748c6b8b0de3fed837311",
"to_name": "text",
"type": "labels",
"value": {
"end": 31037,
"labels": [
"RPC"
],
"start": 30957,
"text": "\n 25. In the result, the appeal deserves to be dismissed and same is dismissed."
}
},
{
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"id": "9476a24571a3415a8a21b5529620c312",
"to_name": "text",
"type": "labels",
"value": {
"end": 31115,
"labels": [
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],
"start": 31037,
"text": "\n [ A. M. DHAVALE ] [ T. V. NALAWADE ] JUDGE JUDGE sgp"
}
}
]
}
] | 1,736 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY.\n BENCH AT AURANGABAD.\n\n CRIMINAL APPEAL NO. 221 OF 2002\n\nThe State of Maharashtra, ... Appellant\nThrough P.P. High Court, (Orig. Complainant)\nAurangabad.\n\n VERSUS\n\nSheshrao S/o Sonaji Jadhav, ... Respondent\nAge : 37 years, Occu. Labour,\nR/o. Malegaon (Khurd), Tq. Gevrai,\nDist. Beed.\n\n ..........\n Mr S. D. Ghayal, APP for the appellant\n Mr N. B. Jadhav, APP for respondent/State\n\n .............\n\n CORAM : T. V. NALAWADE &\n A. M. DHAVALE, JJ.\n\n RESERVED ON : 09.11.2017.\n PRONOUNCED ON : 21.12.2017\n\nJUDGMENT (PER A. M. DHAVALE, J.) : 1. This is an appeal by the State against acquittal of the respondent, who was found guilty u/s 302 IPC for committing murder of his wife who was acquitted on the ground of insanity.\n 2. The prosecution is launched against the accused on the basis of FIR lodged by his father PW3Sonaji on 08.12.2000 at Police Station Chaklamba, Tq. Georai, Dist. Beed. As per the FIR, the accused Sheshrao, aged 45 years, was behaving like a mad person and was under treatment of Dr. Vinay Barhale at Aurangabad. The accused had two daughters and two sons. His daughters were married whereas; sons were residing at their grandmother's house on account of insanity of their father. Deceased Kamalbai was wife of the accused Sheshrao. She was residing at her maternal house and just 12 days before the incident she had resumed cohabitation with her husband. As she stayed at her maternal house for long period, the accused used to assault her. On 06.12.2000, deceased Kamalbai due to fear of her husband was proceeding to her maternal house, hence the accused had confined her in the house. The accused and his wife were the only persons residing in the house. On 07.12.2000, the house of the accused was not opened upto 09:00 a.m., hence, PW3 Sonaji and his brother knocked the door but it was not opened.\n Hence, PW3 Sonaji called some neighbours and some of them entered the house by removing the roof sheets. It was noticed that, Kamalbai was lying unconscious and accused Sheshrao was sleeping by her side. There was ligature mark of some rope around her neck.\n PW3 Sonaji formed an opinion that, his son Sheshrao under the insanity attempted to commit murder of his wife Kamalbai during the night between 10:00 p.m. to 09:00 a.m. Kamalbai was first taken to outpost at Umapur and she was forwarded to Primary Health Centre at Umapur but she was referred to Rural Hospital at Georai and then to Civil Hospital at Beed. She had some injuries on her neck as well.\n On the basis of such FIR, the crime was registered at C.R. No.\n I63/2000 at Chaklamba Police Station, Georai and the same was investigated into by PW6API Waghmare. The accused was produced before the ld. JMFC. Initially, he was remanded to police custody from 09.12.2000 to 11.12.2000 and thereafter he was remanded to MCR. The Investigating Officer visited the spot and drew spot panchanama. Some pieces of bangle were seized from the spot. A rope prepared from Saree found on the spot was seized. The Investigating Officer recorded the statements of material witnesses and collected medical evidence. On 07.01.2001, Kamalbai died without regaining consciousness. The postmortem was conducted on her dead body which discloses that there was one ligature mark and two abrasions on her neck. There was internal damage to the brain and dislocation of cervical spine C1C2. She died due to complications of spinal injury due to fracture dislocation of cervical spine C1C2 associated with ligature compression of neck. On 14.03.2001, the Investigating Officer submitted a report to the ld.JMFC, Georai that the accused should be referred to medical examination about his mental condition and he was accordingly referred to Mental Hospital at Pune and he was accordingly in mental hospital from 21.03.2001 to 18.06.2001. He was declared fit to face trial and defend himself. Thereafter, chargesheet came to be filed.\n In due course, the case was committed to the court of sessions. The accused could not engage advocate and advocate appointed on state expenses was provided to him. The charge Exh. 4 was explained to the accused to which he pleaded not guilty. The prosecution examined six witnesses. The accused has admitted that he and his wife were alone in the house during the fateful night but claimed that due to unsoundness of mind he was unable to understand what has happened during that night. The ld. trial Judge accepted the prosecution evidence to hold the accused guilty u/s 307 IPC but also accepted evidence of accused about insanity and therefore the accused was acquitted but he was detained in the Jail with direction to the Jail authorities to submit report to the Government whether the accused could be released without danger to himself or to any other person. It is reported that soon thereafter the accused was released from the Jail.\n 3. Shri. S. D. Ghayal, learned APP for the State has deposed that, there is convincing evidence both ocular as well as circumstantial to show that the accused and his wife Kamalbai were alone in the house and Kamalbai sustained throttling and strangulation whereby she became unconscious and later she died due to injuries on 07.01.2001. He argued that, the medical evidence and evidence of material witnesses has not been challenged and the same is sufficient to show that the accused has committed murder of his wife. The ld. trial Judge has rightly held him guilty u/s 302 IPC.\n 4. However, Shri. Ghayal argued that, the ld. trial Judge erred in holding that the accused committed murder under insanity and was covered by the exception u/s 84 of IPC. He relied on judgments in Sudhakaran v. State of Kerala 2011 Cri.L.J. 292 and Santosh S/o Shridharrao Bhatambrekar v. The State of Maharashtra (Cri.\n Appeal No. 173 of 2001) delivered by Division Bench of this Court to which one of us (T.V. Nalawade, J.) was party, on 06.09.2017. He argued that, the conduct of the accused at the time of commission of offence or soon before or after the crime is relevant to determine whether he was legally insane or not or whether his case would fall under exception to Section 84 of IPC. He relied on Section 105 of Evidence Act and submits that the burden was on the accused to prove that his case falls under exception to Section 84 IPC. He fairly conceded that the burden is on the accused that he has to show by preponderance of probability that his case falls under exception. He pointed out that, there is no such evidence to show that the accused was suffering from mental insanity at the time of commission of offence. There is also no expert evidence to show that the accused was suffering from some mental insanity and unsoundness of mind which would deprive him of powers to realize what he was doing was wrong or contrary to law or that what he was committing was an offence. Mr. Ghayal submitted that the accused used to assault his wife and while she was proceeding to her maternal house he had brought her back. He had wrongfully confined her. He was in senses and he was knowing the consequences of his acts. The ld. trial Judge erred in relying on the evidence regarding previous and subsequent behaviour of the accused which was not in close proximity with the date of incident. He submitted that, the case of the accused does not fall under exception to Section 84 IPC. Therefore, the accused should be convicted u/s 302 IPC.\n 5. Per contra, ld. Counsel Shri. N. B. Jadhav for respondent supported the judgment of the trial court. He relied on State of Rajasthan Vs Shera Ram. AIR 2012 SC 1 and Ratan Lal v The State of Madhya Pradesh AIR 1971 SC 778. He submitted that, even if the accused succeeds in creating reasonable doubt in the mind of the Judge about the mens rea, the accused is entitled for acquittal.\n He has to prove the defence of case falling under exception by preponderance of probability. He submitted that, right from FIR and evidence of the witnesses there is ample material to show that the accused was suffering from insanity and was under treatment of psychiatrist. Even after the incident, he was required to be sent to mental hospital where after treatment of three months, he was declared fit to face the trial. According to ld. advocate, there is sufficient material to show that at the time of the incident as well, the accused was not understanding the consequences or that whatever he was doing was wrong or contrary to law. He therefore submitted that the ld. trial Judge has properly appreciated the evidence and no interference is called for.\n 6. On the basis of the evidence on record, the points for our consideration with findings thereon are as follows : Sr. Points Findings No. In the affirmative.\n 1 Whether the deceased Kamalbai met with a homicidal death?\n 2 Whether the accused has committed Proved.\n murder of deceased Kamalbai?\n 3 Whether the accused committed Proved.\n murder due to unsoundness of mind and his case falls under exception to Section 84 IPC?\n 4 What order? The appeal is dismissed.\n REASONS 7. The prosecution has examined following witnesses and produced documents which can be conveniently grouped as follows: (I) Homicidal Death: PW1 Anil Jinturkar. Provisional Certificate Exh. 13 and PM notes Exh. 14. Inquest panchanama Exh.10 (admitted).\n (II) Evidence on last seen together and custodial death: PW2 Laxman, Police Patil.\n PW3 Sonaji, father of the accused.\n PW4 Madhukar, spot panch with panchanama Exh. 24.\n Evidence of Investigating Officer API Waghmare PW6.\n (III) Plea of insanity : (a) Evidence of Sonaji and FIR Exh. 20.\n (b) Evidence of PW2 Laxman.\n (c) PW5 Psychiatrist Mr Stanley.\n (d) First remand report.\n (e) Application dt. 17.3.2001 by prosecution and was passed by ld. JMFC, Exh.30.\n (f) Certificate of fitness issued by Pshychiatrist (PW5) Exh. 29.\n (g) Application by APP for referring the accused to the Mental Hospital dt. 14.3.2001 and order of JMFC (Exh. 51).\n 8. Point No. 1 Homicidal Death.\n Evidence of PW1 Anil Jinturkar shows that on 07.01.2001, he conducted PM between 12:30 to 1:30 p.m. on the dead body of Nanda. He found following injuries on her person.\n (i) Abrasions over the region of right and left angle of mandible of sizes 3 cm x 2 cm and 3 cm x 3 cm., respectively with black scab over them. Scab was falling from margins.\n (ii) Whitish scar of 5 cm. length seen over right side of neck antero lateral aspect above thyroid cartilage width was 2 cm.\n (iii) Bed sores seen over both buttock and sacral region gralululation tissue seen.\n 9. Injury no. 2 referred above is a ligature mark around the neck whereas; injury no. 1 is the abrasions found on the right and left side of angel of mandible with black scab. These are obviously the injuries caused on the fateful night. Injury no. 3 bed sores is not attributable to the incident. Dr. Jinturkar deposed that, on examination of spine and spinal cord he found deformity in cervical region. There was fracture of body of cervical 1 with evidence of dislocation of intervertebral joint between C1 & C2. Paraspinat muscles were contused and showed haemorrhages, spinal cord in respect of fractured vertebra was soft and showed dark blackish tiny hemorrhages after cut section. Dr. Jinturkar opined that the cause of death was delayed complications of spinal injury due to fractured dislocation of cervical spinal C1 & C2 associated with evidence of ligature and compression of neck. He has sent the viscera and organs for histopathology and received report thereof which is on record.\n After referring to the report, he had given his opinion in provisional death certificate at Exh. 13 and PM notes at Exh. 14. He deposed that, no fracture of odontoid process of second cervical verterior was noticed. He opined that, besides the hanging manual pressure was applied around the neck and such injury was possible by applying pressure by means of Saree around the neck.\n 10. The evidence of PW2 Laxman and PW3 Sonaji disclosed that, after the fateful night, in the morning deceased Nanda was lying unconscious inside the house and the accused was beside her. They were in a house latched from inside and Nanda was taken out by making entry from the roof by removing tins. In the light of these facts, it is clear case of homicidal death. There is no possibility whatsoever of suicide or accidental death. Even the defence has not denied this fact. We therefore hold that deceased Nanda met with homicidal death.\n 11. Point No. 2 : whether the accused has committed murder?\n In this regard, we find that the accused and deceased Nanda were the only two persons inside the house. The room was latched from inside. In the morning, when father of the accused Sonaji knocked the door, the accused did not open it. PW3 Sonaji called the neighbours and made entry in the room by removing tin sheets. They found that Kamal was lying unconscious with ligature marks around her neck. The accused was sleeping by her side. She and the accused were immediately shifted to the hospital. PW3 Sonaji has stated that Kamal was alright when she and the accused were gone for sleep. According to his evidence, his son used to assault Kamalbai and hence Kamal stayed at a maternal house. She had taken to her matrimonial house few days before the incident. Due to fear of the accused, she was proceeding to her maternal house but the accused went to the S.T. Stand, Shirsala and brought her back and confined her in the house. Thus, it is clear that on the night intervening 07.12.2001 to 08.12.2001 Kamal sustained fatal injuries to her neck and spinal cord which ultimately resulted into her death after one month. This is a case of custodial death. PW2 Laxman, Police Patil and PW3 Sonaji father of the accused have deposed that the accused used to assault Kamalbai. They have no reason to falsely implicate the accused. The accused alone had opportunity to commit murder of Kamalbai during the night. She has met with a homicidal death. In the light of these facts, we rely upon the judgment in Trimukh Maroti Kirkan Versus State of Maharashtra (2006) 10 SCC 681.\n . This was the case where bride Revata was subjected to dowry and illtreatment. Shed died in her matrimonial house. Her husband disclosed that she died due to snake bite but the medical evidence disclose that she died due to asphyxia due to compression of neck. Explaining the scope of Section 106 of Evidence Act regarding the burden to proof of the accused, it was held that these crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. ..... But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. ..... In such case, strict principle of circumstantial evidence should not be insisted upon by courts. ...... The prosecution is not expected to plead evidence which is almost impossible to be led. ............ After reporting to various judgments, it was observed that when the accused has committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. The conviction awarded by the High Court u/s 302 was upheld by the Apex Court.\n 12. The evidence of custodial death against the accused rules out possibility of murder by anybody else except the accused. We find that chain of evidence is so complete as to leave no other hypothesis consistent with the guilt of the accused. The accused in his statement u/s 313 also has not disputed the material facts which point towards his guilt. We therefore hold that the homicidal death has been proved.\n 13. The plea of insanity: The accused has taken plea of insanity. Even when a person has committed any offence if the case falls u/s 84 under exception at Section 84 IPC is not guilty. Section 84 IPC reads as follows: Section 84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.\n 14. The law with regard to scope of Section 84 IPC has been explained in various rulings, which is as follows.\n (a) Bhikari v The State of U.P. AIR 1966 SC 1.\n Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. It is for this reason that S. 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him.\n (b) State of M.P. v. Ahmadulla AIR 1961 SC 998 & Jay Lal v.\n Delhi Administration AIR 1969 SC 15.\n State of mind of the accused just before or just after commission of the act is relevant.\n (C) Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.\n The evidence shows that the accused gave several blows is not indicative of insanity. It reflects of his vengeful mood or his determination to see that the victim had no escape.\n (d) Ratan Lal v The State of Madhya Pradesh AIR 1971 SC 778.\n Tendency to set fire to one's own clothes and house is more than mere irrationality. It is prima facie proof of insanity. Testimony of defence witnesses as to unsoundness of mind of accused should not be disbelieved merely because they are relation of accused. It is not necessary that every insane person should have homicidal tendencies. What is material is behaviour of the appellant on the day of the occurrence.\n 15. The material evidence with regard to previous and subsequent conduct of the accused just before the incident may be stated as follows.\n (i) PW2 Laxman, a villager and PW3 Sonaji, father of the accused have deposed that, on the earlier day, Kamal was frightened that the accused would beat her and therefore she was returning home. The accused went to the ST stand and persuaded her and brought her back to his house and thereafter confined her in the house by bolting the door.\n (ii) The accused and deceased Kamal had slept inside the house but the door was not opened till 09:00 a.m. Then PW3 knocked the door, still it was not opened. Hence, he called the neighbours and the neighbours made entry in the room by removing the roof tins. Kamalbai was found in unconscious condition in the house and accused was sleeping by her side.\n (iii) Thereafter, Kamalbai and the accused were put in a Jeep and were taken to Police Chowki.\n (iv) PW6API Waghmare arrested the accused on 08.12.2000 at 10:30 p.m. Thereafter, he was produced before the Magistrate. There is no evidence that, PW6 Magistrate saw any symptoms of insanity in the conduct of the accused.\n (v) The evidence shows that, the accused has used hands for throttling as well as rope for strangulation so as to ensure that his wife Kamalbai should not survive. The evidence of Medical Officer PW1 shows that there were scratch injuries on the neck showing throttling and besides there was a scar on the neck right side above thyroid cartilage. There was also dislocation of intra vertebral joints between C1 & C2.\n He has opined that, the cause of death was delayed complications of spinal injury due to fracture dislocation of cervical spine C1C2 associated with evidence of ligature of compression of neck.\n (vi) PW2 & PW3 Sonaji have not deposed any specific conduct or behaviour of the accused immediately after the incident disclosing signs of insanity when they entered the house.\n Even the FIR does not disclose such material.\n (vii) Evidence of PW5 Psychiatrist Dr. Ivan Stanley Neto does not show the nature of mental insanity of the accused when he examined him on 21.03.2001 much later from the date of incident.\n (viii)There is no evidence that, the accused had shown any homicidal or suicidal tendency or tendencies of setting on fire any property.\n 16. The ld. Sessions Judge, Beed considered the evidence on record showing symptoms of insanity much before or much after the time of incident. These circumstances are not relevant for determining whether the case falls u/s 84 IPC or not. When the conduct of the accused at the time of incident is relevant and no evidence is possible to disclose his conduct at the time of incident, his conduct just before or just after the incident becomes more relevant.\n If the above circumstances are taken into consideration in the light of the various rulings, we are tempted to hold that the accused has failed to discharge his burden. However, the evidence on record of father of the accused and PW6 Dr. Ivan Stanley Neto shows that the accused was suffering from insanity both much before and much after the time of incident. There are some symptoms showing that the accused was sleeping with the deceased and did not open the house till 09:00 a.m. suggesting that he might be insane. There was specific FIR by the father of the accused showing that the accused was suffering from insanity and the murder was committed in the insanity. The FIR shows that, the accused was under medical treatment.\n 17. In the light of these facts, the judgment in Siddhapal Kamala Yadav v State of Maharashtra AIR 2009 SC 97 is most relevant. In this case it is held in para 8 as follows: 8. ....... The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors.\n Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts.\n 18. In the present case, it is material lacunae that the Investigation Officer did not produce the accused before the Medical Officer to obtain opinion about his mental status nor made inquiry with the Mental Hospital whether he was taking treatment. In the light of the facts, the accused is entitled to get benefit of doubt and therefore we though do not agree with the findings of the ld. trial Judge based on the evidence discussed by him, in view of the serious infirmity of non production of the accused before the medical officer & in the light of the previous and subsequent history, we grant the benefit of doubt to the accused and hold that at the time of incident he was probably insane.\n 19. One more lacunae in the present case is that, the accused was unrepresented and learned Sessions Judge had provided him a lawyer at the state expenses. It seems that, the lawyer was not sufficiently experienced particularly with regard to the conduct of cases involving point of insanity of the accused. There is no proper crossexamination of the witnesses to find out the conduct of the accused just before and just after the incident. The law regarding necessity of appointment of the advocate for the accused may be stated as follows.\n . In Md. Sukur Ali v. State of Assam AIR 2011 SC 1222, it is held if the advocate for the accused either negligently or deliberately remains absent, still the Court is bound to appoint counsel for the accused in a criminal case. The accused should not suffer for the fault of his counsel. Proper legal assistance is a part of guarantee of protection of life and liberty under article 21, which is 'heart and soul' of the fundamental rights. Relying on US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932)and Maneka Gandhi vs. Union of India AIR 1978 SC 597, it is held; 22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.\n 20. In Mohd. Hussain v. State (Govt. of NCT), Delhi 2012 Cri. L. J. 1069, it is held that denial of assistance of counsel to the accused charged with serious offences amounts to negation of concept of due process of law. The conviction and sentence of death penalty were set aside for want of assistance of counsel.\n 21. In Ranchod Mathur v. State of Gujarat AIR 1974 SC 1143, it is observed that, Sessions Judge should view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar.\n Sufficient time and complete papers should also be made available to the advocate chosen so that he may serve the cause of justice with all the ability at his command, and the accused also may feel confident that his counsel chosen by the court has had adequate time and material to defend him properly.\n 22. In Sunil Gaikwad v State 2009(3) BCR (Cri.) 504, the Division Bench of this Court in a case of triple murder found that advocate of 9 years standing was appointed for the accused, he had conducted sessions cases but had no experience to conduct sessions cases of this magnitude and complexities. It was observed that, by referring to observations from Jahira Shaikh v State of Gujarat AIR 2006 SC 1367 regarding concept of fair trial and the role of Judicial Officer as a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality to both the parties, \"we have minutely considered the evidence on record more particularly the cross examination of the witnesses conducted by the defence. In the facts of the case, we are not of the opinion that, this is a fit case for setting aside the judgment and order of conviction and sentence and remanding the matter back to the court for holding fresh trial but certainly we are of the opinion that, some of the witnesses already examined are required to be crossexamined afresh maintaining the earlier crossexamination conducted by the defence counsel\". There was direction issued for appointment of an advocate for the accused having sufficient experience of conducting such cases and permitting the accused to take further crossexamination of the material witnesses.\n . (The case where the accused has appointed advocate of his own choice will be governed by the ratio in AG v. Shiv Kumar Yadav & Anr. 2015 Cr.L.J. 4640 SC).\n 23. It is necessary to issue directions to all the police officers through Director General of Police and to all the Judicial Magistrates, Sessions Judges/Special Judges through the Registrar General of the High Court of Bombay as follows : i. Whenever any accused person is arrested and there is any history or the conduct of the accused indicating that he is not mentally sound, it is the duty of the Police Officer who has arrested him to produce him before the Medical Officer for his examination with regard to his unsoundness of mind and to obtain the necessary certificate. If he is suffering from any unsoundness of mind, he should be forwarded to mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further.\n ii. If the Investigating Officer fails to perform his duty of getting the accused person examined, it is the obligation of Judicial Magistrate before whom he is produced for the first time. If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not. In case of mental insanity, he should be provided with appropriate medical help.\n iii. It should be also born in mind by the trial Judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate. If the accused is not represented, appropriate legal assistance should be provided to him at the state expenses.\n iv. In case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer should be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment. In case of sessions cases of complex or peculiar facts it should be esquired whether he has conducted such case or not. Legal aid to be provided at state expenses should not be for the name sake. Then only he should be appointed as advocate for the accused and after recording his satisfaction of competency of the advocate. Copies of this judgment may be forwarded to Registrar General and Director General of Police, Maharashtra for issuing necessary directions in this regard.\n 24. When the cases in which advocate is appointed at state expenses at the trial stage comes before this Court in appeal, it becomes difficult for the appellate court to find out the competency of the lawyer or otherwise. It is therefore advisable that while appointing a lawyer at state expenses, the trial court should disclose in its order the length of practice of the advocate appointed and his/her experience in conducting the criminal cases, sessions cases or sessions of particular types and his opinion that in the situation he/she was the competent person to be appointed for the accused particularly in cases where there is likelihood of conviction for major offences.\n 25. In the result, the appeal deserves to be dismissed and same is dismissed.\n [ A. M. DHAVALE ] [ T. V. NALAWADE ] JUDGE JUDGE sgp "
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{
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{
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"labels": [
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],
"start": 44,
"text": "Non Reportable\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL Nos. 407- 408 of 2009\n\nMohd. Akhtar @ Kari & Ors. .... Appellants\n\n Versus .... Respondents\nState of Bihar & Anr.\n\nJ U D G M E N T"
}
},
{
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"end": 345,
"labels": [
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],
"start": 323,
"text": "\n L. NAGESWARA RAO, J."
}
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{
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"end": 567,
"labels": [
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],
"start": 345,
"text": "\n 1. In these Appeals, we are concerned with the correctness of the judgment of the High Court of Judicature at Patna by which the judgment of the trial court was set aside and the acquittal of the Appellants was reversed."
}
},
{
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"value": {
"end": 747,
"labels": [
"RLC"
],
"start": 568,
"text": "The High Court convicted the Appellants under Section 302 read with Sections 34 and 148 of the Indian Penal Code, 1860 (\"the IPC\") and sentenced them to undergo life imprisonment."
}
},
{
"from_name": null,
"id": "4876775e07e8436ba3495c1550b87bd7",
"to_name": null,
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"value": {
"end": 884,
"labels": [
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],
"start": 748,
"text": "2. We are informed that the Appellant Nos. 1, 2 and 4 died during the pendency of these Appeals and so, the Appeals filed by them abate."
}
},
{
"from_name": null,
"id": "6f5197c916104a9d8039a81305210399",
"to_name": null,
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"value": {
"end": 1046,
"labels": [
"FAC"
],
"start": 885,
"text": "On the statement of the informant Md. Abu Daud (PW-6), the fardbeyan was recorded by the Officer Incharge of Matihani Police Station at 9.00 p.m. on 05.01.1984."
}
},
{
"from_name": null,
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"to_name": null,
"type": null,
"value": {
"end": 1196,
"labels": [
"FAC"
],
"start": 1047,
"text": "He stated that along with his brother Md. Nadir Sah @ Jumma (deceased), he had gone to the house of Md. Mobin (PW-4) for collecting irrigation dues."
}
},
{
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"id": "beff5d63e1b244359a7ddd4ac580d309",
"to_name": null,
"type": null,
"value": {
"end": 1264,
"labels": [
"FAC"
],
"start": 1197,
"text": "They were basking by the ghura (fire place) at Md. Mobin's darwaza."
}
},
{
"from_name": null,
"id": "cd62edff5c7d4d2eb1f1beb296b3f0a5",
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"value": {
"end": 1347,
"labels": [
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],
"start": 1265,
"text": "A mob of 10-11 persons armed with pistols, rifles and gun came there at that time."
}
},
{
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"id": "084cfb7dd5ec43b2a5552cafa3d1e6eb",
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"value": {
"end": 1401,
"labels": [
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],
"start": 1348,
"text": "The informant identified seven out of eleven persons."
}
},
{
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"id": "e4afeaa65877409fa917786838951d98",
"to_name": null,
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"value": {
"end": 1557,
"labels": [
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],
"start": 1402,
"text": "Md. Chamru @ Sahadat was armed with gun, Noor Alam with rifle, Md. Jam Alam (Appellant No.4) with gun and Md. Kari @ Akhtar (Appellant No.1), Md. Samad and"
}
},
{
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"value": {
"end": 1614,
"labels": [
"FAC"
],
"start": 1558,
"text": " Md. Sanjat (Appellant No.3) also had fire arms."
}
},
{
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"id": "b7b091f829e5477faf6f1cad57da9106",
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"end": 1801,
"labels": [
"FAC"
],
"start": 1615,
"text": "Immediately after the mob reached, the accused Md. Chamru@ Sahadat warned that nobody should try to escape and then Md.\n Sanjat (Appellant No.3) fired one shot which did not hit anybody."
}
},
{
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"to_name": null,
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"value": {
"end": 1922,
"labels": [
"FAC"
],
"start": 1802,
"text": " The informant, Md. Nadir Sah @ Jumma (deceased) and Md. Mobin (PW-4) started running and all the accused chased them."
}
},
{
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"id": "538bbaa6761e4677abbe3043662b59bc",
"to_name": null,
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"value": {
"end": 2123,
"labels": [
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],
"start": 1923,
"text": "The informant hid himself by the side of a Simal tree from where he saw his brother Md. Nadir Sah @ Jumma (deceased) being surrounded by the accused near the southern wall of the house of one Samshul."
}
},
{
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"value": {
"end": 2252,
"labels": [
"FAC"
],
"start": 2124,
"text": " After being surrounded, the deceased Md. Nadir Sah @Jumma was shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and Noor Alam."
}
},
{
"from_name": null,
"id": "34c682c457044a64a78344a4676d7e7d",
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"value": {
"end": 2413,
"labels": [
"FAC"
],
"start": 2253,
"text": "The accused fled towards the village and soon after the informant and Md. Mobin rushed to where the deceased was lying and found that he was hit by the bullets."
}
},
{
"from_name": null,
"id": "07a333d5997a40e0890d0d091f11cc31",
"to_name": null,
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"value": {
"end": 2445,
"labels": [
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],
"start": 2414,
"text": "They started shouting for help."
}
},
{
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"type": null,
"value": {
"end": 2498,
"labels": [
"FAC"
],
"start": 2446,
"text": "Md. Adil, Md.\n Ataul Rehman and several others came."
}
},
{
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"id": "b0e1b8649d4d4ae390e693ab6d4d6029",
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"type": null,
"value": {
"end": 2554,
"labels": [
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],
"start": 2499,
"text": "They were informed about the incident by the informant."
}
},
{
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"id": "2ae4da5cb1aa4a1a91732d87c07580e0",
"to_name": null,
"type": null,
"value": {
"end": 2790,
"labels": [
"FAC"
],
"start": 2556,
"text": "3. On completion of the investigation, a charge sheet was filed under Sections 148 and 302 read with Section 149 IPC against seven persons out of whom one of the accused Md. Samad died and Md. Chamru @ Sahadat and Noor Alam absconded."
}
},
{
"from_name": null,
"id": "799f739d6a6d49d6bd1943ac9cbe88fe",
"to_name": null,
"type": null,
"value": {
"end": 2930,
"labels": [
"FAC"
],
"start": 2791,
"text": " The remaining accused i.e. the Appellants- herein faced trial for the charges framed under Sections 148 and 302 read with Section 149 IPC."
}
},
{
"from_name": null,
"id": "6e656651dee942e6b9ae6b52d8e5ecf3",
"to_name": null,
"type": null,
"value": {
"end": 3121,
"labels": [
"FAC"
],
"start": 2931,
"text": "According to PW-9 Bishram Das, who was the investigating officer, the information was received at 7.45 p.m. on 05.01.1984 that 2-3 shots were hurled and one person killed in Saidpur village"
}
},
{
"from_name": null,
"id": "96c6640d414749c1ac74ab4279c0220f",
"to_name": null,
"type": null,
"value": {
"end": 3220,
"labels": [
"FAC"
],
"start": 3121,
"text": ". After recording S.D. Entry No.65, he proceeded to the Saidpur village along with other policemen."
}
},
{
"from_name": null,
"id": "245afbf707374fb886b0d326481ae6d2",
"to_name": null,
"type": null,
"value": {
"end": 3362,
"labels": [
"FAC"
],
"start": 3233,
"text": "After reaching the place of the incident, he recorded the statement of Md. Abu Daud and prepared an inquest report."
}
},
{
"from_name": null,
"id": "41291f6cc8204d308b4d51e5f89e0353",
"to_name": null,
"type": null,
"value": {
"end": 3429,
"labels": [
"FAC"
],
"start": 3363,
"text": "He also seized the blood soaked soil, ash of ghura and a lantern."
}
},
{
"from_name": null,
"id": "047aaa8ddfb3409b98cea46896894dbe",
"to_name": null,
"type": null,
"value": {
"end": 3865,
"labels": [
"FAC"
],
"start": 3431,
"text": "4. Post-mortem examination of deceased Jumma was conducted by PW-5 at 8.00 a.m. on 06.01.1984 who found the following injuries on the person of the deceased Md. Nadir Sah @ Jumma : \"(i) Deep wound with irregular burnt margin, size x 2\" x 2\" over the right cheek with surrounding areas with black stained with comminuted fracture on the right side mandible and maxilla and there was laceration of the surrounding tissues of the tongue."
}
},
{
"from_name": null,
"id": "fe2f9d06bf07438b924e057fb71fdf18",
"to_name": null,
"type": null,
"value": {
"end": 3939,
"labels": [
"FAC"
],
"start": 3866,
"text": "Multiple pillets and cork were recovered which were preserved and sealed."
}
},
{
"from_name": null,
"id": "589443f13b0e463e8e2d67907883087f",
"to_name": null,
"type": null,
"value": {
"end": 4099,
"labels": [
"FAC"
],
"start": 3939,
"text": "\n (ii) Penetrating wound \" diameter with burnt and inverted margin over the right coastal cartilage middle of the right nipple caused fracture of the cartilage."
}
},
{
"from_name": null,
"id": "aad0101521b14592826e87a1e0be39de",
"to_name": null,
"type": null,
"value": {
"end": 4164,
"labels": [
"FAC"
],
"start": 4100,
"text": "On further deep dissection the right lunge was found penetrated."
}
},
{
"from_name": null,
"id": "deaf23c8f97249a4962d958fdd26fcff",
"to_name": null,
"type": null,
"value": {
"end": 4219,
"labels": [
"FAC"
],
"start": 4165,
"text": "There was also blood in the left side of chest cavity."
}
},
{
"from_name": null,
"id": "4e647fc2dc384f39bf6602dd1001c494",
"to_name": null,
"type": null,
"value": {
"end": 4278,
"labels": [
"FAC"
],
"start": 4220,
"text": "There was also penetration of lower lobe of the left lung."
}
},
{
"from_name": null,
"id": "007ac1eae68a4ecfb0d3087863df2db2",
"to_name": null,
"type": null,
"value": {
"end": 4307,
"labels": [
"FAC"
],
"start": 4278,
"text": "\nThere was hole in the heart."
}
},
{
"from_name": null,
"id": "572afdb529b14e7d85c8ae03193d4f41",
"to_name": null,
"type": null,
"value": {
"end": 4344,
"labels": [
"FAC"
],
"start": 4308,
"text": "There was fracture of the ninth rib."
}
},
{
"from_name": null,
"id": "e69935ebf97f4cbea32f960f57e5d2ff",
"to_name": null,
"type": null,
"value": {
"end": 4416,
"labels": [
"FAC"
],
"start": 4345,
"text": "There was wound on the back size 1\" in diameter with inverted margine.\""
}
},
{
"from_name": null,
"id": "ce09f9d81e0442f78c81eda6f1f82e65",
"to_name": null,
"type": null,
"value": {
"end": 4571,
"labels": [
"FAC"
],
"start": 4416,
"text": "\n5. Hemorrhage due to the above injuries was the cause of death according to PW-5 and the death had occurred 24 hours prior to the post-mortem examination."
}
},
{
"from_name": null,
"id": "4ad0e03b49234182b60a63fbd875e13b",
"to_name": null,
"type": null,
"value": {
"end": 4671,
"labels": [
"FAC"
],
"start": 4572,
"text": "Out of the 11 witnesses who were examined by the Prosecution, PWs-3,4 and 6 were the eye witnesses."
}
},
{
"from_name": null,
"id": "66672ac85a5842a3b970dab8fd4d3067",
"to_name": null,
"type": null,
"value": {
"end": 4903,
"labels": [
"FAC"
],
"start": 4672,
"text": "PW-3 deposed that he heard the sound of firing near the house of Samshul when he was returning from Ghasarpur Tola and saw seven accused who were chasing the deceased Md. Nadir Sah @ Jumma, Md. Abu Daud (PW-6) and Md. Mobin (PW-4)."
}
},
{
"from_name": null,
"id": "bab8a2f9ff6141c490425f1dbf24219c",
"to_name": null,
"type": null,
"value": {
"end": 4952,
"labels": [
"FAC"
],
"start": 4903,
"text": "\nAccused- Md. Jam Alam, Md. Sahadat and Noor Alam"
}
},
{
"from_name": null,
"id": "bc1fc8d1a37f46d2937896272d072991",
"to_name": null,
"type": null,
"value": {
"end": 5005,
"labels": [
"FAC"
],
"start": 4953,
"text": "had fired at the deceased near the house of Samshul."
}
},
{
"from_name": null,
"id": "02e419dcedc747f5bb5e3cfa2190a211",
"to_name": null,
"type": null,
"value": {
"end": 5075,
"labels": [
"FAC"
],
"start": 5006,
"text": "He stated that he identified the accused by flashing his torch light."
}
},
{
"from_name": null,
"id": "c849959d6d1941c4b642c76ee55a46e5",
"to_name": null,
"type": null,
"value": {
"end": 5154,
"labels": [
"FAC"
],
"start": 5076,
"text": "According to him, the police arrived at the place of the incident at 9.00 p.m."
}
},
{
"from_name": null,
"id": "bd42d865a4e24a63a1abc9a281cfdca3",
"to_name": null,
"type": null,
"value": {
"end": 5246,
"labels": [
"FAC"
],
"start": 5155,
"text": "He testified that he did not tell anybody about the incident till the police reached there."
}
},
{
"from_name": null,
"id": "489d5bac291346a4b8fef390dde88434",
"to_name": null,
"type": null,
"value": {
"end": 5351,
"labels": [
"FAC"
],
"start": 5247,
"text": "PW-4 stated in his evidence that he arranged a ghura (fireplace) with leaves at 6.00 p.m. on 05.01.1984."
}
},
{
"from_name": null,
"id": "b19e91e43c044120926e5448383707c4",
"to_name": null,
"type": null,
"value": {
"end": 5491,
"labels": [
"FAC"
],
"start": 5352,
"text": "Md. Abu Daud (PW-6) and Md. Nadir Sah @ Jumma (deceased) who came to demand the remaining irrigation dues from him also sat near the ghura."
}
},
{
"from_name": null,
"id": "27c5cb09d8d44160a96dea8303f1f487",
"to_name": null,
"type": null,
"value": {
"end": 5545,
"labels": [
"FAC"
],
"start": 5492,
"text": "At that time a mob of 11 persons suddenly came there."
}
},
{
"from_name": null,
"id": "92f0f678b4904f72b43ef6bf4eca51c8",
"to_name": null,
"type": null,
"value": {
"end": 5679,
"labels": [
"FAC"
],
"start": 5546,
"text": "He could identify seven out of eleven persons in mob in the light of ghura and of lantern which was hanging in the oriyani (veranda)."
}
},
{
"from_name": null,
"id": "89c9a12ac3594d9ca0e825892dcbc707",
"to_name": null,
"type": null,
"value": {
"end": 5765,
"labels": [
"FAC"
],
"start": 5680,
"text": "He further deposed that he, the deceased, and PW-6 started running away from the mob."
}
},
{
"from_name": null,
"id": "948e3b35be594871b958d99b5cc1c22f",
"to_name": null,
"type": null,
"value": {
"end": 5851,
"labels": [
"FAC"
],
"start": 5766,
"text": "The deceased was surrounded by the accused near the southern wall of Samshul's house."
}
},
{
"from_name": null,
"id": "039c88ce54604f96b3bf5a76cb094eaa",
"to_name": null,
"type": null,
"value": {
"end": 5920,
"labels": [
"FAC"
],
"start": 5852,
"text": "He was shot dead by the accused Sahadat, Md. Jam Alam and Noor Alam."
}
},
{
"from_name": null,
"id": "a25731efc920477faa53664e98016f20",
"to_name": null,
"type": null,
"value": {
"end": 6028,
"labels": [
"FAC"
],
"start": 5921,
"text": "He stated that Md. Jam Alam and Sahadat had guns, Noor Alam had a rifle and rest of the accused had lathis."
}
},
{
"from_name": null,
"id": "b454c5242d434e248d72f95ee78b2b9c",
"to_name": null,
"type": null,
"value": {
"end": 6183,
"labels": [
"FAC"
],
"start": 6029,
"text": "PW-6 who is the informant deposed that there was sufficient light cast because of the ghura (fire place), the lantern and the torch which he was carrying."
}
},
{
"from_name": null,
"id": "306a7e8d9ac54f719439ac394429592a",
"to_name": null,
"type": null,
"value": {
"end": 6285,
"labels": [
"FAC"
],
"start": 6183,
"text": "\nHe witnessed the incident from behind the Simal tree which was 15 yards from the place of occurrence."
}
},
{
"from_name": null,
"id": "4f5733657bea4daab3d016c62f12d4ad",
"to_name": null,
"type": null,
"value": {
"end": 6440,
"labels": [
"RLC"
],
"start": 6286,
"text": "6. The oral testimonies of PWs- 3,4 and 6 were examined thoroughly and the trial court was of the opinion that it is not safe to rely on their statements."
}
},
{
"from_name": null,
"id": "d5a30771fb81499294d02823a783cff3",
"to_name": null,
"type": null,
"value": {
"end": 6564,
"labels": [
"RLC"
],
"start": 6441,
"text": "The trial court held that the evidence relating to identification of the accused in the available light was not convincing."
}
},
{
"from_name": null,
"id": "3d3f9837b5224609abc9fe6c6f31e0c1",
"to_name": null,
"type": null,
"value": {
"end": 6775,
"labels": [
"RLC"
],
"start": 6565,
"text": "There is reference to the evidence regarding the lantern in the varanda which was behind the place where the mob was standing and the improbability of their being identified in the light emitted by the lantern."
}
},
{
"from_name": null,
"id": "a1260895f42d4a798745fe2df9780144",
"to_name": null,
"type": null,
"value": {
"end": 6916,
"labels": [
"RLC"
],
"start": 6776,
"text": "The evidence of PW-6 that he flashed a torch light for identifying the accused persons was disbelieved as no torch was seized by the police."
}
},
{
"from_name": null,
"id": "af85edcf33c244208bd748e2db9e2330",
"to_name": null,
"type": null,
"value": {
"end": 7040,
"labels": [
"RLC"
],
"start": 6916,
"text": "\nFor the aforesaid reasons, the trial court was of the opinion that the eye witnesses could not have identified the accused."
}
},
{
"from_name": null,
"id": "64b6ae6e704f40b380ee35532a27b481",
"to_name": null,
"type": null,
"value": {
"end": 7140,
"labels": [
"RLC"
],
"start": 7041,
"text": "Previous enmity between the accused on one hand and the informant's family on the other was proved."
}
},
{
"from_name": null,
"id": "27ecb8191ad547be97a15841d9fd29e5",
"to_name": null,
"type": null,
"value": {
"end": 7301,
"labels": [
"RLC"
],
"start": 7141,
"text": "The trial court further found that there was a delay in lodging the FIR which provided an opportunity to the informant and other PWs to implicate their enemies."
}
},
{
"from_name": null,
"id": "a22812c213b043a49522978f1ae75e5a",
"to_name": null,
"type": null,
"value": {
"end": 7349,
"labels": [
"RLC"
],
"start": 7302,
"text": "Thus, false implication could not be ruled out."
}
},
{
"from_name": null,
"id": "178396943ec14013a91902663206d5ac",
"to_name": null,
"type": null,
"value": {
"end": 7428,
"labels": [
"RLC"
],
"start": 7349,
"text": "\nFurther, the fardbeyan was recorded in the village at 9.00 p.m. on 05.01.1984."
}
},
{
"from_name": null,
"id": "a6283794b03b4037ae59b440c6c620a4",
"to_name": null,
"type": null,
"value": {
"end": 7579,
"labels": [
"RLC"
],
"start": 7429,
"text": "A dead body challan which was prepared by J.N. Singh, Sub-Inspector of Police (S.I.) which shows that the body was sent for post- mortem at 11.00 p.m."
}
},
{
"from_name": null,
"id": "c9e1b368012e4151af5b0f0146428d37",
"to_name": null,
"type": null,
"value": {
"end": 7691,
"labels": [
"RLC"
],
"start": 7580,
"text": "There was also an entry in the station diary that J.N. Singh (S.I.) returned to the police station at 9.00 p.m."
}
},
{
"from_name": null,
"id": "2f351bdc1a39457ea515137d7bb3c4bf",
"to_name": null,
"type": null,
"value": {
"end": 7889,
"labels": [
"RLC"
],
"start": 7692,
"text": "If the fardbeyan was prepared at 9.00 p.m. at the place of incident which is six kilometers away from the police station, J.N. Singh (S.I.) could not have arrived at the police station at 9.00 p.m."
}
},
{
"from_name": null,
"id": "617454867f974d75bef04b7627271efc",
"to_name": null,
"type": null,
"value": {
"end": 8024,
"labels": [
"RLC"
],
"start": 7890,
"text": "The record shows that he prepared the inquest report at 10.00 p.m. and the dead body challan at 11.00 p.m. at the place of occurrence."
}
},
{
"from_name": null,
"id": "2d9091400be1418482bbbfd412e84ef3",
"to_name": null,
"type": null,
"value": {
"end": 8107,
"labels": [
"RLC"
],
"start": 8025,
"text": "J.N. Singh (S.I.) who is an important witness was not examined by the prosecution."
}
},
{
"from_name": null,
"id": "45b0ea2be65f40a08ac3e4a2ff4ade42",
"to_name": null,
"type": null,
"value": {
"end": 8277,
"labels": [
"RLC"
],
"start": 8108,
"text": "Referring to the above circumstances, the trial court held that it was clear that the inquest report and the dead body challan were prepared later at the police station."
}
},
{
"from_name": null,
"id": "7912f7e43cbf41398949c33ad4613a76",
"to_name": null,
"type": null,
"value": {
"end": 8333,
"labels": [
"RLC"
],
"start": 8278,
"text": "An adverse inference was drawn against the Prosecution."
}
},
{
"from_name": null,
"id": "f4e2fcfdb58b419e9b324fc951801d54",
"to_name": null,
"type": null,
"value": {
"end": 8514,
"labels": [
"RLC"
],
"start": 8334,
"text": "The trial court also took note of the presence of the Mangal Tanti, the Chowkidar of the village, who reached the place of the incident in 30 minutes after the incident took place."
}
},
{
"from_name": null,
"id": "bc446f0003ec4b2a8287306e37a448e7",
"to_name": null,
"type": null,
"value": {
"end": 8548,
"labels": [
"RLC"
],
"start": 8515,
"text": "He was not examined as a witness."
}
},
{
"from_name": null,
"id": "d16e4edce0fd44eab867253ad243f733",
"to_name": null,
"type": null,
"value": {
"end": 8631,
"labels": [
"RLC"
],
"start": 8549,
"text": "None of the witnesses deposed that they informed the Chowkidar about the incident."
}
},
{
"from_name": null,
"id": "7283cc06fc1b43e9a605759d1b47bf1a",
"to_name": null,
"type": null,
"value": {
"end": 8740,
"labels": [
"RLC"
],
"start": 8631,
"text": "\nNo independent witness was examined though the village was hardly 200 metres from the place of the incident."
}
},
{
"from_name": null,
"id": "2fbbcb3ecedd4df29312df8ca4d208e3",
"to_name": null,
"type": null,
"value": {
"end": 8818,
"labels": [
"RLC"
],
"start": 8741,
"text": "No pellet or traces of bullets were recovered from the place of the incident."
}
},
{
"from_name": null,
"id": "a9ecbe8902794f5f9d631c8f47686638",
"to_name": null,
"type": null,
"value": {
"end": 8993,
"labels": [
"RLC"
],
"start": 8819,
"text": "On the basis of the above findings along with other contradictions in the evidence of the witnesses, the trial court acquitted the Appellants of all the charges against them."
}
},
{
"from_name": null,
"id": "36b60e4e16db4e14b3c3e451dc24e39f",
"to_name": null,
"type": null,
"value": {
"end": 9094,
"labels": [
"FAC"
],
"start": 8995,
"text": "7. The Appeals filed by the State and the revision filed by the complainant, were taken altogether."
}
},
{
"from_name": null,
"id": "ca24fa128a8d48848467ec9e043804a5",
"to_name": null,
"type": null,
"value": {
"end": 9188,
"labels": [
"RLC"
],
"start": 9095,
"text": "The High Court appreciated the evidence and found fault with the judgment of the trial court."
}
},
{
"from_name": null,
"id": "9072ffde0b194a9db15154adfbe46e56",
"to_name": null,
"type": null,
"value": {
"end": 9350,
"labels": [
"RLC"
],
"start": 9189,
"text": "The High Court felt that apart from minor inconsistencies, the evidence of the eye witnesses was reliable and there was sufficient light to identify the accused."
}
},
{
"from_name": null,
"id": "07e53ea7492c4becab9262c9e5a7065e",
"to_name": null,
"type": null,
"value": {
"end": 9442,
"labels": [
"RLC"
],
"start": 9351,
"text": " The accused shared a common intention of killing the deceased according to the High Court."
}
},
{
"from_name": null,
"id": "d077b59a99f644da80e9089d434c4e5e",
"to_name": null,
"type": null,
"value": {
"end": 9533,
"labels": [
"RLC"
],
"start": 9443,
"text": "The delay in registering the FIR was found to be not fatal to the case of the Prosecution."
}
},
{
"from_name": null,
"id": "62a1a06e5517433eadc78ea76f694a63",
"to_name": null,
"type": null,
"value": {
"end": 9612,
"labels": [
"RLC"
],
"start": 9534,
"text": "The evidence of interested witnesses was also held reliable by the High Court."
}
},
{
"from_name": null,
"id": "398c8b63b97d45bb8b79a29115e7ad67",
"to_name": null,
"type": null,
"value": {
"end": 9769,
"labels": [
"RLC"
],
"start": 9613,
"text": "The minor errors in recording the time in the police station and the non-examination of J.N. Singh (S.I.) did not prejudice the prosecution's case."
}
},
{
"from_name": null,
"id": "647ff8fbe6f84377883c7f2da3ec99ce",
"to_name": null,
"type": null,
"value": {
"end": 9994,
"labels": [
"RLC"
],
"start": 9770,
"text": "By differing with the view taken by the trial court on the above points, the High Court found that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused."
}
},
{
"from_name": null,
"id": "e07731ac26f34e2fa1c7391e0dd11b59",
"to_name": null,
"type": null,
"value": {
"end": 10154,
"labels": [
"RLC"
],
"start": 9995,
"text": "On the aforesaid findings, the High Court convicted the Appellants under Section 302 read with Sections 34 and 148 IPC and sentenced them to life imprisonment."
}
},
{
"from_name": null,
"id": "007aef4859ce4ed7a23ed0bc2d3323e7",
"to_name": null,
"type": null,
"value": {
"end": 10343,
"labels": [
"ISSUE"
],
"start": 10155,
"text": "8. The question that falls for determination in this case is whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder."
}
},
{
"from_name": null,
"id": "32b7b4489ad44f4b86cc662e3b0912b8",
"to_name": null,
"type": null,
"value": {
"end": 11066,
"labels": [
"ANALYSIS"
],
"start": 10344,
"text": "While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal, Lord Russell in Sheo Swarup v. King-Emperor1 held: \"9. .. .. the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a 1 (1934) 36 BOM LR 1185 9 Judge who had the advantage of seeing the witnesses.\""
}
},
{
"from_name": null,
"id": "1e05cee46c8d42f3a679c906812c29af",
"to_name": null,
"type": null,
"value": {
"end": 11214,
"labels": [
"ANALYSIS"
],
"start": 11066,
"text": "\n 9. The approach of the High Court in an appeal against acquittals was explained by this Court in Surajpal Singh & Ors. v. The State2 as follows: \""
}
},
{
"from_name": null,
"id": "e462e2cdb1dc4c5e9c1020604e9ba4a7",
"to_name": null,
"type": null,
"value": {
"end": 11722,
"labels": [
"ANALYSIS"
],
"start": 11214,
"text": "It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well- settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.\""
}
},
{
"from_name": null,
"id": "b945f8a2b47846b1972fb02b7a0b1755",
"to_name": null,
"type": null,
"value": {
"end": 12582,
"labels": [
"PRE_RELIED"
],
"start": 11724,
"text": "10. This Court in Muralidhar @ Gidda & Anr. v.\n State of Karnataka3 referred to several earlier judgments dealing with appeals against acquittals and observed that the appellate court must bear in mind the following : \"12. .. ..\n (i) There is presumption of innocence in favour of an accused person and such 2 (1952) 3 SCR 193 3 (2014) 5 SCC 730 12 (i-iv) presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 12674,
"labels": [
"PRE_RELIED"
],
"start": 12583,
"text": "It is so because the trial court had an advantage of seeing the demeanour of the witnesses."
}
},
{
"from_name": null,
"id": "518fcaa28d16461e892f081db2c7f276",
"to_name": null,
"type": null,
"value": {
"end": 12828,
"labels": [
"PRE_RELIED"
],
"start": 12675,
"text": "If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified."
}
},
{
"from_name": null,
"id": "aa4cb254bbab416aa6a2fe824db04020",
"to_name": null,
"type": null,
"value": {
"end": 13386,
"labels": [
"PRE_RELIED"
],
"start": 12829,
"text": "Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view."
}
},
{
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"id": "5c0e3ffa8fd045b6af78ad4a9b63da76",
"to_name": null,
"type": null,
"value": {
"end": 13529,
"labels": [
"PRE_RELIED"
],
"start": 13387,
"text": "The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.\"\n 11."
}
},
{
"from_name": null,
"id": "4ea630a7b6fe49d69a6567aa76cb7bc9",
"to_name": null,
"type": null,
"value": {
"end": 13795,
"labels": [
"PRE_RELIED"
],
"start": 13530,
"text": "It is relevant to refer to another judgment of this Court in Ghurey Lal v. State of Uttar Pradesh4 in which the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court's acquittal were crystallised as under: \"70. ...\n 1."
}
},
{
"from_name": null,
"id": "45fb1392cd1c4bdeadaf689036fc24a7",
"to_name": null,
"type": null,
"value": {
"end": 13948,
"labels": [
"PRE_RELIED"
],
"start": 13796,
"text": "The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has \"very substantial and compelling reasons\" for doing so."
}
},
{
"from_name": null,
"id": "674a16fdb7aa4e138705bfce2c4a7ba7",
"to_name": null,
"type": null,
"value": {
"end": 14098,
"labels": [
"PRE_RELIED"
],
"start": 13948,
"text": "\n A number of instances arise in which the appellate court would have \"very substantial and compelling reasons\" to discard the trial court's decision."
}
},
{
"from_name": null,
"id": "c9d11a77d55d49bca06c27d54f69bb4a",
"to_name": null,
"type": null,
"value": {
"end": 14752,
"labels": [
"PRE_RELIED"
],
"start": 14099,
"text": "\"Very substantial and compelling reasons\" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; 4 (2008) 10 SCC 450 (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in \"grave miscarriage of justice\"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.\n "
}
},
{
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"id": "4558998246934e6186b572f054c26350",
"to_name": null,
"type": null,
"value": {
"end": 14815,
"labels": [
"PRE_RELIED"
],
"start": 14752,
"text": "(vii) This list is intended to be illustrative, not exhaustive."
}
},
{
"from_name": null,
"id": "2501c8ac6c8f438c8f58d29cac13ba29",
"to_name": null,
"type": null,
"value": {
"end": 14926,
"labels": [
"PRE_RELIED"
],
"start": 14819,
"text": "2. The appellate court must always give proper weight and consideration to the findings of the trial court."
}
},
{
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"id": "79c4742a70eb495188e380cbf0b80142",
"to_name": null,
"type": null,
"value": {
"end": 15096,
"labels": [
"PRE_RELIED"
],
"start": 14926,
"text": "\n 3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused.\""
}
},
{
"from_name": null,
"id": "fcda6476302b438b99e6bc34ac504d34",
"to_name": null,
"type": null,
"value": {
"end": 15252,
"labels": [
"ANALYSIS"
],
"start": 15096,
"text": "\n 12. Interference with the judgment of the trial court in this case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible."
}
},
{
"from_name": null,
"id": "821f090108f9479e92d8e80e9034d9b8",
"to_name": null,
"type": null,
"value": {
"end": 15430,
"labels": [
"ANALYSIS"
],
"start": 15253,
"text": "Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective."
}
},
{
"from_name": null,
"id": "940136094b3a4a6b830eb03abbf1a7d8",
"to_name": null,
"type": null,
"value": {
"end": 15538,
"labels": [
"ANALYSIS"
],
"start": 15430,
"text": "\nInterference with an order of acquittal is not permissible on the ground that a different view is possible."
}
},
{
"from_name": null,
"id": "ebf25c74848e44399ed565b7a941d73f",
"to_name": null,
"type": null,
"value": {
"end": 15647,
"labels": [
"ANALYSIS"
],
"start": 15539,
"text": "If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with."
}
},
{
"from_name": null,
"id": "d9b0286e4cd9414e835984986419d780",
"to_name": null,
"type": null,
"value": {
"end": 16012,
"labels": [
"ANALYSIS"
],
"start": 15648,
"text": "The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the accused, non- examination of independent witnesses, previous enmity between the accused and the witnesses, non- production of important prosecution witnesses and improper investigation of the case."
}
},
{
"from_name": null,
"id": "894885a49f1f4507827d7b9c707f94c3",
"to_name": null,
"type": null,
"value": {
"end": 16265,
"labels": [
"RATIO"
],
"start": 16013,
"text": "On a thorough examination of the entire evidence on record and the judgment of the trial court, we are of the considered view that the judgment of acquittal by the trial court is justified which ought not to have been interfered with by the High Court."
}
},
{
"from_name": null,
"id": "d00287f15e7a406f93d5a73b74bbc8ff",
"to_name": null,
"type": null,
"value": {
"end": 16369,
"labels": [
"RATIO"
],
"start": 16266,
"text": "The High Court could not have reversed a judgment of acquittal merely because another view is possible."
}
},
{
"from_name": null,
"id": "de23ade685e544979613ecad7f1806b7",
"to_name": null,
"type": null,
"value": {
"end": 16583,
"labels": [
"RATIO"
],
"start": 16370,
"text": "The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted."
}
},
{
"from_name": null,
"id": "6821be983fc941b896bbf1c7b0a9e11a",
"to_name": null,
"type": null,
"value": {
"end": 16732,
"labels": [
"RATIO"
],
"start": 16584,
"text": "The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal."
}
},
{
"from_name": null,
"id": "44b5796425f943f49575ac6c8ca2ac1d",
"to_name": null,
"type": null,
"value": {
"end": 16904,
"labels": [
"RATIO"
],
"start": 16733,
"text": "No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court."
}
},
{
"from_name": null,
"id": "873c5852bcba439692eeca0ae96319db",
"to_name": null,
"type": null,
"value": {
"end": 16966,
"labels": [
"RPC"
],
"start": 16906,
"text": "13. For the aforementioned reasons, the Appeals are allowed."
}
},
{
"from_name": null,
"id": "8d49a4d1f5c44be393a5856f98f951c4",
"to_name": null,
"type": null,
"value": {
"end": 17059,
"labels": [
"RPC"
],
"start": 16967,
"text": "The judgment of the High Court is set aside and the judgment of the trial court is restored."
}
},
{
"from_name": null,
"id": "6979c5cf8e224e6bb2897ef806120b46",
"to_name": null,
"type": null,
"value": {
"end": 17114,
"labels": [
"RPC"
],
"start": 17060,
"text": "The Appellant No.3 was released on bail on 30.01.2017."
}
},
{
"from_name": null,
"id": "25bf26cbb5d84acc8df42be8441ba357",
"to_name": null,
"type": null,
"value": {
"end": 17145,
"labels": [
"RPC"
],
"start": 17115,
"text": "His bail bonds are discharged."
}
},
{
"from_name": null,
"id": "9a4777488dab4edfa4c4863da691eda6",
"to_name": null,
"type": null,
"value": {
"end": 17273,
"labels": [
"NONE"
],
"start": 17145,
"text": "\n ...................................J.\n [ L. NAGESWARA RAO ] .................................."
}
},
{
"from_name": null,
"id": "a5bf96754dc84904a0ba6230fb0a9b3f",
"to_name": null,
"type": null,
"value": {
"end": 17327,
"labels": [
"NONE"
],
"start": 17273,
"text": "J.\n [ R. SUBHASH REDDY ]"
}
},
{
"from_name": null,
"id": "e42e0439553f4c0e8aa67046a68859c4",
"to_name": null,
"type": null,
"value": {
"end": 17357,
"labels": [
"NONE"
],
"start": 17328,
"text": "New Delhi, December 04, 2018."
}
}
]
}
] | 4,073 | {
"text": " Non Reportable\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL Nos. 407- 408 of 2009\n\nMohd. Akhtar @ Kari & Ors. .... Appellants\n\n Versus .... Respondents\nState of Bihar & Anr.\n\nJ U D G M E N T\n L. NAGESWARA RAO, J.\n 1. In these Appeals, we are concerned with the correctness of the judgment of the High Court of Judicature at Patna by which the judgment of the trial court was set aside and the acquittal of the Appellants was reversed. The High Court convicted the Appellants under Section 302 read with Sections 34 and 148 of the Indian Penal Code, 1860 (\"the IPC\") and sentenced them to undergo life imprisonment.\n2. We are informed that the Appellant Nos. 1, 2 and 4 died during the pendency of these Appeals and so, the Appeals filed by them abate. On the statement of the informant Md. Abu Daud (PW-6), the fardbeyan was recorded by the Officer Incharge of Matihani Police Station at 9.00 p.m. on 05.01.1984. He stated that along with his brother Md. Nadir Sah @ Jumma (deceased), he had gone to the house of Md. Mobin (PW-4) for collecting irrigation dues. They were basking by the ghura (fire place) at Md. Mobin's darwaza. A mob of 10-11 persons armed with pistols, rifles and gun came there at that time. The informant identified seven out of eleven persons. Md. Chamru @ Sahadat was armed with gun, Noor Alam with rifle, Md. Jam Alam (Appellant No.4) with gun and Md. Kari @ Akhtar (Appellant No.1), Md. Samad and Md. Sanjat (Appellant No.3) also had fire arms. Immediately after the mob reached, the accused Md. Chamru@ Sahadat warned that nobody should try to escape and then Md.\n Sanjat (Appellant No.3) fired one shot which did not hit anybody. The informant, Md. Nadir Sah @ Jumma (deceased) and Md. Mobin (PW-4) started running and all the accused chased them. The informant hid himself by the side of a Simal tree from where he saw his brother Md. Nadir Sah @ Jumma (deceased) being surrounded by the accused near the southern wall of the house of one Samshul. After being surrounded, the deceased Md. Nadir Sah @Jumma was shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and Noor Alam. The accused fled towards the village and soon after the informant and Md. Mobin rushed to where the deceased was lying and found that he was hit by the bullets. They started shouting for help. Md. Adil, Md.\n Ataul Rehman and several others came. They were informed about the incident by the informant.\n 3. On completion of the investigation, a charge sheet was filed under Sections 148 and 302 read with Section 149 IPC against seven persons out of whom one of the accused Md. Samad died and Md. Chamru @ Sahadat and Noor Alam absconded. The remaining accused i.e. the Appellants- herein faced trial for the charges framed under Sections 148 and 302 read with Section 149 IPC. According to PW-9 Bishram Das, who was the investigating officer, the information was received at 7.45 p.m. on 05.01.1984 that 2-3 shots were hurled and one person killed in Saidpur village. After recording S.D. Entry No.65, he proceeded to the Saidpur village along with other policemen. After reaching the place of the incident, he recorded the statement of Md. Abu Daud and prepared an inquest report. He also seized the blood soaked soil, ash of ghura and a lantern.\n 4. Post-mortem examination of deceased Jumma was conducted by PW-5 at 8.00 a.m. on 06.01.1984 who found the following injuries on the person of the deceased Md. Nadir Sah @ Jumma : \"(i) Deep wound with irregular burnt margin, size x 2\" x 2\" over the right cheek with surrounding areas with black stained with comminuted fracture on the right side mandible and maxilla and there was laceration of the surrounding tissues of the tongue. Multiple pillets and cork were recovered which were preserved and sealed.\n (ii) Penetrating wound \" diameter with burnt and inverted margin over the right coastal cartilage middle of the right nipple caused fracture of the cartilage. On further deep dissection the right lunge was found penetrated. There was also blood in the left side of chest cavity. There was also penetration of lower lobe of the left lung.\nThere was hole in the heart. There was fracture of the ninth rib. There was wound on the back size 1\" in diameter with inverted margine.\"\n5. Hemorrhage due to the above injuries was the cause of death according to PW-5 and the death had occurred 24 hours prior to the post-mortem examination. Out of the 11 witnesses who were examined by the Prosecution, PWs-3,4 and 6 were the eye witnesses. PW-3 deposed that he heard the sound of firing near the house of Samshul when he was returning from Ghasarpur Tola and saw seven accused who were chasing the deceased Md. Nadir Sah @ Jumma, Md. Abu Daud (PW-6) and Md. Mobin (PW-4).\nAccused- Md. Jam Alam, Md. Sahadat and Noor Alam had fired at the deceased near the house of Samshul. He stated that he identified the accused by flashing his torch light. According to him, the police arrived at the place of the incident at 9.00 p.m. He testified that he did not tell anybody about the incident till the police reached there. PW-4 stated in his evidence that he arranged a ghura (fireplace) with leaves at 6.00 p.m. on 05.01.1984. Md. Abu Daud (PW-6) and Md. Nadir Sah @ Jumma (deceased) who came to demand the remaining irrigation dues from him also sat near the ghura. At that time a mob of 11 persons suddenly came there. He could identify seven out of eleven persons in mob in the light of ghura and of lantern which was hanging in the oriyani (veranda). He further deposed that he, the deceased, and PW-6 started running away from the mob. The deceased was surrounded by the accused near the southern wall of Samshul's house. He was shot dead by the accused Sahadat, Md. Jam Alam and Noor Alam. He stated that Md. Jam Alam and Sahadat had guns, Noor Alam had a rifle and rest of the accused had lathis. PW-6 who is the informant deposed that there was sufficient light cast because of the ghura (fire place), the lantern and the torch which he was carrying.\nHe witnessed the incident from behind the Simal tree which was 15 yards from the place of occurrence.\n6. The oral testimonies of PWs- 3,4 and 6 were examined thoroughly and the trial court was of the opinion that it is not safe to rely on their statements.\nThe trial court held that the evidence relating to identification of the accused in the available light was not convincing. There is reference to the evidence regarding the lantern in the varanda which was behind the place where the mob was standing and the improbability of their being identified in the light emitted by the lantern. The evidence of PW-6 that he flashed a torch light for identifying the accused persons was disbelieved as no torch was seized by the police.\nFor the aforesaid reasons, the trial court was of the opinion that the eye witnesses could not have identified the accused. Previous enmity between the accused on one hand and the informant's family on the other was proved. The trial court further found that there was a delay in lodging the FIR which provided an opportunity to the informant and other PWs to implicate their enemies. Thus, false implication could not be ruled out.\nFurther, the fardbeyan was recorded in the village at 9.00 p.m. on 05.01.1984. A dead body challan which was prepared by J.N. Singh, Sub-Inspector of Police (S.I.) which shows that the body was sent for post- mortem at 11.00 p.m. There was also an entry in the station diary that J.N. Singh (S.I.) returned to the police station at 9.00 p.m. If the fardbeyan was prepared at 9.00 p.m. at the place of incident which is six kilometers away from the police station, J.N. Singh (S.I.) could not have arrived at the police station at 9.00 p.m. The record shows that he prepared the inquest report at 10.00 p.m. and the dead body challan at 11.00 p.m. at the place of occurrence. J.N. Singh (S.I.) who is an important witness was not examined by the prosecution.\nReferring to the above circumstances, the trial court held that it was clear that the inquest report and the dead body challan were prepared later at the police station. An adverse inference was drawn against the Prosecution. The trial court also took note of the presence of the Mangal Tanti, the Chowkidar of the village, who reached the place of the incident in 30 minutes after the incident took place. He was not examined as a witness. None of the witnesses deposed that they informed the Chowkidar about the incident.\nNo independent witness was examined though the village was hardly 200 metres from the place of the incident. No pellet or traces of bullets were recovered from the place of the incident. On the basis of the above findings along with other contradictions in the evidence of the witnesses, the trial court acquitted the Appellants of all the charges against them.\n 7. The Appeals filed by the State and the revision filed by the complainant, were taken altogether. The High Court appreciated the evidence and found fault with the judgment of the trial court. The High Court felt that apart from minor inconsistencies, the evidence of the eye witnesses was reliable and there was sufficient light to identify the accused. The accused shared a common intention of killing the deceased according to the High Court. The delay in registering the FIR was found to be not fatal to the case of the Prosecution. The evidence of interested witnesses was also held reliable by the High Court. The minor errors in recording the time in the police station and the non-examination of J.N. Singh (S.I.) did not prejudice the prosecution's case. By differing with the view taken by the trial court on the above points, the High Court found that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused. On the aforesaid findings, the High Court convicted the Appellants under Section 302 read with Sections 34 and 148 IPC and sentenced them to life imprisonment.\n8. The question that falls for determination in this case is whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal, Lord Russell in Sheo Swarup v. King-Emperor1 held: \"9. .. .. the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a 1 (1934) 36 BOM LR 1185 9 Judge who had the advantage of seeing the witnesses.\"\n 9. The approach of the High Court in an appeal against acquittals was explained by this Court in Surajpal Singh & Ors. v. The State2 as follows: \"It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well- settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.\"\n 10. This Court in Muralidhar @ Gidda & Anr. v.\n State of Karnataka3 referred to several earlier judgments dealing with appeals against acquittals and observed that the appellate court must bear in mind the following : \"12. .. ..\n (i) There is presumption of innocence in favour of an accused person and such 2 (1952) 3 SCR 193 3 (2014) 5 SCC 730 12 (i-iv) presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.\"\n 11. It is relevant to refer to another judgment of this Court in Ghurey Lal v. State of Uttar Pradesh4 in which the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court's acquittal were crystallised as under: \"70. ...\n 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has \"very substantial and compelling reasons\" for doing so.\n A number of instances arise in which the appellate court would have \"very substantial and compelling reasons\" to discard the trial court's decision. \"Very substantial and compelling reasons\" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; 4 (2008) 10 SCC 450 (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in \"grave miscarriage of justice\"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.\n (vii) This list is intended to be illustrative, not exhaustive.\n 2. The appellate court must always give proper weight and consideration to the findings of the trial court.\n 3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused.\"\n 12. Interference with the judgment of the trial court in this case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible. Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective.\nInterference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with. The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the accused, non- examination of independent witnesses, previous enmity between the accused and the witnesses, non- production of important prosecution witnesses and improper investigation of the case. On a thorough examination of the entire evidence on record and the judgment of the trial court, we are of the considered view that the judgment of acquittal by the trial court is justified which ought not to have been interfered with by the High Court. The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court.\n 13. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored. The Appellant No.3 was released on bail on 30.01.2017. His bail bonds are discharged.\n ...................................J.\n [ L. NAGESWARA RAO ] ..................................J.\n [ R. SUBHASH REDDY ] New Delhi, December 04, 2018.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"to_name": null,
"type": null,
"value": {
"end": 131,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA"
}
},
{
"from_name": null,
"id": "ccf61a53f9f143078c7c40a5f63e3e72",
"to_name": null,
"type": null,
"value": {
"end": 197,
"labels": [
"PREAMBLE"
],
"start": 149,
"text": "CRIMINAL APPELLATE JURISDICTION\n "
}
},
{
"from_name": null,
"id": "11a2d6f8f42b4b0b9b83557bdf26a7ce",
"to_name": null,
"type": null,
"value": {
"end": 293,
"labels": [
"PREAMBLE"
],
"start": 197,
"text": "CRIMINAL APPEAL NO. 1448 OF 2017\n(Arising out of Special Leave Petition (Crl.) No. 3716 OF 2017)"
}
},
{
"from_name": null,
"id": "bd02aee0c0ce41de81c0b6c9024d9b21",
"to_name": null,
"type": null,
"value": {
"end": 327,
"labels": [
"PREAMBLE"
],
"start": 293,
"text": "\n\nLt. Col. Prasad Shrikant Purohit"
}
},
{
"from_name": null,
"id": "7ff21b1c31664f1183e465c39f36894d",
"to_name": null,
"type": null,
"value": {
"end": 349,
"labels": [
"PREAMBLE"
],
"start": 328,
"text": " .... Appellant(s)"
}
},
{
"from_name": null,
"id": "861a2a74e7484d2297d80c144048a977",
"to_name": null,
"type": null,
"value": {
"end": 469,
"labels": [
"PREAMBLE"
],
"start": 349,
"text": "\n Versus .... Respondent(s)\n\nState of Maharashtra\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "7286b90150674c95b5ffa67ede6c786c",
"to_name": null,
"type": null,
"value": {
"end": 487,
"labels": [
"NONE"
],
"start": 469,
"text": "\n R.K. Agrawal, J."
}
},
{
"from_name": null,
"id": "2a43957f90d34aaa99165b25090b45c5",
"to_name": null,
"type": null,
"value": {
"end": 505,
"labels": [
"NONE"
],
"start": 487,
"text": "\n1) Leave granted."
}
},
{
"from_name": null,
"id": "869e7986ddb74a8a9478d432211e04a0",
"to_name": null,
"type": null,
"value": {
"end": 963,
"labels": [
"FAC"
],
"start": 506,
"text": "2) This appeal is directed against the judgment and order dated 25.04.2017 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 664 of 2016 whereby the Division Bench of the High Court dismissed the bail application filed by the appellant herein.\n3) Brief facts: (a) On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at Malegaon, District Nasik, opposite Shakil Goods Transport Company between Anjuman Chowk and Bhiku Chowk."
}
},
{
"from_name": null,
"id": "9a4805828b3a4c4894f301e2924ceafc",
"to_name": null,
"type": null,
"value": {
"end": 1082,
"labels": [
"FAC"
],
"start": 964,
"text": "The said blast was caused by explosive device fitted in LML Freedom Motor Cycle bearing Registration No.\nMH-15-P-4572."
}
},
{
"from_name": null,
"id": "d1c4c398e18a4b94b86ab1b644bbeb5e",
"to_name": null,
"type": null,
"value": {
"end": 1204,
"labels": [
"FAC"
],
"start": 1083,
"text": "As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature."
}
},
{
"from_name": null,
"id": "2d02563a97ec46f995637653225c5d30",
"to_name": null,
"type": null,
"value": {
"end": 1244,
"labels": [
"FAC"
],
"start": 1205,
"text": "Damage to the property was also caused."
}
},
{
"from_name": null,
"id": "08cad1d1c4b841548a93ff5587f778b1",
"to_name": null,
"type": null,
"value": {
"end": 1570,
"labels": [
"FAC"
],
"start": 1244,
"text": "\n(b) The offence came to be registered under CR No.\n130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short `the IPC') read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959."
}
},
{
"from_name": null,
"id": "80641b13bf194bc585b127b66b28dcdc",
"to_name": null,
"type": null,
"value": {
"end": 1791,
"labels": [
"FAC"
],
"start": 1570,
"text": "\n(c) During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate."
}
},
{
"from_name": null,
"id": "3162ab9e116c42928205e7d080bda629",
"to_name": null,
"type": null,
"value": {
"end": 2045,
"labels": [
"FAC"
],
"start": 1792,
"text": "On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short `the UAP Act') were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural."
}
},
{
"from_name": null,
"id": "32d2651f09f74cc5b3b9e1a3523d7a70",
"to_name": null,
"type": null,
"value": {
"end": 2255,
"labels": [
"FAC"
],
"start": 2046,
"text": "On 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short `the MCOC Act) were added."
}
},
{
"from_name": null,
"id": "8e69b32e1eb74c7b94ac44f3c373a707",
"to_name": null,
"type": null,
"value": {
"end": 2637,
"labels": [
"FAC"
],
"start": 2256,
"text": "(d) During investigation, it was found that the appellant herein, along with other co-accused in the case, entered into a criminal conspiracy between January, 2008 to October, 2008 with a common object and intention to strike terror in the minds of people caused bomb blast at Malegaon by using explosive substances to cause damage to life and property and to create communal rift."
}
},
{
"from_name": null,
"id": "9237a091c29d4c19918f2b5ddc7ad5cb",
"to_name": null,
"type": null,
"value": {
"end": 2757,
"labels": [
"FAC"
],
"start": 2638,
"text": "According to ATS, the appellant herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at Malegaon."
}
},
{
"from_name": null,
"id": "fff2d67d9a1f4d33814a6c8794bbbb31",
"to_name": null,
"type": null,
"value": {
"end": 2970,
"labels": [
"FAC"
],
"start": 2757,
"text": "\n(e) During investigation, it has been further revealed by the ATS that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities)."
}
},
{
"from_name": null,
"id": "54432e337dc5413a83ba86e4ed2ef729",
"to_name": null,
"type": null,
"value": {
"end": 3114,
"labels": [
"FAC"
],
"start": 2971,
"text": "The appellant herein floated `Abhinav Bharat' organization in the year 2007 inspite of being serving as a Commissioned Officer in Armed Forces."
}
},
{
"from_name": null,
"id": "312534d4eff34fc4ae0ff3427e58fb4e",
"to_name": null,
"type": null,
"value": {
"end": 3195,
"labels": [
"FAC"
],
"start": 3115,
"text": "The other co-accused in the case were also the members of the said organization."
}
},
{
"from_name": null,
"id": "f162aeb4a2c144c0832b52fcd992d3ab",
"to_name": null,
"type": null,
"value": {
"end": 3287,
"labels": [
"FAC"
],
"start": 3196,
"text": "The object of the Organization was to turn India into a Hindu Rashtra called as `Aryavrat'."
}
},
{
"from_name": null,
"id": "65b4fe490648453fa86d3834141a1f1e",
"to_name": null,
"type": null,
"value": {
"end": 3435,
"labels": [
"FAC"
],
"start": 3288,
"text": "They had planned to train persons for guerrilla war and had also decided to kill the persons opposing their object of formation of a Hindu Rashtra."
}
},
{
"from_name": null,
"id": "8faabcc6304343e585b72b68df122bfc",
"to_name": null,
"type": null,
"value": {
"end": 3649,
"labels": [
"FAC"
],
"start": 3436,
"text": "As per the investigation, it has also come out that the appellant herein along with other persons had participated in various meetings of the said Organization to discuss various aspects for achieving their goals."
}
},
{
"from_name": null,
"id": "2f40e4900a2f40f38129fdf82fd6dd26",
"to_name": null,
"type": null,
"value": {
"end": 3833,
"labels": [
"FAC"
],
"start": 3650,
"text": "Further, it is the case of the ATS that the organization, viz., `Abhinav Bharat' is an Organized Crime Syndicate and its members including the appellant herein were active since 2003."
}
},
{
"from_name": null,
"id": "5d74e9b2db1b4ccda18d5b97f76f117d",
"to_name": null,
"type": null,
"value": {
"end": 3958,
"labels": [
"FAC"
],
"start": 3834,
"text": "In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was hatched."
}
},
{
"from_name": null,
"id": "340339ce5d1c4822b797832d5e86c7e2",
"to_name": null,
"type": null,
"value": {
"end": 4139,
"labels": [
"FAC"
],
"start": 3959,
"text": "In the said meeting, the appellant herein took the responsibility of providing explosives for the common object in order to take revenge of `Jihadi' activities by Muslim community."
}
},
{
"from_name": null,
"id": "9be09b518d5c408581fea69fac376b4e",
"to_name": null,
"type": null,
"value": {
"end": 4526,
"labels": [
"FAC"
],
"start": 4139,
"text": "\n(f) After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act."
}
},
{
"from_name": null,
"id": "c1fc5de980c64f31a448d9ed845f469c",
"to_name": null,
"type": null,
"value": {
"end": 4613,
"labels": [
"FAC"
],
"start": 4526,
"text": "\n(g) The appellant came to be arrested on 05.11.2008 in connection to the said offence."
}
},
{
"from_name": null,
"id": "1e1d7c0fc07b43b4a919bc3a810c0d48",
"to_name": null,
"type": null,
"value": {
"end": 4741,
"labels": [
"FAC"
],
"start": 4614,
"text": "The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai."
}
},
{
"from_name": null,
"id": "06069a8b345743c99963c6a4054de716",
"to_name": null,
"type": null,
"value": {
"end": 4930,
"labels": [
"FAC"
],
"start": 4742,
"text": "By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik."
}
},
{
"from_name": null,
"id": "0140c1d03a694121b568f4e751352708",
"to_name": null,
"type": null,
"value": {
"end": 5056,
"labels": [
"FAC"
],
"start": 4931,
"text": "The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court."
}
},
{
"from_name": null,
"id": "6c51627d90074ae4b1de1d0f000f7db7",
"to_name": null,
"type": null,
"value": {
"end": 5245,
"labels": [
"FAC"
],
"start": 5057,
"text": "A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits."
}
},
{
"from_name": null,
"id": "dbe4cfec17854885b7e028ad2aa886a3",
"to_name": null,
"type": null,
"value": {
"end": 5349,
"labels": [
"FAC"
],
"start": 5246,
"text": "The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010."
}
},
{
"from_name": null,
"id": "863bb1d373f74c698ac59c69e7f3677f",
"to_name": null,
"type": null,
"value": {
"end": 5632,
"labels": [
"FAC"
],
"start": 5350,
"text": "It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-"
}
},
{
"from_name": null,
"id": "d3b1874010f84b49a806a2ef6da05ce6",
"to_name": null,
"type": null,
"value": {
"end": 5702,
"labels": [
"FAC"
],
"start": 5632,
"text": "registered the offence in respect of the said incident as CR No. 5/11."
}
},
{
"from_name": null,
"id": "ec053e5a40274733bb48f45f5b703942",
"to_name": null,
"type": null,
"value": {
"end": 5977,
"labels": [
"FAC"
],
"start": 5702,
"text": "\n (h) This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits."
}
},
{
"from_name": null,
"id": "20b9e0fe215349efa1c28c8453b9d06d",
"to_name": null,
"type": null,
"value": {
"end": 6067,
"labels": [
"FAC"
],
"start": 5978,
"text": "On the question of applicability of the MCOC Act, this Court has observed as under:- \"95."
}
},
{
"from_name": null,
"id": "a5e405496adf434b9892ed5a2fc6638a",
"to_name": null,
"type": null,
"value": {
"end": 6347,
"labels": [
"FAC"
],
"start": 6068,
"text": "In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful."
}
},
{
"from_name": null,
"id": "ba5071a5fcca442ebeb1232e8bda4424",
"to_name": null,
"type": null,
"value": {
"end": 6606,
"labels": [
"FAC"
],
"start": 6348,
"text": "We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail."
}
},
{
"from_name": null,
"id": "437abd0dcef14f4790c1d63de45a334c",
"to_name": null,
"type": null,
"value": {
"end": 7015,
"labels": [
"FAC"
],
"start": 6607,
"text": "Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna."
}
},
{
"from_name": null,
"id": "13de9516e4ed4605aecd5336f26617d7",
"to_name": null,
"type": null,
"value": {
"end": 7180,
"labels": [
"FAC"
],
"start": 7016,
"text": "There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.\""
}
},
{
"from_name": null,
"id": "65137f602e884698aeb58f07f3b23e57",
"to_name": null,
"type": null,
"value": {
"end": 7209,
"labels": [
"FAC"
],
"start": 7180,
"text": "\n Vide order dated 12.10.2015"
}
},
{
"from_name": null,
"id": "3280276efb9e4cef80720528be49c53a",
"to_name": null,
"type": null,
"value": {
"end": 7284,
"labels": [
"FAC"
],
"start": 7209,
"text": ", the Special Judge, rejected the bail application of the appellant herein."
}
},
{
"from_name": null,
"id": "e8d880c1c9294902a96aaaad18354e69",
"to_name": null,
"type": null,
"value": {
"end": 7422,
"labels": [
"FAC"
],
"start": 7285,
"text": "Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court."
}
},
{
"from_name": null,
"id": "6c7bb69017054aeba49761735e694b6e",
"to_name": null,
"type": null,
"value": {
"end": 7631,
"labels": [
"FAC"
],
"start": 7422,
"text": "\nDuring the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein."
}
},
{
"from_name": null,
"id": "b38cbd9041f44e10b0c2b965e81a5265",
"to_name": null,
"type": null,
"value": {
"end": 7763,
"labels": [
"FAC"
],
"start": 7632,
"text": "In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application."
}
},
{
"from_name": null,
"id": "d55efa6db6374b8aabede5f2b07fffe1",
"to_name": null,
"type": null,
"value": {
"end": 7912,
"labels": [
"FAC"
],
"start": 7763,
"text": "\n(i) The appellant herein filed a fresh bail application before the Court of Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai."
}
},
{
"from_name": null,
"id": "8760a6bb3e6c4cf9a576023fcaeedf5e",
"to_name": null,
"type": null,
"value": {
"end": 8001,
"labels": [
"RLC"
],
"start": 7913,
"text": "The Special Judge, vide order dated 26.09.2016, denied the bail to the appellant herein."
}
},
{
"from_name": null,
"id": "b48f64f0114b4f669631aeadcf0a543c",
"to_name": null,
"type": null,
"value": {
"end": 8149,
"labels": [
"FAC"
],
"start": 8002,
"text": "Being aggrieved by the order dated 26.09.2016, the appellant herein went in appeal before the High Court and filed Criminal Appeal No. 664 of 2016."
}
},
{
"from_name": null,
"id": "f5e0101f2bf3425c8475fa91f7c6d490",
"to_name": null,
"type": null,
"value": {
"end": 8253,
"labels": [
"FAC"
],
"start": 8150,
"text": "The NIA resisted the bail application of the appellant herein on various grounds before the High Court."
}
},
{
"from_name": null,
"id": "647dafbe8e1b495b87c7ec85fb99abb4",
"to_name": null,
"type": null,
"value": {
"end": 8360,
"labels": [
"RLC"
],
"start": 8254,
"text": "On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein."
}
},
{
"from_name": null,
"id": "94ae9e55b5b24a10bf1fe14520a79115",
"to_name": null,
"type": null,
"value": {
"end": 8481,
"labels": [
"FAC"
],
"start": 8360,
"text": "\n Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave."
}
},
{
"from_name": null,
"id": "5ad9734c9e574e00b3ca5adf0706ba7d",
"to_name": null,
"type": null,
"value": {
"end": 8782,
"labels": [
"NONE"
],
"start": 8481,
"text": "\n4) Heard Mr. Harish Salve, learned senior counsel for the appellant herein and Mr. Maninder Singh, learned Additional Solicitor General for the respondent-State and Mr. Amarendra Sharan, learned senior counsel for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the deceased."
}
},
{
"from_name": null,
"id": "dbb763781c694c80ab7c28a03f771f01",
"to_name": null,
"type": null,
"value": {
"end": 8988,
"labels": [
"ISSUE"
],
"start": 8782,
"text": "\nPoint(s) for consideration:- 5) The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case for grant of bail or not?"
}
},
{
"from_name": null,
"id": "1ba21a20409947beaa9b51d674973b4d",
"to_name": null,
"type": null,
"value": {
"end": 9314,
"labels": [
"ARG_PETITIONER"
],
"start": 8988,
"text": "\nRival contentions:- 6) Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appellant herein."
}
},
{
"from_name": null,
"id": "980939eab2c64c92b312932760675e7c",
"to_name": null,
"type": null,
"value": {
"end": 9781,
"labels": [
"ARG_PETITIONER"
],
"start": 9314,
"text": "\nLearned senior counsel further contended that earlier, the bail applications were rejected mainly on the basis of the confessional statements of the co-accused under the MCOC Act and now, as the charges under the MCOC Act have been dropped, the confessional statements of the co-accused are required to be excluded from consideration and in their absence thereof, there is no incriminating material against the appellant herein so as to deny him the benefit of bail."
}
},
{
"from_name": null,
"id": "8167a54f626c4d8aaf21a8411aea0869",
"to_name": null,
"type": null,
"value": {
"end": 9942,
"labels": [
"ARG_PETITIONER"
],
"start": 9782,
"text": "Learned senior counsel further contended that during investigation by NIA, PW-79, PW-112 and PW-55 have retracted their previous statements made before the ATS."
}
},
{
"from_name": null,
"id": "e0fc977625db42c4bbeabc728efecb34",
"to_name": null,
"type": null,
"value": {
"end": 10201,
"labels": [
"ARG_PETITIONER"
],
"start": 9943,
"text": "The fact that the material witnesses have retracted from their statements while complaining about the harassment and torture meted out by the officers of the ATS, clearly indicate that the investigation carried out by the ATS was not fair but it was tainted."
}
},
{
"from_name": null,
"id": "9e3b013842e048fa89cb20b5bbc0c6b4",
"to_name": null,
"type": null,
"value": {
"end": 10364,
"labels": [
"ARG_PETITIONER"
],
"start": 10202,
"text": "The statements and confessions have been extracted subjecting the witness and co-accused to the torture and duress, under the threats of implicating them falsely."
}
},
{
"from_name": null,
"id": "87acab772c7544a197da140f20b64394",
"to_name": null,
"type": null,
"value": {
"end": 10557,
"labels": [
"ARG_PETITIONER"
],
"start": 10365,
"text": "Learned senior counsel contended that in view of the withdrawal of those statements and confessions, there remains nothing on record to implicate the appellant herein with the alleged offence."
}
},
{
"from_name": null,
"id": "9cae52c179614e4ba599d49191b15715",
"to_name": null,
"type": null,
"value": {
"end": 11101,
"labels": [
"ARG_PETITIONER"
],
"start": 10557,
"text": "\n7) Learned senior counsel further contended that the appellant was a Military Intelligence Officer at the relevant time and had participated in the meetings held at various places like Faridabad, Bhopal etc. in discharge of his duties as such for collecting intelligence and creating new sources and the said fact has also been revealed in the Report of Court of Inquiry (CoI) conducted by the Army Officers against him as well as in the reply filed by the Ministry of Defence and the documents filed by the said Ministry in the Special Court."
}
},
{
"from_name": null,
"id": "d3681b3726924078807048096353f4f2",
"to_name": null,
"type": null,
"value": {
"end": 11283,
"labels": [
"ARG_PETITIONER"
],
"start": 11101,
"text": "\nLearned senior counsel further contended that there was no sufficient material to show that in the said meetings, any conspiracy was hatched to commit the bomb blast at Malegaon.\n8)"
}
},
{
"from_name": null,
"id": "2860d52d45ef418d84e7994ca734ce0b",
"to_name": null,
"type": null,
"value": {
"end": 11667,
"labels": [
"ARG_PETITIONER"
],
"start": 11284,
"text": "Learned senior counsel vehemently contended the statement of PW-21 that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence in order to suggest that no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence."
}
},
{
"from_name": null,
"id": "3949283266dd435a8953a27a61674b07",
"to_name": null,
"type": null,
"value": {
"end": 11766,
"labels": [
"ARG_PETITIONER"
],
"start": 11668,
"text": "Even the appellant herein also informed that it was a `covert operation' of Military Intelligence."
}
},
{
"from_name": null,
"id": "f494d519e16241768cb6766086ad500f",
"to_name": null,
"type": null,
"value": {
"end": 11946,
"labels": [
"ARG_PETITIONER"
],
"start": 11768,
"text": "9) Learned senior counsel further contended that the Report of Inquiry (RoI) also reveals that the RDX was planted by the ATS officer in the house of Sudhakarn Chaturvedi (A-11)."
}
},
{
"from_name": null,
"id": "e410533d348c4585942c4d3b357791a6",
"to_name": null,
"type": null,
"value": {
"end": 12073,
"labels": [
"ARG_PETITIONER"
],
"start": 11947,
"text": "The statements of PW-180 and PW-183 also indicate the same but the courts below disbelieved the version of NIA in this regard."
}
},
{
"from_name": null,
"id": "f150f9157796419baedcd8ab2674a8d4",
"to_name": null,
"type": null,
"value": {
"end": 12253,
"labels": [
"ARG_PETITIONER"
],
"start": 12073,
"text": "\n10) Further, learned senior counsel strenuously contended that whether the amended provision of Section 43(D)(5) of the UAP Act be applied retrospectively to the appellant herein."
}
},
{
"from_name": null,
"id": "c7fadc3b763746a9969a320fdd381748",
"to_name": null,
"type": null,
"value": {
"end": 12353,
"labels": [
"ARG_PETITIONER"
],
"start": 12253,
"text": "\nThe said provision had been amended on 31.12.2008 while the incident had taken place on 29.09.2008."
}
},
{
"from_name": null,
"id": "c7448e186a1c4a03a107e3945c3b74db",
"to_name": null,
"type": null,
"value": {
"end": 12577,
"labels": [
"ARG_PETITIONER"
],
"start": 12354,
"text": "He further contended that the High Court was not right in holding that the right of bail of the accused is a procedural right and cannot be considered as a substantive right for retrospective applicability of the provision."
}
},
{
"from_name": null,
"id": "96160f09bf9a49c4ac008c8fbe1b8809",
"to_name": null,
"type": null,
"value": {
"end": 12690,
"labels": [
"ARG_PETITIONER"
],
"start": 12578,
"text": "Further, the sanction granted for prosecution of the appellant under Section 45(1) of the UAP Act was not valid."
}
},
{
"from_name": null,
"id": "fd86cc1b60bd4572b712083c895a6cff",
"to_name": null,
"type": null,
"value": {
"end": 13018,
"labels": [
"ARG_PETITIONER"
],
"start": 12691,
"text": "He further stressed upon the point that the High Court erred in ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the court has taken into account the changed circumstances in the charge sheet filed by the NIA but the very same facts have been ignored in the case of the appellant herein."
}
},
{
"from_name": null,
"id": "529923dc51104275943e38a36893fdc0",
"to_name": null,
"type": null,
"value": {
"end": 13322,
"labels": [
"ARG_PETITIONER"
],
"start": 13019,
"text": "Learned senior counsel finally submitted that the appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies and the appellant herein has a good prima facie case to succeed for grant of bail before this Court."
}
},
{
"from_name": null,
"id": "df96297f507040eb8ecc43dd4e9e2498",
"to_name": null,
"type": null,
"value": {
"end": 13641,
"labels": [
"ARG_RESPONDENT"
],
"start": 13323,
"text": "11) Learned Additional Solicitor General (ASG) for the respondent-State strongly controverted the contentions raised by learned senior counsel for the appellant herein by submitting that he was the main conspirator and prima facie there is sufficient material on record to prove his involvement in the alleged offence."
}
},
{
"from_name": null,
"id": "164e1ebb608f42d2b426c7e228d8f402",
"to_name": null,
"type": null,
"value": {
"end": 13807,
"labels": [
"ARG_RESPONDENT"
],
"start": 13642,
"text": "Merely because the charges have been dropped under the MCOC Act, it does not mean that there is no material against the appellant herein in respect of other charges."
}
},
{
"from_name": null,
"id": "9d87621dbbc54d25ab635b806f1c7943",
"to_name": null,
"type": null,
"value": {
"end": 14076,
"labels": [
"ARG_RESPONDENT"
],
"start": 13808,
"text": "The NIA has given clean chit to Pragya Singh Thakur (A-1) and some other accused person but it has not exonerated the appellant herein from the charges leveled against him which clearly proves that the NIA has also found sufficient material to implicate the appellant."
}
},
{
"from_name": null,
"id": "ab54cc26ab5b4fe1bd33330a40cf0c5a",
"to_name": null,
"type": null,
"value": {
"end": 14314,
"labels": [
"ARG_RESPONDENT"
],
"start": 14078,
"text": "12) Learned ASG finally submitted that the conclusions about involvement of the appellant herein in the offences alleged against him as drawn by the ATS are supplemented and supported by the NIA officers in their detailed investigation."
}
},
{
"from_name": null,
"id": "cc924738ff2f44f8993a4ec1aafcfd91",
"to_name": null,
"type": null,
"value": {
"end": 15058,
"labels": [
"ARG_RESPONDENT"
],
"start": 14315,
"text": "Having regard to the gravity and seriousness of the offence, which were in the nature of waging war against the unity and integrity of the Nation, and, that too, by violent means, the bail application of the appellant could not have been allowed and it has rightly been rejected by the courts below and no interference is sought for by this Court.\n13) Mr. Amarendra Saran, learned senior counsel for the intervenor submitted that there are sufficient material and evidence on record to establish a prima facie case of the involvement of the appellant herein in the criminal offence and the report of the Court of Inquiry (CoI) submitted by the Military authorities cannot be taken into consideration for deciding the question of grant of bail."
}
},
{
"from_name": null,
"id": "3ecaac62756b409cafe0c2d14cd3c9c3",
"to_name": null,
"type": null,
"value": {
"end": 15598,
"labels": [
"ANALYSIS"
],
"start": 15059,
"text": "Discussion:- 14) In order to prove the prima facie case against the appellant, the prosecution has relied upon the transcription of the conversations of the meetings obtained from the laptop of Swami Amrutanand (A-10), statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short `the Code'), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11)."
}
},
{
"from_name": null,
"id": "21043470438149fcab104545222b114d",
"to_name": null,
"type": null,
"value": {
"end": 15951,
"labels": [
"ANALYSIS"
],
"start": 15599,
"text": "With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation."
}
},
{
"from_name": null,
"id": "e70cad674cc8464bae5251f9967b5c56",
"to_name": null,
"type": null,
"value": {
"end": 16139,
"labels": [
"ANALYSIS"
],
"start": 15952,
"text": "In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities)."
}
},
{
"from_name": null,
"id": "c71d0f8a107e4650a8fadaa19bc1b9d2",
"to_name": null,
"type": null,
"value": {
"end": 16366,
"labels": [
"ANALYSIS"
],
"start": 16140,
"text": "In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence."
}
},
{
"from_name": null,
"id": "bd2f4749be8c4278acdc0392e1c6a6ff",
"to_name": null,
"type": null,
"value": {
"end": 16651,
"labels": [
"ANALYSIS"
],
"start": 16367,
"text": "Even the appellant herein also informed that it was a `covert operation' of Military Intelligence and he attended the said meetings to create the counter intelligence and no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence."
}
},
{
"from_name": null,
"id": "42ad769b172f4cc2aeb8e4160f500f80",
"to_name": null,
"type": null,
"value": {
"end": 16804,
"labels": [
"ANALYSIS"
],
"start": 16651,
"text": "\nBesides this, the documents filed by the Ministry of Defence and the papers of the Court of Inquiry also substantiate the claim of the appellant herein."
}
},
{
"from_name": null,
"id": "faaeef7975244138ae50be6fac0f972f",
"to_name": null,
"type": null,
"value": {
"end": 16932,
"labels": [
"ANALYSIS"
],
"start": 16805,
"text": "Similarly, intercepted telephonic conversations between the co-accused and the appellant herein were supported as part of duty."
}
},
{
"from_name": null,
"id": "40505c794e7e40288df1f5d1703ad70e",
"to_name": null,
"type": null,
"value": {
"end": 17061,
"labels": [
"ANALYSIS"
],
"start": 16932,
"text": "\n15) The NIA started the investigation on the basis of the facts stated in the FIR and the evidence collected by the ATS, Mumbai."
}
},
{
"from_name": null,
"id": "6afb5325b5ec4e2c890544cb5b09a48b",
"to_name": null,
"type": null,
"value": {
"end": 17191,
"labels": [
"ANALYSIS"
],
"start": 17062,
"text": "During investigation, it was found that there were contradictions with regard to the evidence led in the charge sheet by the ATS."
}
},
{
"from_name": null,
"id": "861d29c42f8f4893a8127e57b468b6a7",
"to_name": null,
"type": null,
"value": {
"end": 17527,
"labels": [
"ANALYSIS"
],
"start": 17192,
"text": "On the basis of the specific points covered during the investigation conducted by the NIA, it was concluded that no offence under the MCOC Act was attracted and the confessional statements recorded under the provisions of the said Act by ATS Mumbai were not being relied upon by the NIA in the charge sheet against the accused persons."
}
},
{
"from_name": null,
"id": "f0ab118580094215b672d4d1d3a96542",
"to_name": null,
"type": null,
"value": {
"end": 17778,
"labels": [
"ANALYSIS"
],
"start": 17528,
"text": "In fact, on evaluation of the evidence against Pragya Singh Thakur (A-1), the evidence on record were not found sufficient by the NIA to prosecute her as all the witnesses had retracted from their statements and thus no case was made out against her."
}
},
{
"from_name": null,
"id": "5f075aebb3d1427ab51c761b6142e674",
"to_name": null,
"type": null,
"value": {
"end": 18111,
"labels": [
"ANALYSIS"
],
"start": 17779,
"text": "16) As regards the other parameters to be considered while deciding the application of bail, like, reasonable apprehension of the witnesses being tampered with and danger, of-course, of justice being thwarted by grant of bail, needless to state that already some of the witnesses have retracted their statements made before the ATS."
}
},
{
"from_name": null,
"id": "dc6baa0e3d984db7b5df9c21b95284fb",
"to_name": null,
"type": null,
"value": {
"end": 18380,
"labels": [
"ANALYSIS"
],
"start": 18112,
"text": "A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case."
}
},
{
"from_name": null,
"id": "e6b51cef75ab40bfb826bba7599bc502",
"to_name": null,
"type": null,
"value": {
"end": 18477,
"labels": [
"ANALYSIS"
],
"start": 18381,
"text": "In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai."
}
},
{
"from_name": null,
"id": "131d854bc8674337b5a1243ce6ca482e",
"to_name": null,
"type": null,
"value": {
"end": 18734,
"labels": [
"ANALYSIS"
],
"start": 18478,
"text": "Even during re-examination of PW-79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of `Abhinav Bharat' held at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009."
}
},
{
"from_name": null,
"id": "570a71bdd1cf41e08955e49bd39173c3",
"to_name": null,
"type": null,
"value": {
"end": 18851,
"labels": [
"ANALYSIS"
],
"start": 18735,
"text": "The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed the same."
}
},
{
"from_name": null,
"id": "08179fb055284e7e84a57692aac55ab4",
"to_name": null,
"type": null,
"value": {
"end": 19166,
"labels": [
"ANALYSIS"
],
"start": 18851,
"text": "\n17) In view of the above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS."
}
},
{
"from_name": null,
"id": "939f88b848ff4c7f91bfde45f951d543",
"to_name": null,
"type": null,
"value": {
"end": 19433,
"labels": [
"ANALYSIS"
],
"start": 19167,
"text": "However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA."
}
},
{
"from_name": null,
"id": "ab104ce4da3f4478889917225d14f853",
"to_name": null,
"type": null,
"value": {
"end": 19764,
"labels": [
"ANALYSIS"
],
"start": 19434,
"text": "He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:- (1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for a month sometime in 2006."
}
},
{
"from_name": null,
"id": "f526b3cc947746b988c90be16b3ab7cc",
"to_name": null,
"type": null,
"value": {
"end": 20125,
"labels": [
"ANALYSIS"
],
"start": 19765,
"text": "The description of the weapons was also dictated to him.\n (2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali.\n (3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast.\n (4) That Lt. Col. Purohit told him in the early 2008 that something was planned to be done soon."
}
},
{
"from_name": null,
"id": "b29e76cd0eb44c1b99a4c70c61ad77fc",
"to_name": null,
"type": null,
"value": {
"end": 20209,
"labels": [
"ANALYSIS"
],
"start": 20126,
"text": "He further told him that an action was planned in Nashik District in Oct/Nov. 2008."
}
},
{
"from_name": null,
"id": "030b2b33d6ed4821878e4c1e37692b02",
"to_name": null,
"type": null,
"value": {
"end": 20364,
"labels": [
"ANALYSIS"
],
"start": 20209,
"text": "\n (5) That he was asked to say that Lt. Col. Purohit had confessed to him about planning and executing the Malegaon blast along with his accomplices."
}
},
{
"from_name": null,
"id": "e1e338299cc246e79d861ea027b7e722",
"to_name": null,
"type": null,
"value": {
"end": 20538,
"labels": [
"ANALYSIS"
],
"start": 20364,
"text": "\n18) Apart from the above, during the investigation by the NIA, it was revealed that the Army authorities had conducted a Court of Inquiry (CoI) against the appellant herein."
}
},
{
"from_name": null,
"id": "d75e84f8ac3c49a6bc952d370172dfee",
"to_name": null,
"type": null,
"value": {
"end": 20682,
"labels": [
"ANALYSIS"
],
"start": 20539,
"text": "During scrutiny of the proceedings of the CoI, a different story of assembling of IED in the House of Sudhakar Chaturvedi (A-11) came to light."
}
},
{
"from_name": null,
"id": "9455d8d3e68043b7838e07022dbbc153",
"to_name": null,
"type": null,
"value": {
"end": 20902,
"labels": [
"ANALYSIS"
],
"start": 20683,
"text": "During re-examination of the witnesses by the NIA who deposed before the Court of Inquiry (CoI), it was revealed that they suspiciously found API Bagde of ATS in the house of A-11 when A-11 was not present in the house."
}
},
{
"from_name": null,
"id": "3219989e396c4c2dbdd77d6aeed57eb2",
"to_name": null,
"type": null,
"value": {
"end": 21041,
"labels": [
"ANALYSIS"
],
"start": 20903,
"text": "On considering the facts narrated by the witnesses, the question arises here as to why API Bagde visited the house of A-11 in his absence."
}
},
{
"from_name": null,
"id": "8e6232bb34db474ca57b5b5a8002c5be",
"to_name": null,
"type": null,
"value": {
"end": 21282,
"labels": [
"ANALYSIS"
],
"start": 21042,
"text": "It is also pertinent to mention her that the ATS conducted the search of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses."
}
},
{
"from_name": null,
"id": "85cdd167c3dc46b4b62c1139da7069ff",
"to_name": null,
"type": null,
"value": {
"end": 21532,
"labels": [
"ANALYSIS"
],
"start": 21283,
"text": "Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case."
}
},
{
"from_name": null,
"id": "b1e648a313f9436980784c508934031f",
"to_name": null,
"type": null,
"value": {
"end": 21824,
"labels": [
"ANALYSIS"
],
"start": 21532,
"text": "\n19) Further, with regard to the contention of learned senior counsel as to the non-applicability of Section 43-D(5) of the UAP Act or want of valid sanction for the prosecution, it was rightly suggested by the learned ASG that it can be considered at the time of trial and not at this stage."
}
},
{
"from_name": null,
"id": "c9bc49cb8c0b4636ae932a0bd6c19f6a",
"to_name": null,
"type": null,
"value": {
"end": 21838,
"labels": [
"ANALYSIS"
],
"start": 21824,
"text": "\n Conclusion:-"
}
},
{
"from_name": null,
"id": "4c4f30105c9947208fb7d613f09753d9",
"to_name": null,
"type": null,
"value": {
"end": 22078,
"labels": [
"ANALYSIS"
],
"start": 21839,
"text": "20) In our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other."
}
},
{
"from_name": null,
"id": "f432ae7897fc453d894e694ef52a5f44",
"to_name": null,
"type": null,
"value": {
"end": 22183,
"labels": [
"ANALYSIS"
],
"start": 22079,
"text": "Liberty of a citizen is undoubtedly important but this is to balance with the security of the community."
}
},
{
"from_name": null,
"id": "fcb304a2392e49078208c62a2588d077",
"to_name": null,
"type": null,
"value": {
"end": 22312,
"labels": [
"ANALYSIS"
],
"start": 22184,
"text": "A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency."
}
},
{
"from_name": null,
"id": "632bbbce85f848aea1379736eb38141a",
"to_name": null,
"type": null,
"value": {
"end": 22445,
"labels": [
"ANALYSIS"
],
"start": 22313,
"text": "It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case."
}
},
{
"from_name": null,
"id": "6d94396acd32421fa08fbefd7bcdb789",
"to_name": null,
"type": null,
"value": {
"end": 22517,
"labels": [
"ANALYSIS"
],
"start": 22446,
"text": "21) The law in regard to grant or refusal of bail is very well settled."
}
},
{
"from_name": null,
"id": "c8d6f4f9cc2b4090b4a031825ed0b9c2",
"to_name": null,
"type": null,
"value": {
"end": 22625,
"labels": [
"ANALYSIS"
],
"start": 22518,
"text": "The court granting bail should exercise its discretion in a judicious manner and not as a matter of course."
}
},
{
"from_name": null,
"id": "96d058bedc324b56bb44052182ddcbbd",
"to_name": null,
"type": null,
"value": {
"end": 22960,
"labels": [
"ANALYSIS"
],
"start": 22626,
"text": "Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence."
}
},
{
"from_name": null,
"id": "f5dfca3bd78d49afa643c5eb913dc5f5",
"to_name": null,
"type": null,
"value": {
"end": 23036,
"labels": [
"ANALYSIS"
],
"start": 22961,
"text": "Any order devoid of such reasons would suffer from non-application of mind."
}
},
{
"from_name": null,
"id": "ca57186a838f40d693dc42da1415b7dc",
"to_name": null,
"type": null,
"value": {
"end": 23305,
"labels": [
"ANALYSIS"
],
"start": 23037,
"text": "It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence."
}
},
{
"from_name": null,
"id": "3f60e825bbfe419aa90e6bc881153c16",
"to_name": null,
"type": null,
"value": {
"end": 23416,
"labels": [
"ANALYSIS"
],
"start": 23305,
"text": "\n (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant."
}
},
{
"from_name": null,
"id": "7ae0df7f1c4f43b1ae5f251fa691568a",
"to_name": null,
"type": null,
"value": {
"end": 23491,
"labels": [
"ANALYSIS"
],
"start": 23416,
"text": "\n (c) Prima facie satisfaction of the court in support of the charge."
}
},
{
"from_name": null,
"id": "505410e95bbb474783cdeaa58eca5811",
"to_name": null,
"type": null,
"value": {
"end": 23771,
"labels": [
"ANALYSIS"
],
"start": 23491,
"text": "\n22) Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected."
}
},
{
"from_name": null,
"id": "d10d3df8a66b4c08be5df898d17de868",
"to_name": null,
"type": null,
"value": {
"end": 23931,
"labels": [
"ANALYSIS"
],
"start": 23772,
"text": "In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."
}
},
{
"from_name": null,
"id": "0d5a5b13ce2a4957abcb47f9ec91c69b",
"to_name": null,
"type": null,
"value": {
"end": 24082,
"labels": [
"ANALYSIS"
],
"start": 23931,
"text": "\n 23) At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken."
}
},
{
"from_name": null,
"id": "23a029fe2c2e4de3963203ac3da02ef3",
"to_name": null,
"type": null,
"value": {
"end": 24158,
"labels": [
"ANALYSIS"
],
"start": 24083,
"text": "The grant or refusal to grant bail lies within the discretion of the court."
}
},
{
"from_name": null,
"id": "97465060baf94b06b7619faaa3c8dcda",
"to_name": null,
"type": null,
"value": {
"end": 24267,
"labels": [
"ANALYSIS"
],
"start": 24159,
"text": "The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case."
}
},
{
"from_name": null,
"id": "f22a1711e87d4876918667b020684d67",
"to_name": null,
"type": null,
"value": {
"end": 24394,
"labels": [
"ANALYSIS"
],
"start": 24268,
"text": "But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused."
}
},
{
"from_name": null,
"id": "77c0fd5802d74b3b9ba0c354e0773b2b",
"to_name": null,
"type": null,
"value": {
"end": 24544,
"labels": [
"RATIO"
],
"start": 24394,
"text": "\n24) In view of the foregoing discussion, we are of the considered opinion that there are variations in the charge sheets filed by ATS Mumbai and NIA."
}
},
{
"from_name": null,
"id": "f99b7679348d4e4184011c6896426123",
"to_name": null,
"type": null,
"value": {
"end": 24651,
"labels": [
"RATIO"
],
"start": 24545,
"text": "Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army"
}
},
{
"from_name": null,
"id": "28a1a48d8e5e4b91834aa480dabadc71",
"to_name": null,
"type": null,
"value": {
"end": 25005,
"labels": [
"RATIO"
],
"start": 24652,
"text": "has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications."
}
},
{
"from_name": null,
"id": "d9329c94874d417a9e430ac82dc75387",
"to_name": null,
"type": null,
"value": {
"end": 25170,
"labels": [
"RATIO"
],
"start": 25005,
"text": "\nAs mentioned earlier, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken."
}
},
{
"from_name": null,
"id": "14d6c8e33d2241afbd70c83c2f332367",
"to_name": null,
"type": null,
"value": {
"end": 25804,
"labels": [
"RATIO"
],
"start": 25171,
"text": "However, keeping in view the fact that NIA has submitted the supplementary charge-sheet which is at variance with the charge-sheet filed by the ATS and that the trial is likely to take a long time and the appellant has been in prison for about 8 years and 8 months, we are of the considered view that the appellant has made out a prima facie case for release on bail and we deem it appropriate to enlarge the appellant herein on bail, subject to the following conditions: (i) On his furnishing personal security in the sum of Rs 1 (one) lakh with two solvent sureties, each of the like amount, to the satisfaction of the trial court."
}
},
{
"from_name": null,
"id": "57cd8312914d4435b42447bc60da9b79",
"to_name": null,
"type": null,
"value": {
"end": 25894,
"labels": [
"RATIO"
],
"start": 25804,
"text": "\n (ii) The appellant herein shall appear in court as and when directed by the court."
}
},
{
"from_name": null,
"id": "73bc5db0d18e4463a4ca5dfc8599445f",
"to_name": null,
"type": null,
"value": {
"end": 26030,
"labels": [
"RATIO"
],
"start": 25894,
"text": "\n (iii) The appellant herein shall make himself available for any further investigation/interrogation by NIA as and when required."
}
},
{
"from_name": null,
"id": "f50580607e304aeb9e71338b729d666c",
"to_name": null,
"type": null,
"value": {
"end": 26314,
"labels": [
"RATIO"
],
"start": 26030,
"text": "\n (iv) The appellant herein shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer."
}
},
{
"from_name": null,
"id": "949de2436b8c4036bc6d186f99d1c3dc",
"to_name": null,
"type": null,
"value": {
"end": 26420,
"labels": [
"RATIO"
],
"start": 26314,
"text": "\n (v) The appellant herein shall not leave India without the previous permission of the trial court."
}
},
{
"from_name": null,
"id": "5b7e7827b0c8408cabf55a7e03503233",
"to_name": null,
"type": null,
"value": {
"end": 26573,
"labels": [
"RATIO"
],
"start": 26420,
"text": "\n (vi) In case the appellant herein is in possession of a passport, the same shall be deposited with the trial court before being released on bail."
}
},
{
"from_name": null,
"id": "77ee90eb9abd434dbf5ddbafef6b3d00",
"to_name": null,
"type": null,
"value": {
"end": 26804,
"labels": [
"RATIO"
],
"start": 26573,
"text": "\n (vii) We reserve liberty to the respondents to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellant herein violates any of the conditions imposed by this Court."
}
},
{
"from_name": null,
"id": "6f740caa776b43ecb4464700e3136cf4",
"to_name": null,
"type": null,
"value": {
"end": 27065,
"labels": [
"RATIO"
],
"start": 26804,
"text": "\n25) It is further made clear that the grant of bail to the appellant herein shall be no consideration for grant of bail to other accused persons in the case and the prayer for bail by other accused persons (not before us) shall be considered on its own merits."
}
},
{
"from_name": null,
"id": "b91f70e6be3a42088abee4f942adc73e",
"to_name": null,
"type": null,
"value": {
"end": 27237,
"labels": [
"RATIO"
],
"start": 27066,
"text": "We also make it clear that the Special Court shall decide the bail applications, if filed by the other accused persons, uninfluenced by any observation made by this Court."
}
},
{
"from_name": null,
"id": "89673b0cd3aa42ee90dfa012a87e7f03",
"to_name": null,
"type": null,
"value": {
"end": 27347,
"labels": [
"RATIO"
],
"start": 27237,
"text": "\nFurther, any observations made by us in this order shall not come in the way of deciding the trial on merits."
}
},
{
"from_name": null,
"id": "baf47ec3be714ea7aa347021f2dc2bbb",
"to_name": null,
"type": null,
"value": {
"end": 27515,
"labels": [
"RPC"
],
"start": 27348,
"text": "26) In view of the above, we set aside the judgment passed by the High Court dated 25.04.2017 and grant bail to the appellant herein on the conditions mentioned above."
}
},
{
"from_name": null,
"id": "0d63090639904586953e386c5ebcc2c2",
"to_name": null,
"type": null,
"value": {
"end": 27552,
"labels": [
"RPC"
],
"start": 27515,
"text": "\nIntervention Application is allowed."
}
},
{
"from_name": null,
"id": "db95278d8b3241a5bb4b241be63b69c5",
"to_name": null,
"type": null,
"value": {
"end": 27575,
"labels": [
"RPC"
],
"start": 27553,
"text": "The appeal is allowed."
}
},
{
"from_name": null,
"id": "647ad151e3674b1f9596bb6b950d71ed",
"to_name": null,
"type": null,
"value": {
"end": 27660,
"labels": [
"NONE"
],
"start": 27577,
"text": "..............................................J.\n (R.K. AGRAWAL)"
}
},
{
"from_name": null,
"id": "1acdad77ad1a4839937a192230df7776",
"to_name": null,
"type": null,
"value": {
"end": 27708,
"labels": [
"NONE"
],
"start": 27661,
"text": "..............................................."
}
},
{
"from_name": null,
"id": "123c5b9fb8614d02847461eb772faae9",
"to_name": null,
"type": null,
"value": {
"end": 27753,
"labels": [
"NONE"
],
"start": 27708,
"text": "J.\n (ABHAY MANOHAR SAPRE)"
}
},
{
"from_name": null,
"id": "f68c68f919884540a66e393829cefdb1",
"to_name": null,
"type": null,
"value": {
"end": 27781,
"labels": [
"NONE"
],
"start": 27754,
"text": "NEW DELHI; AUGUST 21, 2017."
}
}
]
}
] | 4,225 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n\n CRIMINAL APPELLATE JURISDICTION\n CRIMINAL APPEAL NO. 1448 OF 2017\n(Arising out of Special Leave Petition (Crl.) No. 3716 OF 2017)\n\nLt. Col. Prasad Shrikant Purohit .... Appellant(s)\n Versus .... Respondent(s)\n\nState of Maharashtra\n\n J U D G M E N T\n R.K. Agrawal, J.\n1) Leave granted.\n2) This appeal is directed against the judgment and order dated 25.04.2017 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 664 of 2016 whereby the Division Bench of the High Court dismissed the bail application filed by the appellant herein.\n3) Brief facts: (a) On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at Malegaon, District Nasik, opposite Shakil Goods Transport Company between Anjuman Chowk and Bhiku Chowk. The said blast was caused by explosive device fitted in LML Freedom Motor Cycle bearing Registration No.\nMH-15-P-4572. As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature. Damage to the property was also caused.\n(b) The offence came to be registered under CR No.\n130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short `the IPC') read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.\n(c) During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short `the UAP Act') were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short `the MCOC Act) were added.\n(d) During investigation, it was found that the appellant herein, along with other co-accused in the case, entered into a criminal conspiracy between January, 2008 to October, 2008 with a common object and intention to strike terror in the minds of people caused bomb blast at Malegaon by using explosive substances to cause damage to life and property and to create communal rift. According to ATS, the appellant herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at Malegaon.\n(e) During investigation, it has been further revealed by the ATS that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). The appellant herein floated `Abhinav Bharat' organization in the year 2007 inspite of being serving as a Commissioned Officer in Armed Forces. The other co-accused in the case were also the members of the said organization. The object of the Organization was to turn India into a Hindu Rashtra called as `Aryavrat'. They had planned to train persons for guerrilla war and had also decided to kill the persons opposing their object of formation of a Hindu Rashtra. As per the investigation, it has also come out that the appellant herein along with other persons had participated in various meetings of the said Organization to discuss various aspects for achieving their goals. Further, it is the case of the ATS that the organization, viz., `Abhinav Bharat' is an Organized Crime Syndicate and its members including the appellant herein were active since 2003. In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was hatched. In the said meeting, the appellant herein took the responsibility of providing explosives for the common object in order to take revenge of `Jihadi' activities by Muslim community.\n(f) After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.\n(g) The appellant came to be arrested on 05.11.2008 in connection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court. A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11.\n (h) This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits. On the question of applicability of the MCOC Act, this Court has observed as under:- \"95. In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.\"\n Vide order dated 12.10.2015, the Special Judge, rejected the bail application of the appellant herein. Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court.\nDuring the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein. In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application.\n(i) The appellant herein filed a fresh bail application before the Court of Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai. The Special Judge, vide order dated 26.09.2016, denied the bail to the appellant herein.\nBeing aggrieved by the order dated 26.09.2016, the appellant herein went in appeal before the High Court and filed Criminal Appeal No. 664 of 2016. The NIA resisted the bail application of the appellant herein on various grounds before the High Court. On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein.\n Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave.\n4) Heard Mr. Harish Salve, learned senior counsel for the appellant herein and Mr. Maninder Singh, learned Additional Solicitor General for the respondent-State and Mr. Amarendra Sharan, learned senior counsel for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the deceased.\nPoint(s) for consideration:- 5) The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case for grant of bail or not?\nRival contentions:- 6) Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appellant herein.\nLearned senior counsel further contended that earlier, the bail applications were rejected mainly on the basis of the confessional statements of the co-accused under the MCOC Act and now, as the charges under the MCOC Act have been dropped, the confessional statements of the co-accused are required to be excluded from consideration and in their absence thereof, there is no incriminating material against the appellant herein so as to deny him the benefit of bail. Learned senior counsel further contended that during investigation by NIA, PW-79, PW-112 and PW-55 have retracted their previous statements made before the ATS. The fact that the material witnesses have retracted from their statements while complaining about the harassment and torture meted out by the officers of the ATS, clearly indicate that the investigation carried out by the ATS was not fair but it was tainted. The statements and confessions have been extracted subjecting the witness and co-accused to the torture and duress, under the threats of implicating them falsely. Learned senior counsel contended that in view of the withdrawal of those statements and confessions, there remains nothing on record to implicate the appellant herein with the alleged offence.\n7) Learned senior counsel further contended that the appellant was a Military Intelligence Officer at the relevant time and had participated in the meetings held at various places like Faridabad, Bhopal etc. in discharge of his duties as such for collecting intelligence and creating new sources and the said fact has also been revealed in the Report of Court of Inquiry (CoI) conducted by the Army Officers against him as well as in the reply filed by the Ministry of Defence and the documents filed by the said Ministry in the Special Court.\nLearned senior counsel further contended that there was no sufficient material to show that in the said meetings, any conspiracy was hatched to commit the bomb blast at Malegaon.\n8) Learned senior counsel vehemently contended the statement of PW-21 that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence in order to suggest that no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence. Even the appellant herein also informed that it was a `covert operation' of Military Intelligence.\n 9) Learned senior counsel further contended that the Report of Inquiry (RoI) also reveals that the RDX was planted by the ATS officer in the house of Sudhakarn Chaturvedi (A-11). The statements of PW-180 and PW-183 also indicate the same but the courts below disbelieved the version of NIA in this regard.\n10) Further, learned senior counsel strenuously contended that whether the amended provision of Section 43(D)(5) of the UAP Act be applied retrospectively to the appellant herein.\nThe said provision had been amended on 31.12.2008 while the incident had taken place on 29.09.2008. He further contended that the High Court was not right in holding that the right of bail of the accused is a procedural right and cannot be considered as a substantive right for retrospective applicability of the provision. Further, the sanction granted for prosecution of the appellant under Section 45(1) of the UAP Act was not valid. He further stressed upon the point that the High Court erred in ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the court has taken into account the changed circumstances in the charge sheet filed by the NIA but the very same facts have been ignored in the case of the appellant herein. Learned senior counsel finally submitted that the appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies and the appellant herein has a good prima facie case to succeed for grant of bail before this Court.\n11) Learned Additional Solicitor General (ASG) for the respondent-State strongly controverted the contentions raised by learned senior counsel for the appellant herein by submitting that he was the main conspirator and prima facie there is sufficient material on record to prove his involvement in the alleged offence. Merely because the charges have been dropped under the MCOC Act, it does not mean that there is no material against the appellant herein in respect of other charges. The NIA has given clean chit to Pragya Singh Thakur (A-1) and some other accused person but it has not exonerated the appellant herein from the charges leveled against him which clearly proves that the NIA has also found sufficient material to implicate the appellant.\n 12) Learned ASG finally submitted that the conclusions about involvement of the appellant herein in the offences alleged against him as drawn by the ATS are supplemented and supported by the NIA officers in their detailed investigation. Having regard to the gravity and seriousness of the offence, which were in the nature of waging war against the unity and integrity of the Nation, and, that too, by violent means, the bail application of the appellant could not have been allowed and it has rightly been rejected by the courts below and no interference is sought for by this Court.\n13) Mr. Amarendra Saran, learned senior counsel for the intervenor submitted that there are sufficient material and evidence on record to establish a prima facie case of the involvement of the appellant herein in the criminal offence and the report of the Court of Inquiry (CoI) submitted by the Military authorities cannot be taken into consideration for deciding the question of grant of bail.\nDiscussion:- 14) In order to prove the prima facie case against the appellant, the prosecution has relied upon the transcription of the conversations of the meetings obtained from the laptop of Swami Amrutanand (A-10), statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short `the Code'), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11). With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation. In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence. Even the appellant herein also informed that it was a `covert operation' of Military Intelligence and he attended the said meetings to create the counter intelligence and no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence.\nBesides this, the documents filed by the Ministry of Defence and the papers of the Court of Inquiry also substantiate the claim of the appellant herein. Similarly, intercepted telephonic conversations between the co-accused and the appellant herein were supported as part of duty.\n15) The NIA started the investigation on the basis of the facts stated in the FIR and the evidence collected by the ATS, Mumbai. During investigation, it was found that there were contradictions with regard to the evidence led in the charge sheet by the ATS. On the basis of the specific points covered during the investigation conducted by the NIA, it was concluded that no offence under the MCOC Act was attracted and the confessional statements recorded under the provisions of the said Act by ATS Mumbai were not being relied upon by the NIA in the charge sheet against the accused persons. In fact, on evaluation of the evidence against Pragya Singh Thakur (A-1), the evidence on record were not found sufficient by the NIA to prosecute her as all the witnesses had retracted from their statements and thus no case was made out against her.\n16) As regards the other parameters to be considered while deciding the application of bail, like, reasonable apprehension of the witnesses being tampered with and danger, of-course, of justice being thwarted by grant of bail, needless to state that already some of the witnesses have retracted their statements made before the ATS. A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case. In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai. Even during re-examination of PW-79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of `Abhinav Bharat' held at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009. The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed the same.\n17) In view of the above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS. However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA. He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:- (1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for a month sometime in 2006. The description of the weapons was also dictated to him.\n (2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali.\n (3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast.\n (4) That Lt. Col. Purohit told him in the early 2008 that something was planned to be done soon. He further told him that an action was planned in Nashik District in Oct/Nov. 2008.\n (5) That he was asked to say that Lt. Col. Purohit had confessed to him about planning and executing the Malegaon blast along with his accomplices.\n18) Apart from the above, during the investigation by the NIA, it was revealed that the Army authorities had conducted a Court of Inquiry (CoI) against the appellant herein. During scrutiny of the proceedings of the CoI, a different story of assembling of IED in the House of Sudhakar Chaturvedi (A-11) came to light. During re-examination of the witnesses by the NIA who deposed before the Court of Inquiry (CoI), it was revealed that they suspiciously found API Bagde of ATS in the house of A-11 when A-11 was not present in the house. On considering the facts narrated by the witnesses, the question arises here as to why API Bagde visited the house of A-11 in his absence. It is also pertinent to mention her that the ATS conducted the search of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses. Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case.\n19) Further, with regard to the contention of learned senior counsel as to the non-applicability of Section 43-D(5) of the UAP Act or want of valid sanction for the prosecution, it was rightly suggested by the learned ASG that it can be considered at the time of trial and not at this stage.\n Conclusion:- 20) In our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case.\n21) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.\n (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.\n (c) Prima facie satisfaction of the court in support of the charge.\n22) Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.\n 23) At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.\n24) In view of the foregoing discussion, we are of the considered opinion that there are variations in the charge sheets filed by ATS Mumbai and NIA. Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications.\nAs mentioned earlier, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken. However, keeping in view the fact that NIA has submitted the supplementary charge-sheet which is at variance with the charge-sheet filed by the ATS and that the trial is likely to take a long time and the appellant has been in prison for about 8 years and 8 months, we are of the considered view that the appellant has made out a prima facie case for release on bail and we deem it appropriate to enlarge the appellant herein on bail, subject to the following conditions: (i) On his furnishing personal security in the sum of Rs 1 (one) lakh with two solvent sureties, each of the like amount, to the satisfaction of the trial court.\n (ii) The appellant herein shall appear in court as and when directed by the court.\n (iii) The appellant herein shall make himself available for any further investigation/interrogation by NIA as and when required.\n (iv) The appellant herein shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer.\n (v) The appellant herein shall not leave India without the previous permission of the trial court.\n (vi) In case the appellant herein is in possession of a passport, the same shall be deposited with the trial court before being released on bail.\n (vii) We reserve liberty to the respondents to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellant herein violates any of the conditions imposed by this Court.\n25) It is further made clear that the grant of bail to the appellant herein shall be no consideration for grant of bail to other accused persons in the case and the prayer for bail by other accused persons (not before us) shall be considered on its own merits. We also make it clear that the Special Court shall decide the bail applications, if filed by the other accused persons, uninfluenced by any observation made by this Court.\nFurther, any observations made by us in this order shall not come in the way of deciding the trial on merits.\n26) In view of the above, we set aside the judgment passed by the High Court dated 25.04.2017 and grant bail to the appellant herein on the conditions mentioned above.\nIntervention Application is allowed. The appeal is allowed.\n ..............................................J.\n (R.K. AGRAWAL) ...............................................J.\n (ABHAY MANOHAR SAPRE) NEW DELHI; AUGUST 21, 2017.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "6312d561b5024ca0821454497c27349e",
"to_name": null,
"type": null,
"value": {
"end": 556,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER: 1962 SCR Supl. (2) 726\nKANBI KARSAN JADAV\n\n Vs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT:\n24/01/1962\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1966 AIR 821\n\nACT:\n Criminal Trial-Evidence of approver-\n\nCorroboration on material particulars-Othere\ncircumstances to be considered-Chemical Examiner's\nevidence, if can be taken into Consideration to\ndecide identity of hairs-Indian Penal Code, 1860\n(45 of 1860), 302, 201-India Evidence Act, 1872 (1\nof 1872), s. 45.\n\nHEADNOTE:\n "
}
},
{
"from_name": null,
"id": "10c0f5f46a7f47c09718b05feacdfde9",
"to_name": null,
"type": null,
"value": {
"end": 659,
"labels": [
"PREAMBLE"
],
"start": 556,
"text": "The appellant and two others were convicted\n\nfor murder under ss. 302 and 201 of the Indian\nPenal Code."
}
},
{
"from_name": null,
"id": "585a2aad638042da855e90280c3771e5",
"to_name": null,
"type": null,
"value": {
"end": 752,
"labels": [
"PREAMBLE"
],
"start": 660,
"text": "The High Court accepted the testimony\nof the approver as being a reliable piece of\nevidence."
}
},
{
"from_name": null,
"id": "3ec588e210aa4307b0266172ec735194",
"to_name": null,
"type": null,
"value": {
"end": 1093,
"labels": [
"PREAMBLE"
],
"start": 753,
"text": "It relied upon the discovery of the dead\nbody of the deceased at the instance of the\nappellant and of blood stained buttons also at his\ninstance and attached importance to the scarf\nrecovered from the pit where the dead body was\nalleged to have been first buried and which had\nhairs both of the appellant as well as the\ndeceased.\n\n "
}
},
{
"from_name": null,
"id": "9384b1332b36413ab1f85d20ebd25cc0",
"to_name": null,
"type": null,
"value": {
"end": 1281,
"labels": [
"PREAMBLE"
],
"start": 1093,
"text": "The appellant contended that the evidence of\nthe approver, even though it had been accepted as\ntrue, was not corroborated in material particulars\nconnecting the appellant with the offence."
}
},
{
"from_name": null,
"id": "4e81417a6e764995ad3a6aca464cdacd",
"to_name": null,
"type": null,
"value": {
"end": 1493,
"labels": [
"PREAMBLE"
],
"start": 1282,
"text": "None of\nthe recoveries are corroborative of the statement\nof the approver to the extent of connecting the\nappellant with the offence committed; on the other\nhand they are somewhat contradictory of the\nstatement."
}
},
{
"from_name": null,
"id": "17d2e1222f8342a7ace1124541ad2853",
"to_name": null,
"type": null,
"value": {
"end": 1861,
"labels": [
"PREAMBLE"
],
"start": 1494,
"text": "The evidence of the Chemical Examiner\nwas not sufficient to prove that hairs on the\nscraf were of the appellant or of the deceased\nbecause the Chemical Examiner was no expert on\nthis matter and his evidence was not admissible\nunder s. 45 of the Evidence Act and, at the most,\naccording to the Chemical Examiner the hairs\nresembled those of the appellant.\n^\n\n "
}
},
{
"from_name": null,
"id": "6f48bde4442342febbaaf7930784620b",
"to_name": null,
"type": null,
"value": {
"end": 2035,
"labels": [
"PREAMBLE"
],
"start": 1861,
"text": "Held, that where the evidence of the approver\nis held not to be very helpful to the prosecution\nother circumstances\nbesides the evidence of the approver has to be\nconsidered."
}
},
{
"from_name": null,
"id": "cc0aede8667c4a5a8ed3baa3984d9257",
"to_name": null,
"type": null,
"value": {
"end": 2229,
"labels": [
"PREAMBLE"
],
"start": 2036,
"text": "The mere fact that the dead body was\npointed out by the appellant or was discovered as\na result of a statement made by him would not\nnecessarily lead to the conclusion of the offence\nof murder."
}
},
{
"from_name": null,
"id": "e9614a2fd07740edbfd2b4a9fec4781b",
"to_name": null,
"type": null,
"value": {
"end": 2643,
"labels": [
"PREAMBLE"
],
"start": 2229,
"text": "\n\n In the present case beside the evidence of\nthe approver, the appellant's pointing out of the\ndead body, his pointing out the silver buttons of\nthe deceased which were stained with human blood\nand the presence of his hairs on a pania (scraf)\non which there were the hairs of the deceased\nalso, are important facts which are sufficient\nevidence to connect the appellant with the\ncommission of the offence."
}
},
{
"from_name": null,
"id": "a57325bab929449e91295817012dc6c1",
"to_name": null,
"type": null,
"value": {
"end": 2925,
"labels": [
"PREAMBLE"
],
"start": 2654,
"text": "Held, further, that writers of medical\njurisprudence have stated that from microscopic\nexamination of the hairs it is possible to say\nwhether they are of the same or of different\ncolours or sizes and from the examination it may\nhelp in deciding where the hairs come from."
}
},
{
"from_name": null,
"id": "08de36c00a0c4568b97b7e7f48d44282",
"to_name": null,
"type": null,
"value": {
"end": 3073,
"labels": [
"PREAMBLE"
],
"start": 2925,
"text": "\n\n Vemireddy Satyanarayan Reddy v. State of\nHyderabad, [1956] S.C.R. 247 and Wasim Khan v.\nState of Uttar Pradesh, [1956] S.C.R. 191, relied"
}
},
{
"from_name": null,
"id": "649de37d926148b194337dc70d1f171d",
"to_name": null,
"type": null,
"value": {
"end": 3088,
"labels": [
"PREAMBLE"
],
"start": 3073,
"text": "\non.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "f84273bdc40e4597803fc75f8107325b",
"to_name": null,
"type": null,
"value": {
"end": 3130,
"labels": [
"NONE"
],
"start": 3088,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "e8e635c7074348d7b42c7484db7375aa",
"to_name": null,
"type": null,
"value": {
"end": 3163,
"labels": [
"NONE"
],
"start": 3131,
"text": "Criminal Appeal No. 223 of 1959."
}
},
{
"from_name": null,
"id": "fa7da703a0bd4cc1aad91ed269d76a92",
"to_name": null,
"type": null,
"value": {
"end": 3341,
"labels": [
"NONE"
],
"start": 3163,
"text": "\n Appeal by special leave from the judgment and ordered dated April 14, 1959, of the former Bombay High Court (Rajkot Branch) at Rajkot in Criminal Appeal No. 84 of 1958."
}
},
{
"from_name": null,
"id": "cec61667e82a4475b498edfda9c4c3a5",
"to_name": null,
"type": null,
"value": {
"end": 3390,
"labels": [
"NONE"
],
"start": 3341,
"text": "\n Nur-ud-din Ahmed and K. L. Hathi for appellant."
}
},
{
"from_name": null,
"id": "d1ed81df61ce4253ad9fae4cf2d12874",
"to_name": null,
"type": null,
"value": {
"end": 3438,
"labels": [
"NONE"
],
"start": 3390,
"text": "\n H. R. Khanna and R. H. Dhebar, for respondent."
}
},
{
"from_name": null,
"id": "7221726cc9d44574afa2ae85295b1565",
"to_name": null,
"type": null,
"value": {
"end": 3445,
"labels": [
"NONE"
],
"start": 3438,
"text": "\n 1962."
}
},
{
"from_name": null,
"id": "8e9237e22b4e4b5ba66a501129be1e39",
"to_name": null,
"type": null,
"value": {
"end": 3457,
"labels": [
"NONE"
],
"start": 3446,
"text": "January 24."
}
},
{
"from_name": null,
"id": "ba243a5310c540a6b181dbf6a66a4471",
"to_name": null,
"type": null,
"value": {
"end": 3507,
"labels": [
"NONE"
],
"start": 3458,
"text": "The Judgment of the Court was delivered by KAPUR,"
}
},
{
"from_name": null,
"id": "2587ae385d1242fba78c5f1c38d54bc9",
"to_name": null,
"type": null,
"value": {
"end": 3514,
"labels": [
"RLC"
],
"start": 3508,
"text": "J.-The"
}
},
{
"from_name": null,
"id": "a77ae199f0b343d7a1c2672a01a6e6a2",
"to_name": null,
"type": null,
"value": {
"end": 3803,
"labels": [
"RLC"
],
"start": 3515,
"text": "appellant and two others were convicted by the Additional Sessions Judge, Gohilwad, under ss. 302 and 201 of the Indian Penal Code for the murder of Kanji and they were sentenced to imprisonment for life under the former section and to seven years' rigorous imprisonment under the latter."
}
},
{
"from_name": null,
"id": "c783f0109f3b43c8b8bf685362b9c28d",
"to_name": null,
"type": null,
"value": {
"end": 3833,
"labels": [
"RLC"
],
"start": 3804,
"text": "The sentence were concurrent."
}
},
{
"from_name": null,
"id": "d80ff688434045eca6c316ba97911939",
"to_name": null,
"type": null,
"value": {
"end": 3976,
"labels": [
"RLC"
],
"start": 3834,
"text": "On appeal the High Court set aside the convictionof Nanji Ravji but upheld the convictions and sentences of the appellant and Karamshi Bhawan."
}
},
{
"from_name": null,
"id": "89330a42cfc342b7958946a3465081d9",
"to_name": null,
"type": null,
"value": {
"end": 4041,
"labels": [
"FAC"
],
"start": 3976,
"text": "\nThe appellant has Come in appeal to this Court by Special leave."
}
},
{
"from_name": null,
"id": "b4eeca04f7a34db0b3ba12dfb0db8e16",
"to_name": null,
"type": null,
"value": {
"end": 4300,
"labels": [
"FAC"
],
"start": 4041,
"text": "\n The deceased Kanji was rather an unsavoury character in village Chiroda and it is alleged that he had a illicit connection with Shrimati Shantu the sister of Karamshi and also used to follow about Smt. Baghu the sister of the appellant for a similar object."
}
},
{
"from_name": null,
"id": "f9c975ea5c4040479d867f9c1ad161ce",
"to_name": null,
"type": null,
"value": {
"end": 4452,
"labels": [
"FAC"
],
"start": 4301,
"text": "It is stated that five days before the occurrence the appellant Karsan, Karamshi, Nanji and Gumansinh approver met and decided to murder the appellant."
}
},
{
"from_name": null,
"id": "9517f135156c4b00939ca21e2ebd8466",
"to_name": null,
"type": null,
"value": {
"end": 4593,
"labels": [
"FAC"
],
"start": 4453,
"text": "With that object in view Gumansinh approver was to decoy the deceased to the Vadi of the appellant and there the murder was to be committed."
}
},
{
"from_name": null,
"id": "1becba9eb8274b4e854bbd7a6c6a1b56",
"to_name": null,
"type": null,
"value": {
"end": 4758,
"labels": [
"FAC"
],
"start": 4594,
"text": "At about sunset on March 19, 1958, the deceased was decoyed to the place as previously arranged and there he was murdered by the appellant who gave him a few blows."
}
},
{
"from_name": null,
"id": "049b3791e51640beba0e080ee37ec533",
"to_name": null,
"type": null,
"value": {
"end": 4805,
"labels": [
"FAC"
],
"start": 4759,
"text": "with a sharp cutting instrument called Dharia."
}
},
{
"from_name": null,
"id": "bf49db24a02c4a459d2106b9fd5e4d9f",
"to_name": null,
"type": null,
"value": {
"end": 5028,
"labels": [
"FAC"
],
"start": 4806,
"text": "According to the statement of the approver the dead body was wrapped in the scarf of the deceased and was carried by the appellant from the place of the murder to the dry bed of the river and there it was burried in a pit."
}
},
{
"from_name": null,
"id": "ba9013c87fa84bf79eb4d06c0d6dce2d",
"to_name": null,
"type": null,
"value": {
"end": 5334,
"labels": [
"FAC"
],
"start": 5029,
"text": "Nothing was heard of the murder or of the deceased till on March 26, 1958, a brother of the deceased made a report to the police about his disappearance and that he suspected the three uncles of the appellant, subsequently the appellant and the other accused persons were taken into custody by the police."
}
},
{
"from_name": null,
"id": "9aafadbd6d174575b244666bd50c0da8",
"to_name": null,
"type": null,
"value": {
"end": 5465,
"labels": [
"FAC"
],
"start": 5335,
"text": "One of them while in the custody of the police, was allowed to go to the village and he asked the help of Shamji and Manilal P.Ws."
}
},
{
"from_name": null,
"id": "33a458018b4e4c51891c10f0f49639a2",
"to_name": null,
"type": null,
"value": {
"end": 5543,
"labels": [
"FAC"
],
"start": 5466,
"text": "He also made a confession to them and they reported the matter to the police."
}
},
{
"from_name": null,
"id": "a364a5b947344ddc8ed8697bfecb76b5",
"to_name": null,
"type": null,
"value": {
"end": 5638,
"labels": [
"FAC"
],
"start": 5544,
"text": "On March 31, 1958, Gumansinh and Karamshi made confessionswhich were recorded by a Magistrate."
}
},
{
"from_name": null,
"id": "16c59b9d9dc84833816e35fd26242dcf",
"to_name": null,
"type": null,
"value": {
"end": 5711,
"labels": [
"FAC"
],
"start": 5639,
"text": "Between March 26 and March 31, recoveries of various articles were made."
}
},
{
"from_name": null,
"id": "71489a21e01f4c5f8de63a27841c9029",
"to_name": null,
"type": null,
"value": {
"end": 5842,
"labels": [
"FAC"
],
"start": 5712,
"text": "At the instance of the appellant, it is stated, the dead body and then the head of the deceased was recovered from a distant well."
}
},
{
"from_name": null,
"id": "f6bc13a6ed124a959730eb42a937ef8c",
"to_name": null,
"type": null,
"value": {
"end": 5982,
"labels": [
"FAC"
],
"start": 5843,
"text": "At the instance of Nanji on March 28, 1958 a scarf was, discovered in the pit in which the dead body was according to the approver, buried."
}
},
{
"from_name": null,
"id": "76f12117a09a4f62be17496a0c8d948c",
"to_name": null,
"type": null,
"value": {
"end": 6137,
"labels": [
"FAC"
],
"start": 5983,
"text": "On the scarf, there were some hairs which on analysis by the Chemical Examiner were found to be similar to the hairs of the appellant and of the deceased."
}
},
{
"from_name": null,
"id": "59e434027e0e44e3a5e61629c518b979",
"to_name": null,
"type": null,
"value": {
"end": 6394,
"labels": [
"FAC"
],
"start": 6138,
"text": "A day previous, i. e. March 27, 1958, at the instance of the appellant silver buttons which were stained with human blood were discovered from the field of the appellant at small stick like a button belonging to the deceased was also found at his instance."
}
},
{
"from_name": null,
"id": "dd0dbabd18f24c71a07668940137b88e",
"to_name": null,
"type": null,
"value": {
"end": 6487,
"labels": [
"FAC"
],
"start": 6394,
"text": "\n The High Court rejected the confession of Karamshi on the ground that it was not voluntary."
}
},
{
"from_name": null,
"id": "b7e4ab61c22843bfb58474f721f62806",
"to_name": null,
"type": null,
"value": {
"end": 6891,
"labels": [
"RLC"
],
"start": 6487,
"text": "\nIt acquitted Nanji on the ground that there were no corroboration in regard to him of the approver's statement, the place where the dead body was buried was not discovered at his instance, his production of stick and shirt and trousers from his house was of no consequence, and the oral evidence was contrary to the medical evidence and Karamshi's confessional statement could not be used against Nanji."
}
},
{
"from_name": null,
"id": "78a72b08aa1c4b349b041b907c13ab3e",
"to_name": null,
"type": null,
"value": {
"end": 7012,
"labels": [
"FAC"
],
"start": 6891,
"text": "\n In regard to the appellant the High Court accepted the testimony of the approver as being a reliable piece of evidence."
}
},
{
"from_name": null,
"id": "c3b86ee10dea47d78f68ae61d7f14c96",
"to_name": null,
"type": null,
"value": {
"end": 7148,
"labels": [
"FAC"
],
"start": 7013,
"text": "It attached no importance to the recovery of the cutting instrument, Dharia, nor to the discovery of the stick (Dhoka) at his instance."
}
},
{
"from_name": null,
"id": "f24894242ba8433aa0d448e500bbaa3a",
"to_name": null,
"type": null,
"value": {
"end": 7529,
"labels": [
"FAC"
],
"start": 7149,
"text": "But the High Court did rely upon the discovery of the dead body of the deceased, i.e. the trunk and the head, at the instance of the appellant and of the blood-stained buttons also at his instance and attached importance to scarf recovered from the pit where the dead body was alleged to have been first buried and which had hairs both of the appellant as well as of the deceased."
}
},
{
"from_name": null,
"id": "b140135c85154780b5bf2b51db97e92a",
"to_name": null,
"type": null,
"value": {
"end": 7735,
"labels": [
"FAC"
],
"start": 7529,
"text": "\n It was argued for the appellant that the evidence of the approver, even though it had been accepted as true, was not corroborated in material particulars connecting the appellant with the offence."
}
},
{
"from_name": null,
"id": "63f95d1750bc40bca3ad5fa491483a66",
"to_name": null,
"type": null,
"value": {
"end": 7774,
"labels": [
"FAC"
],
"start": 7736,
"text": "On the other hand it was contradicted."
}
},
{
"from_name": null,
"id": "e55899bb91424ed790983165e713ea3f",
"to_name": null,
"type": null,
"value": {
"end": 8109,
"labels": [
"FAC"
],
"start": 7774,
"text": "\nThe approver had stated that the dead body was buried in a pit in the dry bed of the river but when that pit was dug up the dead body was not found there and only a piece of ulna bone and a heel of a human foot were found and all there recoveries had been made earlier and so could not be called corroborative in material particulars."
}
},
{
"from_name": null,
"id": "3c63fabaea0049939ea96c0f6ef51154",
"to_name": null,
"type": null,
"value": {
"end": 8277,
"labels": [
"FAC"
],
"start": 8109,
"text": "\nIt was further submitted that there was no evidence to show as to when and how the body of the deceased was removed from the pit, dismembered and thrown into the well."
}
},
{
"from_name": null,
"id": "31fee15d85c444db9a17a6cad9ba4bab",
"to_name": null,
"type": null,
"value": {
"end": 8837,
"labels": [
"FAC"
],
"start": 8278,
"text": "The recovery of the scarf, it was pointed out, was an innocuous circumstance because on the evidence produced it had not been shown to belong to the appellant but to his father and the evidence of the Chemical Examiner was not sufficient to prove that the hairs on the scarf were of the appellant or of the deceased because the Chemical Examiner was certainly no expert on this matter and his evidence was, not admissible under s. 45 of the Evidence Act, and at the most, according to the Chemical Examiner's report the hairs resembled those of the appellant."
}
},
{
"from_name": null,
"id": "545a417485244fcdbc2fe38489ab7bdb",
"to_name": null,
"type": null,
"value": {
"end": 8944,
"labels": [
"FAC"
],
"start": 8838,
"text": "And secondly according to the approver the dead body of the deceased was wrapped in his own pania (scarf)."
}
},
{
"from_name": null,
"id": "7f14daf0c4bf4f27b9d5e17e8c71911e",
"to_name": null,
"type": null,
"value": {
"end": 9200,
"labels": [
"FAC"
],
"start": 8945,
"text": "It was further submitted that the statement in regard to the recovery of the trunk and the head will only show that the appellant knew where the trunk and the head were, which at the most would lead to an inference of an offence under 8. 201 and not of 8."
}
},
{
"from_name": null,
"id": "8ddc3fa3ef0d4971b8f6d8e1620dd0cc",
"to_name": null,
"type": null,
"value": {
"end": 9473,
"labels": [
"ANALYSIS"
],
"start": 9207,
"text": "What the law requires in the case of an accomplice's evidence is that there should be such corroboration of the material Parts of the story connecting the accused with the crime as will satisfy reasonable minds that the approver can be regardedas a truthful witness."
}
},
{
"from_name": null,
"id": "d1546dddf35947f3a009db732ae3dbc2",
"to_name": null,
"type": null,
"value": {
"end": 9568,
"labels": [
"ANALYSIS"
],
"start": 9474,
"text": "The corroboration need not be direct evidence of the commission of the offence by the accused."
}
},
{
"from_name": null,
"id": "bd9b16be85614659ad69d175d654572e",
"to_name": null,
"type": null,
"value": {
"end": 9760,
"labels": [
"ANALYSIS"
],
"start": 9569,
"text": "If it is merely circumstantial evidence of his connection with the crime it will be sufficient and the nature of the corroboration will depend on and vary with the circumstances of each case."
}
},
{
"from_name": null,
"id": "3198f9e97a534c25ae5848e9393f5a6e",
"to_name": null,
"type": null,
"value": {
"end": 9816,
"labels": [
"PRE_RELIED"
],
"start": 9761,
"text": "Vemireddy Satyanarayan Reddy v. The State of Hyderabad."
}
},
{
"from_name": null,
"id": "a98682f3058c4ce8a641f50d5948d64f",
"to_name": null,
"type": null,
"value": {
"end": 9950,
"labels": [
"ANALYSIS"
],
"start": 9816,
"text": "\n The confessional statement made by the approver on March 31, 1958 gave the following facts connecting the appellant with the murder."
}
},
{
"from_name": null,
"id": "a40b0cde26b24c61860218ed250555eb",
"to_name": null,
"type": null,
"value": {
"end": 10002,
"labels": [
"ANALYSIS"
],
"start": 9950,
"text": "\n(1) The appellant gave dharia blow to the deceased."
}
},
{
"from_name": null,
"id": "90855b0ff9a7455eb82fe33fbc41e9c4",
"to_name": null,
"type": null,
"value": {
"end": 10132,
"labels": [
"ANALYSIS"
],
"start": 10003,
"text": "The dharia had already been discovered and it has been disregarded from the evidence by the High Court as being of no importance."
}
},
{
"from_name": null,
"id": "db36d677c13a47249a953411794d97a4",
"to_name": null,
"type": null,
"value": {
"end": 10228,
"labels": [
"ANALYSIS"
],
"start": 10133,
"text": "The next thing stated by the approver was that the deceased's body was tied in a pania (scarf)."
}
},
{
"from_name": null,
"id": "ca243244551a4bb5b36f7d376b0d3576",
"to_name": null,
"type": null,
"value": {
"end": 10309,
"labels": [
"ANALYSIS"
],
"start": 10229,
"text": "He did not state that the scarf in which it was bound belonged to the appellant."
}
},
{
"from_name": null,
"id": "2ff42f5d4cfe423ebfc6c213b6a2aadb",
"to_name": null,
"type": null,
"value": {
"end": 10537,
"labels": [
"ANALYSIS"
],
"start": 10310,
"text": "The next fact stated by him was that the appellant carried the body of the deceased and then it was buried in a pit and lastly he stated that the appellant had told him that the head of the deceased had been thrown into a well."
}
},
{
"from_name": null,
"id": "8490a94cc9e6435a94f6263f07f8b407",
"to_name": null,
"type": null,
"value": {
"end": 10717,
"labels": [
"ANALYSIS"
],
"start": 10538,
"text": "None of these recoveries in the circumstances of this case are corroborative of the statement of the approver to the extent of connecting the appellant with the offence committed."
}
},
{
"from_name": null,
"id": "579a5807f7f246ce8977e860ba2f6189",
"to_name": null,
"type": null,
"value": {
"end": 10886,
"labels": [
"ANALYSIS"
],
"start": 10718,
"text": "On the other hand, they are somewhat contradictory of the statement because the pania (scarf) which was found in the pit has now been stated to belong to the appellant."
}
},
{
"from_name": null,
"id": "f329ff48f82c45d9aa72e64577487a40",
"to_name": null,
"type": null,
"value": {
"end": 11014,
"labels": [
"ANALYSIS"
],
"start": 10887,
"text": "The dead body was not found in the pit, the head had already been discovered and the trunk had also been taken out of the well."
}
},
{
"from_name": null,
"id": "ade4c89feb06435db455bfc9475755d5",
"to_name": null,
"type": null,
"value": {
"end": 11150,
"labels": [
"ANALYSIS"
],
"start": 11015,
"text": "In these circumstances it was submitted that the approver's statement cannot be said to have been corroborated in material particulars."
}
},
{
"from_name": null,
"id": "4001ee41ecc5463984916985e0ed64e6",
"to_name": null,
"type": null,
"value": {
"end": 11301,
"labels": [
"ANALYSIS"
],
"start": 11150,
"text": "\n But there are other circumstances which have to be considered even if the evidence of the approver is held not to be very helpful to the prosecution."
}
},
{
"from_name": null,
"id": "484db73f63c94bfa8f134c9df3760146",
"to_name": null,
"type": null,
"value": {
"end": 11727,
"labels": [
"ANALYSIS"
],
"start": 11302,
"text": "Firstly, there is the pointing out ofthe dead body by the appellant from the well; secondly, the discovery of the blood-stained (stained with human blood) buttons at the instance of the appellant i thirdly the scarf which has been held to belong to the appellant and which was found from the pit pointed out by the co-accused Nanji and fourthly by the presence of the hairs of the appellant and of the deceased on that scarf."
}
},
{
"from_name": null,
"id": "a05bf382e5754a9794a02b2c2ad05963",
"to_name": null,
"type": null,
"value": {
"end": 11922,
"labels": [
"ANALYSIS"
],
"start": 11727,
"text": "\n The mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder."
}
},
{
"from_name": null,
"id": "16ff4fb1c32340cca640f8f65138be59",
"to_name": null,
"type": null,
"value": {
"end": 11985,
"labels": [
"ANALYSIS"
],
"start": 11922,
"text": "\nBut there are other circumstances which have to be considered."
}
},
{
"from_name": null,
"id": "e4e903057e644e7db72896fd83adb923",
"to_name": null,
"type": null,
"value": {
"end": 12393,
"labels": [
"PRE_RELIED"
],
"start": 11986,
"text": "The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder, In Wasin Khan v. The State of Uttar Pradesh (1), it was held that the recent and unexplained possession of stolen property would be presumptive evidence against a prisoner on a charge of robbery as also of a charge of murder."
}
},
{
"from_name": null,
"id": "6b7ad0ff333f48a488f05bf5addc8a9f",
"to_name": null,
"type": null,
"value": {
"end": 12448,
"labels": [
"ANALYSIS"
],
"start": 12394,
"text": "But it must depend upon the circumstance of each case."
}
},
{
"from_name": null,
"id": "a9287a49cbd141389291373b8aff52f8",
"to_name": null,
"type": null,
"value": {
"end": 12534,
"labels": [
"ANALYSIS"
],
"start": 12449,
"text": "The third piece of evidence to be considered is the recovery of the pania i.e. scarf."
}
},
{
"from_name": null,
"id": "86511d0990d1456a8504ce334e9d4f16",
"to_name": null,
"type": null,
"value": {
"end": 12656,
"labels": [
"ANALYSIS"
],
"start": 12535,
"text": "No doubt there is no statement by the approver that the scarf in which the dead body was taken was that of the appellant."
}
},
{
"from_name": null,
"id": "ff39780ef65c4d19a28939560ef99155",
"to_name": null,
"type": null,
"value": {
"end": 12779,
"labels": [
"ANALYSIS"
],
"start": 12656,
"text": "\nBut a scarf has been found which the High Court has held as belonging to the appellant and hairs were found on that scarf."
}
},
{
"from_name": null,
"id": "e1a32e7d13bc40b4a6b246750ed74999",
"to_name": null,
"type": null,
"value": {
"end": 12971,
"labels": [
"ANALYSIS"
],
"start": 12780,
"text": "It was argued that the finding of the hairs was of no consequence and at least the Chemical Examiner was not he proper expert who could depose as to the similarity or other wise of the hairs."
}
},
{
"from_name": null,
"id": "93fa8ffad2734a33acf47eafec8a6e33",
"to_name": null,
"type": null,
"value": {
"end": 13241,
"labels": [
"ANALYSIS"
],
"start": 12972,
"text": "The writers on medical jurisprudence, however, have stated that from the microscopic examination of the hairs it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from."
}
},
{
"from_name": null,
"id": "d927f7f070d04ea7b95a69a3124bfb34",
"to_name": null,
"type": null,
"value": {
"end": 13399,
"labels": [
"ANALYSIS"
],
"start": 13242,
"text": "InTaylor's Medical Jurisprudence (1956 Edn.) Vol. 1, at page 122, sine cases are given showing that hairs were identified as belonging to particular persons."
}
},
{
"from_name": null,
"id": "899585a0655f4d538609a6f516c653fc",
"to_name": null,
"type": null,
"value": {
"end": 13537,
"labels": [
"ANALYSIS"
],
"start": 13399,
"text": "\n Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence."
}
},
{
"from_name": null,
"id": "0d08bf211b1e4783bbb5f37273ab96b8",
"to_name": null,
"type": null,
"value": {
"end": 13758,
"labels": [
"ANALYSIS"
],
"start": 13538,
"text": "His pointing out the dead body, his pointing out the silver buttons of the deceased which were stained with human blood and the presence of his hairs on a pania (scarf) on which there were the hairs of the deceases also."
}
},
{
"from_name": null,
"id": "c492b24f68e64e44966697ad1a1576b3",
"to_name": null,
"type": null,
"value": {
"end": 13909,
"labels": [
"RATIO"
],
"start": 13759,
"text": "In our opinion this would be sufficient evidence in the circumstances of the present case to connect the appellant with the commission of the offence."
}
},
{
"from_name": null,
"id": "e01e2033b54f4f6080fad3678e33597f",
"to_name": null,
"type": null,
"value": {
"end": 13945,
"labels": [
"RPC"
],
"start": 13909,
"text": "\n We, therefore, dismiss the appeal."
}
},
{
"from_name": null,
"id": "ff118539cfd74f5583c84971ca75ddd4",
"to_name": null,
"type": null,
"value": {
"end": 13981,
"labels": [
"RPC"
],
"start": 13945,
"text": "\n Appeal dismissed."
}
}
]
}
] | 4,255 | {
"text": "PETITIONER: 1962 SCR Supl. (2) 726\nKANBI KARSAN JADAV\n\n Vs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT:\n24/01/1962\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1966 AIR 821\n\nACT:\n Criminal Trial-Evidence of approver-\n\nCorroboration on material particulars-Othere\ncircumstances to be considered-Chemical Examiner's\nevidence, if can be taken into Consideration to\ndecide identity of hairs-Indian Penal Code, 1860\n(45 of 1860), 302, 201-India Evidence Act, 1872 (1\nof 1872), s. 45.\n\nHEADNOTE:\n The appellant and two others were convicted\n\nfor murder under ss. 302 and 201 of the Indian\nPenal Code. The High Court accepted the testimony\nof the approver as being a reliable piece of\nevidence. It relied upon the discovery of the dead\nbody of the deceased at the instance of the\nappellant and of blood stained buttons also at his\ninstance and attached importance to the scarf\nrecovered from the pit where the dead body was\nalleged to have been first buried and which had\nhairs both of the appellant as well as the\ndeceased.\n\n The appellant contended that the evidence of\nthe approver, even though it had been accepted as\ntrue, was not corroborated in material particulars\nconnecting the appellant with the offence. None of\nthe recoveries are corroborative of the statement\nof the approver to the extent of connecting the\nappellant with the offence committed; on the other\nhand they are somewhat contradictory of the\nstatement. The evidence of the Chemical Examiner\nwas not sufficient to prove that hairs on the\nscraf were of the appellant or of the deceased\nbecause the Chemical Examiner was no expert on\nthis matter and his evidence was not admissible\nunder s. 45 of the Evidence Act and, at the most,\naccording to the Chemical Examiner the hairs\nresembled those of the appellant.\n^\n\n Held, that where the evidence of the approver\nis held not to be very helpful to the prosecution\nother circumstances\nbesides the evidence of the approver has to be\nconsidered. The mere fact that the dead body was\npointed out by the appellant or was discovered as\na result of a statement made by him would not\nnecessarily lead to the conclusion of the offence\nof murder.\n\n In the present case beside the evidence of\nthe approver, the appellant's pointing out of the\ndead body, his pointing out the silver buttons of\nthe deceased which were stained with human blood\nand the presence of his hairs on a pania (scraf)\non which there were the hairs of the deceased\nalso, are important facts which are sufficient\nevidence to connect the appellant with the\ncommission of the offence.\n\n Held, further, that writers of medical\njurisprudence have stated that from microscopic\nexamination of the hairs it is possible to say\nwhether they are of the same or of different\ncolours or sizes and from the examination it may\nhelp in deciding where the hairs come from.\n\n Vemireddy Satyanarayan Reddy v. State of\nHyderabad, [1956] S.C.R. 247 and Wasim Khan v.\nState of Uttar Pradesh, [1956] S.C.R. 191, relied\non.\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 223 of 1959.\n Appeal by special leave from the judgment and ordered dated April 14, 1959, of the former Bombay High Court (Rajkot Branch) at Rajkot in Criminal Appeal No. 84 of 1958.\n Nur-ud-din Ahmed and K. L. Hathi for appellant.\n H. R. Khanna and R. H. Dhebar, for respondent.\n 1962. January 24. The Judgment of the Court was delivered by KAPUR, J.-The appellant and two others were convicted by the Additional Sessions Judge, Gohilwad, under ss. 302 and 201 of the Indian Penal Code for the murder of Kanji and they were sentenced to imprisonment for life under the former section and to seven years' rigorous imprisonment under the latter. The sentence were concurrent. On appeal the High Court set aside the convictionof Nanji Ravji but upheld the convictions and sentences of the appellant and Karamshi Bhawan.\nThe appellant has Come in appeal to this Court by Special leave.\n The deceased Kanji was rather an unsavoury character in village Chiroda and it is alleged that he had a illicit connection with Shrimati Shantu the sister of Karamshi and also used to follow about Smt. Baghu the sister of the appellant for a similar object. It is stated that five days before the occurrence the appellant Karsan, Karamshi, Nanji and Gumansinh approver met and decided to murder the appellant. With that object in view Gumansinh approver was to decoy the deceased to the Vadi of the appellant and there the murder was to be committed. At about sunset on March 19, 1958, the deceased was decoyed to the place as previously arranged and there he was murdered by the appellant who gave him a few blows. with a sharp cutting instrument called Dharia. According to the statement of the approver the dead body was wrapped in the scarf of the deceased and was carried by the appellant from the place of the murder to the dry bed of the river and there it was burried in a pit. Nothing was heard of the murder or of the deceased till on March 26, 1958, a brother of the deceased made a report to the police about his disappearance and that he suspected the three uncles of the appellant, subsequently the appellant and the other accused persons were taken into custody by the police. One of them while in the custody of the police, was allowed to go to the village and he asked the help of Shamji and Manilal P.Ws. He also made a confession to them and they reported the matter to the police. On March 31, 1958, Gumansinh and Karamshi made confessionswhich were recorded by a Magistrate. Between March 26 and March 31, recoveries of various articles were made. At the instance of the appellant, it is stated, the dead body and then the head of the deceased was recovered from a distant well. At the instance of Nanji on March 28, 1958 a scarf was, discovered in the pit in which the dead body was according to the approver, buried. On the scarf, there were some hairs which on analysis by the Chemical Examiner were found to be similar to the hairs of the appellant and of the deceased. A day previous, i. e. March 27, 1958, at the instance of the appellant silver buttons which were stained with human blood were discovered from the field of the appellant at small stick like a button belonging to the deceased was also found at his instance.\n The High Court rejected the confession of Karamshi on the ground that it was not voluntary.\nIt acquitted Nanji on the ground that there were no corroboration in regard to him of the approver's statement, the place where the dead body was buried was not discovered at his instance, his production of stick and shirt and trousers from his house was of no consequence, and the oral evidence was contrary to the medical evidence and Karamshi's confessional statement could not be used against Nanji.\n In regard to the appellant the High Court accepted the testimony of the approver as being a reliable piece of evidence. It attached no importance to the recovery of the cutting instrument, Dharia, nor to the discovery of the stick (Dhoka) at his instance. But the High Court did rely upon the discovery of the dead body of the deceased, i.e. the trunk and the head, at the instance of the appellant and of the blood-stained buttons also at his instance and attached importance to scarf recovered from the pit where the dead body was alleged to have been first buried and which had hairs both of the appellant as well as of the deceased.\n It was argued for the appellant that the evidence of the approver, even though it had been accepted as true, was not corroborated in material particulars connecting the appellant with the offence. On the other hand it was contradicted.\nThe approver had stated that the dead body was buried in a pit in the dry bed of the river but when that pit was dug up the dead body was not found there and only a piece of ulna bone and a heel of a human foot were found and all there recoveries had been made earlier and so could not be called corroborative in material particulars.\nIt was further submitted that there was no evidence to show as to when and how the body of the deceased was removed from the pit, dismembered and thrown into the well. The recovery of the scarf, it was pointed out, was an innocuous circumstance because on the evidence produced it had not been shown to belong to the appellant but to his father and the evidence of the Chemical Examiner was not sufficient to prove that the hairs on the scarf were of the appellant or of the deceased because the Chemical Examiner was certainly no expert on this matter and his evidence was, not admissible under s. 45 of the Evidence Act, and at the most, according to the Chemical Examiner's report the hairs resembled those of the appellant. And secondly according to the approver the dead body of the deceased was wrapped in his own pania (scarf). It was further submitted that the statement in regard to the recovery of the trunk and the head will only show that the appellant knew where the trunk and the head were, which at the most would lead to an inference of an offence under 8. 201 and not of 8.\n302.\n What the law requires in the case of an accomplice's evidence is that there should be such corroboration of the material Parts of the story connecting the accused with the crime as will satisfy reasonable minds that the approver can be regardedas a truthful witness. The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient and the nature of the corroboration will depend on and vary with the circumstances of each case. Vemireddy Satyanarayan Reddy v. The State of Hyderabad.\n The confessional statement made by the approver on March 31, 1958 gave the following facts connecting the appellant with the murder.\n(1) The appellant gave dharia blow to the deceased. The dharia had already been discovered and it has been disregarded from the evidence by the High Court as being of no importance. The next thing stated by the approver was that the deceased's body was tied in a pania (scarf). He did not state that the scarf in which it was bound belonged to the appellant. The next fact stated by him was that the appellant carried the body of the deceased and then it was buried in a pit and lastly he stated that the appellant had told him that the head of the deceased had been thrown into a well. None of these recoveries in the circumstances of this case are corroborative of the statement of the approver to the extent of connecting the appellant with the offence committed. On the other hand, they are somewhat contradictory of the statement because the pania (scarf) which was found in the pit has now been stated to belong to the appellant. The dead body was not found in the pit, the head had already been discovered and the trunk had also been taken out of the well. In these circumstances it was submitted that the approver's statement cannot be said to have been corroborated in material particulars.\n But there are other circumstances which have to be considered even if the evidence of the approver is held not to be very helpful to the prosecution. Firstly, there is the pointing out ofthe dead body by the appellant from the well; secondly, the discovery of the blood-stained (stained with human blood) buttons at the instance of the appellant i thirdly the scarf which has been held to belong to the appellant and which was found from the pit pointed out by the co-accused Nanji and fourthly by the presence of the hairs of the appellant and of the deceased on that scarf.\n The mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder.\nBut there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder, In Wasin Khan v. The State of Uttar Pradesh (1), it was held that the recent and unexplained possession of stolen property would be presumptive evidence against a prisoner on a charge of robbery as also of a charge of murder. But it must depend upon the circumstance of each case. The third piece of evidence to be considered is the recovery of the pania i.e. scarf. No doubt there is no statement by the approver that the scarf in which the dead body was taken was that of the appellant.\nBut a scarf has been found which the High Court has held as belonging to the appellant and hairs were found on that scarf. It was argued that the finding of the hairs was of no consequence and at least the Chemical Examiner was not he proper expert who could depose as to the similarity or other wise of the hairs. The writers on medical jurisprudence, however, have stated that from the microscopic examination of the hairs it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from. InTaylor's Medical Jurisprudence (1956 Edn.) Vol. 1, at page 122, sine cases are given showing that hairs were identified as belonging to particular persons.\n Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence. His pointing out the dead body, his pointing out the silver buttons of the deceased which were stained with human blood and the presence of his hairs on a pania (scarf) on which there were the hairs of the deceases also. In our opinion this would be sufficient evidence in the circumstances of the present case to connect the appellant with the commission of the offence.\n We, therefore, dismiss the appeal.\n Appeal dismissed.\n"
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "bae232597978457baa200b2d713439da",
"to_name": null,
"type": null,
"value": {
"end": 72,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nP. BHOOMA REDDY\n\n Vs.\n\nRESPONDENT:\nSTATE OF MYSORE & ORS."
}
},
{
"from_name": null,
"id": "dd040a39577d4efe8428f0553cd87d6b",
"to_name": null,
"type": null,
"value": {
"end": 125,
"labels": [
"PREAMBLE"
],
"start": 72,
"text": "\n\nDATE OF JUDGMENT:\n05/12/1968\n\nBENCH:\nBACHAWAT, R.S."
}
},
{
"from_name": null,
"id": "fd8ca06921944a4ab01989bd6b1f6026",
"to_name": null,
"type": null,
"value": {
"end": 889,
"labels": [
"PREAMBLE"
],
"start": 126,
"text": "BENCH:\nBACHAWAT, R.S.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n\n1969 AIR 655 1969 SCR (3) 14\n\n1969 SCC (1) 68\n\nCITATOR INFO :\n\nRF 1972 SC2205 (26)\n\nD 1984 SC1030 (17)\n\nACT:\nMysore Excise (Disposal of Privileges of Retail Vend of\nLiquors) Rules, 1967, rr. 12, 17(2)(4) and 19(1)(3) and (4)-\nLiquor shops in more than one tehsil-Whether r. 19(1), (3)\nand (4) applicable-'At once' meaning of-Whether Divisional\nCommissioner can revise his own order-R. 12 Scope of-R.\n17(4), scope of-When next highest bid can be accepted.\n\nHEADNOTE:\nThe appellant was the highest bidder for the exclusive\nprivilege of retail vend of toddy and arrack for the year\n1968-69, in a group of 1168 shops situated in 19 tehsils in\nthe districts of Raichur and Gulbarga."
}
},
{
"from_name": null,
"id": "e3c0337cbef24e2abd2945ef204bc635",
"to_name": null,
"type": null,
"value": {
"end": 1084,
"labels": [
"PREAMBLE"
],
"start": 890,
"text": "He made the deposits\nof money required under rr. 7(f) 'and 10 of the Mysore\nExcise (Disposal of Privileges of Retail Vend of Liquors)\nRules, 1967 made under s. 71 of the Mysore Excise Act, 1965."
}
},
{
"from_name": null,
"id": "c38e5c6c8bb84b74ab3219a6f6e07932",
"to_name": null,
"type": null,
"value": {
"end": 1219,
"labels": [
"PREAMBLE"
],
"start": 1084,
"text": "\nThe highest bid of the appellant was accepted and confirmed\nby the Divisional Commissioner of Gulbarga under r. 17(1) on\nJune 4, 1968."
}
},
{
"from_name": null,
"id": "1742cabf74334f809591e184733bd322",
"to_name": null,
"type": null,
"value": {
"end": 1300,
"labels": [
"PREAMBLE"
],
"start": 1220,
"text": "Thereafter, the appellant made further\ndeposits required by rr. 17(5) and 19(2)."
}
},
{
"from_name": null,
"id": "8b9db5cee6d14ba699db95fc0231bf02",
"to_name": null,
"type": null,
"value": {
"end": 1351,
"labels": [
"PREAMBLE"
],
"start": 1301,
"text": "In all he\ndeposited about Rs. 40 lakhs by June 15."
}
},
{
"from_name": null,
"id": "62509ae56e794140a1f3ef070a032e8c",
"to_name": null,
"type": null,
"value": {
"end": 1428,
"labels": [
"PREAMBLE"
],
"start": 1352,
"text": "On June 18 he\napplied to the Divisional Commissioner for the issue-\nlicence."
}
},
{
"from_name": null,
"id": "ecfe9e19e3dd494eaf0ce0a81d77baa3",
"to_name": null,
"type": null,
"value": {
"end": 1616,
"labels": [
"PREAMBLE"
],
"start": 1429,
"text": "He however, did not comply with r. 19(1) and (3)\nwhich required that a statement of immovable Properties\nshould be furnished and that he should furnish security or\nsureties, respectively."
}
},
{
"from_name": null,
"id": "de530ca69f4b4383825dc27df5432de3",
"to_name": null,
"type": null,
"value": {
"end": 1793,
"labels": [
"PREAMBLE"
],
"start": 1617,
"text": "The Divisional Commissioner\nGulbarga issued a notice to the appellant to show cause why\nthe sale should not be cancelled and the deposits already\nmade forfeited under r. 20(2)."
}
},
{
"from_name": null,
"id": "ef84460a5b094e52ab41b4219875d7e6",
"to_name": null,
"type": null,
"value": {
"end": 1962,
"labels": [
"PREAMBLE"
],
"start": 1794,
"text": "The appellant prayed for two\nmonths time for compliance with the requirements of r. 19,\nbut the Divisional Commissioner rejected the application and\ncancelled the sale."
}
},
{
"from_name": null,
"id": "27b098d4e9ee4be3ae6f2f5653bcac6e",
"to_name": null,
"type": null,
"value": {
"end": 2013,
"labels": [
"PREAMBLE"
],
"start": 1963,
"text": "He did not pass any order forfeiting\nthe deposits."
}
},
{
"from_name": null,
"id": "a3077fb1dbde46a981170d5a2a4434ea",
"to_name": null,
"type": null,
"value": {
"end": 2156,
"labels": [
"PREAMBLE"
],
"start": 2013,
"text": "\nThe appellant filed a writ petition in the High Court for\nquashing the order and under directions of the Court\ndeposited another Rs. 50 lakhs."
}
},
{
"from_name": null,
"id": "ebf506d19cb04ac8866f22220a55ed85",
"to_name": null,
"type": null,
"value": {
"end": 2375,
"labels": [
"PREAMBLE"
],
"start": 2157,
"text": "The 4th respondent, who was\nthe next highest bidder applied to be made a party to the\n\npetition and contended that the appellant was a benamidar\nfor other persons and so acceptance of his tender was\nforbidden by r. 12."
}
},
{
"from_name": null,
"id": "3b800c4d927a459587c45dc60341b3a2",
"to_name": null,
"type": null,
"value": {
"end": 2742,
"labels": [
"PREAMBLE"
],
"start": 2376,
"text": "The High Court dismissed the writ\npetition holding (1) that the appellant did not comply with\nthe mandatory requirements of r. 19 in that he did not\nfurnish the statements and apply 'at once' for licences as\nrequired by r. 19(1); (2) the appellant was a benamidar; and\n(3) the authorities should consider the advisability of\n-accepting the bid of the 4th respondent."
}
},
{
"from_name": null,
"id": "282a49823d634762b7cf930437dfa605",
"to_name": null,
"type": null,
"value": {
"end": 2887,
"labels": [
"PREAMBLE"
],
"start": 2743,
"text": "On the very next\nday after the judgment of the High Court, the respondent-\nState issued licences in respect of 1168 shops to the 4th\nrespondent."
}
},
{
"from_name": null,
"id": "a8c03af52ed8435daf76c877bec60523",
"to_name": null,
"type": null,
"value": {
"end": 2912,
"labels": [
"PREAMBLE"
],
"start": 2888,
"text": "In appeal to this Court."
}
},
{
"from_name": null,
"id": "9ec2c8e11ec74242ae5e953ded097517",
"to_name": null,
"type": null,
"value": {
"end": 2919,
"labels": [
"PREAMBLE"
],
"start": 2913,
"text": "HELD :"
}
},
{
"from_name": null,
"id": "54463ba21e7d4451aba97f0a12c09524",
"to_name": null,
"type": null,
"value": {
"end": 3061,
"labels": [
"PREAMBLE"
],
"start": 2920,
"text": "The licences issued to the 4th respondent should be\ncancelled and a writ of mandamus should issue for the grant\nof licences to the appellant."
}
},
{
"from_name": null,
"id": "a1ce1f73845f4b94a509b6f513527964",
"to_name": null,
"type": null,
"value": {
"end": 3285,
"labels": [
"PREAMBLE"
],
"start": 3062,
"text": "[26 A]\n(1)(a) The opening part of r. 19(4) requires the purchaser\nto furnish to 'the tehsildar' the location of shops and the\nboundaries of the shop sites that is to the tahsildar within\nwhose tehsil the shops are situated."
}
},
{
"from_name": null,
"id": "729cdb4b10584584afa9457639f0da80",
"to_name": null,
"type": null,
"value": {
"end": 3531,
"labels": [
"PREAMBLE"
],
"start": 3286,
"text": "If the shops are\nsituated in more than one tehsil, the details can be fur-\nnished to the several tahsildars, but in such a case it is\nnot possible to give effect to the last part of the sub-rule\nand also to the provisions of sub-rr. (3) and (4)."
}
},
{
"from_name": null,
"id": "1913881a90fb413b96f27457e0a028ea",
"to_name": null,
"type": null,
"value": {
"end": 3918,
"labels": [
"PREAMBLE"
],
"start": 3532,
"text": "The\nstatement of immovable properties under the last part of\nsub-r. (1) can be furnished to only one tahsildar so that he\ncan peruse the same; and on such perusal or on independent\ninquiry ascertain under sub-r. (3) whether or not purchaser\nis of doubtful solvency and satisfy himself under sub-r. (4)\nwhether or not the value of the immovable property tendered\nas security is adequate."
}
},
{
"from_name": null,
"id": "0f8cf7a365fc4158a507157b1c9f4d42",
"to_name": null,
"type": null,
"value": {
"end": 4106,
"labels": [
"PREAMBLE"
],
"start": 3919,
"text": "Sub-rr. (3) and (4) do not\ncontemplate findings by more than one tahsildar nor do they\nprovide any machinery for resolving the conflict of opinion,\nif any, between two or more tahsildars."
}
},
{
"from_name": null,
"id": "fe16cd2bfa084c648e62c5857d392627",
"to_name": null,
"type": null,
"value": {
"end": 4224,
"labels": [
"PREAMBLE"
],
"start": 4107,
"text": "The last part of\nsub-r. (1) and sub-rr. (3) and (4) do not apply where the\nshops are situated in two or more tahsils."
}
},
{
"from_name": null,
"id": "8011fc12a31549cfa190ffe62848fb64",
"to_name": null,
"type": null,
"value": {
"end": 4374,
"labels": [
"PREAMBLE"
],
"start": 4225,
"text": "Consequently,\nthose provisions were not attracted to the sale in the\npresent case and the appellant was not required to comply\nwith those provisions."
}
},
{
"from_name": null,
"id": "c3735f92e7014f3cade175308916a8e2",
"to_name": null,
"type": null,
"value": {
"end": 4515,
"labels": [
"PREAMBLE"
],
"start": 4375,
"text": "[22 E]\n(b) In the absence of 'an independent enquiry under sub-r.\n(3), the appellant could not be regarded as a person of\ndoubtful solvency."
}
},
{
"from_name": null,
"id": "ee5af5955e7c486aa00b743f8152e8d2",
"to_name": null,
"type": null,
"value": {
"end": 4645,
"labels": [
"PREAMBLE"
],
"start": 4515,
"text": "\n(c) Under the Mysore Excise Licences (General Conditions)\nRules, 1967, a licencee is required to commence his business\non July 1."
}
},
{
"from_name": null,
"id": "893a4f2bd1a9430bb61242bb53fc9e45",
"to_name": null,
"type": null,
"value": {
"end": 4729,
"labels": [
"PREAMBLE"
],
"start": 4646,
"text": "The expression 'at once' in r. 19(1), means\nwithin a reasonable time before July 1."
}
},
{
"from_name": null,
"id": "059b73952e56486bbfd9829fffe182af",
"to_name": null,
"type": null,
"value": {
"end": 4800,
"labels": [
"PREAMBLE"
],
"start": 4730,
"text": "In the present case,\nthe appellant sufficiently complied with subrule."
}
},
{
"from_name": null,
"id": "a706f218091e43b6aaf7498c5b59e3a3",
"to_name": null,
"type": null,
"value": {
"end": 4808,
"labels": [
"PREAMBLE"
],
"start": 4801,
"text": "[23 D-E"
}
},
{
"from_name": null,
"id": "2fb89684188840089f18b4708001c981",
"to_name": null,
"type": null,
"value": {
"end": 5062,
"labels": [
"PREAMBLE"
],
"start": 4808,
"text": "]\n(d) Under r. 17(2) it is only the excise commissioner or\nthe State Government that could revise the order of the\ndivisional commissioner confirming a sale and the divisional\ncommissioner himself was not authorised to revise his, own\norder or cancel it."
}
},
{
"from_name": null,
"id": "c990d47bf26045fe9f45be8428a7ee1e",
"to_name": null,
"type": null,
"value": {
"end": 5168,
"labels": [
"PREAMBLE"
],
"start": 5063,
"text": "[23 G]\nTherefore, the High Court was in error in holding that the\nappellant committed breaches of r. 19.\n"
}
},
{
"from_name": null,
"id": "a3328007a40740fe9bb63a01327944e3",
"to_name": null,
"type": null,
"value": {
"end": 5295,
"labels": [
"PREAMBLE"
],
"start": 5168,
"text": "[Rule 19 is clumsily drafted, its import is not clear, its\ntight time schedule works hard-ship and its procedure is\ncumbersome."
}
},
{
"from_name": null,
"id": "9392e214e1e64fddbc81225dfa3a5c2b",
"to_name": null,
"type": null,
"value": {
"end": 5376,
"labels": [
"PREAMBLE"
],
"start": 5296,
"text": "The Government should immediately consider the\nquestion of redrafting the rule.]"
}
},
{
"from_name": null,
"id": "9b56833def8542c387cddea8c7f411ce",
"to_name": null,
"type": null,
"value": {
"end": 5384,
"labels": [
"PREAMBLE"
],
"start": 5377,
"text": "[24 C-D"
}
},
{
"from_name": null,
"id": "482ee099855940108881312b64aa8e6b",
"to_name": null,
"type": null,
"value": {
"end": 5521,
"labels": [
"PREAMBLE"
],
"start": 5384,
"text": "]\n(2) The appellant was a retired inspector drawing a pension\nof about Rs. 75 per month and, is not an income-tax or\nwealth-tax assessee."
}
},
{
"from_name": null,
"id": "12ea700ed1b041319414906329fba8f4",
"to_name": null,
"type": null,
"value": {
"end": 5682,
"labels": [
"PREAMBLE"
],
"start": 5522,
"text": "He evidently has the backing of\npowerful financiers, but the purchase is not illegal merely\nbecause the appellant obtained necessary funds from some\nfinanciers."
}
},
{
"from_name": null,
"id": "12a9e903c02540899e24ecb46bba3e18",
"to_name": null,
"type": null,
"value": {
"end": 5866,
"labels": [
"PREAMBLE"
],
"start": 5683,
"text": "The onus of proving that appellant was a\n\nbenamidar was on the 4th respondent and from the materials\non record it is not possible to hold that he is a benamidar\nfor some other person."
}
},
{
"from_name": null,
"id": "403e62991c17454f800b42ad7f0d3d5f",
"to_name": null,
"type": null,
"value": {
"end": 5982,
"labels": [
"PREAMBLE"
],
"start": 5867,
"text": "[25 D]\n(3) Under r. 17(4), it is only when the highest bid is\nrejected that the next highest bid may be considered."
}
},
{
"from_name": null,
"id": "4247df91b84c49b1935d4ff525abdecb",
"to_name": null,
"type": null,
"value": {
"end": 6099,
"labels": [
"PREAMBLE"
],
"start": 5983,
"text": "Where\nthere is an acceptance of the highest offer and 'if for some\nreason it is revised, r. 17(4) cannot be invoked."
}
},
{
"from_name": null,
"id": "d70bc97f48774ef48752eb460375d322",
"to_name": null,
"type": null,
"value": {
"end": 6213,
"labels": [
"PREAMBLE"
],
"start": 6100,
"text": "In such a\ncase there must be a fresh disposal of the right of retail\nvend of liquor in accordance with the Rules."
}
},
{
"from_name": null,
"id": "601d03fef2b54490a7106d43ada5ce81",
"to_name": null,
"type": null,
"value": {
"end": 6352,
"labels": [
"PREAMBLE"
],
"start": 6214,
"text": "Therefore, the\nHigh Court erred in observing that the 'authorities should\nconsider the -advisability of accepting the 4th respondents\nbid."
}
},
{
"from_name": null,
"id": "9e6fa1ea6b734f13997819c0842cf534",
"to_name": null,
"type": null,
"value": {
"end": 6359,
"labels": [
"PREAMBLE"
],
"start": 6353,
"text": "[26 E]"
}
},
{
"from_name": null,
"id": "702ebcfd10b54681a3acd307849237e6",
"to_name": null,
"type": null,
"value": {
"end": 6407,
"labels": [
"NONE"
],
"start": 6359,
"text": "\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil."
}
},
{
"from_name": null,
"id": "1b796bcdebac40f78bce599e18296c7d",
"to_name": null,
"type": null,
"value": {
"end": 6426,
"labels": [
"NONE"
],
"start": 6408,
"text": "Appeal No. 2095 of"
}
},
{
"from_name": null,
"id": "025d6d1caa6448dd8a84bd7c5630a38a",
"to_name": null,
"type": null,
"value": {
"end": 6551,
"labels": [
"NONE"
],
"start": 6427,
"text": "1968.Appeal from the judgment and order dated September 17, 1968 of the Mysore High Court in Writ Petition No. 1889 of 1968."
}
},
{
"from_name": null,
"id": "3ad3de64663c4d8d9785dc6afdb59590",
"to_name": null,
"type": null,
"value": {
"end": 6652,
"labels": [
"NONE"
],
"start": 6551,
"text": "\nD. Narsaraju, M. C. Chagla, R. V. Pillai, Subodh Markendya and M. Narayana Reddy, for the appellant."
}
},
{
"from_name": null,
"id": "74051470de1d470c90442147181adb06",
"to_name": null,
"type": null,
"value": {
"end": 6802,
"labels": [
"NONE"
],
"start": 6652,
"text": "\nM. C. Setalvad, B. R. L. Iyengar and S. P. Nayar, for respondents Nos. 1 to 3.\nM. K. Nambyar, Shivaswamy and R. Gopalakrishnan, for respondent No. 4."
}
},
{
"from_name": null,
"id": "a298829fd60e42d598fcd71d03b2cfae",
"to_name": null,
"type": null,
"value": {
"end": 6857,
"labels": [
"NONE"
],
"start": 6802,
"text": "\nThe Judgment of the Court was delivered by Bachawat J."
}
},
{
"from_name": null,
"id": "603442bca96c44dfa31a82a306a5a1c5",
"to_name": null,
"type": null,
"value": {
"end": 7216,
"labels": [
"FAC"
],
"start": 6858,
"text": "This appeal raises the question of the legality of the cancellation of the sale to the appellant of the exclusive privilege of retail vend of toddy and arrack for the year 1968-69 in a group of 1168 shops in Raichur and Gulbarga districts under the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967."
}
},
{
"from_name": null,
"id": "122ef7842e0d4762b843c39bc3b75099",
"to_name": null,
"type": null,
"value": {
"end": 7441,
"labels": [
"FAC"
],
"start": 7217,
"text": "On May 10, 1968 the excise commissioner of Mysore published a notice stating that the exclusive privilege would be sold by tender-cum-auction by the divisional commissioner, Gulbarga on May 28 and inviting tenders by May 27."
}
},
{
"from_name": null,
"id": "aba10d68dd51467186e0054056a84ac9",
"to_name": null,
"type": null,
"value": {
"end": 7638,
"labels": [
"FAC"
],
"start": 7442,
"text": "On May 27, the appellant made a tender offering Rs. 9,99,999/- towards the monthly rental of the shops and deposited the requisite earnest money amounting to Rs. 1,85,168/- as required by r. 7(f)."
}
},
{
"from_name": null,
"id": "6c8c8d36739f41b0a9340916cb33d5e6",
"to_name": null,
"type": null,
"value": {
"end": 7735,
"labels": [
"FAC"
],
"start": 7639,
"text": "Respondent No. 4 K.V. Niranjan made a tender offering Rs. 9,69,999/- towards the monthly rental."
}
},
{
"from_name": null,
"id": "e250ce72985d4138b7e4cc21a11d0fdc",
"to_name": null,
"type": null,
"value": {
"end": 7803,
"labels": [
"FAC"
],
"start": 7736,
"text": "The appellant was the only bidder present at the auction on May 28."
}
},
{
"from_name": null,
"id": "60cf4cbc6df74c7d9629daff25955d5c",
"to_name": null,
"type": null,
"value": {
"end": 7902,
"labels": [
"FAC"
],
"start": 7804,
"text": "His offer being the highest was accepted by the divisional commissioner, Gulbarga, under r. 17(1)."
}
},
{
"from_name": null,
"id": "66f2285922aa4306b7e30f953bac4c1d",
"to_name": null,
"type": null,
"value": {
"end": 8044,
"labels": [
"FAC"
],
"start": 7903,
"text": "The appellant deposited another sum of Rs. 8,14,831/- which together with the earnest money made up one month's rent as required by r. 17(5)."
}
},
{
"from_name": null,
"id": "b3a9c6f06d2c44d08e683fd20eb33b92",
"to_name": null,
"type": null,
"value": {
"end": 8129,
"labels": [
"FAC"
],
"start": 8045,
"text": "On June 4, the divisional commissioner, Gulbarga, confirmed the sale under r. 17(1)."
}
},
{
"from_name": null,
"id": "b46b7ea3fe484fc690d24c12d2da43f8",
"to_name": null,
"type": null,
"value": {
"end": 8354,
"labels": [
"FAC"
],
"start": 8130,
"text": "On June 6, the deputy commissioner, Gulbarga, issued a notice asking the appellant to make deposits according to r.\n19 immediately and to obtain licences from the concerned tahsil officers after completing other formalities."
}
},
{
"from_name": null,
"id": "edfe654a09d646f5ba3e4f63531dbec3",
"to_name": null,
"type": null,
"value": {
"end": 8474,
"labels": [
"FAC"
],
"start": 8355,
"text": "Under r. 19(2) the appellant was required to deposit another one month's rent within 15 days from the date of the sale."
}
},
{
"from_name": null,
"id": "3f18e369d44445feaafce80abdb96017",
"to_name": null,
"type": null,
"value": {
"end": 8562,
"labels": [
"FAC"
],
"start": 8475,
"text": "By June 15, the appellant deposited in all Rs. 39,99,996/- amounting to 4 months' rent."
}
},
{
"from_name": null,
"id": "3c8e3c4fcd9c4a89832516881039eb6e",
"to_name": null,
"type": null,
"value": {
"end": 8865,
"labels": [
"FAC"
],
"start": 8563,
"text": "By a letter (Ex. B-1) the appellant informed the excise commissioner that he had deposited 4 months' rent as required by circular No. EXE. 1.\n15 7 5 issued by the excise commissioner on December 12, 1967 and asked for permission to obtain licences from the deputy commissioners of Raichur and Gulbarga."
}
},
{
"from_name": null,
"id": "225f16742cbb4a69be356df79d818dda",
"to_name": null,
"type": null,
"value": {
"end": 8959,
"labels": [
"FAC"
],
"start": 8866,
"text": "On June 18/19 he applied to the divisional commissioner, Gulbarga, for the issue of licences."
}
},
{
"from_name": null,
"id": "bb385a7123ca4c3d8b45d8c0b1bb1740",
"to_name": null,
"type": null,
"value": {
"end": 9404,
"labels": [
"FAC"
],
"start": 8960,
"text": "On. June 19, the divisional commissioner, issued anotice to the appellant stating that as he had not submitted a solvency certificate of his property or the property of his sureties he was required to deposit the balance to make up six months' rent as required by r. 19 (3 ) (i) and to furnish security for six months rental or sureties as require by r. 19(3) (ii) and (iii) by June 25, and that in default action would be taken under r. 20(2)."
}
},
{
"from_name": null,
"id": "06f023e08645405288b609a36e970020",
"to_name": null,
"type": null,
"value": {
"end": 9513,
"labels": [
"FAC"
],
"start": 9405,
"text": "A notice to the same effect was given orally on June 19, when he met the divisional commissioner at Bellary."
}
},
{
"from_name": null,
"id": "2b5da4f9c3264e98b93f3e92faaa9ab3",
"to_name": null,
"type": null,
"value": {
"end": 9676,
"labels": [
"FAC"
],
"start": 9514,
"text": "On June 22, he presented a petition under s. 62 to the, state government asking for the issue of licences, as he had complied with the conditions of the circular."
}
},
{
"from_name": null,
"id": "a031247b39e14452854307ff65b00150",
"to_name": null,
"type": null,
"value": {
"end": 9773,
"labels": [
"FAC"
],
"start": 9677,
"text": "In view of the subsequent writ petition the government did not pass any orders on this petition."
}
},
{
"from_name": null,
"id": "e52cffb0f5d3467797c997116c7ef277",
"to_name": null,
"type": null,
"value": {
"end": 9842,
"labels": [
"FAC"
],
"start": 9774,
"text": "The notice dated. June 19 was received by the appellant on June, 23."
}
},
{
"from_name": null,
"id": "86e31e4d02c943c684418e31616930cc",
"to_name": null,
"type": null,
"value": {
"end": 10243,
"labels": [
"FAC"
],
"start": 9843,
"text": "On June 25, he wrote to the divisional commissioner stating, that he had complied with the conditions of the rules read with the, circular and was entitled to the licences, that he had reason to believe that necessary orders would be passed by the state: government on his petition under s. 62 and that if necessary, the terms for compliance with the requirements of r. 19 be extended.\nby two months."
}
},
{
"from_name": null,
"id": "3b9d295e3ebb447caaf102d652e0432c",
"to_name": null,
"type": null,
"value": {
"end": 10592,
"labels": [
"FAC"
],
"start": 10244,
"text": "On the same date the divisional commissioner, rejected the application for extension of time, and issued a notice to the appellant asking him to show cause before June 26,why in view of the non-compliance with the notices dated June 6 and 19, the sale should not be cancelled and the deposits already made should not be forfeited to the government."
}
},
{
"from_name": null,
"id": "8a2bdb31df694cf0906d1b4267cf101f",
"to_name": null,
"type": null,
"value": {
"end": 10654,
"labels": [
"FAC"
],
"start": 10593,
"text": "The notice was served on his advocate on June 25 at 7.40 p.m."
}
},
{
"from_name": null,
"id": "9fb3c1c2ac5e4196ac72ec460a46c308",
"to_name": null,
"type": null,
"value": {
"end": 10985,
"labels": [
"FAC"
],
"start": 10655,
"text": "On June 26, the. appellant submitted a petition to the divisional commissioner stating that he had complied with the terms of r. 19 and the circular, that abrupt cancellation of the sale would result in irreparable injury and that in any event the time to deposit the balance two, months' rental be extended for a reasonable time."
}
},
{
"from_name": null,
"id": "40f58aa9861b44749d0292e9969c0de5",
"to_name": null,
"type": null,
"value": {
"end": 12095,
"labels": [
"FAC"
],
"start": 10986,
"text": "By an order dated June 26, (Ex. J), the divisional commissioner rejected the application for extension of time and cancelled the sale starting that (1) the appellant did not \"at one&' apply in writing, for licences in accordance with r. 19(1); (2) though he deposited two months' rent as required by r. 19 (2), he did not file a statement of his immovable properties in accordance with r. 19(1); and should therefore be, considered as a person of doubtful solvency; (3) he was, therefore, required to deposit another 2 months' rent under r. 19 (3) (i) and to furnish securities for six months' rental or surety under r. 1 9 ( 3 ) (ii) and (iii) ; (4) he failed to comply with r. 19 in spite of notices dated June 6 and' June 19; (5) the circular issued by the excise commissioner was opposed to r. 19 and could not be acted upon; (6) that even under the circular he was required to give two months' collateral security in addition to 4 months' cash deposit if he was a person, of doubtful solvency; and (7) that the sale conducting,officer has no power to extend the time for compliance with the formalities.."
}
},
{
"from_name": null,
"id": "dbb4df8ca1fd42499d3d8a2a66912a8b",
"to_name": null,
"type": null,
"value": {
"end": 12415,
"labels": [
"FAC"
],
"start": 12095,
"text": "On June 28, the appellant filed writ petition No. 1889 of 1968 against the State of Mysore and others in the High ,Court of Mysore for quashing the order dated June 26, (Ex.\nJr) and for the grant of licences to him to vend liquors in the combined groups of shops in Raichur and Gulbarga ,districts and for other reliefs."
}
},
{
"from_name": null,
"id": "647ae9c1f9c7426890c65d46712d0344",
"to_name": null,
"type": null,
"value": {
"end": 12994,
"labels": [
"FAC"
],
"start": 12416,
"text": "The appellant submitted that (1) he had complied with the rules read with the cir- cular; (2) he did not file any statement of his immovable properties under r. 19(1) as he had immovable properties in Andhra Pradesh; (3) as there was no inquiry nor, finding by any tahsildar ,that he was of doubtful solvency r. 19(3) was not attracted; (4) ,the divisional commissioner, Gulbarga, was not competent to ask for deposits and security under r.\n19(3), nor was he competent to pass an order cancelling the sale; and (5) r. 19(3) was violative -of Arts. 14 and 19 of the Constitution."
}
},
{
"from_name": null,
"id": "aa27583aff0445968a434ebd510d9b6e",
"to_name": null,
"type": null,
"value": {
"end": 13151,
"labels": [
"RLC"
],
"start": 12995,
"text": "On June 28, the High Court admitted the writ petition and ,directed the state government to stay further proceedings and to issue licences to the appellant."
}
},
{
"from_name": null,
"id": "7e2816124fe04944b04f147f2d62a472",
"to_name": null,
"type": null,
"value": {
"end": 13277,
"labels": [
"RLC"
],
"start": 13152,
"text": "Subsequently the High Court ,confirmed the stay order on condition that the appellant would deposit another two months' rent."
}
},
{
"from_name": null,
"id": "94c71b67d9e145739adae470a8843964",
"to_name": null,
"type": null,
"value": {
"end": 13353,
"labels": [
"FAC"
],
"start": 13278,
"text": "The appellant deposited about Rs. 20,00,000/- in accordance with the order."
}
},
{
"from_name": null,
"id": "46c16efa033541879d24ea03188fbbb3",
"to_name": null,
"type": null,
"value": {
"end": 13418,
"labels": [
"FAC"
],
"start": 13354,
"text": "On June 30, the divisional commissioner granted licences to him."
}
},
{
"from_name": null,
"id": "79c7b30fc56649dc9b7f1c345bd68157",
"to_name": null,
"type": null,
"value": {
"end": 13478,
"labels": [
"FAC"
],
"start": 13419,
"text": "On July 1, he commenced his business in all the 1168 shops."
}
},
{
"from_name": null,
"id": "b3ab69aa2f5344a59d66a53aa0ca0e6f",
"to_name": null,
"type": null,
"value": {
"end": 13595,
"labels": [
"FAC"
],
"start": 13479,
"text": "Thereafter he ,duly deposited about Rs.\n30,00,000/- on account of rent for the months of July, August and September."
}
},
{
"from_name": null,
"id": "57f08d2b092349e4a1dcb1537361380b",
"to_name": null,
"type": null,
"value": {
"end": 13739,
"labels": [
"FAC"
],
"start": 13596,
"text": "The state government, the excise -commissioner and the divisional commissioner filed separate affidavits disputing the appellant's contentions."
}
},
{
"from_name": null,
"id": "99e3c1324293443880efb9829e910f7f",
"to_name": null,
"type": null,
"value": {
"end": 13900,
"labels": [
"FAC"
],
"start": 13740,
"text": "The rival -tenderer, K. V. Niranjan was added as respondent No. 4 in W.P. No. 1889 of 1968 on his own application under an order of the High Court dated July 7."
}
},
{
"from_name": null,
"id": "f46c6dcf484c43509527d6b6e66eb361",
"to_name": null,
"type": null,
"value": {
"end": 14052,
"labels": [
"FAC"
],
"start": 13901,
"text": "K. V. Niranjan filed an affidavit stating that the appellant was a benamidar for other persons and the acceptance of his tender was forbidden by r. 12."
}
},
{
"from_name": null,
"id": "5825ba24fae64c82a18d07ce7e3b7a17",
"to_name": null,
"type": null,
"value": {
"end": 14313,
"labels": [
"FAC"
],
"start": 14053,
"text": "K. V. Niranjan also filed W.P. No. 2088 of 1968 for quashing the orders of the divisional commissioner dated May 28, and June 4, whereby the appellant's tender was accepted and for a mandamus directing the acceptance of his next highest tender under r. 17(4).\n"
}
},
{
"from_name": null,
"id": "72893acca05a4e5d96634ee406ca41ba",
"to_name": null,
"type": null,
"value": {
"end": 14440,
"labels": [
"FAC"
],
"start": 14313,
"text": "The two writ petitions were heard together and were dismissed by the High Court by a common judgment delivered on September 17."
}
},
{
"from_name": null,
"id": "a0894da0340e41579f00273d69847cbd",
"to_name": null,
"type": null,
"value": {
"end": 15102,
"labels": [
"RLC"
],
"start": 14441,
"text": "The High Court held that (1) the appellant did not comply with the mandatory requirements of r. 19; (2) r. 19(3) -was not ultra vires the rule-making power under s.\n71 nor violative of Arts. 14 and 19, and the appellant was estopped from challenging it; (3) the circular of the excise commissioner could not modify r. 19; the appellant could not rely on the circular as he came to know of it long after the sale, nor had he complied with its terms by depositing the entire four months rent beforeJune 12;(4) the appellant was a benamidar for other person or persons and in view of r. 12 was incompetent to bid and (5) the, order dated June 26 (Ex. J) was valid."
}
},
{
"from_name": null,
"id": "7924f729621d4a2b96ee77269bb3e669",
"to_name": null,
"type": null,
"value": {
"end": 15168,
"labels": [
"RLC"
],
"start": 15103,
"text": "On these findings the High Court dismissed W.P. No. 1889 of 1968."
}
},
{
"from_name": null,
"id": "2d93b86e9315418197e0f5c859b68a8a",
"to_name": null,
"type": null,
"value": {
"end": 15366,
"labels": [
"RLC"
],
"start": 15168,
"text": "\nWith regard to W.P. No. 2085 of 1968 the High Court said that as the sale to the appellant had been cancelled by Ex.\nJ, it was not necessary to set aside the order accepting and confirming his bid."
}
},
{
"from_name": null,
"id": "271208a8ebdd47d8b2f4c77a6140965f",
"to_name": null,
"type": null,
"value": {
"end": 15518,
"labels": [
"RLC"
],
"start": 15367,
"text": "The High Court held that under r. 17 (4) it was not obligatory on the officer conducting the sale to accept the next highest offer of respondent No. 4."
}
},
{
"from_name": null,
"id": "8b8f775066fe46208b474d23d90ad477",
"to_name": null,
"type": null,
"value": {
"end": 15797,
"labels": [
"RLC"
],
"start": 15519,
"text": "The High Court, however, said \"in the circumstances of the case, it is necessary to observe that the authorities concerned will consider the advisability of accepting the bid of the fourth respondent, subject to his complying with all the requirements of the Act and the Rules.\""
}
},
{
"from_name": null,
"id": "17dba5a3c5ef4d20872e22c31dbe5ceb",
"to_name": null,
"type": null,
"value": {
"end": 15869,
"labels": [
"RLC"
],
"start": 15798,
"text": "With these observations the High Court dismissed W.P. No. 2085 of 1968."
}
},
{
"from_name": null,
"id": "da7ef70956434eb4b00e99b69154a1c2",
"to_name": null,
"type": null,
"value": {
"end": 16106,
"labels": [
"FAC"
],
"start": 15869,
"text": "\nBy a telegram dated September 18, the excise commissioner instructed the divisional commissioner, Gulbarga, to direct the tahsildars of Raichur and Gulbarga to issue licences to respondent No. 4 on his complying with certain conditions."
}
},
{
"from_name": null,
"id": "506cc3b008874413bdbac5358613ddbd",
"to_name": null,
"type": null,
"value": {
"end": 16167,
"labels": [
"FAC"
],
"start": 16106,
"text": "\n On the same date licences were issued to- respondent No. 4."
}
},
{
"from_name": null,
"id": "90125feab0d143fe8f9a82af75d8ecc3",
"to_name": null,
"type": null,
"value": {
"end": 16386,
"labels": [
"RLC"
],
"start": 16168,
"text": "On September 19, the High Court dismissed an application for stay of operation of its order dated September 17, and on the same day granted to the appellant a certificate under Art. 1 3 3 ( 1 ) (b) of the Constitution."
}
},
{
"from_name": null,
"id": "10490c78f391447eac53b69c2720cc4d",
"to_name": null,
"type": null,
"value": {
"end": 16457,
"labels": [
"FAC"
],
"start": 16387,
"text": "On September 25, the appellant filed a stay application in this Court."
}
},
{
"from_name": null,
"id": "841c0cc7b65a4da6b0c16c183b6984c4",
"to_name": null,
"type": null,
"value": {
"end": 16580,
"labels": [
"FAC"
],
"start": 16458,
"text": "On September 27, the Court passed an order restraining the respondents from forfeiting the deposits made by the appellant."
}
},
{
"from_name": null,
"id": "60ec20ddc161478f8944a4a3d19ea69c",
"to_name": null,
"type": null,
"value": {
"end": 16764,
"labels": [
"ANALYSIS"
],
"start": 16580,
"text": "\nIt is convenient at this stage to refer to the relevant provisions of the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967."
}
},
{
"from_name": null,
"id": "d656b150749042cdb3fe14a7bfc871e1",
"to_name": null,
"type": null,
"value": {
"end": 16932,
"labels": [
"STA"
],
"start": 16765,
"text": "Section 3(1) of the Act provides that the excise commissioner, \"shall be the chief controlling authority in all matters connected with the administration of this Act.\""
}
},
{
"from_name": null,
"id": "dab96993f09b4b90a2b5c2247c72514f",
"to_name": null,
"type": null,
"value": {
"end": 17094,
"labels": [
"STA"
],
"start": 16933,
"text": "Section 15(1) provides that \"no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf.\""
}
},
{
"from_name": null,
"id": "1f62ed44c328442fb4c2800e7d60118c",
"to_name": null,
"type": null,
"value": {
"end": 17532,
"labels": [
"STA"
],
"start": 17094,
"text": "\nUnder S. 15 (2) a licence for sale can be granted (a) by the deputy commissioner if the sale is within a district or (b) by the excise commissioner if the sale -is in more than one districts Section 17 ( 1 ) (b) empowers the state government to lease to any person, on such conditions and for such period as it thinks fit the exclusive or other right of selling by the wholesale or by retail any Indian liquors within any specified area."
}
},
{
"from_name": null,
"id": "03686e38ddfd481986cf51cbc36aeeb0",
"to_name": null,
"type": null,
"value": {
"end": 17669,
"labels": [
"STA"
],
"start": 17533,
"text": "Contravention of the Act or any Rules made thereunder is punishable under s. 32. Section 71 empowers the state government to make rules."
}
},
{
"from_name": null,
"id": "3a638480ff6047c3b5168e645280ed70",
"to_name": null,
"type": null,
"value": {
"end": 17881,
"labels": [
"STA"
],
"start": 17670,
"text": "Rule 3 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 provides that the right of retail vend of liquors shallbe disposed of by tender or by auction or by tender-cum- auction."
}
},
{
"from_name": null,
"id": "482f5b1a2f4c4fa1999bd1eb028d03b8",
"to_name": null,
"type": null,
"value": {
"end": 18029,
"labels": [
"STA"
],
"start": 17882,
"text": "The auction is conducted by the deputy commissioner or the divisional commissioner under r. 5 and the tender has to be made to them under r. 7 (1)."
}
},
{
"from_name": null,
"id": "07e5bb7d721b413ebe8dae265dfebe57",
"to_name": null,
"type": null,
"value": {
"end": 18191,
"labels": [
"STA"
],
"start": 18030,
"text": "The tenderer is required by r. 7 (f ) to deposit as, earnest money an amount equal to 1/4 of the shop rental of the previous year of the shop or groups of shops."
}
},
{
"from_name": null,
"id": "3e7c9fd88c5248d39220e0e5383b604a",
"to_name": null,
"type": null,
"value": {
"end": 18249,
"labels": [
"ANALYSIS"
],
"start": 18192,
"text": "The appellant complied with the requirement of r. 7 (f )."
}
},
{
"from_name": null,
"id": "0e4af9df216a43bfae3783c0f5d569aa",
"to_name": null,
"type": null,
"value": {
"end": 18478,
"labels": [
"ANALYSIS"
],
"start": 18250,
"text": "Rule 10 requires an intending bidder or tenderer to furnish a certificate of his solvency or two sureties having similar certificates or bank guarantee or cash deposit to cover four times the earnest money fixed under rule 7(f)."
}
},
{
"from_name": null,
"id": "0caa0041e97e49f08ea4914d9ed32222",
"to_name": null,
"type": null,
"value": {
"end": 18615,
"labels": [
"STA"
],
"start": 18479,
"text": "It is not disputed that the appellant made sufficient cash deposits in compliance with r. 10. Rule 12 read & : \"Benami bids not allowed."
}
},
{
"from_name": null,
"id": "d5533d3723064b2399387e0da981520d",
"to_name": null,
"type": null,
"value": {
"end": 18705,
"labels": [
"STA"
],
"start": 18616,
"text": "No person except a power of attorney holder shall be entitled to bid for another person.\""
}
},
{
"from_name": null,
"id": "734abd2c84084b449a90cf7b2baf6f60",
"to_name": null,
"type": null,
"value": {
"end": 18795,
"labels": [
"ANALYSIS"
],
"start": 18706,
"text": "The sale to the appellant was not cancelled on the ground that he bid for another person."
}
},
{
"from_name": null,
"id": "42ce85dd455b4d83bb23d3cf620cb71e",
"to_name": null,
"type": null,
"value": {
"end": 18837,
"labels": [
"ANALYSIS"
],
"start": 18796,
"text": "Rule 17 regulates the procedure at sales."
}
},
{
"from_name": null,
"id": "a30ae5ecf3ef440297edbe18581840ab",
"to_name": null,
"type": null,
"value": {
"end": 18922,
"labels": [
"STA"
],
"start": 18837,
"text": "\nRule 17(1) empowers, the officer conducting the auction to accept the highest offer."
}
},
{
"from_name": null,
"id": "59652b8067e94bc9b7e266894ed63893",
"to_name": null,
"type": null,
"value": {
"end": 19043,
"labels": [
"ANALYSIS"
],
"start": 18923,
"text": "The acceptance is subject to the condition of confirmation by the deputy commissioner or by the divisional commissioner."
}
},
{
"from_name": null,
"id": "8162a35ebe6e4239bb0405014513b52f",
"to_name": null,
"type": null,
"value": {
"end": 19134,
"labels": [
"ANALYSIS"
],
"start": 19044,
"text": "The confirmation is effective unless revised by the excise commissioner or the government."
}
},
{
"from_name": null,
"id": "1f9105971b924e0d889e075fdde15507",
"to_name": null,
"type": null,
"value": {
"end": 19233,
"labels": [
"STA"
],
"start": 19134,
"text": "\nRule 17(2) empowers the excise commissioner or the government to revise the order of confirmation."
}
},
{
"from_name": null,
"id": "52e842c4df1e43fc8102ff7950d95816",
"to_name": null,
"type": null,
"value": {
"end": 19399,
"labels": [
"STA"
],
"start": 19234,
"text": "Rule 17(4) provides that if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop."
}
},
{
"from_name": null,
"id": "769ce71cfc4d455cabb8d6113fdd94c5",
"to_name": null,
"type": null,
"value": {
"end": 19549,
"labels": [
"STA"
],
"start": 19400,
"text": "Rule 17 (5) requires the person whose bid is accepted to make a further deposit which together with the earnest money would make up one month's rent."
}
},
{
"from_name": null,
"id": "74c56e826ba943d1b1482d5f0a837781",
"to_name": null,
"type": null,
"value": {
"end": 19602,
"labels": [
"ANALYSIS"
],
"start": 19550,
"text": "The appellant made the deposit required by r. 17(5)."
}
},
{
"from_name": null,
"id": "96d6e5f2828340ad81f115370dc10239",
"to_name": null,
"type": null,
"value": {
"end": 19679,
"labels": [
"ANALYSIS"
],
"start": 19602,
"text": "\nHis bid was accepted and was later confirmed by the divisional commissioner."
}
},
{
"from_name": null,
"id": "09c5a8f746524c0aa33bfe1652039d4b",
"to_name": null,
"type": null,
"value": {
"end": 19828,
"labels": [
"ANALYSIS"
],
"start": 19680,
"text": "Neither the excise commissioner nor the state government passed any order under r. 17(2) revising the decision confirming the acceptance of his bid."
}
},
{
"from_name": null,
"id": "4927ccd99aca473ba57eec3d6a2bffb1",
"to_name": null,
"type": null,
"value": {
"end": 21041,
"labels": [
"STA"
],
"start": 19828,
"text": "\nRule 19 provides as follows :- \"19 Successful bidder to apply for licence: Every person to whom the right of retail vend of liquors is sold or whose tender in respect thereof has been accepted under these rules and who has made deposits as hereinbefore provided shall (1) at once apply in writing for licence for such shop confirmed in his name and within a week thereafter furnish to the Tahsildar the, details of boundaries of the site selected by him for the location of the shop and a statement in the prescribed form annexed to the notification showing details of the immovable property possessed by him or in which he has an interest together with accurate and full details of encumbrances, if any, thereon; (5) The purchaser shall get the bond and the mortgage deed registered under the Indian Registration Act, 1908 at his expense.\n (6) The purchaser or his surety shall produce an encumbrance certificate in cases where immovable property is mortgaged to the Governor of Mysore.\"\nIt is not alleged that the appellant did not furnish the details of the shop sites as required by r. 19 sub. r. (1) within 15 days of the date of the confirmation of the sale."
}
},
{
"from_name": null,
"id": "86dcda576b094a22a7530d90ef6d8e20",
"to_name": null,
"type": null,
"value": {
"end": 21122,
"labels": [
"ANALYSIS"
],
"start": 21041,
"text": "\nThe appellant made a deposit of two months rent as required by r. 19 sub-r. (2)."
}
},
{
"from_name": null,
"id": "24732334d45949969883887502369d1d",
"to_name": null,
"type": null,
"value": {
"end": 21279,
"labels": [
"ANALYSIS"
],
"start": 21123,
"text": "The appellant did not furnish a statement of immovable properties under r. 19 sub-r. (1) nor did not he furnish security or sureties under r. 19 sub-r.\n(3)."
}
},
{
"from_name": null,
"id": "9e6919c187024e60a70b69ad58f8b02f",
"to_name": null,
"type": null,
"value": {
"end": 21374,
"labels": [
"ANALYSIS"
],
"start": 21280,
"text": "It is also alleged that he did not apply for licences at once as required by r. 19 sub-r. (1)."
}
},
{
"from_name": null,
"id": "251507666a544e0286d81b191511d0c1",
"to_name": null,
"type": null,
"value": {
"end": 21649,
"labels": [
"ANALYSIS"
],
"start": 21375,
"text": "Rule 20(2) provides : \"On failure to comply with the provisions of rr.\n17 and 19 the deposits already made shall be forfeited and the right of retail vend of liquors in such shop or groups disposed of in such manner under these rules, as the Excise Commissioner may direct\"."
}
},
{
"from_name": null,
"id": "eff01858c81742ff9b7273510b98d4c9",
"to_name": null,
"type": null,
"value": {
"end": 21712,
"labels": [
"ANALYSIS"
],
"start": 21650,
"text": "No order was passed by the excise commissioner under r. 20(2)."
}
},
{
"from_name": null,
"id": "d555855ab29a4c819898c7175cac1898",
"to_name": null,
"type": null,
"value": {
"end": 22019,
"labels": [
"ANALYSIS"
],
"start": 21712,
"text": "\nIn our opinion, the provision of r. 19sub. r.(1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of r. 19 sub- rr. (3) and (4) do not apply where the shops in respect of which the right of retail vend is sold is situated in more than one tahsil."
}
},
{
"from_name": null,
"id": "734b236c384b43daa98e2392658c4384",
"to_name": null,
"type": null,
"value": {
"end": 22172,
"labels": [
"ANALYSIS"
],
"start": 22020,
"text": "The opening part of r. 19 sub-r.(1) requires the purchaser to furnish to \"the tahsildar\" the location of the shops and the boundaries of the shop sites."
}
},
{
"from_name": null,
"id": "b36c5ab3d4e5465585148a5bac0853b0",
"to_name": null,
"type": null,
"value": {
"end": 22367,
"labels": [
"ANALYSIS"
],
"start": 22173,
"text": "The expression \"the tahsildar\" is not defined, but it is reasonable to think that the details regarding the shops should be furnished to the tahsildar within whose tahsil the shops are situated."
}
},
{
"from_name": null,
"id": "b8f0eed19f2241a8847ed8b0c5abf59c",
"to_name": null,
"type": null,
"value": {
"end": 22470,
"labels": [
"ANALYSIS"
],
"start": 22368,
"text": "If the shops are situated in more than one tahsil, the details can be furnished to several tahsildars."
}
},
{
"from_name": null,
"id": "4a97c091a4894b3c8ce7e43032d99b43",
"to_name": null,
"type": null,
"value": {
"end": 22646,
"labels": [
"ANALYSIS"
],
"start": 22471,
"text": "But it is not possible to give effect to the last part of sub-rule (1) and the provisions of sub-rr. (3) and (4) in cases where the shops are situated in more than one tahsil."
}
},
{
"from_name": null,
"id": "23fee980e71f436cab4e75ae3a8808fe",
"to_name": null,
"type": null,
"value": {
"end": 23039,
"labels": [
"ANALYSIS"
],
"start": 22647,
"text": "The statement of immovable properties under the last part of sub-r. (1 ) can be furnished to, only one tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub-r. (3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub-r. (4)whether or not the value of the immovable properties tendered as security is adequate."
}
},
{
"from_name": null,
"id": "9f237ddfa7314107a70c73bb08a77342",
"to_name": null,
"type": null,
"value": {
"end": 23228,
"labels": [
"ANALYSIS"
],
"start": 23040,
"text": "Sub- rr. (3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars."
}
},
{
"from_name": null,
"id": "d7c77f5cf8484b11b2c60c0cd3c42250",
"to_name": null,
"type": null,
"value": {
"end": 23380,
"labels": [
"ANALYSIS"
],
"start": 23229,
"text": "In our opinion, the last part of sub-r. (1) and the provisions of sub-rr. (3) and (4) do not apply where the shops are situated in two or more tahsils."
}
},
{
"from_name": null,
"id": "6444f6db16364c73be59d2bbea6f6619",
"to_name": null,
"type": null,
"value": {
"end": 23644,
"labels": [
"ANALYSIS"
],
"start": 23380,
"text": "The right of retail vend sold to the appellant is in respect of shops situated in 19 Tahsils in the districts of Raichur and Gulbarga Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions."
}
},
{
"from_name": null,
"id": "e92bb02ebd214253ba1d14880032c5a5",
"to_name": null,
"type": null,
"value": {
"end": 23778,
"labels": [
"ANALYSIS"
],
"start": 23645,
"text": "The divisional commissioner, Gulbarga, could not record a finding under r. 19 sub-r. (3) that the purchaser was of doubtful solvency."
}
},
{
"from_name": null,
"id": "7da4a51bcd8b438680dfebc4f6443357",
"to_name": null,
"type": null,
"value": {
"end": 23950,
"labels": [
"ANALYSIS"
],
"start": 23779,
"text": "Even a tahsildar could not record such a finding without making an independent inquiry where no statement regarding. immovable properties was furnished under sub-rule (1)."
}
},
{
"from_name": null,
"id": "4a683cdc788745b9994e9c7d76dd382d",
"to_name": null,
"type": null,
"value": {
"end": 24016,
"labels": [
"ANALYSIS"
],
"start": 23951,
"text": "No independent inquiry under sub-r. (3) was made by any tahsildar"
}
},
{
"from_name": null,
"id": "626de5d9fc944e9491df04b84bd08dac",
"to_name": null,
"type": null,
"value": {
"end": 24182,
"labels": [
"ANALYSIS"
],
"start": 24017,
"text": "For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub-r. (3)."
}
},
{
"from_name": null,
"id": "b40860f825d046649e7964f7959c6322",
"to_name": null,
"type": null,
"value": {
"end": 24314,
"labels": [
"ANALYSIS"
],
"start": 24183,
"text": "The appellant has so far deposited about Rs. 90,00,000/- and it is impossible to believe that he is a person of doubtful, solvency."
}
},
{
"from_name": null,
"id": "ab05554348b5479b98d7cfe2f22701ea",
"to_name": null,
"type": null,
"value": {
"end": 24396,
"labels": [
"ANALYSIS"
],
"start": 24314,
"text": "\nThe remaining charge is that the appellant did not \"at once\"' apply for licences."
}
},
{
"from_name": null,
"id": "b4c4a7dda21546b4a31200ad9ab670d5",
"to_name": null,
"type": null,
"value": {
"end": 24502,
"labels": [
"ANALYSIS"
],
"start": 24397,
"text": "Rule 20(2) provides for the forfeiture of the deposits on failure to comply with the provisions of r. 19."
}
},
{
"from_name": null,
"id": "b5d29ff813d14885a850b244595df853",
"to_name": null,
"type": null,
"value": {
"end": 24627,
"labels": [
"ANALYSIS"
],
"start": 24503,
"text": "Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1."
}
},
{
"from_name": null,
"id": "6c3cca30842d4e1988e88ac37e2d5388",
"to_name": null,
"type": null,
"value": {
"end": 24791,
"labels": [
"ANALYSIS"
],
"start": 24628,
"text": "The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1."
}
},
{
"from_name": null,
"id": "97c5042257d844a29cd85ed575cb6cf5",
"to_name": null,
"type": null,
"value": {
"end": 24936,
"labels": [
"ANALYSIS"
],
"start": 24792,
"text": "Having regard to the object of the Act and the Rules the expression \"at once\" in r. 19 sub.-r. (1) means within a reasonable time before July 1."
}
},
{
"from_name": null,
"id": "2be7a8fde6784356abb208b0cc244764",
"to_name": null,
"type": null,
"value": {
"end": 25072,
"labels": [
"ANALYSIS"
],
"start": 24937,
"text": "It could not have, been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time."
}
},
{
"from_name": null,
"id": "dcc303b5dba14c3b9859894c6852ddf5",
"to_name": null,
"type": null,
"value": {
"end": 25301,
"labels": [
"ANALYSIS"
],
"start": 25073,
"text": "The appellant sufficiently complied with r. 19 sub-r.\n(1) by applying under Ex. B, to the excise commissioner for permission to obtain licences and by applying to the divisional commissioner on June 18 for the issue of licences."
}
},
{
"from_name": null,
"id": "db2d1a99ae5745d0bd486fd931e964cc",
"to_name": null,
"type": null,
"value": {
"end": 25413,
"labels": [
"ANALYSIS"
],
"start": 25301,
"text": "\nThe divisional commissioner, Gulbarga was not competent to pass the impugned order (Ex, J) cancelling the sale."
}
},
{
"from_name": null,
"id": "69659ef288774d3ab55eda5fb11b240a",
"to_name": null,
"type": null,
"value": {
"end": 25571,
"labels": [
"ANALYSIS"
],
"start": 25414,
"text": "Only the excise commissioner or the state government could under r. 17(2) revise his previous order confirming the sale and on such revision cancel the sale."
}
},
{
"from_name": null,
"id": "1010221edfc64a9b9122330458e9faeb",
"to_name": null,
"type": null,
"value": {
"end": 25681,
"labels": [
"ANALYSIS"
],
"start": 25572,
"text": "The divisional commissioner, Gulbarga was not authorised by r. 17(2) to revise his own order or to cancel it."
}
},
{
"from_name": null,
"id": "d215f932ecfe479e9da887f18d82dba8",
"to_name": null,
"type": null,
"value": {
"end": 25800,
"labels": [
"ANALYSIS"
],
"start": 25682,
"text": "In hi-,, notice dated June 19, the divisional commissioner, Gulbarga, stated that he would take action under r. 20(2)."
}
},
{
"from_name": null,
"id": "de365d3a3dab410a8661fe94350ddaa3",
"to_name": null,
"type": null,
"value": {
"end": 25980,
"labels": [
"ANALYSIS"
],
"start": 25801,
"text": "In his notice dated June 25, he asked the appellant to show cause why the sale should not be cancelled and why the deposits already made should not be forfeited to the government."
}
},
{
"from_name": null,
"id": "da4bf4ceaea74d76ac013203cd88f5b4",
"to_name": null,
"type": null,
"value": {
"end": 26035,
"labels": [
"ANALYSIS"
],
"start": 25981,
"text": "But he did not pass any order forfeiting the deposits."
}
},
{
"from_name": null,
"id": "b841ea30e03243e9b3bb859bae86bbea",
"to_name": null,
"type": null,
"value": {
"end": 26090,
"labels": [
"ANALYSIS"
],
"start": 26036,
"text": "Nor was he competent to pass any order under r. 20(2)."
}
},
{
"from_name": null,
"id": "9b6a12274eb34c22bde0f78249b16cdf",
"to_name": null,
"type": null,
"value": {
"end": 26145,
"labels": [
"ANALYSIS"
],
"start": 26091,
"text": "Only the excise commissioner could pass such an order."
}
},
{
"from_name": null,
"id": "e7d22b483dd84c20a1040eef441590f0",
"to_name": null,
"type": null,
"value": {
"end": 26248,
"labels": [
"ANALYSIS"
],
"start": 26145,
"text": "It follows that the High Court was in error in holding that the appellant committed -breaches of r. 19."
}
},
{
"from_name": null,
"id": "0f3160c1575149679eaabaf3d44516ad",
"to_name": null,
"type": null,
"value": {
"end": 26443,
"labels": [
"ANALYSIS"
],
"start": 26249,
"text": "The finding of the divisional commissioner, Gulbarga, that the appellant committed such breaches is erroneous, nor was he competent to record the finding or to pass an order cancelling the sale."
}
},
{
"from_name": null,
"id": "3ed35da46365422dbcb77f5ec6f7747d",
"to_name": null,
"type": null,
"value": {
"end": 26615,
"labels": [
"ANALYSIS"
],
"start": 26443,
"text": "\n In view of this conclusion it is not necessary to consider whether r. 19 sub-r. (3) offends Arts. 14 and 19 of the Constitution and we express no opinion on the question."
}
},
{
"from_name": null,
"id": "4712bef3dc6f42119a8e1ec3a1b16cc3",
"to_name": null,
"type": null,
"value": {
"end": 26750,
"labels": [
"ANALYSIS"
],
"start": 26616,
"text": "We cannot agree -with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub-rule."
}
},
{
"from_name": null,
"id": "6c804b89598442928cf45da29cb80422",
"to_name": null,
"type": null,
"value": {
"end": 26834,
"labels": [
"ANALYSIS"
],
"start": 26751,
"text": "It is true that .r. 24 provides that the purchaser shall be bound by all the rules."
}
},
{
"from_name": null,
"id": "2daaa145a0d6414ebb3288662dae400f",
"to_name": null,
"type": null,
"value": {
"end": 26986,
"labels": [
"ANALYSIS"
],
"start": 26835,
"text": "But if r. 19 sub-r. (3) offends Arts. 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist."
}
},
{
"from_name": null,
"id": "2bbfb10f9937424392f719544587f296",
"to_name": null,
"type": null,
"value": {
"end": 27194,
"labels": [
"ANALYSIS"
],
"start": 26987,
"text": "Though we express no opinion on the vires ,of the sub-rule, we must observe that r. 19 is clumsily drafted, its import is not clear, its tight time- schedule works hardship and its ,procedure is cumbersome.\n"
}
},
{
"from_name": null,
"id": "c808f46ba94043e1a51e5b623e390b80",
"to_name": null,
"type": null,
"value": {
"end": 27272,
"labels": [
"ANALYSIS"
],
"start": 27194,
"text": "The government should immediately ,consider the question of re-drafting r. 19."
}
},
{
"from_name": null,
"id": "19ddcb2f08024d53bd5cc585343a776a",
"to_name": null,
"type": null,
"value": {
"end": 27390,
"labels": [
"ANALYSIS"
],
"start": 27273,
"text": "It may be noted that Mr. Narasaraju conceded that r. 19 is not beyond the rule-making powers of the state government."
}
},
{
"from_name": null,
"id": "f9cbf20ff2054516beef78d4540367b4",
"to_name": null,
"type": null,
"value": {
"end": 27478,
"labels": [
"ANALYSIS"
],
"start": 27391,
"text": "The appellant relied on the circular No. EXE.1.1575/67 (Ex.\nE) dated December 12, 1967."
}
},
{
"from_name": null,
"id": "47a37ac7db20466998e78d82af45268c",
"to_name": null,
"type": null,
"value": {
"end": 27643,
"labels": [
"ANALYSIS"
],
"start": 27479,
"text": "Exhibit E is a letter from 'the excise commissioner to the deputy commissioner, Bangalore, ,,on the subject of securities to be furnished by the excise contractors."
}
},
{
"from_name": null,
"id": "cef994caae4744718b45a47cf95f09be",
"to_name": null,
"type": null,
"value": {
"end": 27874,
"labels": [
"ANALYSIS"
],
"start": 27644,
"text": "The letter stated that the procedure of r. 19 was number-some and not clear, that several deputy commissioners sought clarifications on 'the subject and that the state government had -been moved to clarify and simplify the matter."
}
},
{
"from_name": null,
"id": "a47c01643b124baeb1af0cb5759879d5",
"to_name": null,
"type": null,
"value": {
"end": 28465,
"labels": [
"ANALYSIS"
],
"start": 27875,
"text": "The excise commissioner directed that pending receipt of the government order the following procedure should be followed : In addition to obtaining two months' cash deposits, (1) two months cash security might be accepted and in the absence of cash security four months' collateral security might be insisted; (2) if the deputy commissioner/tahsildar was doubtful about the solvency of the contractor -he could insist on six months' collateral security and (3) while -accepting the collateral securities care should be taken to see that \"the contractor executed the necessary mortgage bond."
}
},
{
"from_name": null,
"id": "e7eeecd179704a448d91d96499602a83",
"to_name": null,
"type": null,
"value": {
"end": 28581,
"labels": [
"ANALYSIS"
],
"start": 28466,
"text": "Admittedly, similar instructions were issued to other deputy commissioners -and were enforced in several districts."
}
},
{
"from_name": null,
"id": "1e28e776fb0a438eab524b5f263fd4db",
"to_name": null,
"type": null,
"value": {
"end": 28689,
"labels": [
"ANALYSIS"
],
"start": 28582,
"text": "There is a dispute on the ,question whether the circular was sent to the districts of Gulbarga and Raichur."
}
},
{
"from_name": null,
"id": "50621b47fadb45358cdf2f304d17f1de",
"to_name": null,
"type": null,
"value": {
"end": 28762,
"labels": [
"ANALYSIS"
],
"start": 28690,
"text": "In so far as the circular attempted to modify r. 19 it was in-effective."
}
},
{
"from_name": null,
"id": "cc011bca3aa1483681bf3edbdc5ffaed",
"to_name": null,
"type": null,
"value": {
"end": 28850,
"labels": [
"ANALYSIS"
],
"start": 28763,
"text": "The excise commissioner, had no power to -abrogate or modify a rule framed under s. 71."
}
},
{
"from_name": null,
"id": "09bc474e8f024b3a8239adab68f6f553",
"to_name": null,
"type": null,
"value": {
"end": 29109,
"labels": [
"ANALYSIS"
],
"start": 28851,
"text": "On behalf of the appellant it was argued that as the chief controlling authority the ,excise commissioner could frame regulations under S. 3 read with r.\n24 and could issue general instructions on the subject of taking security in cases not covered by r. 19."
}
},
{
"from_name": null,
"id": "2bfc3cc5a8ab4d458e9eb6021f03dffd",
"to_name": null,
"type": null,
"value": {
"end": 29203,
"labels": [
"ANALYSIS"
],
"start": 29110,
"text": "We express no opinion on this question, as the government has already withdrawn the circular."
}
},
{
"from_name": null,
"id": "1737885f12d545679dc67710f6ff95c4",
"to_name": null,
"type": null,
"value": {
"end": 29470,
"labels": [
"ANALYSIS"
],
"start": 29204,
"text": "But we must observe that relying on this circular the appellant deposited two months' rent as required by the circular in addition to the two months' rent as required by r. 19 sub-r. (2) and that such deposits were duly made within 15 days from the date of the sale."
}
},
{
"from_name": null,
"id": "52eef45d30674932b8e24a4ad5983334",
"to_name": null,
"type": null,
"value": {
"end": 29555,
"labels": [
"ANALYSIS"
],
"start": 29470,
"text": "\nHowever, it is not necessary for the appellant to rely on the terms of the circular."
}
},
{
"from_name": null,
"id": "30e32adf88734dd4bca5bbae9ed7bd10",
"to_name": null,
"type": null,
"value": {
"end": 29648,
"labels": [
"ANALYSIS"
],
"start": 29556,
"text": "He has complied with the provisions of r. 19 and the sale in his favour cannot be cancelled."
}
},
{
"from_name": null,
"id": "0b99014e13f74fcfb982a9078040e8e0",
"to_name": null,
"type": null,
"value": {
"end": 30079,
"labels": [
"ANALYSIS"
],
"start": 29648,
"text": "\nOn behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to r. 12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of ss. 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya v.\nAttar Sheik Mastan(1)."
}
},
{
"from_name": null,
"id": "dbbf599f242b4bdd820721b5c6f47d4f",
"to_name": null,
"type": null,
"value": {
"end": 30163,
"labels": [
"ANALYSIS"
],
"start": 30080,
"text": "The onus is upon the respondent to prove that the appellant made a benami purchase."
}
},
{
"from_name": null,
"id": "7a3cb96a32524d4dba5f220210263e43",
"to_name": null,
"type": null,
"value": {
"end": 30263,
"labels": [
"ANALYSIS"
],
"start": 30164,
"text": "It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/- per month."
}
},
{
"from_name": null,
"id": "92cd0b3f33d1419ab9841e2e5898f8d0",
"to_name": null,
"type": null,
"value": {
"end": 30313,
"labels": [
"ANALYSIS"
],
"start": 30264,
"text": "He is not an income-tax or a wealth-tax assessee,"
}
},
{
"from_name": null,
"id": "3378fd3613d040969d733a7258ecbb38",
"to_name": null,
"type": null,
"value": {
"end": 30359,
"labels": [
"ANALYSIS"
],
"start": 30314,
"text": "He does not own any property in Mysore State."
}
},
{
"from_name": null,
"id": "31aedbacb75640839616e7a783571a38",
"to_name": null,
"type": null,
"value": {
"end": 30486,
"labels": [
"ANALYSIS"
],
"start": 30360,
"text": "The appellant says that he owns immovable properties in Andhra Pradesh but he did not file the title deeds in respect of them."
}
},
{
"from_name": null,
"id": "2092de1aeb1c4809a6ff680fdba74cf2",
"to_name": null,
"type": null,
"value": {
"end": 30560,
"labels": [
"ANALYSIS"
],
"start": 30487,
"text": "However, the appellant was in possession of a large amount of ready cash."
}
},
{
"from_name": null,
"id": "7b63f9e7bfb74857a7ff7f281155befd",
"to_name": null,
"type": null,
"value": {
"end": 30653,
"labels": [
"ANALYSIS"
],
"start": 30561,
"text": "Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs."
}
},
{
"from_name": null,
"id": "29519ed08f2140f0a1d396f9e4a6bcbf",
"to_name": null,
"type": null,
"value": {
"end": 30734,
"labels": [
"ANALYSIS"
],
"start": 30654,
"text": "There can be no doubt that the appellant has the backing of powerful financiers."
}
},
{
"from_name": null,
"id": "13a683eee13a4fa59a28acb54e3ed396",
"to_name": null,
"type": null,
"value": {
"end": 30808,
"labels": [
"ANALYSIS"
],
"start": 30735,
"text": "There is no specific charge that some named person is the real purchaser."
}
},
{
"from_name": null,
"id": "de71dd6c164e4ed893ecf93c98927f78",
"to_name": null,
"type": null,
"value": {
"end": 30970,
"labels": [
"ANALYSIS"
],
"start": 30809,
"text": "From the materials on the record it is not possible to record a finding that the -appellant is a benamidar and that that some other person is the real purchaser."
}
},
{
"from_name": null,
"id": "bc28beec8fea41858f1ed66fb01df458",
"to_name": null,
"type": null,
"value": {
"end": 31078,
"labels": [
"ANALYSIS"
],
"start": 30971,
"text": "The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers."
}
},
{
"from_name": null,
"id": "d9d7cad7bf3f45228cf6144f15aae7ff",
"to_name": null,
"type": null,
"value": {
"end": 31171,
"labels": [
"ANALYSIS"
],
"start": 31079,
"text": "The government never alleged that the appellant's bid was a benami bid and opposed to r. 12."
}
},
{
"from_name": null,
"id": "afb4b61a4c9244dcb1d5a48eab882855",
"to_name": null,
"type": null,
"value": {
"end": 31240,
"labels": [
"ANALYSIS"
],
"start": 31172,
"text": "His bid was accepted and such acceptance was subsequently confirmed."
}
},
{
"from_name": null,
"id": "b92b4c1d24954f79849e1d6c663084e2",
"to_name": null,
"type": null,
"value": {
"end": 31329,
"labels": [
"ANALYSIS"
],
"start": 31241,
"text": "Under r. 17(1) the confirmation is effective until revised by the appropriate authority."
}
},
{
"from_name": null,
"id": "80bac648d11e480da1a08c44bb6fc017",
"to_name": null,
"type": null,
"value": {
"end": 31479,
"labels": [
"ANALYSIS"
],
"start": 31330,
"text": "It is neither alleged nor proved that sonic person other than the appellant had been managing the shops and selling liquor in contravention of s. 15."
}
},
{
"from_name": null,
"id": "232735eb07134795a2c67aef0f58e9cf",
"to_name": null,
"type": null,
"value": {
"end": 31559,
"labels": [
"ANALYSIS"
],
"start": 31480,
"text": "Respondent No.4 has failed to establish contravention of either r. 12 or s. 15."
}
},
{
"from_name": null,
"id": "14aa4815ae0d4551923df1ba52a04299",
"to_name": null,
"type": null,
"value": {
"end": 31644,
"labels": [
"ANALYSIS"
],
"start": 31560,
"text": "The High Court was in error in holding that the appellants bid was opposed to r. 12."
}
},
{
"from_name": null,
"id": "5488c187286642f5bb363ff7dfbffffd",
"to_name": null,
"type": null,
"value": {
"end": 31832,
"labels": [
"ANALYSIS"
],
"start": 31644,
"text": "\nHaving regard to the fact that the appellant had already deposited about Rs. 40 lakhs the divisional commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale."
}
},
{
"from_name": null,
"id": "ebaef97a59194ccdb2078154c2f61a44",
"to_name": null,
"type": null,
"value": {
"end": 31869,
"labels": [
"ANALYSIS"
],
"start": 31832,
"text": "\n(1) A.I.R. 1949 Mad. 252.\nSup CI/69-"
}
},
{
"from_name": null,
"id": "c8fe6db6e6d94bef8e2ed4e1512fa7c6",
"to_name": null,
"type": null,
"value": {
"end": 31945,
"labels": [
"ANALYSIS"
],
"start": 31869,
"text": "3For the reasons already given ,the order of cancellation (Ex.J) is invalid."
}
},
{
"from_name": null,
"id": "c990be136a174cbf8fec4f998259ae99",
"to_name": null,
"type": null,
"value": {
"end": 32051,
"labels": [
"ANALYSIS"
],
"start": 31946,
"text": "The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant."
}
},
{
"from_name": null,
"id": "5c7716b075e2400e962cd4312c79259f",
"to_name": null,
"type": null,
"value": {
"end": 32209,
"labels": [
"ANALYSIS"
],
"start": 32051,
"text": "\nSome complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the, writ petitions by the High Court."
}
},
{
"from_name": null,
"id": "786e84a65b634122842b002023a8ce4f",
"to_name": null,
"type": null,
"value": {
"end": 32344,
"labels": [
"ANALYSIS"
],
"start": 32210,
"text": "Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops."
}
},
{
"from_name": null,
"id": "a946bbde8c3b4c52856b2b53f3d4ae6c",
"to_name": null,
"type": null,
"value": {
"end": 32546,
"labels": [
"ANALYSIS"
],
"start": 32345,
"text": "In order to give effect to our order for the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No.\n4 should be cancelled."
}
},
{
"from_name": null,
"id": "b32dac4c0985496bb617fd476c93a3c2",
"to_name": null,
"type": null,
"value": {
"end": 32620,
"labels": [
"ANALYSIS"
],
"start": 32547,
"text": "We can give this direction as respondent No. 4 is a party to this appeal."
}
},
{
"from_name": null,
"id": "f3d2c01afb8b4317ba4fe202101e4a61",
"to_name": null,
"type": null,
"value": {
"end": 32866,
"labels": [
"ANALYSIS"
],
"start": 32621,
"text": "While holding that r. 17 sub-r. (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisibility of accepting his bid."
}
},
{
"from_name": null,
"id": "0ad7fd9d7ac240a5adb33018c0470361",
"to_name": null,
"type": null,
"value": {
"end": 32962,
"labels": [
"ANALYSIS"
],
"start": 32867,
"text": "This observation is not in accordance with law and has given rise to unnecessary complications."
}
},
{
"from_name": null,
"id": "af4bda863eda4f3db68a0edf9d65a9ec",
"to_name": null,
"type": null,
"value": {
"end": 33130,
"labels": [
"ANALYSIS"
],
"start": 32962,
"text": "\nRule 17(4) provides that \"if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop.\""
}
},
{
"from_name": null,
"id": "ac1249db2cbc4c948bb2136a93c00782",
"to_name": null,
"type": null,
"value": {
"end": 33228,
"labels": [
"ANALYSIS"
],
"start": 33131,
"text": "The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer."
}
},
{
"from_name": null,
"id": "17d1286172354f80b9d62e317fc0dc1f",
"to_name": null,
"type": null,
"value": {
"end": 33324,
"labels": [
"ANALYSIS"
],
"start": 33229,
"text": "In the present case, the officer accepted the appellant's highest offer and later confirmed it."
}
},
{
"from_name": null,
"id": "ea8699e73bbc4629b5917757f9f3a0ff",
"to_name": null,
"type": null,
"value": {
"end": 33376,
"labels": [
"ANALYSIS"
],
"start": 33325,
"text": "The confirmation is still effective under r.\n17(1)."
}
},
{
"from_name": null,
"id": "cf7165b4158e412684e6b752fb47fd7a",
"to_name": null,
"type": null,
"value": {
"end": 33489,
"labels": [
"ANALYSIS"
],
"start": 33377,
"text": "If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under r. 17(4)."
}
},
{
"from_name": null,
"id": "0200be87371749cfb61b07426edf4e3b",
"to_name": null,
"type": null,
"value": {
"end": 33604,
"labels": [
"ANALYSIS"
],
"start": 33491,
"text": "In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules."
}
},
{
"from_name": null,
"id": "1378fd5b43fd45d798d77e5f483df9d8",
"to_name": null,
"type": null,
"value": {
"end": 33743,
"labels": [
"ANALYSIS"
],
"start": 33605,
"text": "It follows that the bid of respondent No. 4 could not be accepted under r. 17(4) after the disposal of the writ petitions on September 19."
}
},
{
"from_name": null,
"id": "c6dc5c9e531a49eb817c03752b5d8ff5",
"to_name": null,
"type": null,
"value": {
"end": 33871,
"labels": [
"RATIO"
],
"start": 33743,
"text": "\n It is rather surprising that the Government acted so hastily and issued licences to respondent No. 4 on or about September 18."
}
},
{
"from_name": null,
"id": "9eb880f025b3406e909888bd477a95d3",
"to_name": null,
"type": null,
"value": {
"end": 33964,
"labels": [
"RATIO"
],
"start": 33872,
"text": "It is not quite clear how licences in respect of 1168 shops could be issued on a single day."
}
},
{
"from_name": null,
"id": "37d8627ab7a34af684f6a230f11aa3f3",
"to_name": null,
"type": null,
"value": {
"end": 34140,
"labels": [
"RATIO"
],
"start": 33965,
"text": "The effect of this precipitate action on, the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Court's order."
}
},
{
"from_name": null,
"id": "44b40ae1906c4ee6b1df0a9e30dfa751",
"to_name": null,
"type": null,
"value": {
"end": 34223,
"labels": [
"RATIO"
],
"start": 34141,
"text": "There is ground for suspecting that the government was favouring respondent No. 4."
}
},
{
"from_name": null,
"id": "7a97724cb10640558fc9464e8f63d9bd",
"to_name": null,
"type": null,
"value": {
"end": 34308,
"labels": [
"RPC"
],
"start": 34225,
"text": "In the result the appeal is allowed with costs in this Court and in the High Court."
}
},
{
"from_name": null,
"id": "f87a61a73ef040f1b1a05e42825e832c",
"to_name": null,
"type": null,
"value": {
"end": 34357,
"labels": [
"RPC"
],
"start": 34309,
"text": "The order passed by the High Court is set aside."
}
},
{
"from_name": null,
"id": "8f0be8db5c2c400b8500c30bbe4f0369",
"to_name": null,
"type": null,
"value": {
"end": 34400,
"labels": [
"RPC"
],
"start": 34358,
"text": "Writ Petition No. 1889 of 1968 is allowed."
}
},
{
"from_name": null,
"id": "fa6f142c72d340f8981a3c37924a5f51",
"to_name": null,
"type": null,
"value": {
"end": 34453,
"labels": [
"RPC"
],
"start": 34400,
"text": "\n The order dated June 26, 1968 (Ex. J) is set aside."
}
},
{
"from_name": null,
"id": "c3b507d93ee146668db9e0c3186b3999",
"to_name": null,
"type": null,
"value": {
"end": 34665,
"labels": [
"RPC"
],
"start": 34455,
"text": "Respondents 1 and 2 ;ire directed to grant immediately licences to the appellant to vend liquors in the combined groups of shops in Raichur and Gulbarga districts for the remaining period of the year 1968-1969."
}
},
{
"from_name": null,
"id": "9b9bd637f4804c44a438a5896aa0d3af",
"to_name": null,
"type": null,
"value": {
"end": 34808,
"labels": [
"RPC"
],
"start": 34666,
"text": "Respondents 1 and 2 are also directed to cancel forthwith the licences issued to respondent No. 4 in respect of the aforesaid groups of shops."
}
},
{
"from_name": null,
"id": "4ba33a6066a84175bec74089c6e5f23f",
"to_name": null,
"type": null,
"value": {
"end": 34845,
"labels": [
"RPC"
],
"start": 34810,
"text": "Y.P. "
}
},
{
"from_name": null,
"id": "8d5cf10cc1fd4bc5af97f688f9a0e2e7",
"to_name": null,
"type": null,
"value": {
"end": 34860,
"labels": [
"RPC"
],
"start": 34845,
"text": "Appeal allowed."
}
}
]
}
] | 4,083 | {
"text": "PETITIONER:\nP. BHOOMA REDDY\n\n Vs.\n\nRESPONDENT:\nSTATE OF MYSORE & ORS.\n\nDATE OF JUDGMENT:\n05/12/1968\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n\n1969 AIR 655 1969 SCR (3) 14\n\n1969 SCC (1) 68\n\nCITATOR INFO :\n\nRF 1972 SC2205 (26)\n\nD 1984 SC1030 (17)\n\nACT:\nMysore Excise (Disposal of Privileges of Retail Vend of\nLiquors) Rules, 1967, rr. 12, 17(2)(4) and 19(1)(3) and (4)-\nLiquor shops in more than one tehsil-Whether r. 19(1), (3)\nand (4) applicable-'At once' meaning of-Whether Divisional\nCommissioner can revise his own order-R. 12 Scope of-R.\n17(4), scope of-When next highest bid can be accepted.\n\nHEADNOTE:\nThe appellant was the highest bidder for the exclusive\nprivilege of retail vend of toddy and arrack for the year\n1968-69, in a group of 1168 shops situated in 19 tehsils in\nthe districts of Raichur and Gulbarga. He made the deposits\nof money required under rr. 7(f) 'and 10 of the Mysore\nExcise (Disposal of Privileges of Retail Vend of Liquors)\nRules, 1967 made under s. 71 of the Mysore Excise Act, 1965.\nThe highest bid of the appellant was accepted and confirmed\nby the Divisional Commissioner of Gulbarga under r. 17(1) on\nJune 4, 1968. Thereafter, the appellant made further\ndeposits required by rr. 17(5) and 19(2). In all he\ndeposited about Rs. 40 lakhs by June 15. On June 18 he\napplied to the Divisional Commissioner for the issue-\nlicence. He however, did not comply with r. 19(1) and (3)\nwhich required that a statement of immovable Properties\nshould be furnished and that he should furnish security or\nsureties, respectively. The Divisional Commissioner\nGulbarga issued a notice to the appellant to show cause why\nthe sale should not be cancelled and the deposits already\nmade forfeited under r. 20(2). The appellant prayed for two\nmonths time for compliance with the requirements of r. 19,\nbut the Divisional Commissioner rejected the application and\ncancelled the sale. He did not pass any order forfeiting\nthe deposits.\nThe appellant filed a writ petition in the High Court for\nquashing the order and under directions of the Court\ndeposited another Rs. 50 lakhs. The 4th respondent, who was\nthe next highest bidder applied to be made a party to the\n\npetition and contended that the appellant was a benamidar\nfor other persons and so acceptance of his tender was\nforbidden by r. 12. The High Court dismissed the writ\npetition holding (1) that the appellant did not comply with\nthe mandatory requirements of r. 19 in that he did not\nfurnish the statements and apply 'at once' for licences as\nrequired by r. 19(1); (2) the appellant was a benamidar; and\n(3) the authorities should consider the advisability of\n-accepting the bid of the 4th respondent. On the very next\nday after the judgment of the High Court, the respondent-\nState issued licences in respect of 1168 shops to the 4th\nrespondent.\nIn appeal to this Court.\nHELD : The licences issued to the 4th respondent should be\ncancelled and a writ of mandamus should issue for the grant\nof licences to the appellant. [26 A]\n(1)(a) The opening part of r. 19(4) requires the purchaser\nto furnish to 'the tehsildar' the location of shops and the\nboundaries of the shop sites that is to the tahsildar within\nwhose tehsil the shops are situated. If the shops are\nsituated in more than one tehsil, the details can be fur-\nnished to the several tahsildars, but in such a case it is\nnot possible to give effect to the last part of the sub-rule\nand also to the provisions of sub-rr. (3) and (4). The\nstatement of immovable properties under the last part of\nsub-r. (1) can be furnished to only one tahsildar so that he\ncan peruse the same; and on such perusal or on independent\ninquiry ascertain under sub-r. (3) whether or not purchaser\nis of doubtful solvency and satisfy himself under sub-r. (4)\nwhether or not the value of the immovable property tendered\nas security is adequate. Sub-rr. (3) and (4) do not\ncontemplate findings by more than one tahsildar nor do they\nprovide any machinery for resolving the conflict of opinion,\nif any, between two or more tahsildars. The last part of\nsub-r. (1) and sub-rr. (3) and (4) do not apply where the\nshops are situated in two or more tahsils. Consequently,\nthose provisions were not attracted to the sale in the\npresent case and the appellant was not required to comply\nwith those provisions. [22 E]\n(b) In the absence of 'an independent enquiry under sub-r.\n(3), the appellant could not be regarded as a person of\ndoubtful solvency.\n(c) Under the Mysore Excise Licences (General Conditions)\nRules, 1967, a licencee is required to commence his business\non July 1. The expression 'at once' in r. 19(1), means\nwithin a reasonable time before July 1. In the present case,\nthe appellant sufficiently complied with subrule. [23 D-E]\n(d) Under r. 17(2) it is only the excise commissioner or\nthe State Government that could revise the order of the\ndivisional commissioner confirming a sale and the divisional\ncommissioner himself was not authorised to revise his, own\norder or cancel it. [23 G]\nTherefore, the High Court was in error in holding that the\nappellant committed breaches of r. 19.\n[Rule 19 is clumsily drafted, its import is not clear, its\ntight time schedule works hard-ship and its procedure is\ncumbersome. The Government should immediately consider the\nquestion of redrafting the rule.] [24 C-D]\n(2) The appellant was a retired inspector drawing a pension\nof about Rs. 75 per month and, is not an income-tax or\nwealth-tax assessee. He evidently has the backing of\npowerful financiers, but the purchase is not illegal merely\nbecause the appellant obtained necessary funds from some\nfinanciers. The onus of proving that appellant was a\n\nbenamidar was on the 4th respondent and from the materials\non record it is not possible to hold that he is a benamidar\nfor some other person. [25 D]\n(3) Under r. 17(4), it is only when the highest bid is\nrejected that the next highest bid may be considered. Where\nthere is an acceptance of the highest offer and 'if for some\nreason it is revised, r. 17(4) cannot be invoked. In such a\ncase there must be a fresh disposal of the right of retail\nvend of liquor in accordance with the Rules. Therefore, the\nHigh Court erred in observing that the 'authorities should\nconsider the -advisability of accepting the 4th respondents\nbid. [26 E]\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil. Appeal No. 2095 of 1968.Appeal from the judgment and order dated September 17, 1968 of the Mysore High Court in Writ Petition No. 1889 of 1968.\nD. Narsaraju, M. C. Chagla, R. V. Pillai, Subodh Markendya and M. Narayana Reddy, for the appellant.\nM. C. Setalvad, B. R. L. Iyengar and S. P. Nayar, for respondents Nos. 1 to 3.\nM. K. Nambyar, Shivaswamy and R. Gopalakrishnan, for respondent No. 4.\nThe Judgment of the Court was delivered by Bachawat J. This appeal raises the question of the legality of the cancellation of the sale to the appellant of the exclusive privilege of retail vend of toddy and arrack for the year 1968-69 in a group of 1168 shops in Raichur and Gulbarga districts under the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967. On May 10, 1968 the excise commissioner of Mysore published a notice stating that the exclusive privilege would be sold by tender-cum-auction by the divisional commissioner, Gulbarga on May 28 and inviting tenders by May 27. On May 27, the appellant made a tender offering Rs. 9,99,999/- towards the monthly rental of the shops and deposited the requisite earnest money amounting to Rs. 1,85,168/- as required by r. 7(f). Respondent No. 4 K.V. Niranjan made a tender offering Rs. 9,69,999/- towards the monthly rental. The appellant was the only bidder present at the auction on May 28. His offer being the highest was accepted by the divisional commissioner, Gulbarga, under r. 17(1). The appellant deposited another sum of Rs. 8,14,831/- which together with the earnest money made up one month's rent as required by r. 17(5). On June 4, the divisional commissioner, Gulbarga, confirmed the sale under r. 17(1).\nOn June 6, the deputy commissioner, Gulbarga, issued a notice asking the appellant to make deposits according to r.\n19 immediately and to obtain licences from the concerned tahsil officers after completing other formalities. Under r. 19(2) the appellant was required to deposit another one month's rent within 15 days from the date of the sale. By June 15, the appellant deposited in all Rs. 39,99,996/- amounting to 4 months' rent. By a letter (Ex. B-1) the appellant informed the excise commissioner that he had deposited 4 months' rent as required by circular No. EXE. 1.\n15 7 5 issued by the excise commissioner on December 12, 1967 and asked for permission to obtain licences from the deputy commissioners of Raichur and Gulbarga. On June 18/19 he applied to the divisional commissioner, Gulbarga, for the issue of licences. On. June 19, the divisional commissioner, issued anotice to the appellant stating that as he had not submitted a solvency certificate of his property or the property of his sureties he was required to deposit the balance to make up six months' rent as required by r. 19 (3 ) (i) and to furnish security for six months rental or sureties as require by r. 19(3) (ii) and (iii) by June 25, and that in default action would be taken under r. 20(2). A notice to the same effect was given orally on June 19, when he met the divisional commissioner at Bellary. On June 22, he presented a petition under s. 62 to the, state government asking for the issue of licences, as he had complied with the conditions of the circular. In view of the subsequent writ petition the government did not pass any orders on this petition. The notice dated. June 19 was received by the appellant on June, 23. On June 25, he wrote to the divisional commissioner stating, that he had complied with the conditions of the rules read with the, circular and was entitled to the licences, that he had reason to believe that necessary orders would be passed by the state: government on his petition under s. 62 and that if necessary, the terms for compliance with the requirements of r. 19 be extended.\nby two months. On the same date the divisional commissioner, rejected the application for extension of time, and issued a notice to the appellant asking him to show cause before June 26,why in view of the non-compliance with the notices dated June 6 and 19, the sale should not be cancelled and the deposits already made should not be forfeited to the government. The notice was served on his advocate on June 25 at 7.40 p.m. On June 26, the. appellant submitted a petition to the divisional commissioner stating that he had complied with the terms of r. 19 and the circular, that abrupt cancellation of the sale would result in irreparable injury and that in any event the time to deposit the balance two, months' rental be extended for a reasonable time. By an order dated June 26, (Ex. J), the divisional commissioner rejected the application for extension of time and cancelled the sale starting that (1) the appellant did not \"at one&' apply in writing, for licences in accordance with r. 19(1); (2) though he deposited two months' rent as required by r. 19 (2), he did not file a statement of his immovable properties in accordance with r. 19(1); and should therefore be, considered as a person of doubtful solvency; (3) he was, therefore, required to deposit another 2 months' rent under r. 19 (3) (i) and to furnish securities for six months' rental or surety under r. 1 9 ( 3 ) (ii) and (iii) ; (4) he failed to comply with r. 19 in spite of notices dated June 6 and' June 19; (5) the circular issued by the excise commissioner was opposed to r. 19 and could not be acted upon; (6) that even under the circular he was required to give two months' collateral security in addition to 4 months' cash deposit if he was a person, of doubtful solvency; and (7) that the sale conducting,officer has no power to extend the time for compliance with the formalities..On June 28, the appellant filed writ petition No. 1889 of 1968 against the State of Mysore and others in the High ,Court of Mysore for quashing the order dated June 26, (Ex.\nJr) and for the grant of licences to him to vend liquors in the combined groups of shops in Raichur and Gulbarga ,districts and for other reliefs. The appellant submitted that (1) he had complied with the rules read with the cir- cular; (2) he did not file any statement of his immovable properties under r. 19(1) as he had immovable properties in Andhra Pradesh; (3) as there was no inquiry nor, finding by any tahsildar ,that he was of doubtful solvency r. 19(3) was not attracted; (4) ,the divisional commissioner, Gulbarga, was not competent to ask for deposits and security under r.\n19(3), nor was he competent to pass an order cancelling the sale; and (5) r. 19(3) was violative -of Arts. 14 and 19 of the Constitution.\nOn June 28, the High Court admitted the writ petition and ,directed the state government to stay further proceedings and to issue licences to the appellant. Subsequently the High Court ,confirmed the stay order on condition that the appellant would deposit another two months' rent. The appellant deposited about Rs. 20,00,000/- in accordance with the order. On June 30, the divisional commissioner granted licences to him. On July 1, he commenced his business in all the 1168 shops. Thereafter he ,duly deposited about Rs.\n30,00,000/- on account of rent for the months of July, August and September. The state government, the excise -commissioner and the divisional commissioner filed separate affidavits disputing the appellant's contentions. The rival -tenderer, K. V. Niranjan was added as respondent No. 4 in W.P. No. 1889 of 1968 on his own application under an order of the High Court dated July 7. K. V. Niranjan filed an affidavit stating that the appellant was a benamidar for other persons and the acceptance of his tender was forbidden by r. 12. K. V. Niranjan also filed W.P. No. 2088 of 1968 for quashing the orders of the divisional commissioner dated May 28, and June 4, whereby the appellant's tender was accepted and for a mandamus directing the acceptance of his next highest tender under r. 17(4).\nThe two writ petitions were heard together and were dismissed by the High Court by a common judgment delivered on September 17. The High Court held that (1) the appellant did not comply with the mandatory requirements of r. 19; (2) r. 19(3) -was not ultra vires the rule-making power under s.\n71 nor violative of Arts. 14 and 19, and the appellant was estopped from challenging it; (3) the circular of the excise commissioner could not modify r. 19; the appellant could not rely on the circular as he came to know of it long after the sale, nor had he complied with its terms by depositing the entire four months rent beforeJune 12;(4) the appellant was a benamidar for other person or persons and in view of r. 12 was incompetent to bid and (5) the, order dated June 26 (Ex. J) was valid. On these findings the High Court dismissed W.P. No. 1889 of 1968.\nWith regard to W.P. No. 2085 of 1968 the High Court said that as the sale to the appellant had been cancelled by Ex.\nJ, it was not necessary to set aside the order accepting and confirming his bid. The High Court held that under r. 17 (4) it was not obligatory on the officer conducting the sale to accept the next highest offer of respondent No. 4. The High Court, however, said \"in the circumstances of the case, it is necessary to observe that the authorities concerned will consider the advisability of accepting the bid of the fourth respondent, subject to his complying with all the requirements of the Act and the Rules.\" With these observations the High Court dismissed W.P. No. 2085 of 1968.\nBy a telegram dated September 18, the excise commissioner instructed the divisional commissioner, Gulbarga, to direct the tahsildars of Raichur and Gulbarga to issue licences to respondent No. 4 on his complying with certain conditions.\n On the same date licences were issued to- respondent No. 4.\nOn September 19, the High Court dismissed an application for stay of operation of its order dated September 17, and on the same day granted to the appellant a certificate under Art. 1 3 3 ( 1 ) (b) of the Constitution. On September 25, the appellant filed a stay application in this Court. On September 27, the Court passed an order restraining the respondents from forfeiting the deposits made by the appellant.\nIt is convenient at this stage to refer to the relevant provisions of the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967. Section 3(1) of the Act provides that the excise commissioner, \"shall be the chief controlling authority in all matters connected with the administration of this Act.\" Section 15(1) provides that \"no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf.\"\nUnder S. 15 (2) a licence for sale can be granted (a) by the deputy commissioner if the sale is within a district or (b) by the excise commissioner if the sale -is in more than one districts Section 17 ( 1 ) (b) empowers the state government to lease to any person, on such conditions and for such period as it thinks fit the exclusive or other right of selling by the wholesale or by retail any Indian liquors within any specified area. Contravention of the Act or any Rules made thereunder is punishable under s. 32. Section 71 empowers the state government to make rules. Rule 3 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 provides that the right of retail vend of liquors shallbe disposed of by tender or by auction or by tender-cum- auction. The auction is conducted by the deputy commissioner or the divisional commissioner under r. 5 and the tender has to be made to them under r. 7 (1). The tenderer is required by r. 7 (f ) to deposit as, earnest money an amount equal to 1/4 of the shop rental of the previous year of the shop or groups of shops. The appellant complied with the requirement of r. 7 (f ). Rule 10 requires an intending bidder or tenderer to furnish a certificate of his solvency or two sureties having similar certificates or bank guarantee or cash deposit to cover four times the earnest money fixed under rule 7(f). It is not disputed that the appellant made sufficient cash deposits in compliance with r. 10. Rule 12 read & : \"Benami bids not allowed. No person except a power of attorney holder shall be entitled to bid for another person.\" The sale to the appellant was not cancelled on the ground that he bid for another person. Rule 17 regulates the procedure at sales.\nRule 17(1) empowers, the officer conducting the auction to accept the highest offer. The acceptance is subject to the condition of confirmation by the deputy commissioner or by the divisional commissioner. The confirmation is effective unless revised by the excise commissioner or the government.\nRule 17(2) empowers the excise commissioner or the government to revise the order of confirmation. Rule 17(4) provides that if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop. Rule 17 (5) requires the person whose bid is accepted to make a further deposit which together with the earnest money would make up one month's rent. The appellant made the deposit required by r. 17(5).\nHis bid was accepted and was later confirmed by the divisional commissioner. Neither the excise commissioner nor the state government passed any order under r. 17(2) revising the decision confirming the acceptance of his bid.\nRule 19 provides as follows :- \"19 Successful bidder to apply for licence: Every person to whom the right of retail vend of liquors is sold or whose tender in respect thereof has been accepted under these rules and who has made deposits as hereinbefore provided shall (1) at once apply in writing for licence for such shop confirmed in his name and within a week thereafter furnish to the Tahsildar the, details of boundaries of the site selected by him for the location of the shop and a statement in the prescribed form annexed to the notification showing details of the immovable property possessed by him or in which he has an interest together with accurate and full details of encumbrances, if any, thereon; (5) The purchaser shall get the bond and the mortgage deed registered under the Indian Registration Act, 1908 at his expense.\n (6) The purchaser or his surety shall produce an encumbrance certificate in cases where immovable property is mortgaged to the Governor of Mysore.\"\nIt is not alleged that the appellant did not furnish the details of the shop sites as required by r. 19 sub. r. (1) within 15 days of the date of the confirmation of the sale.\nThe appellant made a deposit of two months rent as required by r. 19 sub-r. (2). The appellant did not furnish a statement of immovable properties under r. 19 sub-r. (1) nor did not he furnish security or sureties under r. 19 sub-r.\n(3). It is also alleged that he did not apply for licences at once as required by r. 19 sub-r. (1). Rule 20(2) provides : \"On failure to comply with the provisions of rr.\n17 and 19 the deposits already made shall be forfeited and the right of retail vend of liquors in such shop or groups disposed of in such manner under these rules, as the Excise Commissioner may direct\". No order was passed by the excise commissioner under r. 20(2).\nIn our opinion, the provision of r. 19sub. r.(1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of r. 19 sub- rr. (3) and (4) do not apply where the shops in respect of which the right of retail vend is sold is situated in more than one tahsil. The opening part of r. 19 sub-r.(1) requires the purchaser to furnish to \"the tahsildar\" the location of the shops and the boundaries of the shop sites.\nThe expression \"the tahsildar\" is not defined, but it is reasonable to think that the details regarding the shops should be furnished to the tahsildar within whose tahsil the shops are situated. If the shops are situated in more than one tahsil, the details can be furnished to several tahsildars. But it is not possible to give effect to the last part of sub-rule (1) and the provisions of sub-rr. (3) and (4) in cases where the shops are situated in more than one tahsil. The statement of immovable properties under the last part of sub-r. (1 ) can be furnished to, only one tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub-r. (3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub-r. (4)whether or not the value of the immovable properties tendered as security is adequate. Sub- rr. (3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars. In our opinion, the last part of sub-r. (1) and the provisions of sub-rr. (3) and (4) do not apply where the shops are situated in two or more tahsils.The right of retail vend sold to the appellant is in respect of shops situated in 19 Tahsils in the districts of Raichur and Gulbarga Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions.\nThe divisional commissioner, Gulbarga, could not record a finding under r. 19 sub-r. (3) that the purchaser was of doubtful solvency. Even a tahsildar could not record such a finding without making an independent inquiry where no statement regarding. immovable properties was furnished under sub-rule (1). No independent inquiry under sub-r. (3) was made by any tahsildar For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub-r. (3). The appellant has so far deposited about Rs. 90,00,000/- and it is impossible to believe that he is a person of doubtful, solvency.\nThe remaining charge is that the appellant did not \"at once\"' apply for licences. Rule 20(2) provides for the forfeiture of the deposits on failure to comply with the provisions of r. 19. Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1. The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1. Having regard to the object of the Act and the Rules the expression \"at once\" in r. 19 sub.-r. (1) means within a reasonable time before July 1. It could not have, been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time. The appellant sufficiently complied with r. 19 sub-r.\n(1) by applying under Ex. B, to the excise commissioner for permission to obtain licences and by applying to the divisional commissioner on June 18 for the issue of licences.\nThe divisional commissioner, Gulbarga was not competent to pass the impugned order (Ex, J) cancelling the sale. Only the excise commissioner or the state government could under r. 17(2) revise his previous order confirming the sale and on such revision cancel the sale. The divisional commissioner, Gulbarga was not authorised by r. 17(2) to revise his own order or to cancel it. In hi-,, notice dated June 19, the divisional commissioner, Gulbarga, stated that he would take action under r. 20(2). In his notice dated June 25, he asked the appellant to show cause why the sale should not be cancelled and why the deposits already made should not be forfeited to the government. But he did not pass any order forfeiting the deposits. Nor was he competent to pass any order under r. 20(2). Only the excise commissioner could pass such an order.It follows that the High Court was in error in holding that the appellant committed -breaches of r. 19. The finding of the divisional commissioner, Gulbarga, that the appellant committed such breaches is erroneous, nor was he competent to record the finding or to pass an order cancelling the sale.\n In view of this conclusion it is not necessary to consider whether r. 19 sub-r. (3) offends Arts. 14 and 19 of the Constitution and we express no opinion on the question. We cannot agree -with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub-rule. It is true that .r. 24 provides that the purchaser shall be bound by all the rules. But if r. 19 sub-r. (3) offends Arts. 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist. Though we express no opinion on the vires ,of the sub-rule, we must observe that r. 19 is clumsily drafted, its import is not clear, its tight time- schedule works hardship and its ,procedure is cumbersome.\nThe government should immediately ,consider the question of re-drafting r. 19. It may be noted that Mr. Narasaraju conceded that r. 19 is not beyond the rule-making powers of the state government.\nThe appellant relied on the circular No. EXE.1.1575/67 (Ex.\nE) dated December 12, 1967. Exhibit E is a letter from 'the excise commissioner to the deputy commissioner, Bangalore, ,,on the subject of securities to be furnished by the excise contractors. The letter stated that the procedure of r. 19 was number-some and not clear, that several deputy commissioners sought clarifications on 'the subject and that the state government had -been moved to clarify and simplify the matter. The excise commissioner directed that pending receipt of the government order the following procedure should be followed : In addition to obtaining two months' cash deposits, (1) two months cash security might be accepted and in the absence of cash security four months' collateral security might be insisted; (2) if the deputy commissioner/tahsildar was doubtful about the solvency of the contractor -he could insist on six months' collateral security and (3) while -accepting the collateral securities care should be taken to see that \"the contractor executed the necessary mortgage bond. Admittedly, similar instructions were issued to other deputy commissioners -and were enforced in several districts. There is a dispute on the ,question whether the circular was sent to the districts of Gulbarga and Raichur. In so far as the circular attempted to modify r. 19 it was in-effective. The excise commissioner, had no power to -abrogate or modify a rule framed under s. 71. On behalf of the appellant it was argued that as the chief controlling authority the ,excise commissioner could frame regulations under S. 3 read with r.\n24 and could issue general instructions on the subject of taking security in cases not covered by r. 19. We express no opinion on this question, as the government has already withdrawn the circular. But we must observe that relying on this circular the appellant deposited two months' rent as required by the circular in addition to the two months' rent as required by r. 19 sub-r. (2) and that such deposits were duly made within 15 days from the date of the sale.\nHowever, it is not necessary for the appellant to rely on the terms of the circular. He has complied with the provisions of r. 19 and the sale in his favour cannot be cancelled.\nOn behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to r. 12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of ss. 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya v.\nAttar Sheik Mastan(1). The onus is upon the respondent to prove that the appellant made a benami purchase. It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/- per month. He is not an income-tax or a wealth-tax assessee, He does not own any property in Mysore State. The appellant says that he owns immovable properties in Andhra Pradesh but he did not file the title deeds in respect of them. However, the appellant was in possession of a large amount of ready cash. Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs. There can be no doubt that the appellant has the backing of powerful financiers. There is no specific charge that some named person is the real purchaser. From the materials on the record it is not possible to record a finding that the -appellant is a benamidar and that that some other person is the real purchaser. The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers. The government never alleged that the appellant's bid was a benami bid and opposed to r. 12. His bid was accepted and such acceptance was subsequently confirmed. Under r. 17(1) the confirmation is effective until revised by the appropriate authority. It is neither alleged nor proved that sonic person other than the appellant had been managing the shops and selling liquor in contravention of s. 15. Respondent No.4 has failed to establish contravention of either r. 12 or s. 15. The High Court was in error in holding that the appellants bid was opposed to r. 12.\nHaving regard to the fact that the appellant had already deposited about Rs. 40 lakhs the divisional commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale.\n(1) A.I.R. 1949 Mad. 252.\nSup CI/69-3For the reasons already given ,the order of cancellation (Ex.J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.\nSome complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the, writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order for the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No.\n4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal.\nWhile holding that r. 17 sub-r. (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisibility of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications.\nRule 17(4) provides that \"if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop.\" The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellant's highest offer and later confirmed it. The confirmation is still effective under r.\n17(1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under r. 17(4).\n In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules. It follows that the bid of respondent No. 4 could not be accepted under r. 17(4) after the disposal of the writ petitions on September 19.\n It is rather surprising that the Government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of 1168 shops could be issued on a single day. The effect of this precipitate action on, the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Court's order. There is ground for suspecting that the government was favouring respondent No. 4.\n In the result the appeal is allowed with costs in this Court and in the High Court. The order passed by the High Court is set aside. Writ Petition No. 1889 of 1968 is allowed.\n The order dated June 26, 1968 (Ex. J) is set aside.\n Respondents 1 and 2 ;ire directed to grant immediately licences to the appellant to vend liquors in the combined groups of shops in Raichur and Gulbarga districts for the remaining period of the year 1968-1969. Respondents 1 and 2 are also directed to cancel forthwith the licences issued to respondent No. 4 in respect of the aforesaid groups of shops.\n Y.P. Appeal allowed.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"id": "6da188637e2540f596c008b27110a20b",
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"value": {
"end": 116,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA\n\n KALABURAGI BENCH\n\n DATED THIS THE 20TH JULY, 2015"
}
},
{
"from_name": null,
"id": "7211cc22682e4e549bcca788a217101e",
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"type": null,
"value": {
"end": 211,
"labels": [
"PREAMBLE"
],
"start": 116,
"text": "\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n\n "
}
},
{
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"id": "b5b0e09b35db4f0083483ec13c72c0c6",
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"type": null,
"value": {
"end": 230,
"labels": [
"PREAMBLE"
],
"start": 211,
"text": "RPFC NO.200066/2014"
}
},
{
"from_name": null,
"id": "65e76c7ee58e43c0bd15faa814db57ed",
"to_name": null,
"type": null,
"value": {
"end": 278,
"labels": [
"PREAMBLE"
],
"start": 230,
"text": "\n\nBETWEEN\n\nSUBHASH\n\nS/O PEEROJI @ PENTOJI LANDGE"
}
},
{
"from_name": null,
"id": "a241e2a8c05e4fac9a9c39a157cf3d86",
"to_name": null,
"type": null,
"value": {
"end": 316,
"labels": [
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],
"start": 278,
"text": "\n\nAGE:39 YEARS, OCC : PRIVATE SERVICE,"
}
},
{
"from_name": null,
"id": "7be520a609cd498c8ef9f038e08acb94",
"to_name": null,
"type": null,
"value": {
"end": 338,
"labels": [
"PREAMBLE"
],
"start": 316,
"text": "\n\nR/AT : NEELAM NAGAR,"
}
},
{
"from_name": null,
"id": "3de0824b7e46406e96e0eb294633630d",
"to_name": null,
"type": null,
"value": {
"end": 1064,
"labels": [
"PREAMBLE"
],
"start": 338,
"text": "\n\nTAI CHOWK, PLOT NO.117,\n\nSURVEY NO.232, AREA NO.5,\n\nRAVINDRANAGAR,\n\nSHOLAPUR-413 001\n\nMAHARASHTRA STATE. ... PETITIONER\n\n(BY SRI J AUGUSTIN, ADV.)\n\nAND\n\nREKHA BAI ... RESPONDENT\nW/O SUBHASH\nAGE:36 YEARS, OCC : HOUSEHOLD,\nR/AT : H.NO.4-10-16,\nMANGALWARPET,\nRAICHUR.584 101.\n\n(BY SRI BASAVARAJ R MATH, ADV. )\n\n\n THIS RPFC IS FILED U/S 19(4) OF THE FC ACT,\nAGAINST THE JUDGEMENT DATED 24.07.2014, PASSED IN\nCRL.MISC. NO. 89/2013 BY THE PRL.JUDGE, FAIMLY COURT\nAT RAICHUR, PARTLY ALLOWING THE PETITION FILED BY\nTHE PETITIONER U/S 125 OF CR.P.C.\n\n THIS PETITION COMING ON FOR ADMISSION THIS\nDAY, THE COURT PASSED THE FOLLOWING:\n\n ORDER"
}
},
{
"from_name": null,
"id": "6da95b0edeb4470ca46286fc0897b216",
"to_name": null,
"type": null,
"value": {
"end": 1358,
"labels": [
"RLC"
],
"start": 1064,
"text": "\n The petitioner husband has preferred this Revision Petition challenging the order passed by the Principal Judge, Family Court, Raichur in Crl. Misc. Case No.89/2013 u/s.125 of Cr.P.C. granting maintenance at the rate of Rs.4,000/- per month to the respondent wife from the date of petition."
}
},
{
"from_name": null,
"id": "56edf8f829734f6181b20e7f1d76d150",
"to_name": null,
"type": null,
"value": {
"end": 1475,
"labels": [
"NONE"
],
"start": 1360,
"text": "2. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent."
}
},
{
"from_name": null,
"id": "6da1d127e7ac468fad689e20de52dee1",
"to_name": null,
"type": null,
"value": {
"end": 1655,
"labels": [
"FAC"
],
"start": 1475,
"text": "\n 3. The petitioner herein is the husband and respondent herein is the wife and their marriage solemnized on 24.5.2002 at Aarya Samaj Raichur as per the customs in their community."
}
},
{
"from_name": null,
"id": "d940490efbfe45d4b6745b251843ea8c",
"to_name": null,
"type": null,
"value": {
"end": 1754,
"labels": [
"FAC"
],
"start": 1656,
"text": "After the marriage, the respondent joined the petitioner and led married life for quite some time."
}
},
{
"from_name": null,
"id": "479eb3fa49f94026b64df360efd31c4e",
"to_name": null,
"type": null,
"value": {
"end": 2041,
"labels": [
"FAC"
],
"start": 1754,
"text": "\nThereafter, the petitioner husband has neglected and refused to maintain the respondent wife and due to the ill- treatment and harassment by him, the respondent sheltered herself in her parental house and she made a request to the petitioner to maintain her or to pay her maintenance."
}
},
{
"from_name": null,
"id": "16b54dba79f14dfc8e090c45312df770",
"to_name": null,
"type": null,
"value": {
"end": 2095,
"labels": [
"FAC"
],
"start": 2042,
"text": "But he has not made any arrangements to maintain her."
}
},
{
"from_name": null,
"id": "b94da53efa3944caa24a384bbabd4788",
"to_name": null,
"type": null,
"value": {
"end": 2158,
"labels": [
"FAC"
],
"start": 2096,
"text": "Therefore, it led to filing of the petition u/s.125 of Cr.P.C."
}
},
{
"from_name": null,
"id": "a3c6155316fb402abe8fffe57328119e",
"to_name": null,
"type": null,
"value": {
"end": 2356,
"labels": [
"ARG_RESPONDENT"
],
"start": 2158,
"text": "\n 4. It is contended by the learned counsel for the respondent that petitioner is working in a reputed Towel Company and getting monthly income of Rs.30,000/- apart from getting agricultural income."
}
},
{
"from_name": null,
"id": "64656a36ecbe406ba1415735a8dbbd58",
"to_name": null,
"type": null,
"value": {
"end": 2405,
"labels": [
"ARG_RESPONDENT"
],
"start": 2357,
"text": "The respondent has no means to maintain herself."
}
},
{
"from_name": null,
"id": "447896146c7047418ab97884a3d3d028",
"to_name": null,
"type": null,
"value": {
"end": 2477,
"labels": [
"ARG_RESPONDENT"
],
"start": 2406,
"text": "Therefore, she need Rs.6,000/- per month for her day today necessities."
}
},
{
"from_name": null,
"id": "125c6ec8c5f24b94ac03a66724369b98",
"to_name": null,
"type": null,
"value": {
"end": 2552,
"labels": [
"FAC"
],
"start": 2478,
"text": "The petitioner appeared before the Court and he contested the proceedings."
}
},
{
"from_name": null,
"id": "fecca95bdb6442f8b99273711218847c",
"to_name": null,
"type": null,
"value": {
"end": 2701,
"labels": [
"ARG_PETITIONER"
],
"start": 2552,
"text": "\nHe has taken up the contention throughout that he has been ready and willing to join the company of the respondent and to lead a happy married life."
}
},
{
"from_name": null,
"id": "43b2b0d0c4424376b9ee2bf7b5ef654c",
"to_name": null,
"type": null,
"value": {
"end": 2832,
"labels": [
"ARG_PETITIONER"
],
"start": 2702,
"text": "But the wife herself has deserted the company of the petitioner and she left the matrimonial home without any justifiable reasons."
}
},
{
"from_name": null,
"id": "68a094bf88f847afb93139ed54585cd5",
"to_name": null,
"type": null,
"value": {
"end": 2922,
"labels": [
"ARG_PETITIONER"
],
"start": 2833,
"text": "She has also taken away all gold and other articles given to her at the time of marriage."
}
},
{
"from_name": null,
"id": "7c995ed9dce34e00aea2116d50bed974",
"to_name": null,
"type": null,
"value": {
"end": 3039,
"labels": [
"ARG_PETITIONER"
],
"start": 2923,
"text": "Further, he has taken up the contention that he is attending only to some private work and earning Rs.150/- per day."
}
},
{
"from_name": null,
"id": "b11be2647dc640e0a5801ecbab22bf80",
"to_name": null,
"type": null,
"value": {
"end": 3167,
"labels": [
"ARG_PETITIONER"
],
"start": 3040,
"text": "On the other hand, the wife knows tailoring and she is earning Rs.200/- per day and therefore, she is able to maintain herself."
}
},
{
"from_name": null,
"id": "d8195eddd629444095451ec9d9df50a3",
"to_name": null,
"type": null,
"value": {
"end": 3298,
"labels": [
"FAC"
],
"start": 3168,
"text": "The parties have examined themselves before the Court as PW1 and RW1 respectively and petitioner got marked Ex.P1 to P3 documents."
}
},
{
"from_name": null,
"id": "d3b09565b8854a82be6bf4e710c72849",
"to_name": null,
"type": null,
"value": {
"end": 3472,
"labels": [
"RLC"
],
"start": 3298,
"text": "\n 5. After hearing both the parties, the learned Principal Judge of the Family Court is of the opinion that the wife is entitled for Rs.4,000/- per month towards maintenance."
}
},
{
"from_name": null,
"id": "f46528644594485083ba75b7f92aa562",
"to_name": null,
"type": null,
"value": {
"end": 3678,
"labels": [
"RLC"
],
"start": 3473,
"text": "The relationship between the parties being admitted and the Court has observed that though the wife has stated that her husband has been earning Rs.30,000/-per month, but she has not produced any material."
}
},
{
"from_name": null,
"id": "a775cf5058054a9396b321ab5a23408c",
"to_name": null,
"type": null,
"value": {
"end": 3842,
"labels": [
"RLC"
],
"start": 3679,
"text": "Likewise, though the husband has taken up the contention that his wife is doing tailoring work and earning Rs.200/- per day, he has also not produced any material."
}
},
{
"from_name": null,
"id": "54bb3eeaa9ea469d8a0b2a29d670ce54",
"to_name": null,
"type": null,
"value": {
"end": 3908,
"labels": [
"FAC"
],
"start": 3843,
"text": "It is an admitted fact that both of them are not living together."
}
},
{
"from_name": null,
"id": "8cdea6f295ac4fbd94b486ca56dc6fc9",
"to_name": null,
"type": null,
"value": {
"end": 3992,
"labels": [
"FAC"
],
"start": 3909,
"text": "The wife is residing in her parental house, due to the relationship being strained."
}
},
{
"from_name": null,
"id": "277403e21b734005bb11eee3ab2a199b",
"to_name": null,
"type": null,
"value": {
"end": 4325,
"labels": [
"RLC"
],
"start": 3992,
"text": "\n 6. Looking to the facts and circumstances of the case, the Trial Court has observed that in the absence of any material to show the income of the husband, it is quite natural to hold that atleast the wife requires Rs.4,000/- per month for the purpose of day to day expenditure for maintenance and also for clothing, medicines etc.,"
}
},
{
"from_name": null,
"id": "4298d77bb9c94ddbb56850b39eda1882",
"to_name": null,
"type": null,
"value": {
"end": 4382,
"labels": [
"RLC"
],
"start": 4326,
"text": "Therefore, the Trial Court awarded Rs.4,000/- per month."
}
},
{
"from_name": null,
"id": "19a168405dce48c89dafa80652dd68c0",
"to_name": null,
"type": null,
"value": {
"end": 4536,
"labels": [
"ANALYSIS"
],
"start": 4383,
"text": "The husband has taken up a very casual defence that he is ready and willing to take her back, but it appears, he has not made any efforts in this regard."
}
},
{
"from_name": null,
"id": "2490561a020e4215864e9fe35a5455f6",
"to_name": null,
"type": null,
"value": {
"end": 4618,
"labels": [
"ANALYSIS"
],
"start": 4537,
"text": "On the other hand, he has admitted that his wife is living in her parental house."
}
},
{
"from_name": null,
"id": "cd7d092899df432a9637938e7f765fdf",
"to_name": null,
"type": null,
"value": {
"end": 4897,
"labels": [
"ANALYSIS"
],
"start": 4619,
"text": "There is no material to show that after his wife started living in her parental house, he has not made any arrangements to maintain her or at any point of time he has not made any efforts to join her during the pendency of the proceedings or prior to the filing of the petition."
}
},
{
"from_name": null,
"id": "b5051629f13244b18e898c0501e697e9",
"to_name": null,
"type": null,
"value": {
"end": 4982,
"labels": [
"ANALYSIS"
],
"start": 4898,
"text": "That itself is sufficient to hold that he has neglected and refused to maintain her."
}
},
{
"from_name": null,
"id": "e73179d0ce5d432bbf46c687e11d3dc9",
"to_name": null,
"type": null,
"value": {
"end": 5091,
"labels": [
"ANALYSIS"
],
"start": 4982,
"text": "\n 7. So far as the quantum of award is concerned, both the parties have not produced any materials on record."
}
},
{
"from_name": null,
"id": "341e0ac26aeb4f1084c290e69aa1967e",
"to_name": null,
"type": null,
"value": {
"end": 5191,
"labels": [
"ANALYSIS"
],
"start": 5092,
"text": "The Court has analysed that the husband is hale and healthy person and he has got capacity to earn."
}
},
{
"from_name": null,
"id": "f48ac96e14bb4bb4b6415284d56753b2",
"to_name": null,
"type": null,
"value": {
"end": 5382,
"labels": [
"ANALYSIS"
],
"start": 5192,
"text": "On the other hand, though the wife is separately living, no material is placed to show that she has got knowledge of tailoring and actually she has been doing the tailoring work and earning."
}
},
{
"from_name": null,
"id": "0ab3e2d1840c424ab3f6a8cf8cdea213",
"to_name": null,
"type": null,
"value": {
"end": 5537,
"labels": [
"ANALYSIS"
],
"start": 5384,
"text": "8. In the above said circumstances, awarding of maintenance at the rate of Rs.4,000/- per month, in my opinion, cannot be called as an exorbitant amount."
}
},
{
"from_name": null,
"id": "5003e2e4cf9f427ba8e6000c2615d6e7",
"to_name": null,
"type": null,
"value": {
"end": 5754,
"labels": [
"ANALYSIS"
],
"start": 5538,
"text": "However, it is made it clear that if the husband or the wife would get any amount more in the changed circumstances, they can approach once again the Trial Court either for enhancement or for reduction of the amount."
}
},
{
"from_name": null,
"id": "6720aa43252c4397a8a08cbac7dd4430",
"to_name": null,
"type": null,
"value": {
"end": 6084,
"labels": [
"ANALYSIS"
],
"start": 5756,
"text": "9. Before parting with this order, the learned counsel for the petitioner brought to the notice of this Court that the wife has also filed another petition before the Principal Civil Judge & JMFC, Raichur in Crl. Misc. No.218/2013 under the provisions of the Protection of Women from Domestic Violence Act, claiming maintenance."
}
},
{
"from_name": null,
"id": "e608bae8e0fb484d8041ad398ed24a65",
"to_name": null,
"type": null,
"value": {
"end": 6226,
"labels": [
"ANALYSIS"
],
"start": 6085,
"text": "The order of the said Court dated 7.5.2014 reveals that an interim maintenance of Rs.2,000/- per month has already been granted by the Court."
}
},
{
"from_name": null,
"id": "0530c4dac40242048b1bf60c31cc0c64",
"to_name": null,
"type": null,
"value": {
"end": 6524,
"labels": [
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],
"start": 6227,
"text": "The learned counsel for the petitioner submit before the Court that subsequently the said case in Crl.Mis No.218/2013 on the file of the Principal Civil Judge & JMFC, Raichur was disposed of granting maintenance of Rs.2,000/- per month and also awarding of Rs.3,000/- per month towards house rent."
}
},
{
"from_name": null,
"id": "69db7a82175b4da58bf10de61a5b23a5",
"to_name": null,
"type": null,
"value": {
"end": 6681,
"labels": [
"ANALYSIS"
],
"start": 6525,
"text": "Therefore, in all, the husband is liable to pay an amount of Rs.5,000/- in Crl. Misc. No.218/2013 and Rs.4,000/- by virtue of the order of the Family Court."
}
},
{
"from_name": null,
"id": "57f5e945eee44c6fb7425cd32d837958",
"to_name": null,
"type": null,
"value": {
"end": 6993,
"labels": [
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],
"start": 6681,
"text": "\n 10. It is not made it clear before this Court as to whether the proceedings in the Prl. Civil Judge & JMFC, Raichur was brought to the notice of the Family Court or the proceedings of the Family Court was brought to the notice of the Trial Court and inspite of that whether such orders have been passed or not."
}
},
{
"from_name": null,
"id": "46dda9e0ca7b49dcbd9048541bd5dd1c",
"to_name": null,
"type": null,
"value": {
"end": 7212,
"labels": [
"ANALYSIS"
],
"start": 6994,
"text": "Therefore, in my opinion, when the orders of the Principal Civil Judge & JMFC, Raichur is not questioned before this Court, no order can be passed so far as granting of maintenance and rentals passed by the said Court."
}
},
{
"from_name": null,
"id": "b113e2fe46b241faaa36da66f64c31d6",
"to_name": null,
"type": null,
"value": {
"end": 7352,
"labels": [
"ANALYSIS"
],
"start": 7212,
"text": "\nHowever, it is made it clear that if both the orders are allowed to run together, it will cause inconvenience and injustice to the husband."
}
},
{
"from_name": null,
"id": "4d0d68770adc48f9b96d13557d8bf8d2",
"to_name": null,
"type": null,
"value": {
"end": 7848,
"labels": [
"ANALYSIS"
],
"start": 7353,
"text": "Therefore, narrating all the above said factual aspects if the petitioner is aggrieved by the order of the Principal Civil Judge & JMFC, who has passed the order without taking into consideration the order passed by the Family Court, he is at liberty to make necessary application for cancellation of the said order or for modification of the said order or if the petition has already disposed of on merits, he is at liberty to prefer an appeal against the said order before the competent Court."
}
},
{
"from_name": null,
"id": "da4da2c5001743c493ffb57a6af53bf0",
"to_name": null,
"type": null,
"value": {
"end": 8017,
"labels": [
"ANALYSIS"
],
"start": 7849,
"text": "In such eventuality, the competent Court shall take into consideration the order passed by the Family Court in awarding maintenance at the rate of Rs.4,000/- per month."
}
},
{
"from_name": null,
"id": "42c49cbe75244f439d048eb70cbb1e62",
"to_name": null,
"type": null,
"value": {
"end": 8130,
"labels": [
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],
"start": 8018,
"text": "Therefore, with this observation, this Court cannot reduce the amount of Rs.4,000/- granted by the Family Court."
}
},
{
"from_name": null,
"id": "a84111a5bdfc46fb9f075c19a466632c",
"to_name": null,
"type": null,
"value": {
"end": 8204,
"labels": [
"RPC"
],
"start": 8131,
"text": "Therefore, the order passed by the Family Court deserves to be confirmed."
}
},
{
"from_name": null,
"id": "b7f575ca02d04193903f69cb7a810459",
"to_name": null,
"type": null,
"value": {
"end": 8543,
"labels": [
"RPC"
],
"start": 8206,
"text": "11. Further, it is made it clear that either for enhancement of the maintenance or for reduction of the maintenance granted by the Family Court or by the Principal Civil Judge & JMFC, Raichur, the parties are at liberty to make necessary application u/s.125(3) of Cr.P.C. for modification of the order in view of the above circumstances."
}
},
{
"from_name": null,
"id": "17eed11ac7c0473280d8d138110879de",
"to_name": null,
"type": null,
"value": {
"end": 8603,
"labels": [
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],
"start": 8543,
"text": "\n With this observation, the Revision Petition is dismissed."
}
},
{
"from_name": null,
"id": "ae66602f078a486cb34f5cee0ee32e97",
"to_name": null,
"type": null,
"value": {
"end": 8619,
"labels": [
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],
"start": 8603,
"text": "\n Sd/- JUDGE PL*"
}
}
]
}
] | 4,284 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n\n KALABURAGI BENCH\n\n DATED THIS THE 20TH JULY, 2015\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE K.N.PHANEENDRA\n\n RPFC NO.200066/2014\n\nBETWEEN\n\nSUBHASH\n\nS/O PEEROJI @ PENTOJI LANDGE\n\nAGE:39 YEARS, OCC : PRIVATE SERVICE,\n\nR/AT : NEELAM NAGAR,\n\nTAI CHOWK, PLOT NO.117,\n\nSURVEY NO.232, AREA NO.5,\n\nRAVINDRANAGAR,\n\nSHOLAPUR-413 001\n\nMAHARASHTRA STATE. ... PETITIONER\n\n(BY SRI J AUGUSTIN, ADV.)\n\nAND\n\nREKHA BAI ... RESPONDENT\nW/O SUBHASH\nAGE:36 YEARS, OCC : HOUSEHOLD,\nR/AT : H.NO.4-10-16,\nMANGALWARPET,\nRAICHUR.584 101.\n\n(BY SRI BASAVARAJ R MATH, ADV. )\n\n\n THIS RPFC IS FILED U/S 19(4) OF THE FC ACT,\nAGAINST THE JUDGEMENT DATED 24.07.2014, PASSED IN\nCRL.MISC. NO. 89/2013 BY THE PRL.JUDGE, FAIMLY COURT\nAT RAICHUR, PARTLY ALLOWING THE PETITION FILED BY\nTHE PETITIONER U/S 125 OF CR.P.C.\n\n THIS PETITION COMING ON FOR ADMISSION THIS\nDAY, THE COURT PASSED THE FOLLOWING:\n\n ORDER\n The petitioner husband has preferred this Revision Petition challenging the order passed by the Principal Judge, Family Court, Raichur in Crl. Misc. Case No.89/2013 u/s.125 of Cr.P.C. granting maintenance at the rate of Rs.4,000/- per month to the respondent wife from the date of petition.\n 2. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.\n 3. The petitioner herein is the husband and respondent herein is the wife and their marriage solemnized on 24.5.2002 at Aarya Samaj Raichur as per the customs in their community. After the marriage, the respondent joined the petitioner and led married life for quite some time.\nThereafter, the petitioner husband has neglected and refused to maintain the respondent wife and due to the ill- treatment and harassment by him, the respondent sheltered herself in her parental house and she made a request to the petitioner to maintain her or to pay her maintenance. But he has not made any arrangements to maintain her. Therefore, it led to filing of the petition u/s.125 of Cr.P.C.\n 4. It is contended by the learned counsel for the respondent that petitioner is working in a reputed Towel Company and getting monthly income of Rs.30,000/- apart from getting agricultural income. The respondent has no means to maintain herself. Therefore, she need Rs.6,000/- per month for her day today necessities. The petitioner appeared before the Court and he contested the proceedings.\nHe has taken up the contention throughout that he has been ready and willing to join the company of the respondent and to lead a happy married life. But the wife herself has deserted the company of the petitioner and she left the matrimonial home without any justifiable reasons. She has also taken away all gold and other articles given to her at the time of marriage. Further, he has taken up the contention that he is attending only to some private work and earning Rs.150/- per day. On the other hand, the wife knows tailoring and she is earning Rs.200/- per day and therefore, she is able to maintain herself. The parties have examined themselves before the Court as PW1 and RW1 respectively and petitioner got marked Ex.P1 to P3 documents.\n 5. After hearing both the parties, the learned Principal Judge of the Family Court is of the opinion that the wife is entitled for Rs.4,000/- per month towards maintenance. The relationship between the parties being admitted and the Court has observed that though the wife has stated that her husband has been earning Rs.30,000/-per month, but she has not produced any material. Likewise, though the husband has taken up the contention that his wife is doing tailoring work and earning Rs.200/- per day, he has also not produced any material. It is an admitted fact that both of them are not living together. The wife is residing in her parental house, due to the relationship being strained.\n 6. Looking to the facts and circumstances of the case, the Trial Court has observed that in the absence of any material to show the income of the husband, it is quite natural to hold that atleast the wife requires Rs.4,000/- per month for the purpose of day to day expenditure for maintenance and also for clothing, medicines etc., Therefore, the Trial Court awarded Rs.4,000/- per month. The husband has taken up a very casual defence that he is ready and willing to take her back, but it appears, he has not made any efforts in this regard. On the other hand, he has admitted that his wife is living in her parental house. There is no material to show that after his wife started living in her parental house, he has not made any arrangements to maintain her or at any point of time he has not made any efforts to join her during the pendency of the proceedings or prior to the filing of the petition. That itself is sufficient to hold that he has neglected and refused to maintain her.\n 7. So far as the quantum of award is concerned, both the parties have not produced any materials on record. The Court has analysed that the husband is hale and healthy person and he has got capacity to earn. On the other hand, though the wife is separately living, no material is placed to show that she has got knowledge of tailoring and actually she has been doing the tailoring work and earning.\n 8. In the above said circumstances, awarding of maintenance at the rate of Rs.4,000/- per month, in my opinion, cannot be called as an exorbitant amount. However, it is made it clear that if the husband or the wife would get any amount more in the changed circumstances, they can approach once again the Trial Court either for enhancement or for reduction of the amount.\n 9. Before parting with this order, the learned counsel for the petitioner brought to the notice of this Court that the wife has also filed another petition before the Principal Civil Judge & JMFC, Raichur in Crl. Misc. No.218/2013 under the provisions of the Protection of Women from Domestic Violence Act, claiming maintenance. The order of the said Court dated 7.5.2014 reveals that an interim maintenance of Rs.2,000/- per month has already been granted by the Court.\nThe learned counsel for the petitioner submit before the Court that subsequently the said case in Crl.Mis No.218/2013 on the file of the Principal Civil Judge & JMFC, Raichur was disposed of granting maintenance of Rs.2,000/- per month and also awarding of Rs.3,000/- per month towards house rent. Therefore, in all, the husband is liable to pay an amount of Rs.5,000/- in Crl. Misc. No.218/2013 and Rs.4,000/- by virtue of the order of the Family Court.\n 10. It is not made it clear before this Court as to whether the proceedings in the Prl. Civil Judge & JMFC, Raichur was brought to the notice of the Family Court or the proceedings of the Family Court was brought to the notice of the Trial Court and inspite of that whether such orders have been passed or not. Therefore, in my opinion, when the orders of the Principal Civil Judge & JMFC, Raichur is not questioned before this Court, no order can be passed so far as granting of maintenance and rentals passed by the said Court.\nHowever, it is made it clear that if both the orders are allowed to run together, it will cause inconvenience and injustice to the husband. Therefore, narrating all the above said factual aspects if the petitioner is aggrieved by the order of the Principal Civil Judge & JMFC, who has passed the order without taking into consideration the order passed by the Family Court, he is at liberty to make necessary application for cancellation of the said order or for modification of the said order or if the petition has already disposed of on merits, he is at liberty to prefer an appeal against the said order before the competent Court. In such eventuality, the competent Court shall take into consideration the order passed by the Family Court in awarding maintenance at the rate of Rs.4,000/- per month. Therefore, with this observation, this Court cannot reduce the amount of Rs.4,000/- granted by the Family Court. Therefore, the order passed by the Family Court deserves to be confirmed.\n 11. Further, it is made it clear that either for enhancement of the maintenance or for reduction of the maintenance granted by the Family Court or by the Principal Civil Judge & JMFC, Raichur, the parties are at liberty to make necessary application u/s.125(3) of Cr.P.C. for modification of the order in view of the above circumstances.\n With this observation, the Revision Petition is dismissed.\n Sd/- JUDGE PL* "
} |
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"text": "IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, SUNDARGARH.\n\nPresent :\n\n Sri D.K. Mishra, LL.B.,\n Additional Sessions Judge,\n Sundargarh.\n\n "
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"text": "______\nArising out of G.R Case No. 10/2012 corresponding to Town P.S Sundargarh Case No.\n01 of 2012 committed by the learned SDJM, Sundargarh."
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"text": "State of Odisha .... .... .... ... Complainant."
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"text": "\n\n1. Sanjeeb Kumar Panigrahi, aged aboput 27 years,\n son of Pramod Chandra Panigrahi, resident\n of R.R.I.T Colony, P.S Town, District-Sundargarh ;\n\n2. Sumitra Mishra, aged about 54 years,\n wife of Pramod Chandra Panigrahi,\n resident of R.R.I.T Colony, P.S Town,\n District-Sundargarh ;\n\n3."
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"text": "Pramod Chandra Panigrahi, aged about 53 years,\n son of late Somnath Panigrahi, resident of"
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"text": ".... Accused persons."
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"text": "Counsel for the prosecution : Sri Prasanta Kumar Patel,\n Addl."
}
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"text": "Public Prosecutor."
}
},
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],
"start": 1286,
"text": "Counsel for the defence : Sri D.K. Naik, Smt. N. Naik and others, Advocates."
}
},
{
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"id": "c18502a63dc841739f710005137c1d47",
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"value": {
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"labels": [
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"start": 1389,
"text": "Date of argument : 05.02.2015.\n\n Date of judgment : 13.02.2015."
}
},
{
"from_name": null,
"id": "7d084cfaeba044a78fc073ecb19d2a86",
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"value": {
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"labels": [
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],
"start": 1487,
"text": "Offence under sections 498-A/304-B/302/306/34 of I.P.C read with\n section 4 of the D.P. Act."
}
},
{
"from_name": null,
"id": "7194812bd5344f1ba2e946153e7a01fd",
"to_name": null,
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"text": "\n\n JUDGMENT."
}
},
{
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"id": "1b65ef1fbec746d1a9bf2c6c11432e46",
"to_name": null,
"type": null,
"value": {
"end": 1845,
"labels": [
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],
"start": 1656,
"text": "\n The accused persons stand charged for the offences punishable under section 498-A/304-B/302/306/34 of I.P.C read with section 4 of the Dowry Prohibition Act.\n 2. "
}
},
{
"from_name": null,
"id": "bdd9374528e84f08b88c8af9c9c06004",
"to_name": null,
"type": null,
"value": {
"end": 2076,
"labels": [
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],
"start": 1845,
"text": "The overview of the prosecution case is that Kabita Panigrahi the daughter of the informant was given in marriage with the accused Sanjeeb Panigrahi of R.R.I.T Colony, Sundargarh under Town P.S Sundargarh in the month of May, 2009."
}
},
{
"from_name": null,
"id": "db8f797e87d447acab11e6179dcd80dc",
"to_name": null,
"type": null,
"value": {
"end": 2413,
"labels": [
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],
"start": 2077,
"text": "Some days after the marriage, the said Kabita was subjected to cruelty by her in-laws with a view to putting additional pressure on her maternal family to cough up more money in spite of the fact that at the time of marriage they were given a sum of Rs.1,00,000/-, two tolas of gold and other utensils towards dowry as per their demand."
}
},
{
"from_name": null,
"id": "83a0ed383c144087baeacb2da60f1a0b",
"to_name": null,
"type": null,
"value": {
"end": 2599,
"labels": [
"FAC"
],
"start": 2413,
"text": "\n The relationship, as time passed by, further worsened and it culminated in the husband of the said Kabita filing a divorce proceeding against the latter in connivance with his parents."
}
},
{
"from_name": null,
"id": "075dad1f3ab2434f9f54577e7370c97b",
"to_name": null,
"type": null,
"value": {
"end": 2733,
"labels": [
"FAC"
],
"start": 2600,
"text": "On 4.1.2012 at about 4.15 P.M the informant came to learn that her daughter Kabita was administered poison and killed by her in laws."
}
},
{
"from_name": null,
"id": "da03a31ce9cf4af3817270629794512d",
"to_name": null,
"type": null,
"value": {
"end": 2809,
"labels": [
"FAC"
],
"start": 2734,
"text": "The informant then came to D.H.H , Sundargarh where her dead body was kept."
}
},
{
"from_name": null,
"id": "5ce575f8000c436da4afea36e63bec10",
"to_name": null,
"type": null,
"value": {
"end": 2956,
"labels": [
"FAC"
],
"start": 2810,
"text": "He reported the matter at Town P.S Sundargarh alleging therein the fact that her daughter had been murdered by her husband and her parents in law."
}
},
{
"from_name": null,
"id": "27f8af1e7b684b9eb55d66961260e19d",
"to_name": null,
"type": null,
"value": {
"end": 3042,
"labels": [
"FAC"
],
"start": 2957,
"text": "The same was registered as Town P.S case No. 1/2012 and investigation was carried on."
}
},
{
"from_name": null,
"id": "f27324665e974021be66e2a250676862",
"to_name": null,
"type": null,
"value": {
"end": 3205,
"labels": [
"FAC"
],
"start": 3043,
"text": "After completion of investigation, charge sheet was submitted against the accused persons u/s 498-A/304-B/306/34 of the I.P.C read with section 4 of the D.P. Act."
}
},
{
"from_name": null,
"id": "349adb8cdb4d4457920dbe20f6daed42",
"to_name": null,
"type": null,
"value": {
"end": 3357,
"labels": [
"FAC"
],
"start": 3205,
"text": "\n In due course, the case was committed for trial and charge under sections 498-A/304-B/302/306/34 of I.P.C read with section 4 of D.P. Act were framed."
}
},
{
"from_name": null,
"id": "61a10d5d93ef4532a6f23e9ef88313b1",
"to_name": null,
"type": null,
"value": {
"end": 3596,
"labels": [
"FAC"
],
"start": 3357,
"text": "\n 3. Defence sets up a plea of clean denial of facts alleged against the accused persons who while being examined u/s 313 of the Cr.P.C have taken the plea that the marriage between the deceased and Sanjeeb was a marriage free from dowry."
}
},
{
"from_name": null,
"id": "a9ccd3b455d74caab3fd47663ad9a575",
"to_name": null,
"type": null,
"value": {
"end": 3785,
"labels": [
"FAC"
],
"start": 3596,
"text": "\n The deceased did not at all take a liking to her husband and want to continue her marital relationship with him even if both of them stayed separately from the parents of accused Sanjeeb."
}
},
{
"from_name": null,
"id": "e860992de96441f9a26147b47e382f53",
"to_name": null,
"type": null,
"value": {
"end": 3929,
"labels": [
"FAC"
],
"start": 3786,
"text": "Therefore, accused Sanjeeb filed a divorce case against the deceased and since then she had been living with her parents at her native village."
}
},
{
"from_name": null,
"id": "ff14be41770a40ca9999aca7c2899c8f",
"to_name": null,
"type": null,
"value": {
"end": 4068,
"labels": [
"FAC"
],
"start": 3929,
"text": "\n 4. Prosecution in order to prove its case has examined as many as thirteen witnesses in all and defence has examined none in its behalf."
}
},
{
"from_name": null,
"id": "1b52a7b2d0184a29903a82b637e6d2aa",
"to_name": null,
"type": null,
"value": {
"end": 5268,
"labels": [
"ISSUE"
],
"start": 4070,
"text": "5. Now the points for determination are that - a) Whether the accused persons since the year 2009 till 2.1 2012 at R.R.I.T Colony, Sundargarh in furtherance of common intention subjected deceased Kabita Panigrahi to cruelty for unlawful demand of dowry being her husband and parents ?\n b) Whether the death of Kabita Panigrahi occurred otherwise than under normal circumstances within seven years of her marriage on 4.12.2012 at D.H.H , Sundargarh being the outcome of the common intention of the accused persons to commit torture, cruelty and harassment to her on account of the demand of dowry ?\n c) Whether the accused persons on 4.1.2012 at Sundargarh in furtherance of their common intention did commit murder of Kabita Panigrahi by intentionally causing her death ?\n d) Whether on 2.1.2012 at the house at R.R.I.T colony, Sundargarh Kabita Panigrahi committed suicide and the accused persons being her husband and parents in law abetted its commission by torturing her both mentally and physically in furtherance of common intention ?\n e) Whether the accused persons being the husband and parents in law of Kabita Panigrahi had demanded dowry from her parents, before and after her marriage ?"
}
},
{
"from_name": null,
"id": "30c5229db8ba474f80c0cfcc3bb84368",
"to_name": null,
"type": null,
"value": {
"end": 5328,
"labels": [
"ANALYSIS"
],
"start": 5268,
"text": "\n 6. The informant has been examined in this case as P.W 9."
}
},
{
"from_name": null,
"id": "70cf27c56e634b708744c3bef9b98734",
"to_name": null,
"type": null,
"value": {
"end": 5427,
"labels": [
"ANALYSIS"
],
"start": 5329,
"text": "P.W 10 is his son and a witness to inquest over the dead body of the deceased conducted by police."
}
},
{
"from_name": null,
"id": "a60dbfef27e049f1a07463fdf3cb0cc1",
"to_name": null,
"type": null,
"value": {
"end": 5464,
"labels": [
"ANALYSIS"
],
"start": 5428,
"text": "P.W 12 is also a witness to inquest."
}
},
{
"from_name": null,
"id": "dddd4da0f54f4d5bb2f1d24f4826330e",
"to_name": null,
"type": null,
"value": {
"end": 5512,
"labels": [
"ANALYSIS"
],
"start": 5465,
"text": "P.Ws 1 , 2 , 7 and 8 are independent witnesses."
}
},
{
"from_name": null,
"id": "1fb1c6d6f4134f01a1b7cd00c6505732",
"to_name": null,
"type": null,
"value": {
"end": 5554,
"labels": [
"ANALYSIS"
],
"start": 5513,
"text": "P.Ws 3, 4 and 5 are witnesses to seizure."
}
},
{
"from_name": null,
"id": "d173849d3092408f86909f9a149d8885",
"to_name": null,
"type": null,
"value": {
"end": 5665,
"labels": [
"ANALYSIS"
],
"start": 5555,
"text": "P.W 6 is the medical officer who conducted inquest over the dead body of the deceased and P.W 13 is the I.O 7."
}
},
{
"from_name": null,
"id": "da361016b7c14e58959eef1e111e1ee1",
"to_name": null,
"type": null,
"value": {
"end": 5839,
"labels": [
"ANALYSIS"
],
"start": 5667,
"text": "From the F.I.R marked as Ext.5, which it has been filed by none other than the father of the deceased it appears that he learnt about the death of the deceased on 4.1.2012."
}
},
{
"from_name": null,
"id": "57b554f67407474d874c05c30217a5ba",
"to_name": null,
"type": null,
"value": {
"end": 6078,
"labels": [
"ANALYSIS"
],
"start": 5840,
"text": "The original bed head ticket issued in favour of Kabita Panigrahi wife of Sanjeeb Panigrahi of R.R.I.T Colony , Sundargarh marked as Ext.F from the side of the defence shows that she was admitted in the hospital on 3.1.2012 at 4.10 P.M.\n "
}
},
{
"from_name": null,
"id": "3c142b8ba04341069720a8af1333c3a6",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
"ANALYSIS"
],
"start": 6078,
"text": "This Kabita Panigrahi is the daughter of the informant."
}
},
{
"from_name": null,
"id": "6fc2a5215ab7487192a21fa82e2378f7",
"to_name": null,
"type": null,
"value": {
"end": 6297,
"labels": [
"ANALYSIS"
],
"start": 6134,
"text": "The inquest report marked as Ext.6 from the side of the prosecution reveals that the inquest in respect of the dead body of the deceased was conducted on 5.1.2012."
}
},
{
"from_name": null,
"id": "7bdb8857f135412e9ef55263e31d7bc5",
"to_name": null,
"type": null,
"value": {
"end": 6376,
"labels": [
"ANALYSIS"
],
"start": 6298,
"text": "The P.M examination report marked as Ext.3 does not reveal the cause of death."
}
},
{
"from_name": null,
"id": "595dfea1fbbd48e2a11940891c3dd386",
"to_name": null,
"type": null,
"value": {
"end": 6505,
"labels": [
"ANALYSIS"
],
"start": 6377,
"text": "The medical officer reserved his opinion and as it appears had sent the viscera which he had preserved for chemical examination."
}
},
{
"from_name": null,
"id": "55e8768fbda74b669b4c813579c0df00",
"to_name": null,
"type": null,
"value": {
"end": 6632,
"labels": [
"ANALYSIS"
],
"start": 6506,
"text": "Ext.13 is the report of the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar regarding the viscera sent in this case."
}
},
{
"from_name": null,
"id": "ba3b05136f9943a7a4763099c4789767",
"to_name": null,
"type": null,
"value": {
"end": 6699,
"labels": [
"ANALYSIS"
],
"start": 6633,
"text": "It has been marked without any objection from the side of defence."
}
},
{
"from_name": null,
"id": "708945f6d04549f09956fee505b4e6fc",
"to_name": null,
"type": null,
"value": {
"end": 6825,
"labels": [
"ANALYSIS"
],
"start": 6700,
"text": "The result of the examination shows that an organophosphorus insecticidal poison was detected in the viscera of the deceased."
}
},
{
"from_name": null,
"id": "b3890006ad954029b0f04e254445b78d",
"to_name": null,
"type": null,
"value": {
"end": 6873,
"labels": [
"ANALYSIS"
],
"start": 6825,
"text": "\n These facts establish beyond doubt two things."
}
},
{
"from_name": null,
"id": "8bf7ed99488c4bacbf5ea16c19895d43",
"to_name": null,
"type": null,
"value": {
"end": 6934,
"labels": [
"ANALYSIS"
],
"start": 6874,
"text": "One, the deceased had met her death on 4.1.2012 at 4.30 P.M."
}
},
{
"from_name": null,
"id": "3028d33dec9743b5bcf7f18b8fdc1cbc",
"to_name": null,
"type": null,
"value": {
"end": 7030,
"labels": [
"ANALYSIS"
],
"start": 6935,
"text": "Secondly, her death was not under normal circumstance but due to intake of insecticidal poison."
}
},
{
"from_name": null,
"id": "b29f71f8e00c41efa8f5a6d96ec0018e",
"to_name": null,
"type": null,
"value": {
"end": 7485,
"labels": [
"ARG_PETITIONER"
],
"start": 7032,
"text": "8. It is submitted by the learned Additional Public Prosecutor that the FIR reveals that the deceased who was given in marriage to Sanjeeb Panigrahi was being subjected to merciless treatment for dowry during her stay in her in-laws' house and the matter went to such a pass that her husband filed a divorce case against her even if several attempts were made to restore a normal and healthy marital relationship by the maternal family of the deceased."
}
},
{
"from_name": null,
"id": "2287b712c89645c9a38c6034f0ef3409",
"to_name": null,
"type": null,
"value": {
"end": 7909,
"labels": [
"ARG_PETITIONER"
],
"start": 7486,
"text": "She was persecuted to bring dowry and when the poor parents of the deceased could not afford to meet the unlawful demands of the husband and his parents, a trap was laid and she was taken back by accused Sanjeeb to his house and on the fateful day she was administered poison and sent in a Bus where from she got down at hospital chowk, Sundargarh and taken to the hospital by some local people where she breathed her last."
}
},
{
"from_name": null,
"id": "fac86998101f41519c5c3db1fd6d1953",
"to_name": null,
"type": null,
"value": {
"end": 8148,
"labels": [
"ARG_PETITIONER"
],
"start": 7910,
"text": "The informant while being examined as P.W 9 and his son as P.W 10 have materially corroborated that the accused persons were subjecting the deceased to cruelty all along and during the last part of her life when she was staying with them."
}
},
{
"from_name": null,
"id": "70e01750d7f54cad88c98c5b979b8c3d",
"to_name": null,
"type": null,
"value": {
"end": 8353,
"labels": [
"ARG_PETITIONER"
],
"start": 8149,
"text": "It has been established by P.W 8 and P.W 1 that the deceased while being under the influence of poison was found near the hospital chowk , Sundargarh and was admitted in the D.H.H, Sundargarh on 3.1.2012."
}
},
{
"from_name": null,
"id": "732073e3ed34452092bf29fc35108f54",
"to_name": null,
"type": null,
"value": {
"end": 8439,
"labels": [
"ARG_PETITIONER"
],
"start": 8354,
"text": "When such is the evidence , section 113-B of the Indian Evidence Act comes into play."
}
},
{
"from_name": null,
"id": "7121137375da4e8a9874820f7848964d",
"to_name": null,
"type": null,
"value": {
"end": 8517,
"labels": [
"ARG_PETITIONER"
],
"start": 8440,
"text": "The death of the deceased has taken place within seven years of her marriage."
}
},
{
"from_name": null,
"id": "11b4cc3ba95940fb9463390dfbf94e9c",
"to_name": null,
"type": null,
"value": {
"end": 8726,
"labels": [
"ARG_PETITIONER"
],
"start": 8518,
"text": "Hence it is to be presumed that the death of the deceased was due to dowry and that the accused persons being her in-laws are guilt not only of offence u/s 304-B of the I.P.C but also u/s 302/34 of the I.P.C."
}
},
{
"from_name": null,
"id": "c249009ed4bf4ce1a1fa0412fbe920ee",
"to_name": null,
"type": null,
"value": {
"end": 8820,
"labels": [
"ARG_PETITIONER"
],
"start": 8727,
"text": "Similarly they are to be held guilty of offence u/s 498-A of the I.P.C and 4 of the D.P. Act."
}
},
{
"from_name": null,
"id": "d06e204318014c41b821a1bc073a5059",
"to_name": null,
"type": null,
"value": {
"end": 9132,
"labels": [
"ARG_PETITIONER"
],
"start": 8821,
"text": "If in the alternative it is held that the deceased had taken poison herself to end her life, then , in view of the evidence available, it should be held that she had taken this extreme step to do away with such brutal torture by the accused persons which make them liable for punishment u/s 306/34 of the I.P.C."
}
},
{
"from_name": null,
"id": "4c5fb97dd50d45d5831d9d4525d66c27",
"to_name": null,
"type": null,
"value": {
"end": 9324,
"labels": [
"ARG_RESPONDENT"
],
"start": 9132,
"text": "\n 9. The learned defence counsel, taking potshot at the submission of the learned Additional P.P, submits that the argument advanced by the learned Addl.P.P is not based on facts but fiction."
}
},
{
"from_name": null,
"id": "afd98df46bab425e83e1eb0c02293549",
"to_name": null,
"type": null,
"value": {
"end": 9419,
"labels": [
"ARG_RESPONDENT"
],
"start": 9325,
"text": "It is admitted that deceased Kabita was the legally married wife of accused Sanjeeb Panigrahi."
}
},
{
"from_name": null,
"id": "4f76d9b596334b5fb8b2d75765a2cf04",
"to_name": null,
"type": null,
"value": {
"end": 9493,
"labels": [
"ARG_RESPONDENT"
],
"start": 9420,
"text": "It is also admitted that their marriage had taken place in the year 2009."
}
},
{
"from_name": null,
"id": "e5ac9fb14a314063a1e17300210e78a5",
"to_name": null,
"type": null,
"value": {
"end": 9787,
"labels": [
"ARG_RESPONDENT"
],
"start": 9494,
"text": "The fact remains that accused Sanjeeb Panigrahi filed a Civil Proceeding bearing No. 98/2010 before the Judge, Family Court, Rourkela about a year after the said marriage since his wife was not willing to stay with him and his family at Sundargarh and not taking care of their little daughter."
}
},
{
"from_name": null,
"id": "188b831c3a214592a9d93419e4b14a2c",
"to_name": null,
"type": null,
"value": {
"end": 9845,
"labels": [
"ARG_RESPONDENT"
],
"start": 9788,
"text": "Since then the deceased had been living with her parents."
}
},
{
"from_name": null,
"id": "e3c3eca596924587abcca127155200f9",
"to_name": null,
"type": null,
"value": {
"end": 10007,
"labels": [
"ARG_RESPONDENT"
],
"start": 9846,
"text": "In the said Civil Proceeding filed u/s 13 of the Hindu Marriage Act, the deceased as a petitioner filed a Misc. case u/s 24 thereof claiming for her maintenance."
}
},
{
"from_name": null,
"id": "a14e926ba2e641b2a75f39dd9eb57d51",
"to_name": null,
"type": null,
"value": {
"end": 10125,
"labels": [
"ARG_RESPONDENT"
],
"start": 10008,
"text": "In the said petition, she has, by way of affidavit, disclosed the fact that she was staying with her maternal family."
}
},
{
"from_name": null,
"id": "6d0cb17f99904bb9891f8e43a86eca12",
"to_name": null,
"type": null,
"value": {
"end": 10482,
"labels": [
"ARG_RESPONDENT"
],
"start": 10126,
"text": "The statement of P.W 9 that while the said divorce proceeding was going on, the accused gave an undertaking before the Family Court to keep the deceased as his wife without any trouble and with that undertaking he took the deceased with him and that when the occurrence had taken place she was staying with the accused persons is nothing but a blatant lie."
}
},
{
"from_name": null,
"id": "0e2e819b15d744b9a631806e73e440fc",
"to_name": null,
"type": null,
"value": {
"end": 10791,
"labels": [
"ARG_RESPONDENT"
],
"start": 10483,
"text": "The evidence of P.W 10 who is the brother of the deceased has not only supported this lie of his father, but spiced it up by saying that the deceased four days prior to her death had telephoned him and intimated the fact that her husband was threatening her to kill if she did not bring money from her house."
}
},
{
"from_name": null,
"id": "8ad9288a692a4ed39124e605a8efe3bc",
"to_name": null,
"type": null,
"value": {
"end": 11328,
"labels": [
"ARG_RESPONDENT"
],
"start": 10792,
"text": "All these false and vexatious claims of P.Ws 9 and 10 got a severe body blow when Ext.A which is the certified copy of the order sheet reveal that on the date of the occurrence, the said Sanjeeb was very much physically present before the Judge, Family Court and had adduced evidence therein where he has stated on oath that the deceased had left his house on 10.4.2010 leaving the child in his custody and there is no chance of their reunion as the attempts made and taken by him and his relatives, well wishers and friends had failed."
}
},
{
"from_name": null,
"id": "8fc08d6e9eef41f2832078471eddfb2e",
"to_name": null,
"type": null,
"value": {
"end": 11695,
"labels": [
"ARG_RESPONDENT"
],
"start": 11329,
"text": "It is true that the deceased was first located at the hospital chowk , Sundargarh by some local gentlemen and was admitted with the help of the police in the D.H.H, Sundargarh for her treatment but it is quite strange as to why her dying declaration was not recorded since she had not died on the date of her admission of her in to the hospital but on the next day ."
}
},
{
"from_name": null,
"id": "e238f32f601e4046b9f2d24296f5878e",
"to_name": null,
"type": null,
"value": {
"end": 11779,
"labels": [
"ARG_RESPONDENT"
],
"start": 11696,
"text": "Prosecution has failed to explain this and this doubt therefore remains unanswered."
}
},
{
"from_name": null,
"id": "982704628cb34389ac4e8e8bc60cd705",
"to_name": null,
"type": null,
"value": {
"end": 11967,
"labels": [
"ARG_RESPONDENT"
],
"start": 11780,
"text": "If P.W 10 had received a phone call from the deceased four days prior to her death, why was no attempt made to rescue her from the family of her in-laws if she was then staying with them."
}
},
{
"from_name": null,
"id": "d98e627830ae4b599f2b474c3e43fc41",
"to_name": null,
"type": null,
"value": {
"end": 12011,
"labels": [
"ARG_RESPONDENT"
],
"start": 11968,
"text": "This question has also remained unanswered."
}
},
{
"from_name": null,
"id": "0f6a65b6cf0640189b033b405eb4059e",
"to_name": null,
"type": null,
"value": {
"end": 12124,
"labels": [
"ARG_RESPONDENT"
],
"start": 12012,
"text": "There has been no allegation by P.W 9 that accused Sanjeeb and his mother Sumitra Mishra had demanded any dowry."
}
},
{
"from_name": null,
"id": "a003fe7915b24f819e09e8cf404ca190",
"to_name": null,
"type": null,
"value": {
"end": 12227,
"labels": [
"ARG_RESPONDENT"
],
"start": 12125,
"text": "There has been absolutely no allegation that the deceased was being tortured by her in-laws for dowry."
}
},
{
"from_name": null,
"id": "e918db4cd3ac4a2db365afcde0a51129",
"to_name": null,
"type": null,
"value": {
"end": 12327,
"labels": [
"ARG_RESPONDENT"
],
"start": 12228,
"text": "It is the evidence of P.W 9 that accused Pramod was asking him for a financial help of Rs.50,000/-."
}
},
{
"from_name": null,
"id": "8729fe23c0aa461faa72028b57d6aff5",
"to_name": null,
"type": null,
"value": {
"end": 12450,
"labels": [
"ARG_RESPONDENT"
],
"start": 12328,
"text": "In that view of the matter , the accused persons cannot be held liable either u/s 498-A of the I.P.C or 4 of the D.P.\nAct."
}
},
{
"from_name": null,
"id": "3bc47b668cfa4204a08821f095942e8b",
"to_name": null,
"type": null,
"value": {
"end": 12690,
"labels": [
"ARG_RESPONDENT"
],
"start": 12451,
"text": "Since the deceased was not at all staying with the accused persons since 2010, in view of the settled law, they cannot be held to have subjected her to cruelty on account of dowry soon before her death and be liable u/s 304-B of the I.P.C."
}
},
{
"from_name": null,
"id": "b5936a31ca1149d8928a85d3749dbaac",
"to_name": null,
"type": null,
"value": {
"end": 12773,
"labels": [
"ARG_RESPONDENT"
],
"start": 12691,
"text": "There is no evidence that the accused persons administered poison to the deceased."
}
},
{
"from_name": null,
"id": "1ecd403f11e744feb9b80b457ca14058",
"to_name": null,
"type": null,
"value": {
"end": 12940,
"labels": [
"ARG_RESPONDENT"
],
"start": 12774,
"text": "Hence the question of their having committed an offence u/s 300 of the I.P.C does not arise at all and they cannot be held guilty of the offence u/s 302 of the I.P.C."
}
},
{
"from_name": null,
"id": "11f0cba450c649d6a0b77238644bbcd3",
"to_name": null,
"type": null,
"value": {
"end": 13018,
"labels": [
"ARG_RESPONDENT"
],
"start": 12941,
"text": "The deceased had no doubt taken poison to end her life and committed suicide."
}
},
{
"from_name": null,
"id": "725bd2ea756e45c39885b3e8c6399adf",
"to_name": null,
"type": null,
"value": {
"end": 13143,
"labels": [
"ARG_RESPONDENT"
],
"start": 13019,
"text": "Since she was staying separately from the accused persons, her death cannot be attributed to the act of the accused persons."
}
},
{
"from_name": null,
"id": "d68978c1f30f4428a85de2431b90d87c",
"to_name": null,
"type": null,
"value": {
"end": 13209,
"labels": [
"ARG_RESPONDENT"
],
"start": 13144,
"text": "Hence they cannot be held guilty of offence u/s 306 of the I.P.C."
}
},
{
"from_name": null,
"id": "4a1e5b6a23a34227a7dca18d028f0281",
"to_name": null,
"type": null,
"value": {
"end": 14110,
"labels": [
"ARG_RESPONDENT"
],
"start": 13210,
"text": "In support of his submission the learned defence counsel relies on the following decisions reported in (1994)7 OCR-91 in the case of Babaji Charan Barik vs. State, (2007) 36 OCR (SC)-398 in the case of Appasaheb & Another vs. State of Maharastra, AIR 2012 Supreme Court 2297 in the case of Rohtash v. State of Hariyana, (2001) 21 OCR (SC) 621 in the case of Sunil Bajaj vs. State of M.P, 1997 (II) OLR-565 in the case of Nilamani Nath and others vs. State of Orissa , (2014) 58 OCR (SC)- 933 in the case of Manohar Lal vs. State of Haryana, (2015) 60 OCR-188 in the case of Sanjib Sahu and others vs. State of Orissa, (2013) 56 OCR (SC)-349 in the case of S. Anil Kumar @ Anil Kumar Ganna vs. State of Karnataka, 1999 (II) OLR (SC)-341 in the case of Sakhi Mandalani vs. State of Bihar and others and (2013) 56 OCR (SC) 205 in the case of Jasvinder Saini & Others vs. State ( Govt.of NCT of Delhi)."
}
},
{
"from_name": null,
"id": "ea839dabc4114d519187eea377a53b80",
"to_name": null,
"type": null,
"value": {
"end": 14226,
"labels": [
"ANALYSIS"
],
"start": 14110,
"text": "\n The points raised during argument propel me to cogitate over the matter which in my view requires deeper scrutiny."
}
},
{
"from_name": null,
"id": "de6b0230b64b4fc08d4cf874824d507e",
"to_name": null,
"type": null,
"value": {
"end": 14338,
"labels": [
"ANALYSIS"
],
"start": 14226,
"text": "\n 10. From the evidence of P.W 9 it appears that he resides at village Juradanga P.S Kundheigola, Dist Deogarh."
}
},
{
"from_name": null,
"id": "5ccbb26f18964a2593c3aa7e1b7c48e4",
"to_name": null,
"type": null,
"value": {
"end": 14369,
"labels": [
"ANALYSIS"
],
"start": 14339,
"text": "The deceased was his daughter."
}
},
{
"from_name": null,
"id": "c324ee71c9984a1db0db66a9556a9e89",
"to_name": null,
"type": null,
"value": {
"end": 14535,
"labels": [
"ANALYSIS"
],
"start": 14370,
"text": "It is claimed by the defence that the deceased was all along staying with P.W 9 in his house since the divorce application was filed by her husband in the year 2010."
}
},
{
"from_name": null,
"id": "2e4d714a9a2f4543a49cc2d45a66e465",
"to_name": null,
"type": null,
"value": {
"end": 14770,
"labels": [
"ANALYSIS"
],
"start": 14536,
"text": "The facts remains , as could be seen from the evidence of P.W 1 and P.W 8 that the deceased was located at their shop at hospital road, Sundargarh and with the help of the police she was admitted at D.H.H Sundargarh for her treatment."
}
},
{
"from_name": null,
"id": "1695bea152fb4794bf319c014f2a6703",
"to_name": null,
"type": null,
"value": {
"end": 14979,
"labels": [
"ANALYSIS"
],
"start": 14771,
"text": "Documentary evidence such as Ext.5, ( the F.I.R), Ext.9 (dead body challan), Ext.6 (the inquest report) and the Ext.3 ( the P.M examination report) establish the fact that the deceased had died at Sundargarh."
}
},
{
"from_name": null,
"id": "3b0ba3c363b6426c99fe555621ebc8be",
"to_name": null,
"type": null,
"value": {
"end": 15052,
"labels": [
"ANALYSIS"
],
"start": 14980,
"text": "The house of the accused persons situates at R.R.I.T Colony, Sundargarh."
}
},
{
"from_name": null,
"id": "b90df737e1d24f33940ffb79edf266ab",
"to_name": null,
"type": null,
"value": {
"end": 15211,
"labels": [
"ANALYSIS"
],
"start": 15052,
"text": "\n It is therefore to be seen whether soon before her death the deceased was staying with the accused persons as has been claimed by P.Ws 9 and 10 or with them."
}
},
{
"from_name": null,
"id": "631c5606d5e3454d8d8fe2f5ac1fe71f",
"to_name": null,
"type": null,
"value": {
"end": 15472,
"labels": [
"ANALYSIS"
],
"start": 15211,
"text": "\n 11. P.Ws 9 and 10 have consistently said in their evidence that some days before her death accused Sanjeeb Panigrahi prevailed over the deceased and took her with him to his house and during the last days of her life she was staying with the accused persons."
}
},
{
"from_name": null,
"id": "68ec36987003485998a4191cec6c9e2e",
"to_name": null,
"type": null,
"value": {
"end": 15535,
"labels": [
"ANALYSIS"
],
"start": 15473,
"text": "P.W 7 claims himself to be a neighbour of the accused persons."
}
},
{
"from_name": null,
"id": "b3679ff310564a928e03791935a377b4",
"to_name": null,
"type": null,
"value": {
"end": 15653,
"labels": [
"ANALYSIS"
],
"start": 15536,
"text": "In his cross -examination he has stated that he was the immediate neighbour of the accused persons at R.R.I.T Colony."
}
},
{
"from_name": null,
"id": "2fa9217f99fc41caa9cb463292c227ec",
"to_name": null,
"type": null,
"value": {
"end": 15844,
"labels": [
"ANALYSIS"
],
"start": 15654,
"text": "According to him, some days after the marriage between Sanjeeb and Kabita the latter went away to her parents ' house for which there was a case in the Family Court between him and his wife."
}
},
{
"from_name": null,
"id": "d3ad5aa28b644352bc5957235efa7df7",
"to_name": null,
"type": null,
"value": {
"end": 16006,
"labels": [
"ANALYSIS"
],
"start": 15845,
"text": "P.W 9 has stated in his evidence that in the year 2011 accused Sanjeeb had left his daughter in his house for about seven months and then took her back with him."
}
},
{
"from_name": null,
"id": "660ee08ee1f64c1da533615742c5adc7",
"to_name": null,
"type": null,
"value": {
"end": 16089,
"labels": [
"ANALYSIS"
],
"start": 16007,
"text": "During that period the accused filed a divorce case in the Family Court, Rourkela."
}
},
{
"from_name": null,
"id": "e0fc51cce85948739ea27c26a728b983",
"to_name": null,
"type": null,
"value": {
"end": 16233,
"labels": [
"ANALYSIS"
],
"start": 16090,
"text": "There he undertook before the Family Court to keep his daughter as his wife and then came to his house on 24.12.2011 and took her to his house."
}
},
{
"from_name": null,
"id": "6c19aa1fb7234587ab89dee3142fa631",
"to_name": null,
"type": null,
"value": {
"end": 16447,
"labels": [
"ANALYSIS"
],
"start": 16234,
"text": "His son P.W 10 has stated that about a year after the birth of a girl child, his sister due to dissension had to live in their house and about seven months thereafter she was taken by accused Sanjeeb to his house."
}
},
{
"from_name": null,
"id": "0a62195fbb5648a59b63e255b618844e",
"to_name": null,
"type": null,
"value": {
"end": 16669,
"labels": [
"ANALYSIS"
],
"start": 16448,
"text": "The evidence of P.W 9 to the effect that the accused under took before the Family Court that he would keep the deceased as his wife and on 24.12.2011 took her to his house is not substantiated by any documentary evidence."
}
},
{
"from_name": null,
"id": "1777595785704c5396076abebf277eb4",
"to_name": null,
"type": null,
"value": {
"end": 16787,
"labels": [
"ANALYSIS"
],
"start": 16670,
"text": "Had there been any such undertaking before the Judge, Family Court, Rourkela, prosecution should have filed the same."
}
},
{
"from_name": null,
"id": "68133e43f8574b43bf1ce842fc15d6d9",
"to_name": null,
"type": null,
"value": {
"end": 16807,
"labels": [
"ANALYSIS"
],
"start": 16788,
"text": "It had not done so."
}
},
{
"from_name": null,
"id": "8ce14b5b3e1f482797a1b743fe208e4c",
"to_name": null,
"type": null,
"value": {
"end": 17414,
"labels": [
"ANALYSIS"
],
"start": 16808,
"text": "On the contrary, what is found from the evidence of P.W 7 indicated as above and the contents of Ext.A (order sheet in C.P 98/2010) Ext.C (deposition of accused Sanjeeb Panigrahi in C.P 98/2010) and Ext.D (Misc. case 40/2010 arising out of C.P 98/2010 filed by the deceased u/s 24 of the Hindu Marriage Act )is that accused Sanjeeb Panigrahi had filed the aforesaid divorce proceeding against the deceased on on the ground, inter alia, that she was not staying with him and that she had claimed vide the aforesaid Misc. case interim maintenance from him on the ground that she was staying with her parents."
}
},
{
"from_name": null,
"id": "3e75d377bd4a447c852606fcb5684c86",
"to_name": null,
"type": null,
"value": {
"end": 17667,
"labels": [
"ANALYSIS"
],
"start": 17415,
"text": "Therefore, the evidence of P.W 9 to the effect that in the year 2011 accused Sanjeeb filed a divorce proceeding and that during such proceeding he had given an undertaking before the Court to keep the deceased with him does not appear to be believable."
}
},
{
"from_name": null,
"id": "264bfa9b7bb144a28076bab327bebb7f",
"to_name": null,
"type": null,
"value": {
"end": 17784,
"labels": [
"ANALYSIS"
],
"start": 17668,
"text": "The evidence of P.W 10 in this regard, for the self same reason, does not appear to be believable and credit worthy."
}
},
{
"from_name": null,
"id": "5339fe11df38402dbc3e5efef42ea17b",
"to_name": null,
"type": null,
"value": {
"end": 18088,
"labels": [
"ANALYSIS"
],
"start": 17785,
"text": "The evidence of P.W 10 in this regard is further viewed with suspicion since though he has claimed that four days prior to her death the deceased had made a telephone call to him and narrated about the fact that her life was in danger , he did not make any attempt to rescue her from her in-laws' house."
}
},
{
"from_name": null,
"id": "75855b8b63c84b0eb379f04d05a6a61e",
"to_name": null,
"type": null,
"value": {
"end": 18209,
"labels": [
"ANALYSIS"
],
"start": 18089,
"text": "He has also not made any attempt to report about this development to the police or to the Judge, Family Court, Rourkela."
}
},
{
"from_name": null,
"id": "ee58c746825447dbbc46e7ecacdc46b0",
"to_name": null,
"type": null,
"value": {
"end": 18423,
"labels": [
"ANALYSIS"
],
"start": 18210,
"text": "His not making any attempt to save the life of his own sister which was in danger persuades me to entertain doubt in my mind as to the stay of the deceased in the house of the accused persons during her last days."
}
},
{
"from_name": null,
"id": "c9c9bf87f68243bba48e9830d74c8eb7",
"to_name": null,
"type": null,
"value": {
"end": 18567,
"labels": [
"ANALYSIS"
],
"start": 18424,
"text": "P.W 1 and P.W 8 have stated that soon after they found the deceased at their shop, they informed police which got her admitted in the hospital."
}
},
{
"from_name": null,
"id": "89784240785748c09eaa04cdc518ef58",
"to_name": null,
"type": null,
"value": {
"end": 18633,
"labels": [
"ANALYSIS"
],
"start": 18567,
"text": "\nShe was treated there, as it appears from Ext.F, for a whole day."
}
},
{
"from_name": null,
"id": "4b0cd9afaae94a918c5a799fd5b09b7e",
"to_name": null,
"type": null,
"value": {
"end": 18740,
"labels": [
"ANALYSIS"
],
"start": 18634,
"text": "But, unfortunately her dying declaration has not been recorded either by police or the treating physician."
}
},
{
"from_name": null,
"id": "6c81bd0d84fd4fb0b25a6e2e5188864d",
"to_name": null,
"type": null,
"value": {
"end": 18812,
"labels": [
"ANALYSIS"
],
"start": 18740,
"text": "\nProsecution being devoid of such a document has no doubt been hit hard."
}
},
{
"from_name": null,
"id": "d98a9b97bac74a04bc4867096eec5745",
"to_name": null,
"type": null,
"value": {
"end": 19050,
"labels": [
"ANALYSIS"
],
"start": 18813,
"text": "I am therefore of the considered view that prosecution has not been able to establish beyond reasonable doubt that on 3.1.2012 and some time prior thereto she was staying in the house of the accused persons at R.R.I.T Colony, Sundargarh."
}
},
{
"from_name": null,
"id": "be7cf0026b99404ea2f01c75648551e5",
"to_name": null,
"type": null,
"value": {
"end": 19215,
"labels": [
"ANALYSIS"
],
"start": 19051,
"text": "When this fact is not established, the allegation made in the FIR by P.W 9 that his daughter was administered poison by the accused persons loses it's significance."
}
},
{
"from_name": null,
"id": "ac8cb23306664f3b99cc6665d3421950",
"to_name": null,
"type": null,
"value": {
"end": 19282,
"labels": [
"ANALYSIS"
],
"start": 19216,
"text": "Hence a case u/s 302/34 of the I.P.C is not made out against them."
}
},
{
"from_name": null,
"id": "46312557e9cc48fda47d5af2bf7607a7",
"to_name": null,
"type": null,
"value": {
"end": 19594,
"labels": [
"ANALYSIS"
],
"start": 19283,
"text": "As it is not proved that the accused persons had not administered poison to the deceased, the inescapable conclusion about the cause of death of the deceased is that she had taken insecticidal poison and committed suicide. Ext.13 which is the report of the S.F.S.L., Rasulgarh materially corroborates this fact."
}
},
{
"from_name": null,
"id": "e747ad5155f54bf1b6c4abd7cf914d06",
"to_name": null,
"type": null,
"value": {
"end": 19697,
"labels": [
"ANALYSIS"
],
"start": 19594,
"text": "\n 12. Now the next question that falls for determination is what did the deceased take the poison for."
}
},
{
"from_name": null,
"id": "e8b328ff049940bbbde203ed4d121846",
"to_name": null,
"type": null,
"value": {
"end": 19867,
"labels": [
"ANALYSIS"
],
"start": 19698,
"text": "The case of prosecution is that she was , through-out her marriage, persecuted to meet the unlawful demand of dowry and subjected to torture and harassment for that end."
}
},
{
"from_name": null,
"id": "5af634a108cc44c0941e6dad6e8274a6",
"to_name": null,
"type": null,
"value": {
"end": 20007,
"labels": [
"ANALYSIS"
],
"start": 19868,
"text": "It is the evidence of P.W 9 that her husband wanted her to bring a sum of Rs.50,000/- from her maternal family for the purpose of business."
}
},
{
"from_name": null,
"id": "0c2a8ab530284974b7d5c1539ed6923e",
"to_name": null,
"type": null,
"value": {
"end": 20185,
"labels": [
"ANALYSIS"
],
"start": 20008,
"text": "The FIR reveals that accused Pramod Panigrahi and accused Sumitra Mishra who were the parents in law of the deceased were hands in glove with accused Sanjeeb in persecuting her."
}
},
{
"from_name": null,
"id": "7c118555118048959a78d8246cc3cae8",
"to_name": null,
"type": null,
"value": {
"end": 20277,
"labels": [
"ANALYSIS"
],
"start": 20186,
"text": "The deceased, the learned Addl.P.P submits, must have wanted an end to it and taken poison."
}
},
{
"from_name": null,
"id": "0ca72fcc924945258033d9e851029e63",
"to_name": null,
"type": null,
"value": {
"end": 20572,
"labels": [
"ANALYSIS"
],
"start": 20278,
"text": "Since the death of the deceased had taken place which was not under normal circumstance, the court with the help of section 113-B of the Indian Evidence Act shall presume that it was the accused persons who brought about her death which can be termed as dowry death u/s 304-B of the I.P.C.\n 13."
}
},
{
"from_name": null,
"id": "79b64134e9434ed8bccbf25934c707c7",
"to_name": null,
"type": null,
"value": {
"end": 21092,
"labels": [
"STA"
],
"start": 20574,
"text": "Section 304-B of the I.P.C reads as under : \"304 B. Dowry death-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called \" dowry death\", and such husband or relative shall be deemed to have caused her death.\""
}
},
{
"from_name": null,
"id": "6b3645ab3bce4645b6bf0f54e5c53848",
"to_name": null,
"type": null,
"value": {
"end": 21435,
"labels": [
"PRE_RELIED"
],
"start": 21092,
"text": "\n It has been held in the decision reported in (1994) 7 OCR- at page -91 in the case of Babaji Charan Barick vs. State that a combined reading of section 113-B of the Indian Evidence Act and section 304-B of the I.P.C shows that there must be material to show that soon before her death the victim must have subjected to cruelty or harassment."
}
},
{
"from_name": null,
"id": "cb51922e44ca49b19087aa2a166a6e95",
"to_name": null,
"type": null,
"value": {
"end": 21483,
"labels": [
"ANALYSIS"
],
"start": 21435,
"text": "\nThe expression \"soon before \" is very relevant."
}
},
{
"from_name": null,
"id": "9445e8d64c0a42a493db4e8679c5e8c4",
"to_name": null,
"type": null,
"value": {
"end": 21630,
"labels": [
"PRE_RELIED"
],
"start": 21484,
"text": "The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the prosecution operates."
}
},
{
"from_name": null,
"id": "316c2a59f15a48fb93bf46bf37e1d89c",
"to_name": null,
"type": null,
"value": {
"end": 21858,
"labels": [
"PRE_RELIED"
],
"start": 21631,
"text": "This view find vindication in the decision of the Hon'ble Apex Court reported in 2014 -58 OCR (SC) 933 in the case of Manoharlal vs. State of Haryana and (2001) 21 OCR (S.C)-621 in the case of Sunil Bajaj vs. State of M.P.\n 14."
}
},
{
"from_name": null,
"id": "be5a53cdfe764173b7be2c6807022f79",
"to_name": null,
"type": null,
"value": {
"end": 22037,
"labels": [
"ANALYSIS"
],
"start": 21859,
"text": " As already discussed, prosecution has not been able to establish beyond doubt that the deceased was staying in the house of the accused persons during the last days of her life."
}
},
{
"from_name": null,
"id": "55f71bb6b6ec4b54b00f6942ea5421cd",
"to_name": null,
"type": null,
"value": {
"end": 22243,
"labels": [
"ANALYSIS"
],
"start": 22038,
"text": "From the documents filed from the side of defence such as Ext.C and Ext.D, it appears that she was staying with her parents after the institution of the divorce proceeding by her husband Sanjeeb Panigrahi."
}
},
{
"from_name": null,
"id": "817fd1879ba24766b81b5c3e5082bb9a",
"to_name": null,
"type": null,
"value": {
"end": 22520,
"labels": [
"ANALYSIS"
],
"start": 22244,
"text": "As already discussed, the evidence of P.W 9 and P.W 10 regarding the stay of the deceased in the house of the accused persons towards the last part of her life during pendency of the divorce proceeding has not been believed because of the infirmity therein as indicated above."
}
},
{
"from_name": null,
"id": "6202f924af814970996a4bcf2142059d",
"to_name": null,
"type": null,
"value": {
"end": 22692,
"labels": [
"ANALYSIS"
],
"start": 22521,
"text": "In his evidence , P.W 9 has not at all implicated accused Pramod Panigrahi and his wife Sumitra Mishra in subjecting the deceased to cruelty on account of demand of dowry."
}
},
{
"from_name": null,
"id": "7965fc11de2d4dfa8e4e41bce93f5652",
"to_name": null,
"type": null,
"value": {
"end": 22735,
"labels": [
"ANALYSIS"
],
"start": 22693,
"text": "He has virtually given them a clean chit ."
}
},
{
"from_name": null,
"id": "fc7f8f0dd52c4364a74990e3d59cf8d1",
"to_name": null,
"type": null,
"value": {
"end": 23092,
"labels": [
"ANALYSIS"
],
"start": 22736,
"text": "He has only stated that his son in law accused Sanjeeb had sought for a financial help of Rs.50,000/- which according to him would enable him to purchase a ten wheeler truck for the purpose of his business and when he refused , he got miffed, went away and about ten days after left his daughter at Budhapal chowk where from he had brought her to his home."
}
},
{
"from_name": null,
"id": "61149a571b0b4489af0555411b8b4ef8",
"to_name": null,
"type": null,
"value": {
"end": 23242,
"labels": [
"ANALYSIS"
],
"start": 23093,
"text": "His evidence to this effect which according to him had taken place prior to the filing of the divorce proceeding cannot be termed as demand of dowry."
}
},
{
"from_name": null,
"id": "51cacbb7ecc74999a6c33868594b3edc",
"to_name": null,
"type": null,
"value": {
"end": 23421,
"labels": [
"ANALYSIS"
],
"start": 23243,
"text": "The evidence of P.W 10 is not at all indicative of the fact that accused Pramod Panigrahi and his wife Sumitra Mishra were subjecting the deceased to cruelty on account of dowry."
}
},
{
"from_name": null,
"id": "1ffd4cde5578452f85554973aabcb1ca",
"to_name": null,
"type": null,
"value": {
"end": 23612,
"labels": [
"ANALYSIS"
],
"start": 23422,
"text": "On the contrary, it is his evidence that three months after the marriage of his sister (deceased ), dissension had arisen between her and accused Sanjeeb relating to further demand of money."
}
},
{
"from_name": null,
"id": "06d37781e408405d9e224d17d0ba2f78",
"to_name": null,
"type": null,
"value": {
"end": 23710,
"labels": [
"ANALYSIS"
],
"start": 23613,
"text": "The evidence of P.W 11 is of hearsay nature as has been admitted by him during cross-examination."
}
},
{
"from_name": null,
"id": "aacd0b939a6745f8b04d726170e099ab",
"to_name": null,
"type": null,
"value": {
"end": 23879,
"labels": [
"ANALYSIS"
],
"start": 23711,
"text": "No other evidence is available in the record imputing the conduct of accused Pramod Panigrahi and his wife Sumitra Mishra in torturing the deceased during the marriage."
}
},
{
"from_name": null,
"id": "2a4c9ea2372c4719a9026f0b7de8c4a0",
"to_name": null,
"type": null,
"value": {
"end": 24025,
"labels": [
"ANALYSIS"
],
"start": 23880,
"text": "More over , there is nothing in the record to show that soon before her death, they were torturing her with a view to forcing her to bring dowry."
}
},
{
"from_name": null,
"id": "f75ad1cc5adc4350994db353bac9e654",
"to_name": null,
"type": null,
"value": {
"end": 24472,
"labels": [
"ANALYSIS"
],
"start": 24026,
"text": "In that view of the matter and in view of the settled law, I am not persuaded to hold that in this case this court can import section 113-B of the Indian Evidence Act to hold that the accused Sumitra Mishra and Pramod Panigrahi who were the parents in law of the deceased subjected her to cruelty and harassment in connection with any demand for dowry soon before her death and are thus liable for punishment u/s 304-B/34 of the I.P.C.\n 15. "
}
},
{
"from_name": null,
"id": "4704dac298c04367ab827e99961348c3",
"to_name": null,
"type": null,
"value": {
"end": 24691,
"labels": [
"ANALYSIS"
],
"start": 24472,
"text": "In so far as the involvement of accused Sanjeeb Panigrahi for the offence u/s 304-B of the I.P.C is concerned , I find from Ext.A, that he had filed a divorce proceeding in C.P 98/2010 against the deceased on 24.4.2014."
}
},
{
"from_name": null,
"id": "6bdf702f6435451ba8ae04b12c2321a0",
"to_name": null,
"type": null,
"value": {
"end": 24868,
"labels": [
"ANALYSIS"
],
"start": 24692,
"text": "In his evidence before the Judge, Family Court he has deposed, as could been seen from Ext.C that the deceased had left his house on 10.4.2010 leaving the child in his custody."
}
},
{
"from_name": null,
"id": "8dd793427fb8485e813d18282e78a60c",
"to_name": null,
"type": null,
"value": {
"end": 25065,
"labels": [
"ANALYSIS"
],
"start": 24869,
"text": "From Ext D, I find that by swearing an affidavit , the deceased had filed a Misc. case where she has stated that she was residing at Juradanga in the District of Deogarh , Odisha with her parents."
}
},
{
"from_name": null,
"id": "b63591f7791b44f2bc7f90ac31cf2f43",
"to_name": null,
"type": null,
"value": {
"end": 25181,
"labels": [
"ANALYSIS"
],
"start": 25066,
"text": "His seeking for financial assistance from his father in law as stated by P.W 9 cannot be termed as demand of dowry."
}
},
{
"from_name": null,
"id": "fa996ec02a8341a899354106f85aaf46",
"to_name": null,
"type": null,
"value": {
"end": 25365,
"labels": [
"ANALYSIS"
],
"start": 25182,
"text": "So, it cannot be held that soon before her death which was not under normal circumstance, he was subjecting her to cruelty or harassment for or in connection with any demand of dowry."
}
},
{
"from_name": null,
"id": "49cfdf39f8044b6381addf86e85e6e2c",
"to_name": null,
"type": null,
"value": {
"end": 25533,
"labels": [
"ANALYSIS"
],
"start": 25366,
"text": "Hence he cannot also be held guilty u/s 304-B of the I.P.C with the help of section 113-B of the Indian Evidence Act in view of the facts and circumstance of the case."
}
},
{
"from_name": null,
"id": "53687cee38ac4380b8e3d9e558aa2058",
"to_name": null,
"type": null,
"value": {
"end": 25706,
"labels": [
"ANALYSIS"
],
"start": 25533,
"text": "\n 16. The accused persons may not have committed the offence u/s 304- B/34 of the I.P.C , but had they abetted in any manner the commission of suicide of the deceased ?"
}
},
{
"from_name": null,
"id": "e19e02f57fdc4628bcb2445c6f86e9ad",
"to_name": null,
"type": null,
"value": {
"end": 25733,
"labels": [
"ANALYSIS"
],
"start": 25707,
"text": "Let us examine this point."
}
},
{
"from_name": null,
"id": "07443349a4a448dfb8149d71ce080fdd",
"to_name": null,
"type": null,
"value": {
"end": 25797,
"labels": [
"STA"
],
"start": 25733,
"text": "\n 17. Section 107 of the I.P.C defines abetment of a thing."
}
},
{
"from_name": null,
"id": "2aeed4d39dc64f1eb4cac2422dc32a5b",
"to_name": null,
"type": null,
"value": {
"end": 26220,
"labels": [
"STA"
],
"start": 25798,
"text": "According to it : \"A person abets the doing of a thing who- First-Instigates any person to do that thing ; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing.\"\n "
}
},
{
"from_name": null,
"id": "3570043bd5e64c1f90f76657a803a050",
"to_name": null,
"type": null,
"value": {
"end": 26364,
"labels": [
"ANALYSIS"
],
"start": 26220,
"text": "It is established through the evidence that the deceased on 3.1.2012 had consumed insecticidal poison and her death was due to such consumption."
}
},
{
"from_name": null,
"id": "a20601c953a8438b9673b703a3c0b1f9",
"to_name": null,
"type": null,
"value": {
"end": 26504,
"labels": [
"ANALYSIS"
],
"start": 26365,
"text": "The date of her taking poison coincides with the date when her husband had deposed in C.P 98/2010 before the Judge, Family Court, Rourkela."
}
},
{
"from_name": null,
"id": "98e03a500ffe4f00b4e35ff99a0032f4",
"to_name": null,
"type": null,
"value": {
"end": 26611,
"labels": [
"ANALYSIS"
],
"start": 26505,
"text": "There is no material in the record to prove that there is more to the said coincidence than meets the eye."
}
},
{
"from_name": null,
"id": "acdd9837042e4499a6907f920ca0fd58",
"to_name": null,
"type": null,
"value": {
"end": 26760,
"labels": [
"ANALYSIS"
],
"start": 26612,
"text": "Prosecution has failed to prove, for the reasons indicated as above, that she wa, during the last days of her life staying with the accused persons."
}
},
{
"from_name": null,
"id": "a7c7849df0254ec09960e78a58367582",
"to_name": null,
"type": null,
"value": {
"end": 26896,
"labels": [
"ANALYSIS"
],
"start": 26761,
"text": "No cogent evidence is there in the record to suggest that due to torment on her by the accused persons she had decided to end her life."
}
},
{
"from_name": null,
"id": "e668c99e24ac45639eff73a5dd85caf0",
"to_name": null,
"type": null,
"value": {
"end": 27134,
"labels": [
"ANALYSIS"
],
"start": 26897,
"text": "It is therefore difficult to believe that the accused persons in furtherance of their common intention either instigated her or connived with each other or intentionally aided by any act or omission to prod her to take this extreme step."
}
},
{
"from_name": null,
"id": "d2ed7e9dd39645b394cc273120515c97",
"to_name": null,
"type": null,
"value": {
"end": 27227,
"labels": [
"ANALYSIS"
],
"start": 27135,
"text": "Hence a case u/s 306/34 of the I.P.C appears not to be made out against the accused persons."
}
},
{
"from_name": null,
"id": "3791f52a1ac94439948f24c29fd5f5fd",
"to_name": null,
"type": null,
"value": {
"end": 27508,
"labels": [
"ANALYSIS"
],
"start": 27227,
"text": "\n 18. From the documents marked as Ext.C from the side of defence , it appears that the deceased had stayed with the accused persons in their house at R.R.I.T Colony for some days and there after shifted to another residence to live with accused Sanjeeb Panigrahi until 10.4.2010."
}
},
{
"from_name": null,
"id": "a6b0244956874ae99f70ba1c40bbbd2b",
"to_name": null,
"type": null,
"value": {
"end": 27659,
"labels": [
"ANALYSIS"
],
"start": 27509,
"text": "In the F.I.R it is alleged that the deceased was being subjected to cruelty by the accused persons on account of inadequate dowry during her marriage."
}
},
{
"from_name": null,
"id": "afcac5c6ded1469aadd32ca30a76a837",
"to_name": null,
"type": null,
"value": {
"end": 27833,
"labels": [
"ANALYSIS"
],
"start": 27660,
"text": "P.W 9 and P.W 10 have not whispered even a word about the involvement of the accused Pramod Panigrahi and Sumitra Mishra in causing such cruelty to her at any point of time."
}
},
{
"from_name": null,
"id": "3c266df1692346efad59c7b7ddaf1061",
"to_name": null,
"type": null,
"value": {
"end": 27958,
"labels": [
"ANALYSIS"
],
"start": 27834,
"text": "Both P.Ws 9 and 10 have only alleged that at the time of marriage a sum of Rs.1,00,000/- and some other articles were given."
}
},
{
"from_name": null,
"id": "a7251ee9036d4a48b6564e38bd9b1f37",
"to_name": null,
"type": null,
"value": {
"end": 28151,
"labels": [
"ANALYSIS"
],
"start": 27959,
"text": "Their statements to this effect are not sufficient to prove that accused Pramod and Sumitra had played any active or passive role in persecuting the deceased on account of inadequacy of dowry."
}
},
{
"from_name": null,
"id": "eb3e492d29eb4505abb68c65a97054ce",
"to_name": null,
"type": null,
"value": {
"end": 28356,
"labels": [
"ANALYSIS"
],
"start": 28152,
"text": "Of course both P.Ws 9 and 10, as has been stated earlier, have alleged that after the marriage dissension between accused Sanjeeb and the deceased arose and according to P.W 1, it was on account of dowry."
}
},
{
"from_name": null,
"id": "6e4241fdf612483d8ceb5d45ace41d26",
"to_name": null,
"type": null,
"value": {
"end": 28753,
"labels": [
"ANALYSIS"
],
"start": 28357,
"text": "However, the allegation against accused Sanjeeb to the effect that he asked P.W 9 for financial help of Rs.50,000/- and on refusal he got miffed, is viewed with suspicion in as much as P.W 13 who is the I.O in this case has stated in her cross-examination at para 15 and para 16 that these two witnesses have not made any such allegation before her during their examination u/s 161 of the Cr.P.C."
}
},
{
"from_name": null,
"id": "0d28f3556e74460cafdf7e3829b76960",
"to_name": null,
"type": null,
"value": {
"end": 29029,
"labels": [
"ANALYSIS"
],
"start": 28754,
"text": "In that view of the matter , I feel that prosecution has not been able to produce enough material to prove that the accused persons have, in furtherance of their common intention, committed the offence u/s 498-A/34 of the I.P.C against the deceased during her stay with them."
}
},
{
"from_name": null,
"id": "47a66977a9624715890e439329d61b39",
"to_name": null,
"type": null,
"value": {
"end": 29264,
"labels": [
"ANALYSIS"
],
"start": 29029,
"text": "\n 19. In his evidence P.W 9 has categorically alleged that accused Pramod Panigrahi had demanded a sum of Rs.one lakh as dowry before the marriage of his son with the deceased and he had paid the same to him in two equal installments."
}
},
{
"from_name": null,
"id": "c5d02cd394934c04a62d1ed2135da84b",
"to_name": null,
"type": null,
"value": {
"end": 29435,
"labels": [
"ANALYSIS"
],
"start": 29264,
"text": "\n P.W 10 has also stated to the effect that for the purpose of marriage of his sister with accused Sanjeeb, his father had given dowry of Rs.1,00,000/- and other articles."
}
},
{
"from_name": null,
"id": "7eb85a0e822446a49538017d5be84a99",
"to_name": null,
"type": null,
"value": {
"end": 29523,
"labels": [
"ANALYSIS"
],
"start": 29436,
"text": "The evidence of P.W 10 to this effect has remained unassailed during cross-examination."
}
},
{
"from_name": null,
"id": "8c602eb9f3774aa29efa54c12c29f9b4",
"to_name": null,
"type": null,
"value": {
"end": 29747,
"labels": [
"ANALYSIS"
],
"start": 29523,
"text": "\n Similarly, the evidence of P.W 9 that before the marriage the accused Pramod Panigrahi who is the father of accused Sanjeeb had demanded a sum of Rs.1.00,000/- as dowry has not been repudiated during his cross-examination."
}
},
{
"from_name": null,
"id": "4b48e9a664d141bc93b73614ca7ea9f1",
"to_name": null,
"type": null,
"value": {
"end": 29912,
"labels": [
"ANALYSIS"
],
"start": 29748,
"text": "On the other hand the FIR (Ext.5) corroborates the fact that a sum of Rs.1.00,000/- was given as dowry during the marriage of the deceased with the accused Sanjeeb."
}
},
{
"from_name": null,
"id": "d679760e30744df882ab2a12e0bcb9b3",
"to_name": null,
"type": null,
"value": {
"end": 30006,
"labels": [
"STA"
],
"start": 29913,
"text": "Section 2 of the Dowry Prohibition Act defines dowry as under : \"Sec.2 Definition of \"dowry\"-"
}
},
{
"from_name": null,
"id": "6ce48cb8bedf4e9cbdb6d091b18e7751",
"to_name": null,
"type": null,
"value": {
"end": 30535,
"labels": [
"STA"
],
"start": 30007,
"text": "In this Act \"dowry\" means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage ; or (a) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person ; at or before [or any time after the marriage in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
}
},
{
"from_name": null,
"id": "7897303833de4af282f8e3b401deb5bc",
"to_name": null,
"type": null,
"value": {
"end": 30613,
"labels": [
"STA"
],
"start": 30535,
"text": "\n Section 4 of D.P. Act reads as under - [Sec. 4 .Penalty for demanding dowry-"
}
},
{
"from_name": null,
"id": "93f07d86ce39431f9d339582e62fc3ed",
"to_name": null,
"type": null,
"value": {
"end": 30947,
"labels": [
"STA"
],
"start": 30614,
"text": "If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees."
}
},
{
"from_name": null,
"id": "35716b156b104503a1237b02d587689f",
"to_name": null,
"type": null,
"value": {
"end": 31120,
"labels": [
"STA"
],
"start": 30955,
"text": "Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]"
}
},
{
"from_name": null,
"id": "980125feaf5744c7bf7752a08fa7f678",
"to_name": null,
"type": null,
"value": {
"end": 31511,
"labels": [
"ANALYSIS"
],
"start": 31121,
"text": "20. The learned counsel for the accused persons submits that like a drowning man who catches at a straw, prosecution is trying hard when no other ploy does appear to succeed, to keep itself floating with the help of the evidence in this regard which should fail on account of the fact that there has been undue delay in bringing this matter to the fore and bringing the guilty to the book."
}
},
{
"from_name": null,
"id": "3b0a3b48c5b34819abb50d9f9b8aa328",
"to_name": null,
"type": null,
"value": {
"end": 31637,
"labels": [
"ANALYSIS"
],
"start": 31512,
"text": "Besides, P.W 13 (I.O) has stated that P.W 9 has not stated before him that he gave the said amount in two equal installments."
}
},
{
"from_name": null,
"id": "3311274443664e1d83b3954699aff730",
"to_name": null,
"type": null,
"value": {
"end": 31736,
"labels": [
"ANALYSIS"
],
"start": 31638,
"text": "The argument of the learned defence counsel in this regard does not appear to me to be convincing."
}
},
{
"from_name": null,
"id": "7659b61bc2eb4ec9bffdfe761f836bc9",
"to_name": null,
"type": null,
"value": {
"end": 32014,
"labels": [
"ANALYSIS"
],
"start": 31737,
"text": "It is but natural that parents with their anxiety to find a suitable groom for their nubile daughters meekly accede to such demands of the groom, or his parents or his relatives knowing fully well that both the act of giving and taking of dowry is punishable in the eye of law."
}
},
{
"from_name": null,
"id": "90546635b7684e40aa119bb76f09851b",
"to_name": null,
"type": null,
"value": {
"end": 32137,
"labels": [
"ANALYSIS"
],
"start": 32015,
"text": "The parents of the bride in order to see that the marriage remains peaceful and blissful keep many things under the wraps."
}
},
{
"from_name": null,
"id": "d1b9e18f7fcf402a9ee3246594af346f",
"to_name": null,
"type": null,
"value": {
"end": 32335,
"labels": [
"ANALYSIS"
],
"start": 32138,
"text": "Viewed from that angle, the reporting of the matter as regards the demand of dowry by accused Pramod Panigrahi at the time of his son's marriage with the deceased cannot be said to be over delayed."
}
},
{
"from_name": null,
"id": "bc090ab87675417aa958cd655d57cdc6",
"to_name": null,
"type": null,
"value": {
"end": 32525,
"labels": [
"ANALYSIS"
],
"start": 32336,
"text": "Here in this case, the poor father had, after his daughter's death, shed the stoney silence and all inhibitions to speak his mind about the demand and acceptance of dowry by accused Pramod."
}
},
{
"from_name": null,
"id": "80a8fba89ac74e4caf632c2c0d9f7c18",
"to_name": null,
"type": null,
"value": {
"end": 32767,
"labels": [
"ANALYSIS"
],
"start": 32526,
"text": "His evidence which is supported by his son's as well as the contents of the FIR appears to me to be convincing in as much as though he had the occasion to impute the said allegation against accused Sanjeeb and his mother, he had not done so."
}
},
{
"from_name": null,
"id": "b5bde5c6c7af41f6aae593e8e2e73b10",
"to_name": null,
"type": null,
"value": {
"end": 32987,
"labels": [
"ANALYSIS"
],
"start": 32768,
"text": "He has through his evidence proved that it was only accused Pramod who had demanded at the time of marriage a sum of Rs.1,00,000/- and the contents of the FIR and the statement of P.W 10 prove the fact that it was paid."
}
},
{
"from_name": null,
"id": "0f86ce3e87094be5aa013fbc6740454d",
"to_name": null,
"type": null,
"value": {
"end": 33129,
"labels": [
"ANALYSIS"
],
"start": 32988,
"text": "His not having stated before the I.O that he paid the said amount in two equal installments is not a material omission and therefore ignored."
}
},
{
"from_name": null,
"id": "0d80b082d28842ef9264976074f5b4ba",
"to_name": null,
"type": null,
"value": {
"end": 33373,
"labels": [
"RATIO"
],
"start": 33130,
"text": "I am therefore of the considered view that the said sum of Rs.1,00,000/- which was given to accused Pramod Panigrahi by the father of the deceased was dowry and that by receiving the same he had committed the offence u/s 4 of the D.P.Act.\n 21."
}
},
{
"from_name": null,
"id": "fb2a92570e69479ca95bdacc7c600013",
"to_name": null,
"type": null,
"value": {
"end": 33655,
"labels": [
"RATIO"
],
"start": 33374,
"text": " On mature reflection of the evidence on record which finds place in the discussion made as above, I am of the considered view that prosecution has not been able to prove its case u/s 302/304-B/306/498-A/34 of the I.P.C against all the accused persons beyond all reasonable doubt ."
}
},
{
"from_name": null,
"id": "3935b84f36d0468183ba810f5daaefce",
"to_name": null,
"type": null,
"value": {
"end": 33748,
"labels": [
"RATIO"
],
"start": 33656,
"text": "Hence they are held not guilty there under and acquitted therefrom u/s 235(1) of the Cr.P.C."
}
},
{
"from_name": null,
"id": "88f85d4772f2404b8e7d1afe583b85fc",
"to_name": null,
"type": null,
"value": {
"end": 33919,
"labels": [
"RATIO"
],
"start": 33749,
"text": "Similarly, prosecution has also failed to establish a case u/s 4 of the D.P. Act against accused Sumitra Mishra and accused Sanjeeb Panigrahi beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "85ccc08381384403a41a213e3d61476a",
"to_name": null,
"type": null,
"value": {
"end": 34025,
"labels": [
"RATIO"
],
"start": 33920,
"text": "They are held not guilty there under and acquitted therefrom u/s 235(1) of the Cr.P.C and set at liberty."
}
},
{
"from_name": null,
"id": "c5200f22302548d9a9cb57b6b3d91421",
"to_name": null,
"type": null,
"value": {
"end": 34186,
"labels": [
"RPC"
],
"start": 34026,
"text": "However, for the reasons indicated as above I hold accused Pramod Panigrahi guilty of the offence u/s 4 of the Dowry Prohibition Act and convict him thereunder."
}
},
{
"from_name": null,
"id": "1e7c5ecf8c874534b137e0622d548aca",
"to_name": null,
"type": null,
"value": {
"end": 34316,
"labels": [
"RPC"
],
"start": 34186,
"text": "\n 22. As I do not find any extenuating circumstance, I do not intend to release the convict under the Probation of Offenders Act."
}
},
{
"from_name": null,
"id": "566e442ea2a44b4c926d345e91ae16f7",
"to_name": null,
"type": null,
"value": {
"end": 34433,
"labels": [
"NONE"
],
"start": 34318,
"text": "Judgment is pronounced in the open court this 13th day of February, 2015 given under my hand and seal of the court."
}
},
{
"from_name": null,
"id": "62e4bf9280f94ff48b3d5301cbe24a8a",
"to_name": null,
"type": null,
"value": {
"end": 34473,
"labels": [
"NONE"
],
"start": 34433,
"text": "\n Additional Sessions Judge, Sundargarh."
}
},
{
"from_name": null,
"id": "ad904290ef404a5c99750d92426437fa",
"to_name": null,
"type": null,
"value": {
"end": 34504,
"labels": [
"NONE"
],
"start": 34475,
"text": "Dictated and corrected by me."
}
},
{
"from_name": null,
"id": "9c38a8017c954443b3928d961407d809",
"to_name": null,
"type": null,
"value": {
"end": 34544,
"labels": [
"NONE"
],
"start": 34504,
"text": "\n Additional Sessions Judge, Sundargarh."
}
},
{
"from_name": null,
"id": "2c68c5ae89434d0d81d5878fe627a47f",
"to_name": null,
"type": null,
"value": {
"end": 34582,
"labels": [
"NONE"
],
"start": 34546,
"text": "Hearing on the question of sentence."
}
},
{
"from_name": null,
"id": "9f1f0fb9e80f4037b8cd9a94f58e7639",
"to_name": null,
"type": null,
"value": {
"end": 34717,
"labels": [
"NONE"
],
"start": 34582,
"text": "\n 23. Heard the convict, his learned counsel and the learned Additional Public Prosecutor on the question of sentence at great length."
}
},
{
"from_name": null,
"id": "acf582a047a3436cb981b7a6c7daaff2",
"to_name": null,
"type": null,
"value": {
"end": 34748,
"labels": [
"NONE"
],
"start": 34718,
"text": "The convict pleaded for mercy."
}
},
{
"from_name": null,
"id": "5d92f4e4234a46d9a6c4c25075bd48cf",
"to_name": null,
"type": null,
"value": {
"end": 34854,
"labels": [
"NONE"
],
"start": 34749,
"text": "The learned Additional Public Prosecutor submits on the other hand that the convict deserves no clemency."
}
},
{
"from_name": null,
"id": "e4307fb1a53347558089e452d0c8b033",
"to_name": null,
"type": null,
"value": {
"end": 35146,
"labels": [
"RATIO"
],
"start": 34855,
"text": "Having heard them in the matter and taking into consideration the fact that the convict is aged about 53 years having no criminal antecedent, I am of the humble view that a sentence comprising R.I of one year and a fine of Rs.5,000/- if imposed on the convict would meet the ends of justice."
}
},
{
"from_name": null,
"id": "d3d9575a53f54c01aa31f32995c20dc2",
"to_name": null,
"type": null,
"value": {
"end": 35279,
"labels": [
"RPC"
],
"start": 35146,
"text": "\nAccordingly, I sentence the convict to undergo R.I for one year and to pay a fine of Rs.5,000/- i.d to undergo R.I for three months."
}
},
{
"from_name": null,
"id": "16917911f0164e69aa498861787d9977",
"to_name": null,
"type": null,
"value": {
"end": 35320,
"labels": [
"RPC"
],
"start": 35280,
"text": "The U.T.P period be set off as per rule."
}
},
{
"from_name": null,
"id": "2d175b50bcf041efa0e50ee456ddca96",
"to_name": null,
"type": null,
"value": {
"end": 35399,
"labels": [
"RPC"
],
"start": 35322,
"text": "The zimanama be cancelled and the seized articles be retained by the zimadar."
}
},
{
"from_name": null,
"id": "fc652dd1d7ee4c37a31a1544ddcda7bb",
"to_name": null,
"type": null,
"value": {
"end": 35439,
"labels": [
"RPC"
],
"start": 35400,
"text": "The other seized articles be destroyed."
}
},
{
"from_name": null,
"id": "0f4a52a733084843a29dc33beb62c7c2",
"to_name": null,
"type": null,
"value": {
"end": 35611,
"labels": [
"RPC"
],
"start": 35440,
"text": "This order shall take effect after expiry of four months of appeal period if no appeal is preferred and subject to the order of the appellant court if appeal is preferred."
}
},
{
"from_name": null,
"id": "26c4bd52d99d48ddb88707afea8137f8",
"to_name": null,
"type": null,
"value": {
"end": 35728,
"labels": [
"NONE"
],
"start": 35611,
"text": "\n Judgment is pronounced in the open court this 13th day of February, 2015 given under my hand and seal of the court."
}
},
{
"from_name": null,
"id": "861b2e699d01405a94dd36ccb3d0a02d",
"to_name": null,
"type": null,
"value": {
"end": 35770,
"labels": [
"NONE"
],
"start": 35728,
"text": "\n Additional Sessions Judge, Sundargarh.\n "
}
},
{
"from_name": null,
"id": "d5cef4addf2246a9a0ebf81ab3ab4d68",
"to_name": null,
"type": null,
"value": {
"end": 35799,
"labels": [
"NONE"
],
"start": 35770,
"text": "Dictated and corrected by me."
}
},
{
"from_name": null,
"id": "2e7e73e386c0455eaa779c856be34586",
"to_name": null,
"type": null,
"value": {
"end": 35839,
"labels": [
"NONE"
],
"start": 35799,
"text": "\n Additional Sessions Judge, Sundargarh."
}
},
{
"from_name": null,
"id": "ecb43cee38e24bb897a92809739d76f3",
"to_name": null,
"type": null,
"value": {
"end": 35897,
"labels": [
"NONE"
],
"start": 35841,
"text": "List of witnesses examined on behalf of the prosecution."
}
},
{
"from_name": null,
"id": "1e64cb43e7464de189c205cb6ccb527b",
"to_name": null,
"type": null,
"value": {
"end": 35916,
"labels": [
"NONE"
],
"start": 35897,
"text": "\n P.W 1 Firoz Khan."
}
},
{
"from_name": null,
"id": "0f97d5b142cb4c86a01675e4fe7c9152",
"to_name": null,
"type": null,
"value": {
"end": 35937,
"labels": [
"NONE"
],
"start": 35916,
"text": "\n P.W 2 Binod Sharma."
}
},
{
"from_name": null,
"id": "21e634e99dd9474eaf27451c43070dd7",
"to_name": null,
"type": null,
"value": {
"end": 35958,
"labels": [
"NONE"
],
"start": 35937,
"text": "\n P.W 3 Ananda Laria."
}
},
{
"from_name": null,
"id": "a23d9684cd70475abcbf621add0de409",
"to_name": null,
"type": null,
"value": {
"end": 35985,
"labels": [
"NONE"
],
"start": 35958,
"text": "\n P.W 4 Surendra Kumar Das."
}
},
{
"from_name": null,
"id": "cde058631f13405ba1c3860cf24597b8",
"to_name": null,
"type": null,
"value": {
"end": 36015,
"labels": [
"NONE"
],
"start": 35985,
"text": "\n P.W 5 Ghanashyam Mahanandia."
}
},
{
"from_name": null,
"id": "33a8a6e191e34c61b34c4536f33cbe81",
"to_name": null,
"type": null,
"value": {
"end": 36049,
"labels": [
"NONE"
],
"start": 36015,
"text": "\n P.W 6 Dr. Manoj Kumar Panigrahi."
}
},
{
"from_name": null,
"id": "f5fe87be684d48fda479d9283bca21d0",
"to_name": null,
"type": null,
"value": {
"end": 36078,
"labels": [
"NONE"
],
"start": 36049,
"text": "\n P.W 7 Hemanta Kumar Thakur."
}
},
{
"from_name": null,
"id": "1c88d81ab0f846e0aa7ba1caeb175280",
"to_name": null,
"type": null,
"value": {
"end": 36096,
"labels": [
"NONE"
],
"start": 36078,
"text": "\n P.W 8 Raju Khan."
}
},
{
"from_name": null,
"id": "e032fb12258f494aa54d1d3eb2fd9c6e",
"to_name": null,
"type": null,
"value": {
"end": 36127,
"labels": [
"NONE"
],
"start": 36096,
"text": "\n P.W 9 Iswar Chandra Satpathy."
}
},
{
"from_name": null,
"id": "a2bf9ddfd46c4e7a83500caa12b374c1",
"to_name": null,
"type": null,
"value": {
"end": 36150,
"labels": [
"NONE"
],
"start": 36127,
"text": "\n P.W10Babula Satpathy."
}
},
{
"from_name": null,
"id": "629b77a55c944f698c3f0e6164577deb",
"to_name": null,
"type": null,
"value": {
"end": 36178,
"labels": [
"NONE"
],
"start": 36150,
"text": "\n P.W 11Kusadhwaja Satpathy."
}
},
{
"from_name": null,
"id": "79e5333e488943d1be87a1d3f0b44b54",
"to_name": null,
"type": null,
"value": {
"end": 36200,
"labels": [
"NONE"
],
"start": 36178,
"text": "\n P.W 13 Sujata Panda."
}
},
{
"from_name": null,
"id": "bdee4eb285294291aa79d4f4d050ee3e",
"to_name": null,
"type": null,
"value": {
"end": 36252,
"labels": [
"NONE"
],
"start": 36202,
"text": "List of witness examined on behalf of the defence."
}
},
{
"from_name": null,
"id": "3823eabffadf4319839339f6765e3a32",
"to_name": null,
"type": null,
"value": {
"end": 36725,
"labels": [
"NONE"
],
"start": 36254,
"text": "Nil List of documents marked Ext on behalf of the prosecution.\n Ext.1 Seizure list.\nExt.1/1 Signature of P.W 3 on Ext.1.\nExt.2 Seizure list.\nExt.2/1 Signature of P.W 4 on Ext.2.\nExt.2/2 Signature of P.W 5 on Ext.2.\nExt.3 P.M Report.\nExt.3/1 Signature of P.W 6 on Ext.3.\nExt.3/2 Signature of Dr. Golekha Behera on Ext.3.\nExt.4 Query report.\nExt.4/1 Signature of P.W 6 on Ext.4.\nExt.5 F.I.R.\nExt.5/1 Signature of P.W 9 on Ext.5.\nExt.6 "
}
},
{
"from_name": null,
"id": "c218c35607f7425685af6242b1d325e5",
"to_name": null,
"type": null,
"value": {
"end": 36740,
"labels": [
"NONE"
],
"start": 36725,
"text": "Inquest report."
}
},
{
"from_name": null,
"id": "7aec998ee0c34eeeb9bf8f1d465340f0",
"to_name": null,
"type": null,
"value": {
"end": 37566,
"labels": [
"NONE"
],
"start": 36741,
"text": "Ext.6/1 Signature of P.W 9 on Ext.6.\nExt.6/2 Signature of P.W 10 on Ext.6.\nExt.7 Zimanama.\nExt.7/1 Signature of P.W 10 on Ext.7.\nExt.6/3 Signature of P.W 12 on Ext.6.\nExt.5/2 Endorsement of P.W 13 on Ext.5.\nExt.8 Formal F.I.R.\nExt.8/1 Signature of P.W 13 on Ext.8.\nExt.6/4 Signature of P.W 13 on Ext.6.\nExt.9 Requisition for P.M examination.\nExt.9/1 Signature of P.W 13 on Ext.9.\nExt.10 Spot map.\nExt.10/1 Signature of P.W 13 on Ext.10.\nExt.2/3 Signature of P.W 13 on Ext.2.\nExt.11 Seizure list.\nExt.11/1 Signature of P.W 13 on Ext.11.\nExt.1/2 Signature of P.W 13 on Ext.1.\nExt.12 Seizure list.\nExt.12/1 Signature of P.W 13 on Ext.12.\nExt.7/2 Signature of P.W 13 on Ext.7.\nExt.13 Chemical examination report.\n List of document marked Ext. on behalf of the defence.\n Ext.A "
}
},
{
"from_name": null,
"id": "e6bac488e6b4400f899bce640fafb832",
"to_name": null,
"type": null,
"value": {
"end": 37712,
"labels": [
"NONE"
],
"start": 37566,
"text": "Certified copy of order sheet in C.P No.98/10 and Misc.\n case No. 40/10 of the court of Judge, Family Court from date 24.4.10 to 24.1.12."
}
},
{
"from_name": null,
"id": "d93ae428bf53403088c1107e8d62e6d1",
"to_name": null,
"type": null,
"value": {
"end": 37824,
"labels": [
"NONE"
],
"start": 37714,
"text": "Ext.B The petition dated 24.4.10 filed by the petitioner S. Panigrahi in C.P No.98/10 (certified copy ).\n "
}
},
{
"from_name": null,
"id": "9caa49c789c248198fec0c20aa02219c",
"to_name": null,
"type": null,
"value": {
"end": 37922,
"labels": [
"NONE"
],
"start": 37824,
"text": "Ext.C Certified copy of deposition of petitioner No.1 S. Panigrahi in C.P.\n No.98/10."
}
},
{
"from_name": null,
"id": "b5c1a465c5c84045a6c7dc6bfba7bbaf",
"to_name": null,
"type": null,
"value": {
"end": 37931,
"labels": [
"NONE"
],
"start": 37924,
"text": "Ext.D "
}
},
{
"from_name": null,
"id": "345f357c23144d55b42a1a5b2bf41b17",
"to_name": null,
"type": null,
"value": {
"end": 37991,
"labels": [
"NONE"
],
"start": 37931,
"text": "Certified copy of petition in Misc. case No. 40/10.\n Ext.E "
}
},
{
"from_name": null,
"id": "9414e5c51f3744c2ab8d30a55cb67b84",
"to_name": null,
"type": null,
"value": {
"end": 38265,
"labels": [
"NONE"
],
"start": 37991,
"text": "Certified copy of show cause filed by O.P S. Panigrahi in Misc. case No. 40/12 arising out of C.P No. 98/10.\n Ext.F Bed head ticket of deceased Kabita Panigrahi dated 3.1. 12 vid indoor registration No.20259 dated 3.1.12.\n List of M.O marked on behalf of the prosecution.\n "
}
},
{
"from_name": null,
"id": "ef35e600be8b466b8e02e6a865cdd4c0",
"to_name": null,
"type": null,
"value": {
"end": 38313,
"labels": [
"NONE"
],
"start": 38265,
"text": "Nil List of M.O marked on behalf of the defence."
}
},
{
"from_name": null,
"id": "bd493896ebad4af6b84b082c6f353d74",
"to_name": null,
"type": null,
"value": {
"end": 38356,
"labels": [
"NONE"
],
"start": 38313,
"text": "\n Nil Additional Sessions Judge, Sundargarh"
}
}
]
}
] | 4,209 | {
"text": "IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, SUNDARGARH.\n\nPresent :\n\n Sri D.K. Mishra, LL.B.,\n Additional Sessions Judge,\n Sundargarh.\n\n Dated the 13th day of February, 2015.\n\n S.T. Case No.164/47/30 of 2012-13.\n______________________________________________________________________\nArising out of G.R Case No. 10/2012 corresponding to Town P.S Sundargarh Case No.\n01 of 2012 committed by the learned SDJM, Sundargarh.\n\nState of Odisha .... .... .... ... Complainant.\n\n -versus-\n\n1. Sanjeeb Kumar Panigrahi, aged aboput 27 years,\n son of Pramod Chandra Panigrahi, resident\n of R.R.I.T Colony, P.S Town, District-Sundargarh ;\n\n2. Sumitra Mishra, aged about 54 years,\n wife of Pramod Chandra Panigrahi,\n resident of R.R.I.T Colony, P.S Town,\n District-Sundargarh ;\n\n3. Pramod Chandra Panigrahi, aged about 53 years,\n son of late Somnath Panigrahi, resident of\n R.R.I.T colony, P.S Town, District-Sundargarh.\n\n .... .... .... .... Accused persons.\n\nCounsel for the prosecution : Sri Prasanta Kumar Patel,\n Addl. Public Prosecutor.\n\nCounsel for the defence : Sri D.K. Naik, Smt. N. Naik and others, Advocates.\n\n Date of argument : 05.02.2015.\n\n Date of judgment : 13.02.2015.\n\n\n Offence under sections 498-A/304-B/302/306/34 of I.P.C read with\n section 4 of the D.P. Act.\n\n JUDGMENT.\n The accused persons stand charged for the offences punishable under section 498-A/304-B/302/306/34 of I.P.C read with section 4 of the Dowry Prohibition Act.\n 2. The overview of the prosecution case is that Kabita Panigrahi the daughter of the informant was given in marriage with the accused Sanjeeb Panigrahi of R.R.I.T Colony, Sundargarh under Town P.S Sundargarh in the month of May, 2009. Some days after the marriage, the said Kabita was subjected to cruelty by her in-laws with a view to putting additional pressure on her maternal family to cough up more money in spite of the fact that at the time of marriage they were given a sum of Rs.1,00,000/-, two tolas of gold and other utensils towards dowry as per their demand.\n The relationship, as time passed by, further worsened and it culminated in the husband of the said Kabita filing a divorce proceeding against the latter in connivance with his parents. On 4.1.2012 at about 4.15 P.M the informant came to learn that her daughter Kabita was administered poison and killed by her in laws. The informant then came to D.H.H , Sundargarh where her dead body was kept. He reported the matter at Town P.S Sundargarh alleging therein the fact that her daughter had been murdered by her husband and her parents in law. The same was registered as Town P.S case No. 1/2012 and investigation was carried on. After completion of investigation, charge sheet was submitted against the accused persons u/s 498-A/304-B/306/34 of the I.P.C read with section 4 of the D.P. Act.\n In due course, the case was committed for trial and charge under sections 498-A/304-B/302/306/34 of I.P.C read with section 4 of D.P. Act were framed.\n 3. Defence sets up a plea of clean denial of facts alleged against the accused persons who while being examined u/s 313 of the Cr.P.C have taken the plea that the marriage between the deceased and Sanjeeb was a marriage free from dowry.\n The deceased did not at all take a liking to her husband and want to continue her marital relationship with him even if both of them stayed separately from the parents of accused Sanjeeb. Therefore, accused Sanjeeb filed a divorce case against the deceased and since then she had been living with her parents at her native village.\n 4. Prosecution in order to prove its case has examined as many as thirteen witnesses in all and defence has examined none in its behalf.\n 5. Now the points for determination are that - a) Whether the accused persons since the year 2009 till 2.1 2012 at R.R.I.T Colony, Sundargarh in furtherance of common intention subjected deceased Kabita Panigrahi to cruelty for unlawful demand of dowry being her husband and parents ?\n b) Whether the death of Kabita Panigrahi occurred otherwise than under normal circumstances within seven years of her marriage on 4.12.2012 at D.H.H , Sundargarh being the outcome of the common intention of the accused persons to commit torture, cruelty and harassment to her on account of the demand of dowry ?\n c) Whether the accused persons on 4.1.2012 at Sundargarh in furtherance of their common intention did commit murder of Kabita Panigrahi by intentionally causing her death ?\n d) Whether on 2.1.2012 at the house at R.R.I.T colony, Sundargarh Kabita Panigrahi committed suicide and the accused persons being her husband and parents in law abetted its commission by torturing her both mentally and physically in furtherance of common intention ?\n e) Whether the accused persons being the husband and parents in law of Kabita Panigrahi had demanded dowry from her parents, before and after her marriage ?\n 6. The informant has been examined in this case as P.W 9. P.W 10 is his son and a witness to inquest over the dead body of the deceased conducted by police. P.W 12 is also a witness to inquest. P.Ws 1 , 2 , 7 and 8 are independent witnesses. P.Ws 3, 4 and 5 are witnesses to seizure. P.W 6 is the medical officer who conducted inquest over the dead body of the deceased and P.W 13 is the I.O 7. From the F.I.R marked as Ext.5, which it has been filed by none other than the father of the deceased it appears that he learnt about the death of the deceased on 4.1.2012. The original bed head ticket issued in favour of Kabita Panigrahi wife of Sanjeeb Panigrahi of R.R.I.T Colony , Sundargarh marked as Ext.F from the side of the defence shows that she was admitted in the hospital on 3.1.2012 at 4.10 P.M.\n This Kabita Panigrahi is the daughter of the informant. The inquest report marked as Ext.6 from the side of the prosecution reveals that the inquest in respect of the dead body of the deceased was conducted on 5.1.2012. The P.M examination report marked as Ext.3 does not reveal the cause of death. The medical officer reserved his opinion and as it appears had sent the viscera which he had preserved for chemical examination. Ext.13 is the report of the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar regarding the viscera sent in this case. It has been marked without any objection from the side of defence. The result of the examination shows that an organophosphorus insecticidal poison was detected in the viscera of the deceased.\n These facts establish beyond doubt two things. One, the deceased had met her death on 4.1.2012 at 4.30 P.M. Secondly, her death was not under normal circumstance but due to intake of insecticidal poison.\n 8. It is submitted by the learned Additional Public Prosecutor that the FIR reveals that the deceased who was given in marriage to Sanjeeb Panigrahi was being subjected to merciless treatment for dowry during her stay in her in-laws' house and the matter went to such a pass that her husband filed a divorce case against her even if several attempts were made to restore a normal and healthy marital relationship by the maternal family of the deceased. She was persecuted to bring dowry and when the poor parents of the deceased could not afford to meet the unlawful demands of the husband and his parents, a trap was laid and she was taken back by accused Sanjeeb to his house and on the fateful day she was administered poison and sent in a Bus where from she got down at hospital chowk, Sundargarh and taken to the hospital by some local people where she breathed her last. The informant while being examined as P.W 9 and his son as P.W 10 have materially corroborated that the accused persons were subjecting the deceased to cruelty all along and during the last part of her life when she was staying with them. It has been established by P.W 8 and P.W 1 that the deceased while being under the influence of poison was found near the hospital chowk , Sundargarh and was admitted in the D.H.H, Sundargarh on 3.1.2012. When such is the evidence , section 113-B of the Indian Evidence Act comes into play. The death of the deceased has taken place within seven years of her marriage. Hence it is to be presumed that the death of the deceased was due to dowry and that the accused persons being her in-laws are guilt not only of offence u/s 304-B of the I.P.C but also u/s 302/34 of the I.P.C. Similarly they are to be held guilty of offence u/s 498-A of the I.P.C and 4 of the D.P. Act. If in the alternative it is held that the deceased had taken poison herself to end her life, then , in view of the evidence available, it should be held that she had taken this extreme step to do away with such brutal torture by the accused persons which make them liable for punishment u/s 306/34 of the I.P.C.\n 9. The learned defence counsel, taking potshot at the submission of the learned Additional P.P, submits that the argument advanced by the learned Addl.P.P is not based on facts but fiction. It is admitted that deceased Kabita was the legally married wife of accused Sanjeeb Panigrahi. It is also admitted that their marriage had taken place in the year 2009. The fact remains that accused Sanjeeb Panigrahi filed a Civil Proceeding bearing No. 98/2010 before the Judge, Family Court, Rourkela about a year after the said marriage since his wife was not willing to stay with him and his family at Sundargarh and not taking care of their little daughter. Since then the deceased had been living with her parents. In the said Civil Proceeding filed u/s 13 of the Hindu Marriage Act, the deceased as a petitioner filed a Misc. case u/s 24 thereof claiming for her maintenance. In the said petition, she has, by way of affidavit, disclosed the fact that she was staying with her maternal family. The statement of P.W 9 that while the said divorce proceeding was going on, the accused gave an undertaking before the Family Court to keep the deceased as his wife without any trouble and with that undertaking he took the deceased with him and that when the occurrence had taken place she was staying with the accused persons is nothing but a blatant lie. The evidence of P.W 10 who is the brother of the deceased has not only supported this lie of his father, but spiced it up by saying that the deceased four days prior to her death had telephoned him and intimated the fact that her husband was threatening her to kill if she did not bring money from her house. All these false and vexatious claims of P.Ws 9 and 10 got a severe body blow when Ext.A which is the certified copy of the order sheet reveal that on the date of the occurrence, the said Sanjeeb was very much physically present before the Judge, Family Court and had adduced evidence therein where he has stated on oath that the deceased had left his house on 10.4.2010 leaving the child in his custody and there is no chance of their reunion as the attempts made and taken by him and his relatives, well wishers and friends had failed. It is true that the deceased was first located at the hospital chowk , Sundargarh by some local gentlemen and was admitted with the help of the police in the D.H.H, Sundargarh for her treatment but it is quite strange as to why her dying declaration was not recorded since she had not died on the date of her admission of her in to the hospital but on the next day . Prosecution has failed to explain this and this doubt therefore remains unanswered. If P.W 10 had received a phone call from the deceased four days prior to her death, why was no attempt made to rescue her from the family of her in-laws if she was then staying with them. This question has also remained unanswered. There has been no allegation by P.W 9 that accused Sanjeeb and his mother Sumitra Mishra had demanded any dowry. There has been absolutely no allegation that the deceased was being tortured by her in-laws for dowry. It is the evidence of P.W 9 that accused Pramod was asking him for a financial help of Rs.50,000/-. In that view of the matter , the accused persons cannot be held liable either u/s 498-A of the I.P.C or 4 of the D.P.\nAct. Since the deceased was not at all staying with the accused persons since 2010, in view of the settled law, they cannot be held to have subjected her to cruelty on account of dowry soon before her death and be liable u/s 304-B of the I.P.C. There is no evidence that the accused persons administered poison to the deceased. Hence the question of their having committed an offence u/s 300 of the I.P.C does not arise at all and they cannot be held guilty of the offence u/s 302 of the I.P.C. The deceased had no doubt taken poison to end her life and committed suicide. Since she was staying separately from the accused persons, her death cannot be attributed to the act of the accused persons. Hence they cannot be held guilty of offence u/s 306 of the I.P.C. In support of his submission the learned defence counsel relies on the following decisions reported in (1994)7 OCR-91 in the case of Babaji Charan Barik vs. State, (2007) 36 OCR (SC)-398 in the case of Appasaheb & Another vs. State of Maharastra, AIR 2012 Supreme Court 2297 in the case of Rohtash v. State of Hariyana, (2001) 21 OCR (SC) 621 in the case of Sunil Bajaj vs. State of M.P, 1997 (II) OLR-565 in the case of Nilamani Nath and others vs. State of Orissa , (2014) 58 OCR (SC)- 933 in the case of Manohar Lal vs. State of Haryana, (2015) 60 OCR-188 in the case of Sanjib Sahu and others vs. State of Orissa, (2013) 56 OCR (SC)-349 in the case of S. Anil Kumar @ Anil Kumar Ganna vs. State of Karnataka, 1999 (II) OLR (SC)-341 in the case of Sakhi Mandalani vs. State of Bihar and others and (2013) 56 OCR (SC) 205 in the case of Jasvinder Saini & Others vs. State ( Govt.of NCT of Delhi).\n The points raised during argument propel me to cogitate over the matter which in my view requires deeper scrutiny.\n 10. From the evidence of P.W 9 it appears that he resides at village Juradanga P.S Kundheigola, Dist Deogarh. The deceased was his daughter. It is claimed by the defence that the deceased was all along staying with P.W 9 in his house since the divorce application was filed by her husband in the year 2010. The facts remains , as could be seen from the evidence of P.W 1 and P.W 8 that the deceased was located at their shop at hospital road, Sundargarh and with the help of the police she was admitted at D.H.H Sundargarh for her treatment. Documentary evidence such as Ext.5, ( the F.I.R), Ext.9 (dead body challan), Ext.6 (the inquest report) and the Ext.3 ( the P.M examination report) establish the fact that the deceased had died at Sundargarh. The house of the accused persons situates at R.R.I.T Colony, Sundargarh.\n It is therefore to be seen whether soon before her death the deceased was staying with the accused persons as has been claimed by P.Ws 9 and 10 or with them.\n 11. P.Ws 9 and 10 have consistently said in their evidence that some days before her death accused Sanjeeb Panigrahi prevailed over the deceased and took her with him to his house and during the last days of her life she was staying with the accused persons. P.W 7 claims himself to be a neighbour of the accused persons. In his cross -examination he has stated that he was the immediate neighbour of the accused persons at R.R.I.T Colony. According to him, some days after the marriage between Sanjeeb and Kabita the latter went away to her parents ' house for which there was a case in the Family Court between him and his wife. P.W 9 has stated in his evidence that in the year 2011 accused Sanjeeb had left his daughter in his house for about seven months and then took her back with him. During that period the accused filed a divorce case in the Family Court, Rourkela. There he undertook before the Family Court to keep his daughter as his wife and then came to his house on 24.12.2011 and took her to his house. His son P.W 10 has stated that about a year after the birth of a girl child, his sister due to dissension had to live in their house and about seven months thereafter she was taken by accused Sanjeeb to his house. The evidence of P.W 9 to the effect that the accused under took before the Family Court that he would keep the deceased as his wife and on 24.12.2011 took her to his house is not substantiated by any documentary evidence. Had there been any such undertaking before the Judge, Family Court, Rourkela, prosecution should have filed the same. It had not done so. On the contrary, what is found from the evidence of P.W 7 indicated as above and the contents of Ext.A (order sheet in C.P 98/2010) Ext.C (deposition of accused Sanjeeb Panigrahi in C.P 98/2010) and Ext.D (Misc. case 40/2010 arising out of C.P 98/2010 filed by the deceased u/s 24 of the Hindu Marriage Act )is that accused Sanjeeb Panigrahi had filed the aforesaid divorce proceeding against the deceased on on the ground, inter alia, that she was not staying with him and that she had claimed vide the aforesaid Misc. case interim maintenance from him on the ground that she was staying with her parents. Therefore, the evidence of P.W 9 to the effect that in the year 2011 accused Sanjeeb filed a divorce proceeding and that during such proceeding he had given an undertaking before the Court to keep the deceased with him does not appear to be believable. The evidence of P.W 10 in this regard, for the self same reason, does not appear to be believable and credit worthy. The evidence of P.W 10 in this regard is further viewed with suspicion since though he has claimed that four days prior to her death the deceased had made a telephone call to him and narrated about the fact that her life was in danger , he did not make any attempt to rescue her from her in-laws' house. He has also not made any attempt to report about this development to the police or to the Judge, Family Court, Rourkela. His not making any attempt to save the life of his own sister which was in danger persuades me to entertain doubt in my mind as to the stay of the deceased in the house of the accused persons during her last days. P.W 1 and P.W 8 have stated that soon after they found the deceased at their shop, they informed police which got her admitted in the hospital.\nShe was treated there, as it appears from Ext.F, for a whole day. But, unfortunately her dying declaration has not been recorded either by police or the treating physician.\nProsecution being devoid of such a document has no doubt been hit hard. I am therefore of the considered view that prosecution has not been able to establish beyond reasonable doubt that on 3.1.2012 and some time prior thereto she was staying in the house of the accused persons at R.R.I.T Colony, Sundargarh. When this fact is not established, the allegation made in the FIR by P.W 9 that his daughter was administered poison by the accused persons loses it's significance. Hence a case u/s 302/34 of the I.P.C is not made out against them. As it is not proved that the accused persons had not administered poison to the deceased, the inescapable conclusion about the cause of death of the deceased is that she had taken insecticidal poison and committed suicide. Ext.13 which is the report of the S.F.S.L., Rasulgarh materially corroborates this fact.\n 12. Now the next question that falls for determination is what did the deceased take the poison for. The case of prosecution is that she was , through-out her marriage, persecuted to meet the unlawful demand of dowry and subjected to torture and harassment for that end. It is the evidence of P.W 9 that her husband wanted her to bring a sum of Rs.50,000/- from her maternal family for the purpose of business. The FIR reveals that accused Pramod Panigrahi and accused Sumitra Mishra who were the parents in law of the deceased were hands in glove with accused Sanjeeb in persecuting her. The deceased, the learned Addl.P.P submits, must have wanted an end to it and taken poison. Since the death of the deceased had taken place which was not under normal circumstance, the court with the help of section 113-B of the Indian Evidence Act shall presume that it was the accused persons who brought about her death which can be termed as dowry death u/s 304-B of the I.P.C.\n 13. Section 304-B of the I.P.C reads as under : \"304 B. Dowry death-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called \" dowry death\", and such husband or relative shall be deemed to have caused her death.\"\n It has been held in the decision reported in (1994) 7 OCR- at page -91 in the case of Babaji Charan Barick vs. State that a combined reading of section 113-B of the Indian Evidence Act and section 304-B of the I.P.C shows that there must be material to show that soon before her death the victim must have subjected to cruelty or harassment.\nThe expression \"soon before \" is very relevant. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the prosecution operates. This view find vindication in the decision of the Hon'ble Apex Court reported in 2014 -58 OCR (SC) 933 in the case of Manoharlal vs. State of Haryana and (2001) 21 OCR (S.C)-621 in the case of Sunil Bajaj vs. State of M.P.\n 14. As already discussed, prosecution has not been able to establish beyond doubt that the deceased was staying in the house of the accused persons during the last days of her life. From the documents filed from the side of defence such as Ext.C and Ext.D, it appears that she was staying with her parents after the institution of the divorce proceeding by her husband Sanjeeb Panigrahi. As already discussed, the evidence of P.W 9 and P.W 10 regarding the stay of the deceased in the house of the accused persons towards the last part of her life during pendency of the divorce proceeding has not been believed because of the infirmity therein as indicated above. In his evidence , P.W 9 has not at all implicated accused Pramod Panigrahi and his wife Sumitra Mishra in subjecting the deceased to cruelty on account of demand of dowry. He has virtually given them a clean chit . He has only stated that his son in law accused Sanjeeb had sought for a financial help of Rs.50,000/- which according to him would enable him to purchase a ten wheeler truck for the purpose of his business and when he refused , he got miffed, went away and about ten days after left his daughter at Budhapal chowk where from he had brought her to his home. His evidence to this effect which according to him had taken place prior to the filing of the divorce proceeding cannot be termed as demand of dowry. The evidence of P.W 10 is not at all indicative of the fact that accused Pramod Panigrahi and his wife Sumitra Mishra were subjecting the deceased to cruelty on account of dowry. On the contrary, it is his evidence that three months after the marriage of his sister (deceased ), dissension had arisen between her and accused Sanjeeb relating to further demand of money. The evidence of P.W 11 is of hearsay nature as has been admitted by him during cross-examination. No other evidence is available in the record imputing the conduct of accused Pramod Panigrahi and his wife Sumitra Mishra in torturing the deceased during the marriage. More over , there is nothing in the record to show that soon before her death, they were torturing her with a view to forcing her to bring dowry. In that view of the matter and in view of the settled law, I am not persuaded to hold that in this case this court can import section 113-B of the Indian Evidence Act to hold that the accused Sumitra Mishra and Pramod Panigrahi who were the parents in law of the deceased subjected her to cruelty and harassment in connection with any demand for dowry soon before her death and are thus liable for punishment u/s 304-B/34 of the I.P.C.\n 15. In so far as the involvement of accused Sanjeeb Panigrahi for the offence u/s 304-B of the I.P.C is concerned , I find from Ext.A, that he had filed a divorce proceeding in C.P 98/2010 against the deceased on 24.4.2014. In his evidence before the Judge, Family Court he has deposed, as could been seen from Ext.C that the deceased had left his house on 10.4.2010 leaving the child in his custody. From Ext D, I find that by swearing an affidavit , the deceased had filed a Misc. case where she has stated that she was residing at Juradanga in the District of Deogarh , Odisha with her parents. His seeking for financial assistance from his father in law as stated by P.W 9 cannot be termed as demand of dowry. So, it cannot be held that soon before her death which was not under normal circumstance, he was subjecting her to cruelty or harassment for or in connection with any demand of dowry. Hence he cannot also be held guilty u/s 304-B of the I.P.C with the help of section 113-B of the Indian Evidence Act in view of the facts and circumstance of the case.\n 16. The accused persons may not have committed the offence u/s 304- B/34 of the I.P.C , but had they abetted in any manner the commission of suicide of the deceased ? Let us examine this point.\n 17. Section 107 of the I.P.C defines abetment of a thing. According to it : \"A person abets the doing of a thing who- First-Instigates any person to do that thing ; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing.\"\n It is established through the evidence that the deceased on 3.1.2012 had consumed insecticidal poison and her death was due to such consumption. The date of her taking poison coincides with the date when her husband had deposed in C.P 98/2010 before the Judge, Family Court, Rourkela. There is no material in the record to prove that there is more to the said coincidence than meets the eye. Prosecution has failed to prove, for the reasons indicated as above, that she wa, during the last days of her life staying with the accused persons. No cogent evidence is there in the record to suggest that due to torment on her by the accused persons she had decided to end her life. It is therefore difficult to believe that the accused persons in furtherance of their common intention either instigated her or connived with each other or intentionally aided by any act or omission to prod her to take this extreme step. Hence a case u/s 306/34 of the I.P.C appears not to be made out against the accused persons.\n 18. From the documents marked as Ext.C from the side of defence , it appears that the deceased had stayed with the accused persons in their house at R.R.I.T Colony for some days and there after shifted to another residence to live with accused Sanjeeb Panigrahi until 10.4.2010. In the F.I.R it is alleged that the deceased was being subjected to cruelty by the accused persons on account of inadequate dowry during her marriage. P.W 9 and P.W 10 have not whispered even a word about the involvement of the accused Pramod Panigrahi and Sumitra Mishra in causing such cruelty to her at any point of time. Both P.Ws 9 and 10 have only alleged that at the time of marriage a sum of Rs.1,00,000/- and some other articles were given. Their statements to this effect are not sufficient to prove that accused Pramod and Sumitra had played any active or passive role in persecuting the deceased on account of inadequacy of dowry. Of course both P.Ws 9 and 10, as has been stated earlier, have alleged that after the marriage dissension between accused Sanjeeb and the deceased arose and according to P.W 1, it was on account of dowry. However, the allegation against accused Sanjeeb to the effect that he asked P.W 9 for financial help of Rs.50,000/- and on refusal he got miffed, is viewed with suspicion in as much as P.W 13 who is the I.O in this case has stated in her cross-examination at para 15 and para 16 that these two witnesses have not made any such allegation before her during their examination u/s 161 of the Cr.P.C. In that view of the matter , I feel that prosecution has not been able to produce enough material to prove that the accused persons have, in furtherance of their common intention, committed the offence u/s 498-A/34 of the I.P.C against the deceased during her stay with them.\n 19. In his evidence P.W 9 has categorically alleged that accused Pramod Panigrahi had demanded a sum of Rs.one lakh as dowry before the marriage of his son with the deceased and he had paid the same to him in two equal installments.\n P.W 10 has also stated to the effect that for the purpose of marriage of his sister with accused Sanjeeb, his father had given dowry of Rs.1,00,000/- and other articles. The evidence of P.W 10 to this effect has remained unassailed during cross-examination.\n Similarly, the evidence of P.W 9 that before the marriage the accused Pramod Panigrahi who is the father of accused Sanjeeb had demanded a sum of Rs.1.00,000/- as dowry has not been repudiated during his cross-examination. On the other hand the FIR (Ext.5) corroborates the fact that a sum of Rs.1.00,000/- was given as dowry during the marriage of the deceased with the accused Sanjeeb. Section 2 of the Dowry Prohibition Act defines dowry as under : \"Sec.2 Definition of \"dowry\"- In this Act \"dowry\" means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage ; or (a) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person ; at or before [or any time after the marriage in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.\n Section 4 of D.P. Act reads as under - [Sec. 4 .Penalty for demanding dowry- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees.\n Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.] 20. The learned counsel for the accused persons submits that like a drowning man who catches at a straw, prosecution is trying hard when no other ploy does appear to succeed, to keep itself floating with the help of the evidence in this regard which should fail on account of the fact that there has been undue delay in bringing this matter to the fore and bringing the guilty to the book. Besides, P.W 13 (I.O) has stated that P.W 9 has not stated before him that he gave the said amount in two equal installments. The argument of the learned defence counsel in this regard does not appear to me to be convincing. It is but natural that parents with their anxiety to find a suitable groom for their nubile daughters meekly accede to such demands of the groom, or his parents or his relatives knowing fully well that both the act of giving and taking of dowry is punishable in the eye of law. The parents of the bride in order to see that the marriage remains peaceful and blissful keep many things under the wraps. Viewed from that angle, the reporting of the matter as regards the demand of dowry by accused Pramod Panigrahi at the time of his son's marriage with the deceased cannot be said to be over delayed. Here in this case, the poor father had, after his daughter's death, shed the stoney silence and all inhibitions to speak his mind about the demand and acceptance of dowry by accused Pramod. His evidence which is supported by his son's as well as the contents of the FIR appears to me to be convincing in as much as though he had the occasion to impute the said allegation against accused Sanjeeb and his mother, he had not done so. He has through his evidence proved that it was only accused Pramod who had demanded at the time of marriage a sum of Rs.1,00,000/- and the contents of the FIR and the statement of P.W 10 prove the fact that it was paid. His not having stated before the I.O that he paid the said amount in two equal installments is not a material omission and therefore ignored. I am therefore of the considered view that the said sum of Rs.1,00,000/- which was given to accused Pramod Panigrahi by the father of the deceased was dowry and that by receiving the same he had committed the offence u/s 4 of the D.P.Act.\n 21. On mature reflection of the evidence on record which finds place in the discussion made as above, I am of the considered view that prosecution has not been able to prove its case u/s 302/304-B/306/498-A/34 of the I.P.C against all the accused persons beyond all reasonable doubt . Hence they are held not guilty there under and acquitted therefrom u/s 235(1) of the Cr.P.C. Similarly, prosecution has also failed to establish a case u/s 4 of the D.P. Act against accused Sumitra Mishra and accused Sanjeeb Panigrahi beyond all reasonable doubt. They are held not guilty there under and acquitted therefrom u/s 235(1) of the Cr.P.C and set at liberty. However, for the reasons indicated as above I hold accused Pramod Panigrahi guilty of the offence u/s 4 of the Dowry Prohibition Act and convict him thereunder.\n 22. As I do not find any extenuating circumstance, I do not intend to release the convict under the Probation of Offenders Act.\n Judgment is pronounced in the open court this 13th day of February, 2015 given under my hand and seal of the court.\n Additional Sessions Judge, Sundargarh.\n Dictated and corrected by me.\n Additional Sessions Judge, Sundargarh.\n Hearing on the question of sentence.\n 23. Heard the convict, his learned counsel and the learned Additional Public Prosecutor on the question of sentence at great length. The convict pleaded for mercy. The learned Additional Public Prosecutor submits on the other hand that the convict deserves no clemency. Having heard them in the matter and taking into consideration the fact that the convict is aged about 53 years having no criminal antecedent, I am of the humble view that a sentence comprising R.I of one year and a fine of Rs.5,000/- if imposed on the convict would meet the ends of justice.\nAccordingly, I sentence the convict to undergo R.I for one year and to pay a fine of Rs.5,000/- i.d to undergo R.I for three months. The U.T.P period be set off as per rule.\n The zimanama be cancelled and the seized articles be retained by the zimadar. The other seized articles be destroyed. This order shall take effect after expiry of four months of appeal period if no appeal is preferred and subject to the order of the appellant court if appeal is preferred.\n Judgment is pronounced in the open court this 13th day of February, 2015 given under my hand and seal of the court.\n Additional Sessions Judge, Sundargarh.\n Dictated and corrected by me.\n Additional Sessions Judge, Sundargarh.\n List of witnesses examined on behalf of the prosecution.\n P.W 1 Firoz Khan.\n P.W 2 Binod Sharma.\n P.W 3 Ananda Laria.\n P.W 4 Surendra Kumar Das.\n P.W 5 Ghanashyam Mahanandia.\n P.W 6 Dr. Manoj Kumar Panigrahi.\n P.W 7 Hemanta Kumar Thakur.\n P.W 8 Raju Khan.\n P.W 9 Iswar Chandra Satpathy.\n P.W10Babula Satpathy.\n P.W 11Kusadhwaja Satpathy.\n P.W 13 Sujata Panda.\n List of witness examined on behalf of the defence.\n Nil List of documents marked Ext on behalf of the prosecution.\n Ext.1 Seizure list.\nExt.1/1 Signature of P.W 3 on Ext.1.\nExt.2 Seizure list.\nExt.2/1 Signature of P.W 4 on Ext.2.\nExt.2/2 Signature of P.W 5 on Ext.2.\nExt.3 P.M Report.\nExt.3/1 Signature of P.W 6 on Ext.3.\nExt.3/2 Signature of Dr. Golekha Behera on Ext.3.\nExt.4 Query report.\nExt.4/1 Signature of P.W 6 on Ext.4.\nExt.5 F.I.R.\nExt.5/1 Signature of P.W 9 on Ext.5.\nExt.6 Inquest report.\nExt.6/1 Signature of P.W 9 on Ext.6.\nExt.6/2 Signature of P.W 10 on Ext.6.\nExt.7 Zimanama.\nExt.7/1 Signature of P.W 10 on Ext.7.\nExt.6/3 Signature of P.W 12 on Ext.6.\nExt.5/2 Endorsement of P.W 13 on Ext.5.\nExt.8 Formal F.I.R.\nExt.8/1 Signature of P.W 13 on Ext.8.\nExt.6/4 Signature of P.W 13 on Ext.6.\nExt.9 Requisition for P.M examination.\nExt.9/1 Signature of P.W 13 on Ext.9.\nExt.10 Spot map.\nExt.10/1 Signature of P.W 13 on Ext.10.\nExt.2/3 Signature of P.W 13 on Ext.2.\nExt.11 Seizure list.\nExt.11/1 Signature of P.W 13 on Ext.11.\nExt.1/2 Signature of P.W 13 on Ext.1.\nExt.12 Seizure list.\nExt.12/1 Signature of P.W 13 on Ext.12.\nExt.7/2 Signature of P.W 13 on Ext.7.\nExt.13 Chemical examination report.\n List of document marked Ext. on behalf of the defence.\n Ext.A Certified copy of order sheet in C.P No.98/10 and Misc.\n case No. 40/10 of the court of Judge, Family Court from date 24.4.10 to 24.1.12.\n Ext.B The petition dated 24.4.10 filed by the petitioner S. Panigrahi in C.P No.98/10 (certified copy ).\n Ext.C Certified copy of deposition of petitioner No.1 S. Panigrahi in C.P.\n No.98/10.\n Ext.D Certified copy of petition in Misc. case No. 40/10.\n Ext.E Certified copy of show cause filed by O.P S. Panigrahi in Misc. case No. 40/12 arising out of C.P No. 98/10.\n Ext.F Bed head ticket of deceased Kabita Panigrahi dated 3.1. 12 vid indoor registration No.20259 dated 3.1.12.\n List of M.O marked on behalf of the prosecution.\n Nil List of M.O marked on behalf of the defence.\n Nil Additional Sessions Judge, Sundargarh "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "0590f01dd4c64e258d39a70bcd1332a9",
"to_name": null,
"type": null,
"value": {
"end": 52,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nM/s. RAMNARAIN SONS (Pr.) LTD.\n\n Vs."
}
},
{
"from_name": null,
"id": "0337b754eeae494788d04b1df347edca",
"to_name": null,
"type": null,
"value": {
"end": 1116,
"labels": [
"PREAMBLE"
],
"start": 54,
"text": "RESPONDENT:\nCOMMISSIONER OF INCOME TAX, BOMBAY\n\nDATE OF JUDGMENT:\n05/12/1960\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nKAPUR, J.L.\nHIDAYATULLAH, M.\n\nCITATION:\n\n1961 AIR 1141 1961 SCR (2) 904\n\nCITATOR INFO : (7,10,11)\n (21)\nE 1962 SC1267 (7)\n (7)\nR 1963 SC 835 (12)\n (30)\nRF 1968 SC 761\n\nRF 1970 SC 529\n\nE 1973 SC 182\n\nRF 1986 SC1695\n\nACT: for acquiring\nIncome Tax--Assessment--Purchase of shares sale of such\nmanaging agency rights--Loss incurred in\nshares--If of a capital nature.\n\nHEADNOTE:\n\nThe appellants, a private limited company, carrying on\n\nbusiness as brokers, managing agents and dealers in shares\n\nand securities and having as one of their objects the\n\nacquisition of managing agencies, purchased shares of\n\nthe Dawn Mills at a rate much higher than the market rate\n\nfor obtaining the controlling voting right and thereby\n\nacquired the managing agency of the Mills."
}
},
{
"from_name": null,
"id": "b150f92a351e4e8688045a3c7520d9bd",
"to_name": null,
"type": null,
"value": {
"end": 1196,
"labels": [
"PREAMBLE"
],
"start": 1117,
"text": "Later on, they\n\nsold-some of those shares and suffered a loss of Rs.\n\n1,78,438."
}
},
{
"from_name": null,
"id": "c68fb5e7d7cd49de90bf8f168e8785d9",
"to_name": null,
"type": null,
"value": {
"end": 1324,
"labels": [
"PREAMBLE"
],
"start": 1197,
"text": "The Income-tax Officer in assessing the taxable\n\nincome disallowed the loss and the Appellate\n\nAssistant Commissioner on appeal"
}
},
{
"from_name": null,
"id": "a40d26cbfcc643c1ae6bee0fa7fd4a6c",
"to_name": null,
"type": null,
"value": {
"end": 1346,
"labels": [
"PREAMBLE"
],
"start": 1325,
"text": "confirmed that order."
}
},
{
"from_name": null,
"id": "af9fbcff8e67452182a37bf2f17b502b",
"to_name": null,
"type": null,
"value": {
"end": 1581,
"labels": [
"PREAMBLE"
],
"start": 1347,
"text": "The\n\nIncome-tax Appellate Tribunal held that the shares did not\n\nbecome stock-in-trade of the appellants, but since the loss\n\nincurred was incidental to their business of acquiring\n\nmanaging agency, it was allowable as a revenue loss."
}
},
{
"from_name": null,
"id": "1d6b06c0ad1741f2ac4673b967412760",
"to_name": null,
"type": null,
"value": {
"end": 1741,
"labels": [
"PREAMBLE"
],
"start": 1582,
"text": "On\n\nreference, the High Court held that the shares acquired by\n\nthe appellants were a capital asset and the loss suffered by\n\nthe sale was of a capital nature."
}
},
{
"from_name": null,
"id": "ee34b56788004dc8845354a90ad1bee8",
"to_name": null,
"type": null,
"value": {
"end": 2071,
"labels": [
"PREAMBLE"
],
"start": 1741,
"text": "\n\nHeld, that the High Court had taken the correct view of the\n\nmatter and the appeal must fail.\n\nThe question whether a transaction is or is not an adventure\n\nof the nature of trade has-to be decided in the light of the\n\nintention of the assessee judged by the legal requirements\n\nassociated with the concept of trade or business."
}
},
{
"from_name": null,
"id": "1810eb0d0fb044fb8161ec590c12711c",
"to_name": null,
"type": null,
"value": {
"end": 2551,
"labels": [
"PREAMBLE"
],
"start": 2071,
"text": "\n\nSince the shares in question were purchased by the appel-\n\nlants with the intention of acquiring the managing agency\n\nand not in the course of their business as dealers in shares\n\n\nwith the intention of trading in those shares and what was\nacquired by such purchase was a capital asset in the shape\nof a managing agency, it could not be said merely because\nthe managing agency could be utilised for earning profits,\nthat those shares were stock-in-trade of their share\nbusiness."
}
},
{
"from_name": null,
"id": "0d857a615e2446aba2361b4e5b8bec92",
"to_name": null,
"type": null,
"value": {
"end": 2754,
"labels": [
"NONE"
],
"start": 2551,
"text": "\nG.Venkataswami Naidu and Co. v. The Commissioner of Income-\ntax, [1959] Supp. 1 S.C.R. 464 and The Oriental Investment\nCo., Ltd. v. The Commissioner of Income-tax, Bombay, [1958]\nS.C.R. 49, referred to."
}
},
{
"from_name": null,
"id": "a1a518e6fc894d438538e37258214fb3",
"to_name": null,
"type": null,
"value": {
"end": 2825,
"labels": [
"PREAMBLE"
],
"start": 2754,
"text": "\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION; Civil Appeal No. 698 of 1957."
}
},
{
"from_name": null,
"id": "8d0c3ac951df41999ebcae0339218f81",
"to_name": null,
"type": null,
"value": {
"end": 2963,
"labels": [
"NONE"
],
"start": 2825,
"text": "\nAppeal by special leave from the judgment and order dated August 2, 1956, of the Bombay High Court in Income-tax Reference No. 1 of 1956."
}
},
{
"from_name": null,
"id": "c4a5e2b54ad1434da77883bcd6c566f2",
"to_name": null,
"type": null,
"value": {
"end": 3047,
"labels": [
"NONE"
],
"start": 2963,
"text": "\nA. V. Viswanatha Sastri, B. A. Palkhiwala and G.\nGopalakrishnan, for the appellant."
}
},
{
"from_name": null,
"id": "de17fda772ef4e018036cfc2c15f97cd",
"to_name": null,
"type": null,
"value": {
"end": 3095,
"labels": [
"NONE"
],
"start": 3047,
"text": "\nHardyal Hardy and D. Gupta, for the respondent."
}
},
{
"from_name": null,
"id": "3dbe1745452a42228e1a8fcdba862c24",
"to_name": null,
"type": null,
"value": {
"end": 3113,
"labels": [
"NONE"
],
"start": 3096,
"text": "1960. December 5."
}
},
{
"from_name": null,
"id": "943ceb9a856944abbbfe185e0611b224",
"to_name": null,
"type": null,
"value": {
"end": 3162,
"labels": [
"RLC"
],
"start": 3114,
"text": "The Judgment of the Court was delivered by SHAH,"
}
},
{
"from_name": null,
"id": "83295ac61dc94481b1376cef447de90c",
"to_name": null,
"type": null,
"value": {
"end": 3169,
"labels": [
"RLC"
],
"start": 3163,
"text": "J.-The"
}
},
{
"from_name": null,
"id": "cd72787ad36843a283bda95f08a067df",
"to_name": null,
"type": null,
"value": {
"end": 3512,
"labels": [
"RLC"
],
"start": 3170,
"text": "High Court of Judicature at Bombay answered the following two questions referred by the Income Tax Appellate Tribunal, Bench \"B\", Bombay, under s. 66(1) of the Indian Income-Tax Act, 1922: (1) Whether the acquisition of the managing agencyof the Dawn Mills Co., Ltd., was in the nature of a it n \"business\" carried on by the assessee company?"
}
},
{
"from_name": null,
"id": "66093ec836804c7aa5f2bbbf8a290e9f",
"to_name": null,
"type": null,
"value": {
"end": 3971,
"labels": [
"ISSUE"
],
"start": 3518,
"text": "If the answer to the first question is in the affirmative, whether the loss suffered by the assessee of...company of Rs. 1,78,438 on purchase and sale of 400 shares of the Dawn Mills Co., Ltd., being incidental to its business of acquiring the managing agency, was a loss of a revenue nature?, as follows: (1)..Acquisition of the managing agency was an acquisition of a capital asset; (2)..The loss in respect of the 400 shares was of a capital nature.\n"
}
},
{
"from_name": null,
"id": "f09036cd4fbb4156a0d454f193773d1f",
"to_name": null,
"type": null,
"value": {
"end": 4052,
"labels": [
"FAC"
],
"start": 3971,
"text": "Against the order of the High Court, this appeal is preferred with special-leave."
}
},
{
"from_name": null,
"id": "6a5eb6ff09794e10b008b1a3b865b2a6",
"to_name": null,
"type": null,
"value": {
"end": 4233,
"labels": [
"FAC"
],
"start": 4052,
"text": "\nThe appellants are a private limited company registered under the Indian Companies Act, 1913, and carry on business as brokers,managing agents and dealers in shares and securities."
}
},
{
"from_name": null,
"id": "d1da14fcc6d44e658361f63a6645bf2c",
"to_name": null,
"type": null,
"value": {
"end": 4329,
"labels": [
"FAC"
],
"start": 4234,
"text": "One of the objects for which the appellants were incorporated was to acquire managing agencies."
}
},
{
"from_name": null,
"id": "20f93e70d9484203aa3dbb0ddaed22c5",
"to_name": null,
"type": null,
"value": {
"end": 4472,
"labels": [
"FAC"
],
"start": 4330,
"text": "The appellants also carried on business in shares of different companies, and were assessed to income-tax as dealers in shares and securities."
}
},
{
"from_name": null,
"id": "8d8285ba8cfa433bb7550308d206d81e",
"to_name": null,
"type": null,
"value": {
"end": 4638,
"labels": [
"FAC"
],
"start": 4472,
"text": "\nM/s. Sassoon J. David, & Co., Ltd. were the managing agents of the Dawn Mills Ltd.-a public limited company-and they held 2,507 out of a total issue of 3,200 shares."
}
},
{
"from_name": null,
"id": "09d4262a6b8e4c51bfd70d9831e8e6ad",
"to_name": null,
"type": null,
"value": {
"end": 4893,
"labels": [
"FAC"
],
"start": 4639,
"text": "On September 28, 1946, the appellants purchased from M/s.\nSassoon J. David & Co., Ltd. 1,507 shares of the Dawn Mills at the rate of Rs. 2,321-8-0 per share and having obtained a controlling voting right, acquired the managing agency rights of the Mills."
}
},
{
"from_name": null,
"id": "7206344dcfd2441d9836a034d6f4c82a",
"to_name": null,
"type": null,
"value": {
"end": 5042,
"labels": [
"FAC"
],
"start": 4894,
"text": "The remaining, one thousand shares were acquired from M/s. Sassoon J. David & Co., Ltd. by the Directors of the appellants at the rate of Rs. 1,500."
}
},
{
"from_name": null,
"id": "40aabbed552f444eb215288a07c9f705",
"to_name": null,
"type": null,
"value": {
"end": 5135,
"labels": [
"FAC"
],
"start": 5043,
"text": "At the material time, the ruling market price of the shares of the Dawn Mills was Rs. 1,610."
}
},
{
"from_name": null,
"id": "4627db7975c54622a2bd33f601a14084",
"to_name": null,
"type": null,
"value": {
"end": 5260,
"labels": [
"FAC"
],
"start": 5136,
"text": "In December, 1946, the appellants sold 400 out of the shares purchased by them, and thereby suffered a loss of Rs. 1,78,438."
}
},
{
"from_name": null,
"id": "7030d2775d1344c59899146423517e16",
"to_name": null,
"type": null,
"value": {
"end": 5432,
"labels": [
"FAC"
],
"start": 5261,
"text": "The loss suffered by the appellants in the year of account January 1, 1946, to December 31, 1946, by sale of shares including 400 shares of theDawn Mills was Rs. 1,92,834."
}
},
{
"from_name": null,
"id": "eac7b3d2f95b47c2ade9749472052cd9",
"to_name": null,
"type": null,
"value": {
"end": 5604,
"labels": [
"FAC"
],
"start": 5433,
"text": "Crediting Rs. 1,05,907 earned as profit in certain other share transactions, the net loss suffered in the share transactions in the year of account amounted to Rs. 86,927."
}
},
{
"from_name": null,
"id": "833f0d4e71b8470a83c47735f744e5b7",
"to_name": null,
"type": null,
"value": {
"end": 5719,
"labels": [
"FAC"
],
"start": 5605,
"text": "The appellants valued their shares at the end of the year of account, at cost or market price whichever was lower."
}
},
{
"from_name": null,
"id": "344409e595274249be9575fc217a7e06",
"to_name": null,
"type": null,
"value": {
"end": 5955,
"labels": [
"FAC"
],
"start": 5720,
"text": "By this method of valuation, the books of account of the appellants showed a loss of Rs. 7,97,792 which included a loss of Rs. 7,04,000 on the valuation of the Dawn Mills shares held by the appellants at the end of the year of account."
}
},
{
"from_name": null,
"id": "d1595f8c6d75479984672c44577b1d07",
"to_name": null,
"type": null,
"value": {
"end": 6135,
"labels": [
"FAC"
],
"start": 5955,
"text": "\nIn the income-tax assessment for the year 1947-48, the appellants claimed Rs. 86,927 as loss on sales in trade in shares and Rs. 7, 97,792 as loss on valuation of stock-in- trade."
}
},
{
"from_name": null,
"id": "05cc22c60d454e329fed5b718e144823",
"to_name": null,
"type": null,
"value": {
"end": 6433,
"labels": [
"FAC"
],
"start": 6136,
"text": "The Income Tax Officer, Companies' Circle III(1), Bombay, disallowed the loss suffered by the appellants in the sale of the Dawn Mills shares, because in his view those shares were purchased by way of capital-investment and the loss suffered by sale thereof could not be allowed as a trading loss."
}
},
{
"from_name": null,
"id": "591e881bbb034c3791dcf70558acbaaa",
"to_name": null,
"type": null,
"value": {
"end": 6732,
"labels": [
"FAC"
],
"start": 6434,
"text": "He also held that the appellants were not entitled to depart from the method adopted in earlier years and to value the closing stock of shares in the year of account at cost or market price whichever was lower and to claim the difference between the opening and closing valuation as a trading loss."
}
},
{
"from_name": null,
"id": "0a79d131ed1149008d3db279e6609ed6",
"to_name": null,
"type": null,
"value": {
"end": 6791,
"labels": [
"FAC"
],
"start": 6733,
"text": "The Appellate Assistant Commissioner confirmed that order."
}
},
{
"from_name": null,
"id": "b6ab59f4904742cb8e1085441f151009",
"to_name": null,
"type": null,
"value": {
"end": 7396,
"labels": [
"FAC"
],
"start": 6792,
"text": "In appeal, the Income Tax Appellate Tribunal held that the managing agency of the Dawn Mills was acquired by the appellants as a part of their business activity and the shares of the Mills having been purchased in the regular course incidental to their business of acquiring the managing agency, the loss on the sale of those shares was allowable as a revenue loss; but the shares of the Dawn Mills were not, the stock-in-trade of the appellants' business and they were not entitled to treat the difference between the purchase price and the value at close of the year of those shares, as a trading loss."
}
},
{
"from_name": null,
"id": "2355d440868048628b8316ee99391fa3",
"to_name": null,
"type": null,
"value": {
"end": 7620,
"labels": [
"FAC"
],
"start": 7397,
"text": "Accordingly, the Tribunal allowed Rs. 1,78,438 as loss on sale of 400 shares of the Dawn Mills., but did not allow Rs.\n7,04,000 as loss arising out of the valuation of the Dawn Mills shares at theend of the year of account."
}
},
{
"from_name": null,
"id": "16670fe0af1d48e18392367b4fe034ce",
"to_name": null,
"type": null,
"value": {
"end": 7750,
"labels": [
"FAC"
],
"start": 7621,
"text": "On the application of the Commissioner of Income Tax, the Tribunal referred to the High Court the questions set out hereinbefore."
}
},
{
"from_name": null,
"id": "95c42038dff14fdeb1dcceaebf3b7b19",
"to_name": null,
"type": null,
"value": {
"end": 7972,
"labels": [
"RLC"
],
"start": 7751,
"text": "In the High Court, the appellants took out a notice of motion for directing the Tribunal to refer certain questions which the appellants claimed arose out of the order of the Tribunal and which the Tribunal did not refer."
}
},
{
"from_name": null,
"id": "82004daee72746f594cc6f1a50f958b8",
"to_name": null,
"type": null,
"value": {
"end": 8212,
"labels": [
"RLC"
],
"start": 7972,
"text": "\nThe High Court agreed with the opinion of the Tribunal that the shares of the Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency."
}
},
{
"from_name": null,
"id": "1e91e9767ea0465783045350fefb449a",
"to_name": null,
"type": null,
"value": {
"end": 8473,
"labels": [
"RLC"
],
"start": 8212,
"text": "\nThe High Court, however , held that the shares acquired by the appellants formed a capital asset and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction."
}
},
{
"from_name": null,
"id": "dd2cfcbe58594870baf036bd8bac8444",
"to_name": null,
"type": null,
"value": {
"end": 8548,
"labels": [
"RLC"
],
"start": 8474,
"text": "The High Court dismissed the notice of motion taken out by the appellants."
}
},
{
"from_name": null,
"id": "1f1577cfb20a43078ebad459b787962a",
"to_name": null,
"type": null,
"value": {
"end": 8814,
"labels": [
"ANALYSIS"
],
"start": 8549,
"text": "In considering whether a transaction is or is not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee having regard to the \"legal requirements which are associated with the concept of trade or business\"."
}
},
{
"from_name": null,
"id": "fea0c5f1be74448db2e330c555f88755",
"to_name": null,
"type": null,
"value": {
"end": 9075,
"labels": [
"PRE_RELIED"
],
"start": 8815,
"text": "The inference on this question raised by the Tribunal on the facts found is of mixed law and fact and is open to challenge before the High Court on a reference under s. 66 of the Income Tax Act G. Venkataswami Naidu & Co. v. The Commissioner of Income Tax (1)."
}
},
{
"from_name": null,
"id": "69aace3639ab4f32b59d880b9501f5c3",
"to_name": null,
"type": null,
"value": {
"end": 9476,
"labels": [
"PRE_RELIED"
],
"start": 9076,
"text": "It was held in The Oriental Investment Co., Ltd. v. The Commissioner of Income Tax, Bombay (2), that the question whether the appellants' transactions amounted to dealing in shares and properties or to investment, is a mixed question of law and fact, and that the legal effect of the facts found by the Tribunal on which the assessee could be treated as a dealer or an investor, is a question of law."
}
},
{
"from_name": null,
"id": "81b935e1ce414b0cb474a3a7bd41fbc7",
"to_name": null,
"type": null,
"value": {
"end": 9593,
"labels": [
"ANALYSIS"
],
"start": 9477,
"text": "The Tribunal held that the shares of the Dawn Mills purchased by the appellants did not become their stock-in-trade."
}
},
{
"from_name": null,
"id": "afb587b9b8da45fc81f222b5ddfb492c",
"to_name": null,
"type": null,
"value": {
"end": 9899,
"labels": [
"ANALYSIS"
],
"start": 9594,
"text": "But they held that the transaction (1) [1959] SUPP. S.C.R. 646.\n(2) [1958] S.C.R. 49.having been effected in the regular course of the business of the appellants, viz., the acquisition of managing agencies, the loss resulting from the sale of shares was incidental to that business and was a revenue loss."
}
},
{
"from_name": null,
"id": "167c011832604d3f81d8058eed122333",
"to_name": null,
"type": null,
"value": {
"end": 9978,
"labels": [
"ANALYSIS"
],
"start": 9900,
"text": "It is not easy to appreciate the process by which this conclusion was reached."
}
},
{
"from_name": null,
"id": "3d541f7c16c443ce827ff730ed540523",
"to_name": null,
"type": null,
"value": {
"end": 10160,
"labels": [
"ANALYSIS"
],
"start": 9979,
"text": "The shares were purchased for the purpose of acquiring the managing agency of the Dawn Mills; they were not purchased in the course of the appellants' business as dealers in shares."
}
},
{
"from_name": null,
"id": "a92caa5752c34aafb4804cb651e0b5e0",
"to_name": null,
"type": null,
"value": {
"end": 10563,
"labels": [
"ANALYSIS"
],
"start": 10161,
"text": "By purchasing the shares which facilitated acquisition of the managing agency, a capital asset was acquired and merely because the managing agency could be utilised for earning profit, the acquisition of the shares which led to the acquisition of the managing agency could not, in the absence of an intention to trade in those shares, be regarded as acquisition of stock-in-trade of the share business."
}
},
{
"from_name": null,
"id": "8078ced4170d47ee9d701b65b82f9bf7",
"to_name": null,
"type": null,
"value": {
"end": 10753,
"labels": [
"ANALYSIS"
],
"start": 10564,
"text": "The appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares."
}
},
{
"from_name": null,
"id": "b1e8c4d24c054cbab746f8e85432c713",
"to_name": null,
"type": null,
"value": {
"end": 10946,
"labels": [
"ANALYSIS"
],
"start": 10754,
"text": "Nor is the fact that the appellants are dealers in hares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case."
}
},
{
"from_name": null,
"id": "8178f37fec194e4c8872d08b4fed4323",
"to_name": null,
"type": null,
"value": {
"end": 11132,
"labels": [
"ANALYSIS"
],
"start": 10947,
"text": "The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transactions were carried on could not alter the real character of the acquisition."
}
},
{
"from_name": null,
"id": "13d7491f9c854049a98318e5010bbe5d",
"to_name": null,
"type": null,
"value": {
"end": 11269,
"labels": [
"ANALYSIS"
],
"start": 11133,
"text": "The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction."
}
},
{
"from_name": null,
"id": "2f87d45b38bb4c379c7c00a9f31e87e0",
"to_name": null,
"type": null,
"value": {
"end": 11424,
"labels": [
"ANALYSIS"
],
"start": 11270,
"text": "The current market rate at the date of purchase was Rs. 1,610 per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share."
}
},
{
"from_name": null,
"id": "4bb331c32cff482091f389e974caabf2",
"to_name": null,
"type": null,
"value": {
"end": 11501,
"labels": [
"ANALYSIS"
],
"start": 11425,
"text": "Even assuming that the appellants acquired the entire block of 2,507 shares."
}
},
{
"from_name": null,
"id": "4ae874bf0efa473f82f28627d7d3d58e",
"to_name": null,
"type": null,
"value": {
"end": 11727,
"labels": [
"ANALYSIS"
],
"start": 11502,
"text": "from M/s. Sassoon J. David & Co., Ltd.-the shares transferred to the names of the Directors being held by them merely as nominees of the appellants-the price per share was considerably in excess of the prevailing market rate."
}
},
{
"from_name": null,
"id": "dbfde83b43d64aedbe1e1ccf7bba586e",
"to_name": null,
"type": null,
"value": {
"end": 11893,
"labels": [
"ANALYSIS"
],
"start": 11728,
"text": "The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was theacquisition of the managing agency."
}
},
{
"from_name": null,
"id": "2fdcda4e740a44c39e611e20fbf6ec7d",
"to_name": null,
"type": null,
"value": {
"end": 12207,
"labels": [
"ANALYSIS"
],
"start": 11894,
"text": "If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares."
}
},
{
"from_name": null,
"id": "0dc96605bad44a70b1e0981fc038697c",
"to_name": null,
"type": null,
"value": {
"end": 12334,
"labels": [
"ANALYSIS"
],
"start": 12208,
"text": "The Tribunal found that the Dawn Mills' shares were acquired by the appellants for obtaining the managing agency of the Mills."
}
},
{
"from_name": null,
"id": "705e6886ad8545d3a04d3b55b008694d",
"to_name": null,
"type": null,
"value": {
"end": 12561,
"labels": [
"ANALYSIS"
],
"start": 12335,
"text": "The agency was acquired by virtue of the vot- ing power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellants did not pay any distinct consideration."
}
},
{
"from_name": null,
"id": "f2917b056d8e413d8154b501d6e0f3cb",
"to_name": null,
"type": null,
"value": {
"end": 12790,
"labels": [
"ANALYSIS"
],
"start": 12562,
"text": "The managing agency is manifestly the source of profit of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture."
}
},
{
"from_name": null,
"id": "231f82d8af464deaa3015470f5177590",
"to_name": null,
"type": null,
"value": {
"end": 13050,
"labels": [
"ANALYSIS"
],
"start": 12791,
"text": "If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the ;hares."
}
},
{
"from_name": null,
"id": "5ec4414c59734ffc8b08f30a98c0740b",
"to_name": null,
"type": null,
"value": {
"end": 13212,
"labels": [
"ANALYSIS"
],
"start": 13051,
"text": "Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade."
}
},
{
"from_name": null,
"id": "7bdbfbd415d5414d910a110422ec44b1",
"to_name": null,
"type": null,
"value": {
"end": 13413,
"labels": [
"RPC"
],
"start": 13212,
"text": "\nThe High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature."
}
},
{
"from_name": null,
"id": "c5c734a1659244a1a28d166a29e491c9",
"to_name": null,
"type": null,
"value": {
"end": 13566,
"labels": [
"RPC"
],
"start": 13414,
"text": "The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants."
}
},
{
"from_name": null,
"id": "45fb812884954bc7bd032dc2a092bd5b",
"to_name": null,
"type": null,
"value": {
"end": 13863,
"labels": [
"RPC"
],
"start": 13567,
"text": "If the acquisition of the shares was not acquisition of a stock-intrade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account."
}
},
{
"from_name": null,
"id": "b23168c8b2114fcba92065a82ddae5ac",
"to_name": null,
"type": null,
"value": {
"end": 13919,
"labels": [
"RPC"
],
"start": 13863,
"text": "\nThe appeal therefore fails and is dismissed with costs."
}
}
]
}
] | 4,121 | {
"text": "PETITIONER:\nM/s. RAMNARAIN SONS (Pr.) LTD.\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, BOMBAY\n\nDATE OF JUDGMENT:\n05/12/1960\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nKAPUR, J.L.\nHIDAYATULLAH, M.\n\nCITATION:\n\n1961 AIR 1141 1961 SCR (2) 904\n\nCITATOR INFO : (7,10,11)\n (21)\nE 1962 SC1267 (7)\n (7)\nR 1963 SC 835 (12)\n (30)\nRF 1968 SC 761\n\nRF 1970 SC 529\n\nE 1973 SC 182\n\nRF 1986 SC1695\n\nACT: for acquiring\nIncome Tax--Assessment--Purchase of shares sale of such\nmanaging agency rights--Loss incurred in\nshares--If of a capital nature.\n\nHEADNOTE:\n\nThe appellants, a private limited company, carrying on\n\nbusiness as brokers, managing agents and dealers in shares\n\nand securities and having as one of their objects the\n\nacquisition of managing agencies, purchased shares of\n\nthe Dawn Mills at a rate much higher than the market rate\n\nfor obtaining the controlling voting right and thereby\n\nacquired the managing agency of the Mills. Later on, they\n\nsold-some of those shares and suffered a loss of Rs.\n\n1,78,438. The Income-tax Officer in assessing the taxable\n\nincome disallowed the loss and the Appellate\n\nAssistant Commissioner on appeal confirmed that order. The\n\nIncome-tax Appellate Tribunal held that the shares did not\n\nbecome stock-in-trade of the appellants, but since the loss\n\nincurred was incidental to their business of acquiring\n\nmanaging agency, it was allowable as a revenue loss. On\n\nreference, the High Court held that the shares acquired by\n\nthe appellants were a capital asset and the loss suffered by\n\nthe sale was of a capital nature.\n\nHeld, that the High Court had taken the correct view of the\n\nmatter and the appeal must fail.\n\nThe question whether a transaction is or is not an adventure\n\nof the nature of trade has-to be decided in the light of the\n\nintention of the assessee judged by the legal requirements\n\nassociated with the concept of trade or business.\n\nSince the shares in question were purchased by the appel-\n\nlants with the intention of acquiring the managing agency\n\nand not in the course of their business as dealers in shares\n\n\nwith the intention of trading in those shares and what was\nacquired by such purchase was a capital asset in the shape\nof a managing agency, it could not be said merely because\nthe managing agency could be utilised for earning profits,\nthat those shares were stock-in-trade of their share\nbusiness.\nG.Venkataswami Naidu and Co. v. The Commissioner of Income-\ntax, [1959] Supp. 1 S.C.R. 464 and The Oriental Investment\nCo., Ltd. v. The Commissioner of Income-tax, Bombay, [1958]\nS.C.R. 49, referred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION; Civil Appeal No. 698 of 1957.\nAppeal by special leave from the judgment and order dated August 2, 1956, of the Bombay High Court in Income-tax Reference No. 1 of 1956.\nA. V. Viswanatha Sastri, B. A. Palkhiwala and G.\nGopalakrishnan, for the appellant.\nHardyal Hardy and D. Gupta, for the respondent.\n1960. December 5. The Judgment of the Court was delivered by SHAH, J.-The High Court of Judicature at Bombay answered the following two questions referred by the Income Tax Appellate Tribunal, Bench \"B\", Bombay, under s. 66(1) of the Indian Income-Tax Act, 1922: (1) Whether the acquisition of the managing agencyof the Dawn Mills Co., Ltd., was in the nature of a it n \"business\" carried on by the assessee company?\n(2)..If the answer to the first question is in the affirmative, whether the loss suffered by the assessee of...company of Rs. 1,78,438 on purchase and sale of 400 shares of the Dawn Mills Co., Ltd., being incidental to its business of acquiring the managing agency, was a loss of a revenue nature?, as follows: (1)..Acquisition of the managing agency was an acquisition of a capital asset; (2)..The loss in respect of the 400 shares was of a capital nature.\nAgainst the order of the High Court, this appeal is preferred with special-leave.\nThe appellants are a private limited company registered under the Indian Companies Act, 1913, and carry on business as brokers,managing agents and dealers in shares and securities. One of the objects for which the appellants were incorporated was to acquire managing agencies. The appellants also carried on business in shares of different companies, and were assessed to income-tax as dealers in shares and securities.\nM/s. Sassoon J. David, & Co., Ltd. were the managing agents of the Dawn Mills Ltd.-a public limited company-and they held 2,507 out of a total issue of 3,200 shares. On September 28, 1946, the appellants purchased from M/s.\nSassoon J. David & Co., Ltd. 1,507 shares of the Dawn Mills at the rate of Rs. 2,321-8-0 per share and having obtained a controlling voting right, acquired the managing agency rights of the Mills. The remaining, one thousand shares were acquired from M/s. Sassoon J. David & Co., Ltd. by the Directors of the appellants at the rate of Rs. 1,500. At the material time, the ruling market price of the shares of the Dawn Mills was Rs. 1,610. In December, 1946, the appellants sold 400 out of the shares purchased by them, and thereby suffered a loss of Rs. 1,78,438. The loss suffered by the appellants in the year of account January 1, 1946, to December 31, 1946, by sale of shares including 400 shares of theDawn Mills was Rs. 1,92,834. Crediting Rs. 1,05,907 earned as profit in certain other share transactions, the net loss suffered in the share transactions in the year of account amounted to Rs. 86,927. The appellants valued their shares at the end of the year of account, at cost or market price whichever was lower. By this method of valuation, the books of account of the appellants showed a loss of Rs. 7,97,792 which included a loss of Rs. 7,04,000 on the valuation of the Dawn Mills shares held by the appellants at the end of the year of account.\nIn the income-tax assessment for the year 1947-48, the appellants claimed Rs. 86,927 as loss on sales in trade in shares and Rs. 7, 97,792 as loss on valuation of stock-in- trade. The Income Tax Officer, Companies' Circle III(1), Bombay, disallowed the loss suffered by the appellants in the sale of the Dawn Mills shares, because in his view those shares were purchased by way of capital-investment and the loss suffered by sale thereof could not be allowed as a trading loss. He also held that the appellants were not entitled to depart from the method adopted in earlier years and to value the closing stock of shares in the year of account at cost or market price whichever was lower and to claim the difference between the opening and closing valuation as a trading loss. The Appellate Assistant Commissioner confirmed that order. In appeal, the Income Tax Appellate Tribunal held that the managing agency of the Dawn Mills was acquired by the appellants as a part of their business activity and the shares of the Mills having been purchased in the regular course incidental to their business of acquiring the managing agency, the loss on the sale of those shares was allowable as a revenue loss; but the shares of the Dawn Mills were not, the stock-in-trade of the appellants' business and they were not entitled to treat the difference between the purchase price and the value at close of the year of those shares, as a trading loss.\nAccordingly, the Tribunal allowed Rs. 1,78,438 as loss on sale of 400 shares of the Dawn Mills., but did not allow Rs.\n7,04,000 as loss arising out of the valuation of the Dawn Mills shares at theend of the year of account. On the application of the Commissioner of Income Tax, the Tribunal referred to the High Court the questions set out hereinbefore. In the High Court, the appellants took out a notice of motion for directing the Tribunal to refer certain questions which the appellants claimed arose out of the order of the Tribunal and which the Tribunal did not refer.\nThe High Court agreed with the opinion of the Tribunal that the shares of the Dawn Mills were not the stock-in-trade of the appellants and that those shares were purchased by the appellants with the object of acquiring the managing agency.\nThe High Court, however , held that the shares acquired by the appellants formed a capital asset and the loss suffered by sale of 400 out of those shares in the year of account being a capital loss, was not in the computation of income a permissible deduction. The High Court dismissed the notice of motion taken out by the appellants.\nIn considering whether a transaction is or is not an adventure in the nature of trade, the problem must be approached in the light of the intention of the assessee having regard to the \"legal requirements which are associated with the concept of trade or business\". The inference on this question raised by the Tribunal on the facts found is of mixed law and fact and is open to challenge before the High Court on a reference under s. 66 of the Income Tax Act G. Venkataswami Naidu & Co. v. The Commissioner of Income Tax (1). It was held in The Oriental Investment Co., Ltd. v. The Commissioner of Income Tax, Bombay (2), that the question whether the appellants' transactions amounted to dealing in shares and properties or to investment, is a mixed question of law and fact, and that the legal effect of the facts found by the Tribunal on which the assessee could be treated as a dealer or an investor, is a question of law. The Tribunal held that the shares of the Dawn Mills purchased by the appellants did not become their stock-in-trade. But they held that the transaction (1) [1959] SUPP. S.C.R. 646.\n(2) [1958] S.C.R. 49.having been effected in the regular course of the business of the appellants, viz., the acquisition of managing agencies, the loss resulting from the sale of shares was incidental to that business and was a revenue loss. It is not easy to appreciate the process by which this conclusion was reached. The shares were purchased for the purpose of acquiring the managing agency of the Dawn Mills; they were not purchased in the course of the appellants' business as dealers in shares. By purchasing the shares which facilitated acquisition of the managing agency, a capital asset was acquired and merely because the managing agency could be utilised for earning profit, the acquisition of the shares which led to the acquisition of the managing agency could not, in the absence of an intention to trade in those shares, be regarded as acquisition of stock-in-trade of the share business. The appellants had undoubtedly purchased the shares of the Dawn Mills with money borrowed at interest, but that circumstance by itself does not evidence an intention to trade in the shares. Nor is the fact that the appellants are dealers in hares and their Memorandum of Association authorises them to carry on business in shares of any importance in the circumstances of this case. The appellants by entering the shares of the Dawn Mills in their statement of shares in which trading transactions were carried on could not alter the real character of the acquisition. The appellants were undoubtedly dealers in shares; but the transaction in the Dawn Mills shares was ex facie not a business transaction. The current market rate at the date of purchase was Rs. 1,610 per share whereas the appellants acquired the shares at the rate of Rs. 2,321-8-0 per share. Even assuming that the appellants acquired the entire block of 2,507 shares. from M/s. Sassoon J. David & Co., Ltd.-the shares transferred to the names of the Directors being held by them merely as nominees of the appellants-the price per share was considerably in excess of the prevailing market rate. The only reason for entering into the transaction which could not otherwise be regarded as a prudent business transaction, was theacquisition of the managing agency. If the purpose of the acquisition of a large block of shares at a price which exceeded the current market price by a million rupees was the acquisition of the managing agency, the inference is inevitable that intention in purchasing shares was not to acquire them as part of the trade of the appellants in shares. The Tribunal found that the Dawn Mills' shares were acquired by the appellants for obtaining the managing agency of the Mills. The agency was acquired by virtue of the vot- ing power which the appellants obtained having purchased a very large block of shares, and for acquiring the managing agency, the appellants did not pay any distinct consideration. The managing agency is manifestly the source of profit of the appellants; but the shares purchased and the managing agency acquired were both assets of a capital nature and did not constitute stock-in-trade of a trading venture. If the shares were acquired for obtaining control over the managing agency of the Dawn Mills, the fact that the acquisition of the shares was integrated with the acquisition of the managing agency did not affect the character of the acquisition of the ;hares. Subsequent disposal of some out of the shares by the appellants could also not convert what was a capital acquisition into an acquisition in the nature of trade.\nThe High Court was therefore right in holding that the acquisition of the managing agency was an acquisition of a capital asset and the loss incurred by sale of the 400 shares was of a capital nature. The High Court was also right in dismissing the notice of motion for an order directing the Tribunal to refer the questions suggested by the appellants. If the acquisition of the shares was not acquisition of a stock-intrade, but of a capital asset, the appellants, by valuing the shares at cost or market price whichever was lower, could not bring the difference between the purchase price and the valuation made by them into their trading account.\nThe appeal therefore fails and is dismissed with costs."
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b26f4100137a4e40a54662c497a0b6e6",
"to_name": null,
"type": null,
"value": {
"end": 127,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE \n DATED THIS THE 25th DAY OF JUNE 2012\n\n BEFORE"
}
},
{
"from_name": null,
"id": "df3bf07b5ae24c9eb40d13c41828a418",
"to_name": null,
"type": null,
"value": {
"end": 223,
"labels": [
"PREAMBLE"
],
"start": 127,
"text": "\n\n THE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\n CRIMINAL REVISION PETITON NO.1308 OF 2010"
}
},
{
"from_name": null,
"id": "0f6ea81604254bf6857ef601778e9e45",
"to_name": null,
"type": null,
"value": {
"end": 1523,
"labels": [
"PREAMBLE"
],
"start": 223,
"text": "\n\nBETWEEN:\n\nS.Praveen, ...PETITIONER\nSon of A.Siddappa,\nAged about 26 years,\nResident of Dwaralu Village,\nSira Taluk,\nTumkur District.\n\n(By Shri. S.K.Venkata Reddy, Advocate)\n\nAND:\n\nState of Karnataka,\nBy Tavarekere Police,\nSira Taluk,\n\nTumkur District. 2\n\n ...RESPONDENT\n\n(By Shri. P. Karunakara, High Court Government Pleader )\n\n *****\n\n This Criminal Revision Petition filed under Section 397 read\nwith 401 Criminal Procedure Code, 1973 by the Advocate for the\npetitioner praying that this Hon'ble Court may be pleased to set aside\nthe impugned judgment dated 15/26.2.2010 passed by the Civil Judge\n(Jr.Dn.)and Judicial Magistrate First Class, Sira in C.C.No.409/2007\nand judgment dated 30.9.2010 passed by the Presiding Officer, Fast\nTrack Court-II, Tumkur, in Criminal Appeal No.29/2010, in so far as\nthis petitioner is concerned, by allowing this Criminal Revision\nPetition consequently acquit the petitioner/A1 of offence punishable\nunder Section 498(A) of Indian Penal Code.\n\n This Criminal Revision Petition having been heard and reserved\non 11.6.2012 and coming on for pronouncement of orders this day, the\nCourt delivered the following:-\n\n ORDER"
}
},
{
"from_name": null,
"id": "f824fd639f6c4a59902a9e60e907a129",
"to_name": null,
"type": null,
"value": {
"end": 1605,
"labels": [
"NONE"
],
"start": 1523,
"text": "\n Heard the learned counsel for the petitioner and the learned Government Pleader."
}
},
{
"from_name": null,
"id": "30ca1bf3006c4c6f92acf9116d973cde",
"to_name": null,
"type": null,
"value": {
"end": 1695,
"labels": [
"FAC"
],
"start": 1607,
"text": "2. The petitioner was the accused before the trial court in the following circumstances:"
}
},
{
"from_name": null,
"id": "2738f4df484b410c9ff0f81386540f9a",
"to_name": null,
"type": null,
"value": {
"end": 1949,
"labels": [
"FAC"
],
"start": 1696,
"text": "The complainant alleged that accused no.1, the petitioner herein and she were in love with each other and had decided to marry, but before they could marry, she was pregnant with a child of the petitioner and she had informed the petitioner of the same."
}
},
{
"from_name": null,
"id": "753fabe2fced4aa1aace778d4fc473c5",
"to_name": null,
"type": null,
"value": {
"end": 2024,
"labels": [
"FAC"
],
"start": 1950,
"text": "On learning of the pregnancy, it is alleged that the petitioner absconded."
}
},
{
"from_name": null,
"id": "e3dbea6c67854718ba5f794bad000fd1",
"to_name": null,
"type": null,
"value": {
"end": 2195,
"labels": [
"FAC"
],
"start": 2024,
"text": "\nThe complainant claimed that on 16.11.2006, she went to Dwaralu village, which was the petitioner's native village and met his parents and inquired about his whereabouts."
}
},
{
"from_name": null,
"id": "5028e11b0b384461926a9e776673c83a",
"to_name": null,
"type": null,
"value": {
"end": 2275,
"labels": [
"FAC"
],
"start": 2196,
"text": "She also intimated them about the relationship that she and the petitioner had."
}
},
{
"from_name": null,
"id": "3d5dc84933a74b298ba32823848b7a0a",
"to_name": null,
"type": null,
"value": {
"end": 2422,
"labels": [
"FAC"
],
"start": 2276,
"text": "The parents of the petitioner had advised the complainant that they would secure the presence of their son and would ensure that they are married."
}
},
{
"from_name": null,
"id": "be1400323f214656a16892714f7ce5eb",
"to_name": null,
"type": null,
"value": {
"end": 2508,
"labels": [
"FAC"
],
"start": 2423,
"text": "In the meantime, they requested her not to institute any case against the petitioner."
}
},
{
"from_name": null,
"id": "bf10b93c1c524ab1a54cecb957efb3cf",
"to_name": null,
"type": null,
"value": {
"end": 2560,
"labels": [
"FAC"
],
"start": 2509,
"text": "With that assurance, she had returned to Bangalore."
}
},
{
"from_name": null,
"id": "06f5d9c54fef47d2b64fb9004a0320e9",
"to_name": null,
"type": null,
"value": {
"end": 2837,
"labels": [
"FAC"
],
"start": 2560,
"text": "\n 3. It transpires that the petitioner, along with an advocate, had met the complainant and had expressed that the marriage between the petitioner and the complainant was not possible, since they belonged to different castes and that the families may not reconcile to the same."
}
},
{
"from_name": null,
"id": "452b30f20bdc4ff7b76ad485278eca6b",
"to_name": null,
"type": null,
"value": {
"end": 2982,
"labels": [
"FAC"
],
"start": 2837,
"text": "\n In this background, the complainant had again met accused no.2, the mother of the petitioner and intimated her about the petitioner's attitude."
}
},
{
"from_name": null,
"id": "a15a2b0cdfc9453f9c928b17026887cd",
"to_name": null,
"type": null,
"value": {
"end": 3080,
"labels": [
"FAC"
],
"start": 2983,
"text": "She was again reassured that the petitioner would be persuaded to marry her, but nothing changed."
}
},
{
"from_name": null,
"id": "07306149b8e54bc3949ac675b87cb603",
"to_name": null,
"type": null,
"value": {
"end": 3177,
"labels": [
"FAC"
],
"start": 3081,
"text": "Therefore, the complainant lodged a complaint before the J.P.Nagar Police Station on 24.11.2006."
}
},
{
"from_name": null,
"id": "ad344618c10b44f3af626e8d27edbe44",
"to_name": null,
"type": null,
"value": {
"end": 3380,
"labels": [
"FAC"
],
"start": 3178,
"text": "On 25.11.2006, the petitioner is said to have gone along with the complainant to J.P.Nagar Police Station and the Police had convinced the petitioner that he had no choice, but to marry the complainant."
}
},
{
"from_name": null,
"id": "2c15acb0fcae4a5bb907ec5d41527ff3",
"to_name": null,
"type": null,
"value": {
"end": 3563,
"labels": [
"FAC"
],
"start": 3381,
"text": "The complainant, therefore, had claimed that they were married at Ganapathi temple at 4th Block, J.P.Nagar, Bangalore and the mother of the petitioner had also attended the marriage."
}
},
{
"from_name": null,
"id": "9d0010491e8f42d2b560eafa65679985",
"to_name": null,
"type": null,
"value": {
"end": 3791,
"labels": [
"FAC"
],
"start": 3565,
"text": "4. It is her further case that since the petitioner had expressed that he had no money to set up a home, she had paid cash of `50,000/- and also handed over two bangles, in order that he may use the same for setting up a home."
}
},
{
"from_name": null,
"id": "0e830a37f3f34432b4500402570be9cc",
"to_name": null,
"type": null,
"value": {
"end": 3883,
"labels": [
"FAC"
],
"start": 3792,
"text": "It is her allegation that the petitioner did not do so, but misused the amount for himself."
}
},
{
"from_name": null,
"id": "afd3e10bc2c64bfeb40a22f6dbd92280",
"to_name": null,
"type": null,
"value": {
"end": 4032,
"labels": [
"FAC"
],
"start": 3884,
"text": "Thereafter, on 29.12.2006, the complainant is again said to have approached the J.P.Nagar Police and informed them of the conduct of the petitioner."
}
},
{
"from_name": null,
"id": "9f93609401a44ac491364b61c37f2833",
"to_name": null,
"type": null,
"value": {
"end": 4268,
"labels": [
"FAC"
],
"start": 4033,
"text": "The presence of the petitioner was again secured on 31.12.2006 and it is claimed that there was reproachment brought about by the Police once again, but however, the petitioner is said to have deserted the complainant by February 2007."
}
},
{
"from_name": null,
"id": "be83947cabba4868b2cf1ee6e11aa181",
"to_name": null,
"type": null,
"value": {
"end": 4374,
"labels": [
"FAC"
],
"start": 4269,
"text": "Therefore, the complainant is said to have visited Dwaralu village to meet the parents of the petitioner."
}
},
{
"from_name": null,
"id": "757f08901af84c1cbbd26c882a7d4c37",
"to_name": null,
"type": null,
"value": {
"end": 4475,
"labels": [
"FAC"
],
"start": 4375,
"text": "But the father of the petitioner had not permitted her to enter their house and had chased her away."
}
},
{
"from_name": null,
"id": "cd4a5dfdbd914af39558acde6fe9a832",
"to_name": null,
"type": null,
"value": {
"end": 4578,
"labels": [
"FAC"
],
"start": 4476,
"text": "Therefore, she had proceeded to the Tavarekere Police Station, which refused to receive any complaint."
}
},
{
"from_name": null,
"id": "91486cc7506b48b1becc9ae01626d91e",
"to_name": null,
"type": null,
"value": {
"end": 4788,
"labels": [
"FAC"
],
"start": 4579,
"text": "Thereafter, with the intervention of the Superintendent of Police, Tumkur, a complaint is said to have been lodged on 9.2.2007,which was forwarded to the jurisdictional Police and a case came to be registered."
}
},
{
"from_name": null,
"id": "e879775cb57c4cb09102161112ed20bd",
"to_name": null,
"type": null,
"value": {
"end": 4897,
"labels": [
"FAC"
],
"start": 4789,
"text": "Further investigation having been taken up, a charge-sheet was filed against the petitioner and his parents."
}
},
{
"from_name": null,
"id": "fa5ab37994244863a43b2b4ba8bf5627",
"to_name": null,
"type": null,
"value": {
"end": 5034,
"labels": [
"FAC"
],
"start": 4898,
"text": "Since the accused pleaded not guilty and claimed to be tried, the prosecution examined 13 witnesses and marked Exhibits - P1 to P24.\n 5."
}
},
{
"from_name": null,
"id": "b4477ef853224224985d8fd83036d450",
"to_name": null,
"type": null,
"value": {
"end": 5649,
"labels": [
"FAC"
],
"start": 5035,
"text": "On the basis of the material produced and the allegations made, the trial court had framed the following point for consideration: \"1. Whether the prosecution proves beyond all reasonable doubt that on 2.02.2007, at about 6.00 p.m., at Dwaralu village, accused being the husband of complainant B.L.Suneetha, Accused No.2 and 3 relatives of Accused No.1 made quarrel with her and gave both physical and mental harassment without providing food and shelter in their house and thrown out from the house and thereby committed an offence punishable under Section 498(A) read with 34 Indian Penal Code?\n 2. What Order? \""
}
},
{
"from_name": null,
"id": "ab9e48bb741747d78a7d43fb202ff39b",
"to_name": null,
"type": null,
"value": {
"end": 5962,
"labels": [
"RLC"
],
"start": 5649,
"text": "\n The trial court answered the same in the affirmative and convicted the petitioner for an offence punishable under Section 498A of the Indian Penal Code, 1860 (hereinafter referred to as ' the IPC' for brevity) and they were sentenced to undergo simple imprisonment for a period of one year for the said offence."
}
},
{
"from_name": null,
"id": "0af141dd31194771a8c4b80c435a1c22",
"to_name": null,
"type": null,
"value": {
"end": 6033,
"labels": [
"RLC"
],
"start": 5963,
"text": "The same having been carried in appeal, it was set aside and modified."
}
},
{
"from_name": null,
"id": "bceed7ce5c7e456fb0b3bfdf044108eb",
"to_name": null,
"type": null,
"value": {
"end": 6157,
"labels": [
"RLC"
],
"start": 6034,
"text": "The parents of the petitioner were acquitted and the conviction and order of sentence against the petitioner was confirmed."
}
},
{
"from_name": null,
"id": "3c648f84966744d094fbbdbb5cb4db5a",
"to_name": null,
"type": null,
"value": {
"end": 6218,
"labels": [
"FAC"
],
"start": 6158,
"text": "It is that which is under challenge in the present petition."
}
},
{
"from_name": null,
"id": "860f5c93cbb149d6910e962469360e0c",
"to_name": null,
"type": null,
"value": {
"end": 6362,
"labels": [
"ARG_PETITIONER"
],
"start": 6218,
"text": "\n 6. The learned counsel for the petitioner would contend that the courts below have not appreciated the ingredients of Section 498A of the IPC."
}
},
{
"from_name": null,
"id": "6c97cc5a72d94038b9f6b1dc58504d08",
"to_name": null,
"type": null,
"value": {
"end": 6722,
"labels": [
"ARG_PETITIONER"
],
"start": 6363,
"text": "It is suggested that the ingredients are that the husband of a woman should have subjected her to cruelty and such cruelty should be with a view to coerce her or any person related to her, to meet any unlawful demand of any property or valuable security and that the harassment is on account of failure by her or any person related to her to meet such demand."
}
},
{
"from_name": null,
"id": "9c8a4b12adae4632b72c9a19b5296d78",
"to_name": null,
"type": null,
"value": {
"end": 7039,
"labels": [
"ARG_PETITIONER"
],
"start": 6723,
"text": "Therefore, it would be evident that the law contemplates as a precondition that there should be a valid marriage in accordance with law between the complainant and the accused and the husband should have harassed his wife or treated her with cruelty to meet any unlawful demand for any property or valuable security."
}
},
{
"from_name": null,
"id": "fd5ea9f8b2014cdb970c4ab8c8c75751",
"to_name": null,
"type": null,
"value": {
"end": 7178,
"labels": [
"ARG_PETITIONER"
],
"start": 7040,
"text": "In the present case on hand, the complainant had not at all proved her marriage with the petitioner, except producing certain photographs."
}
},
{
"from_name": null,
"id": "88f47feaa5134591b9cd6ea67b42371c",
"to_name": null,
"type": null,
"value": {
"end": 7249,
"labels": [
"ARG_PETITIONER"
],
"start": 7178,
"text": "\nSignificantly, the negatives of the same were never brought on record."
}
},
{
"from_name": null,
"id": "7601eafc75254963becbac6677e4b29d",
"to_name": null,
"type": null,
"value": {
"end": 7368,
"labels": [
"ARG_PETITIONER"
],
"start": 7250,
"text": "On the basis of such evidence, the petitioner could not be termed to be the legally wedded husband of the complainant."
}
},
{
"from_name": null,
"id": "db9e0d3d13944feaa91d18b7838fc1fa",
"to_name": null,
"type": null,
"value": {
"end": 7476,
"labels": [
"ARG_PETITIONER"
],
"start": 7368,
"text": "\nTherefore, the very first precondition to establish an offence punishable under the said Section is absent."
}
},
{
"from_name": null,
"id": "45bb56b5ec234b498d131bedca72837d",
"to_name": null,
"type": null,
"value": {
"end": 7601,
"labels": [
"ARG_PETITIONER"
],
"start": 7477,
"text": "There is nothing on record to indicate the custom or rituals, in accordance with which the alleged marriage had taken place."
}
},
{
"from_name": null,
"id": "2501678bfa3f462da122935b828c135f",
"to_name": null,
"type": null,
"value": {
"end": 7799,
"labels": [
"ARG_PETITIONER"
],
"start": 7602,
"text": "The prosecution has sought to rely on Exhibit P.24, which is said to be an undertaking given by the petitioner before the J.P.Nagar Police, to the effect that he would take care of the complainant."
}
},
{
"from_name": null,
"id": "2d58509661db46f7a1dd64a8e3a14912",
"to_name": null,
"type": null,
"value": {
"end": 7895,
"labels": [
"ARG_PETITIONER"
],
"start": 7800,
"text": "This by itself would not establish that the complainant and the petitioner were legally wedded."
}
},
{
"from_name": null,
"id": "484790e712b14af2831ff3133b3c1f9c",
"to_name": null,
"type": null,
"value": {
"end": 7977,
"labels": [
"ARG_PETITIONER"
],
"start": 7896,
"text": "PWs 1 to 3 were residents of Dwaralu village, the native place of the petitioner."
}
},
{
"from_name": null,
"id": "4bc2b2d76d084a6d8df8146ff4e6598f",
"to_name": null,
"type": null,
"value": {
"end": 8082,
"labels": [
"ARG_PETITIONER"
],
"start": 7977,
"text": "\nSignificantly, they have not spoken about the valid marriage between the complainant and the petitioner."
}
},
{
"from_name": null,
"id": "958225dc659b4fa5bb2e62df576720f2",
"to_name": null,
"type": null,
"value": {
"end": 8192,
"labels": [
"ARG_PETITIONER"
],
"start": 8083,
"text": "They have also not stated about the complainant and the petitioner having lived together as husband and wife."
}
},
{
"from_name": null,
"id": "ce47fa54abd54fe7832e561b64bf9f7e",
"to_name": null,
"type": null,
"value": {
"end": 8349,
"labels": [
"ARG_PETITIONER"
],
"start": 8193,
"text": "There is also no indication of any harassment caused by the petitioner to the complainant to meet any unlawful demand for any property or valuable security."
}
},
{
"from_name": null,
"id": "912144df1a8e4fafabfb9f661bc5198e",
"to_name": null,
"type": null,
"value": {
"end": 8560,
"labels": [
"ARG_PETITIONER"
],
"start": 8350,
"text": "PW.4, who was said to have been present when the complainant and the petitioner got married at the Ganapathi temple, has not spoken about the rituals and customs that were performed at the time of the marriage."
}
},
{
"from_name": null,
"id": "50931d5793c24b7590d418ea74ea5b49",
"to_name": null,
"type": null,
"value": {
"end": 8669,
"labels": [
"ARG_PETITIONER"
],
"start": 8561,
"text": "He has also not endorsed about the complainant and the petitioner having lived together as husband and wife."
}
},
{
"from_name": null,
"id": "310b7765741e4a2d9dd2278c50eff8d3",
"to_name": null,
"type": null,
"value": {
"end": 8972,
"labels": [
"ARG_PETITIONER"
],
"start": 8670,
"text": "Apart from PW.12 and 13, who were again close relatives and had not stated about the rituals and customs performed at the valid marriage, all other witnesses were formal witnesses for the prosecution, whose evidence does not establish that there was marriage between the complainant and the petitioner."
}
},
{
"from_name": null,
"id": "9035a7d6b34b447b85a6531e7b1857dc",
"to_name": null,
"type": null,
"value": {
"end": 9200,
"labels": [
"ARG_PETITIONER"
],
"start": 8973,
"text": "The courts below have glossed over this significant aspect and have treated the marriage as a `love marriage' and have proceeded to hold that the allegations would constitute an offence punishable under Section 498A of the IPC."
}
},
{
"from_name": null,
"id": "73e8d4fa6c71435e8ef7d9d2c8e135db",
"to_name": null,
"type": null,
"value": {
"end": 9348,
"labels": [
"ARG_PETITIONER"
],
"start": 9201,
"text": "Significantly, the parents of the complainant have not been examined as witnesses in the case, atleast to the extent of proving the valid marriage."
}
},
{
"from_name": null,
"id": "0b83aff7ac8d4090bc79c7627832a39a",
"to_name": null,
"type": null,
"value": {
"end": 9872,
"labels": [
"ARG_PETITIONER"
],
"start": 9348,
"text": "\n 7. The learned Counsel would place reliance on a judgment in the case of State vs. Prasanna Kumar Senapati, 2007 Cri.LJ 1344, which was an identical case, whereby the alleged marriage at a temple was sought to be characterised as a valid marriage and the Orissa High Court had negated the assertion that there was a valid marriage, in the absence of a priest who conducted the marriage having been examined and other circumstances, which did not implicate the accused in having brought about the death of the alleged wife."
}
},
{
"from_name": null,
"id": "3695808948b54487aed17d968dd0fd6c",
"to_name": null,
"type": null,
"value": {
"end": 10541,
"labels": [
"ARG_PETITIONER"
],
"start": 9872,
"text": "\n 8. Reliance is also placed on the case of D.Velusamy vs.D.Patchaiammal, 2010(7) Supreme 321, which arose out of a case for maintenance under Section 125 of the Criminal Procedure Code, 1973, (hereinafter referred to as ' the Cr.P.C.' for brevity) and with reference to the expression `wife' as employed in the said Section, the decision of a three-judge bench of the Supreme Court in Vimala(K) vs. Veeraswamy(K), (1991) 2 SCC 375, has been followed, wherein it was laid down that the expression `wife' as employed in Section 125 of the Cr.P.C., includes a woman, who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried."
}
},
{
"from_name": null,
"id": "afd9f91133b340c2a903a4cbd7319ef4",
"to_name": null,
"type": null,
"value": {
"end": 10688,
"labels": [
"ARG_PETITIONER"
],
"start": 10542,
"text": "The woman not having the legal status of a wife was thus brought within the inclusive definition of the term `wife' consistent with the objective."
}
},
{
"from_name": null,
"id": "46b193e7023747fb86f70170a08802ef",
"to_name": null,
"type": null,
"value": {
"end": 11089,
"labels": [
"ARG_PETITIONER"
],
"start": 10689,
"text": "However, under the law, a second wife, whose marriage is void on account of the survival of the first marriage, is not a legally wedded wife and is therefore not entitled to maintenance under the provision and the same has been followed in holding that a woman cannot claim to be the wife, unless it is established that the man was not already married, in that, the first marriage was not subsisting."
}
},
{
"from_name": null,
"id": "f77844b36df14a82840bbf25bda19c6c",
"to_name": null,
"type": null,
"value": {
"end": 11552,
"labels": [
"ARG_PETITIONER"
],
"start": 11090,
"text": "The learned counsel would further submit that this is also consistent with the view in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat, AIR 2005 SC 1809, while it has been observed that the Legislature considered it necessary to include within the scope of the provision, an illegitimate child, but, it has not done so with respect to a woman not lawfully married and however, desirable it may be, to take note of the plight of the unfortunate woman."
}
},
{
"from_name": null,
"id": "8215a28518404b178bf1bed1653eb4fc",
"to_name": null,
"type": null,
"value": {
"end": 11780,
"labels": [
"ARG_PETITIONER"
],
"start": 11553,
"text": "The legislative intent being clearly reflected in Section 125 of the Cr.P.C., there was no claim for enlarging its scope by introducing any artificial definition to include a woman not lawfully married in the expression `wife'."
}
},
{
"from_name": null,
"id": "b7a1c6c2681c47feb1d19b693e2a498d",
"to_name": null,
"type": null,
"value": {
"end": 12027,
"labels": [
"ARG_PETITIONER"
],
"start": 11781,
"text": "Therefore, the learned Counsel would submit that the courts below have hence overlooked the primary ingredients, which would necessarily have to be present to establish that the offence punishable under Section 498A of the IPC had been committed."
}
},
{
"from_name": null,
"id": "8b4e5dc737f445d6bb0ff64d32d96e45",
"to_name": null,
"type": null,
"value": {
"end": 12181,
"labels": [
"ARG_PETITIONER"
],
"start": 12028,
"text": "The Counsel, hence, seeks that the petition be allowed and the judgment of the lower appellate court be set aside insofar as the petitioner is concerned."
}
},
{
"from_name": null,
"id": "b3034cb1ac354601a7687b3b98687059",
"to_name": null,
"type": null,
"value": {
"end": 12520,
"labels": [
"ARG_RESPONDENT"
],
"start": 12183,
"text": "9. On the other hand, the learned Government Pleader would submit that the primary contention of the learned counsel for the petitioner is that there is no valid marriage between the complainant and the petitioner and would submit that the question has been answered in the case of Reema Aggarwal v.s Anupam and others, (2004) 3 SCC 199."
}
},
{
"from_name": null,
"id": "c0253cfb485e48da8bef3c5039c8c69c",
"to_name": null,
"type": null,
"value": {
"end": 13244,
"labels": [
"ARG_RESPONDENT"
],
"start": 12521,
"text": "With specific reference to a question as to who would be covered by the expression `husband' for attracting Section 498A, the apex court has held that etymologically in terms of the definitions of `husband' and `marriage' as given in the various law lexicons and dictionaries, the existence of a valid marriage may appear to be sine qua non for applying a penal provision and has opined that the concept of marriage to constitute the relationship of husband and wife may require strict interpretation where claims for civil rights, right to property, etc., may follow or flow and a liberal approach and the different perception cannot be an anathema when the question of curbing a social evil, such as, dowry is concerned.\n"
}
},
{
"from_name": null,
"id": "d2aa28c0a65043b5b386963d71efe435",
"to_name": null,
"type": null,
"value": {
"end": 13374,
"labels": [
"ARG_RESPONDENT"
],
"start": 13244,
"text": "The apex court has further observed that if the legality of the marriage itself is an issue, further legalistic problems do arise."
}
},
{
"from_name": null,
"id": "8d04ffb13b1c46d889976462f0fbaaf2",
"to_name": null,
"type": null,
"value": {
"end": 13536,
"labels": [
"ARG_RESPONDENT"
],
"start": 13375,
"text": "In that, if the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable."
}
},
{
"from_name": null,
"id": "5bf505ba574042859c775e4f8e94061d",
"to_name": null,
"type": null,
"value": {
"end": 13703,
"labels": [
"ARG_RESPONDENT"
],
"start": 13537,
"text": "Even then, the purpose for which Section 498A and Section 304-B IPC as well as Section 113E of the Indian Evidence Act, 1872 were introduced, cannot be lost sight of."
}
},
{
"from_name": null,
"id": "998ae62e197d44789de0c0906f7c37da",
"to_name": null,
"type": null,
"value": {
"end": 13866,
"labels": [
"ARG_RESPONDENT"
],
"start": 13704,
"text": "The legislation enacted with some policy, to curb and alleviate some public evil rampant in society, requires to be interpreted with a certain element of realism."
}
},
{
"from_name": null,
"id": "98528952ac0d4bc6b6c75226e2ee3a12",
"to_name": null,
"type": null,
"value": {
"end": 14470,
"labels": [
"ARG_RESPONDENT"
],
"start": 13867,
"text": "Therefore, the legalistic niceties would destroy the purpose of the provisions and therefore concluded that whatever be the legitimacy of the marriage itself, for the limited purpose of Section 498A and 304B of the Indian Penal Code, the interpretation known as purposive construction would come into play in such circumstances and the absence of a definition of `husband' is specifically include such persons who contract marriage ostensibly and cohabit with such woman, in the purported exercise of their role and status as `husband' is no ground to exclude them from the purview of the said sections."
}
},
{
"from_name": null,
"id": "668d9f6ef6a44b8ea4e0dbd4714f106d",
"to_name": null,
"type": null,
"value": {
"end": 14627,
"labels": [
"ARG_RESPONDENT"
],
"start": 14470,
"text": "\n 10. The learned Government Pleader would therefore rely on the said judgment to support the contention that a legally valid marriage is not a precondition."
}
},
{
"from_name": null,
"id": "ae41afdef57a454ebc3c0f031c25ba1e",
"to_name": null,
"type": null,
"value": {
"end": 15023,
"labels": [
"ANALYSIS"
],
"start": 14628,
"text": "This decision has been relied upon and applied in yet another judgment of the apex court in the case of U.Suvetha vs. State by Inspector of Police, 2009 (2) Crimes 357 and has cited with approval the opinion of the Kerala High Court in the case of John Idiculla vs. State of Kerala, 2005 MLJ(Crl.) 841, where a wider meaning to the word `second wife' has been given in the following words:- \"25."
}
},
{
"from_name": null,
"id": "fa110d1f7fac4757b0011e9f56c17c64",
"to_name": null,
"type": null,
"value": {
"end": 15225,
"labels": [
"ANALYSIS"
],
"start": 15024,
"text": "The test under Section 498A Indian Penal Code is whether in the facts of each case, it is probable that a woman is treated by friends, relatives, husband or society as a \"wife\" or as a mere \"mistress\"."
}
},
{
"from_name": null,
"id": "98fd9bbd1507479ba3f054c2aa1a9bad",
"to_name": null,
"type": null,
"value": {
"end": 15468,
"labels": [
"ANALYSIS"
],
"start": 15226,
"text": "If from the pleading and evidence the Court finds that the woman concerned is regarded as wife and not as a mere mistress, she can be considered to be a `wife' and consequently as `the relative of the husband' for purpose of Section 498A IPC."
}
},
{
"from_name": null,
"id": "6cb42091febb41d9aed4576c7a77d024",
"to_name": null,
"type": null,
"value": {
"end": 15618,
"labels": [
"ANALYSIS"
],
"start": 15468,
"text": "\n Proof of a legal marriage in the rigid sense as required under civil law is unnecessary for establishing an offence under Section 498A IPC."
}
},
{
"from_name": null,
"id": "5bd928d3d8f84c90abc2f9cd4f1a69f1",
"to_name": null,
"type": null,
"value": {
"end": 15817,
"labels": [
"ANALYSIS"
],
"start": 15619,
"text": "The expression \"marriage\" or \"relative\" can be given only a diluted meaning which a common man or society may attribute to those concepts in the common parlance, for the purpose of Section 498A IPC."
}
},
{
"from_name": null,
"id": "846c58f889cc4868b22282ef88971484",
"to_name": null,
"type": null,
"value": {
"end": 15994,
"labels": [
"ANALYSIS"
],
"start": 15818,
"text": "A second wife who is treated as wife by the husband, relatives, friends or society can be considered to be `the relative of the husband' for the purpose of Section 498A of IPC."
}
},
{
"from_name": null,
"id": "d6eefe1f88444fc88f61ee42b4d45c90",
"to_name": null,
"type": null,
"value": {
"end": 16124,
"labels": [
"ANALYSIS"
],
"start": 15995,
"text": "If she inflicts cruelty on the legally-wedded wife of the husband, an offence under Section 498A IPC will not lie against her.\"\n "
}
},
{
"from_name": null,
"id": "86f58d3d759e486c8784e7fac4038c72",
"to_name": null,
"type": null,
"value": {
"end": 16528,
"labels": [
"ARG_RESPONDENT"
],
"start": 16124,
"text": "And the learned Government Pleader would submit that the first ingredient of Section 498A stands satisfied insofar as the present case on hand, in that, there are certain photographs produced coupled with the fact that the petitioner had given an undertaking before the jurisdictional police and the eye-witness to the marriage were sufficient to establish that the petitioner had married the respondent."
}
},
{
"from_name": null,
"id": "42420039d4074810b453da21460e375e",
"to_name": null,
"type": null,
"value": {
"end": 16645,
"labels": [
"ANALYSIS"
],
"start": 16528,
"text": "\nIt was not even a case where the marriage was alleged to be a second marriage, thereby rendering it a void marriage."
}
},
{
"from_name": null,
"id": "39d2e15e6ac1460ab03dd48d7c25de22",
"to_name": null,
"type": null,
"value": {
"end": 16726,
"labels": [
"ANALYSIS"
],
"start": 16646,
"text": "It is not the case of the petitioner that the complainant was a stranger to him."
}
},
{
"from_name": null,
"id": "ae380147029c48d68707b48f53ecc374",
"to_name": null,
"type": null,
"value": {
"end": 16818,
"labels": [
"ANALYSIS"
],
"start": 16727,
"text": "The insistence on strict proof of marriage, as laid down in the above decisions, is not so."
}
},
{
"from_name": null,
"id": "e8566016579346538f9e306763fd21dd",
"to_name": null,
"type": null,
"value": {
"end": 17311,
"labels": [
"ANALYSIS"
],
"start": 16818,
"text": "\n 11. Insofar as the cruelty which requires to be established is concerned, is on account of the fact that there was reluctance on the part of the petitioner to marry the complainant citing lack of financial independence, compelling the complainant to part with valuable property, coupled with the fact that cruelty, as contemplated under Section 498A has been defined in a wider sense and cannot be restricted in the manner as sought to be canvassed by the learned counsel for the petitioner."
}
},
{
"from_name": null,
"id": "7203cfae6bf142c8b1d91136f4a27a3c",
"to_name": null,
"type": null,
"value": {
"end": 17585,
"labels": [
"ANALYSIS"
],
"start": 17312,
"text": "The punishment has been imposed with particular reference to the degree of cruelty that has been established and therefore, it is not a case which would warrant interference by this court in a revision and hence, the Government Pleader prays that the petition be dismissed."
}
},
{
"from_name": null,
"id": "45b9f61568734951affaeb3d695b4604",
"to_name": null,
"type": null,
"value": {
"end": 17917,
"labels": [
"ANALYSIS"
],
"start": 17585,
"text": "\n 12. In the above facts and circumstances and with reference to the law as laid down by the apex court, for purposes of Section 498A of the IPC, though it may not be essential that a legally valid marriage is established, it was necessary to establish that the petitioner and the complainant had lived together as husband and wife."
}
},
{
"from_name": null,
"id": "35cbe6b07b9e49b29dbd89b2905494b4",
"to_name": null,
"type": null,
"value": {
"end": 17976,
"labels": [
"ANALYSIS"
],
"start": 17918,
"text": "In this regard, there is sadly no evidence is forthcoming."
}
},
{
"from_name": null,
"id": "48c01f23f51845aab4297c351582695b",
"to_name": null,
"type": null,
"value": {
"end": 18185,
"labels": [
"ANALYSIS"
],
"start": 17977,
"text": "Therefore, even the wider definition applied to the expressions `husband' and `marriage' with reference to the decisions of the apex court referred to hereinabove would not come to the aid of the prosecution."
}
},
{
"from_name": null,
"id": "087dcbfa14a84f1b8b5951d83c79eef6",
"to_name": null,
"type": null,
"value": {
"end": 18505,
"labels": [
"ANALYSIS"
],
"start": 18186,
"text": "Further, insofar as the second limb of the requirements under Section 498A is also not established for the reason that there is not even an allegation of the petitioner having demanded or coerced the complainant to meet any unlawful demand and of the complainant having been harassed on her failure to meet such demand."
}
},
{
"from_name": null,
"id": "8ea94cf3876b438ca78ec9ffb5c38903",
"to_name": null,
"type": null,
"value": {
"end": 18679,
"labels": [
"ANALYSIS"
],
"start": 18506,
"text": "The mere allegation of desertion, whether it was bordered on cruelty, was never within the purview of the courts below and it is outside the scope of this revision petition."
}
},
{
"from_name": null,
"id": "c21620dd953d4372884b5894b675b236",
"to_name": null,
"type": null,
"value": {
"end": 18890,
"labels": [
"RATIO"
],
"start": 18679,
"text": "\nTherefore, the primary ingredients necessary to constitute an offence punishable under Section 498A were clearly absent and hence the conviction of the petitioner by both the courts below is clearly bad in law."
}
},
{
"from_name": null,
"id": "19af797a3d1648afb2a5877bebb273ae",
"to_name": null,
"type": null,
"value": {
"end": 19044,
"labels": [
"RPC"
],
"start": 18890,
"text": "\n Accordingly, the petition is allowed and the judgment of the courts below is set aside insofar as the conviction of the present petitioner is concerned."
}
},
{
"from_name": null,
"id": "9593c3bc6a004aa69daceb1049f224ab",
"to_name": null,
"type": null,
"value": {
"end": 19059,
"labels": [
"NONE"
],
"start": 19044,
"text": "\n Sd/- JUDGE nv"
}
}
]
}
] | 4,076 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE \n DATED THIS THE 25th DAY OF JUNE 2012\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\n CRIMINAL REVISION PETITON NO.1308 OF 2010\n\nBETWEEN:\n\nS.Praveen, ...PETITIONER\nSon of A.Siddappa,\nAged about 26 years,\nResident of Dwaralu Village,\nSira Taluk,\nTumkur District.\n\n(By Shri. S.K.Venkata Reddy, Advocate)\n\nAND:\n\nState of Karnataka,\nBy Tavarekere Police,\nSira Taluk,\n\nTumkur District. 2\n\n ...RESPONDENT\n\n(By Shri. P. Karunakara, High Court Government Pleader )\n\n *****\n\n This Criminal Revision Petition filed under Section 397 read\nwith 401 Criminal Procedure Code, 1973 by the Advocate for the\npetitioner praying that this Hon'ble Court may be pleased to set aside\nthe impugned judgment dated 15/26.2.2010 passed by the Civil Judge\n(Jr.Dn.)and Judicial Magistrate First Class, Sira in C.C.No.409/2007\nand judgment dated 30.9.2010 passed by the Presiding Officer, Fast\nTrack Court-II, Tumkur, in Criminal Appeal No.29/2010, in so far as\nthis petitioner is concerned, by allowing this Criminal Revision\nPetition consequently acquit the petitioner/A1 of offence punishable\nunder Section 498(A) of Indian Penal Code.\n\n This Criminal Revision Petition having been heard and reserved\non 11.6.2012 and coming on for pronouncement of orders this day, the\nCourt delivered the following:-\n\n ORDER\n Heard the learned counsel for the petitioner and the learned Government Pleader.\n 2. The petitioner was the accused before the trial court in the following circumstances: The complainant alleged that accused no.1, the petitioner herein and she were in love with each other and had decided to marry, but before they could marry, she was pregnant with a child of the petitioner and she had informed the petitioner of the same. On learning of the pregnancy, it is alleged that the petitioner absconded.\nThe complainant claimed that on 16.11.2006, she went to Dwaralu village, which was the petitioner's native village and met his parents and inquired about his whereabouts. She also intimated them about the relationship that she and the petitioner had. The parents of the petitioner had advised the complainant that they would secure the presence of their son and would ensure that they are married. In the meantime, they requested her not to institute any case against the petitioner. With that assurance, she had returned to Bangalore.\n 3. It transpires that the petitioner, along with an advocate, had met the complainant and had expressed that the marriage between the petitioner and the complainant was not possible, since they belonged to different castes and that the families may not reconcile to the same.\n In this background, the complainant had again met accused no.2, the mother of the petitioner and intimated her about the petitioner's attitude. She was again reassured that the petitioner would be persuaded to marry her, but nothing changed. Therefore, the complainant lodged a complaint before the J.P.Nagar Police Station on 24.11.2006. On 25.11.2006, the petitioner is said to have gone along with the complainant to J.P.Nagar Police Station and the Police had convinced the petitioner that he had no choice, but to marry the complainant. The complainant, therefore, had claimed that they were married at Ganapathi temple at 4th Block, J.P.Nagar, Bangalore and the mother of the petitioner had also attended the marriage.\n 4. It is her further case that since the petitioner had expressed that he had no money to set up a home, she had paid cash of `50,000/- and also handed over two bangles, in order that he may use the same for setting up a home. It is her allegation that the petitioner did not do so, but misused the amount for himself. Thereafter, on 29.12.2006, the complainant is again said to have approached the J.P.Nagar Police and informed them of the conduct of the petitioner. The presence of the petitioner was again secured on 31.12.2006 and it is claimed that there was reproachment brought about by the Police once again, but however, the petitioner is said to have deserted the complainant by February 2007. Therefore, the complainant is said to have visited Dwaralu village to meet the parents of the petitioner. But the father of the petitioner had not permitted her to enter their house and had chased her away. Therefore, she had proceeded to the Tavarekere Police Station, which refused to receive any complaint. Thereafter, with the intervention of the Superintendent of Police, Tumkur, a complaint is said to have been lodged on 9.2.2007,which was forwarded to the jurisdictional Police and a case came to be registered. Further investigation having been taken up, a charge-sheet was filed against the petitioner and his parents. Since the accused pleaded not guilty and claimed to be tried, the prosecution examined 13 witnesses and marked Exhibits - P1 to P24.\n 5. On the basis of the material produced and the allegations made, the trial court had framed the following point for consideration: \"1. Whether the prosecution proves beyond all reasonable doubt that on 2.02.2007, at about 6.00 p.m., at Dwaralu village, accused being the husband of complainant B.L.Suneetha, Accused No.2 and 3 relatives of Accused No.1 made quarrel with her and gave both physical and mental harassment without providing food and shelter in their house and thrown out from the house and thereby committed an offence punishable under Section 498(A) read with 34 Indian Penal Code?\n 2. What Order? \"\n The trial court answered the same in the affirmative and convicted the petitioner for an offence punishable under Section 498A of the Indian Penal Code, 1860 (hereinafter referred to as ' the IPC' for brevity) and they were sentenced to undergo simple imprisonment for a period of one year for the said offence. The same having been carried in appeal, it was set aside and modified. The parents of the petitioner were acquitted and the conviction and order of sentence against the petitioner was confirmed. It is that which is under challenge in the present petition.\n 6. The learned counsel for the petitioner would contend that the courts below have not appreciated the ingredients of Section 498A of the IPC. It is suggested that the ingredients are that the husband of a woman should have subjected her to cruelty and such cruelty should be with a view to coerce her or any person related to her, to meet any unlawful demand of any property or valuable security and that the harassment is on account of failure by her or any person related to her to meet such demand. Therefore, it would be evident that the law contemplates as a precondition that there should be a valid marriage in accordance with law between the complainant and the accused and the husband should have harassed his wife or treated her with cruelty to meet any unlawful demand for any property or valuable security. In the present case on hand, the complainant had not at all proved her marriage with the petitioner, except producing certain photographs.\nSignificantly, the negatives of the same were never brought on record. On the basis of such evidence, the petitioner could not be termed to be the legally wedded husband of the complainant.\nTherefore, the very first precondition to establish an offence punishable under the said Section is absent. There is nothing on record to indicate the custom or rituals, in accordance with which the alleged marriage had taken place. The prosecution has sought to rely on Exhibit P.24, which is said to be an undertaking given by the petitioner before the J.P.Nagar Police, to the effect that he would take care of the complainant. This by itself would not establish that the complainant and the petitioner were legally wedded. PWs 1 to 3 were residents of Dwaralu village, the native place of the petitioner.\nSignificantly, they have not spoken about the valid marriage between the complainant and the petitioner. They have also not stated about the complainant and the petitioner having lived together as husband and wife. There is also no indication of any harassment caused by the petitioner to the complainant to meet any unlawful demand for any property or valuable security. PW.4, who was said to have been present when the complainant and the petitioner got married at the Ganapathi temple, has not spoken about the rituals and customs that were performed at the time of the marriage. He has also not endorsed about the complainant and the petitioner having lived together as husband and wife. Apart from PW.12 and 13, who were again close relatives and had not stated about the rituals and customs performed at the valid marriage, all other witnesses were formal witnesses for the prosecution, whose evidence does not establish that there was marriage between the complainant and the petitioner. The courts below have glossed over this significant aspect and have treated the marriage as a `love marriage' and have proceeded to hold that the allegations would constitute an offence punishable under Section 498A of the IPC. Significantly, the parents of the complainant have not been examined as witnesses in the case, atleast to the extent of proving the valid marriage.\n 7. The learned Counsel would place reliance on a judgment in the case of State vs. Prasanna Kumar Senapati, 2007 Cri.LJ 1344, which was an identical case, whereby the alleged marriage at a temple was sought to be characterised as a valid marriage and the Orissa High Court had negated the assertion that there was a valid marriage, in the absence of a priest who conducted the marriage having been examined and other circumstances, which did not implicate the accused in having brought about the death of the alleged wife.\n 8. Reliance is also placed on the case of D.Velusamy vs.D.Patchaiammal, 2010(7) Supreme 321, which arose out of a case for maintenance under Section 125 of the Criminal Procedure Code, 1973, (hereinafter referred to as ' the Cr.P.C.' for brevity) and with reference to the expression `wife' as employed in the said Section, the decision of a three-judge bench of the Supreme Court in Vimala(K) vs. Veeraswamy(K), (1991) 2 SCC 375, has been followed, wherein it was laid down that the expression `wife' as employed in Section 125 of the Cr.P.C., includes a woman, who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife was thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law, a second wife, whose marriage is void on account of the survival of the first marriage, is not a legally wedded wife and is therefore not entitled to maintenance under the provision and the same has been followed in holding that a woman cannot claim to be the wife, unless it is established that the man was not already married, in that, the first marriage was not subsisting. The learned counsel would further submit that this is also consistent with the view in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat, AIR 2005 SC 1809, while it has been observed that the Legislature considered it necessary to include within the scope of the provision, an illegitimate child, but, it has not done so with respect to a woman not lawfully married and however, desirable it may be, to take note of the plight of the unfortunate woman. The legislative intent being clearly reflected in Section 125 of the Cr.P.C., there was no claim for enlarging its scope by introducing any artificial definition to include a woman not lawfully married in the expression `wife'. Therefore, the learned Counsel would submit that the courts below have hence overlooked the primary ingredients, which would necessarily have to be present to establish that the offence punishable under Section 498A of the IPC had been committed. The Counsel, hence, seeks that the petition be allowed and the judgment of the lower appellate court be set aside insofar as the petitioner is concerned.\n 9. On the other hand, the learned Government Pleader would submit that the primary contention of the learned counsel for the petitioner is that there is no valid marriage between the complainant and the petitioner and would submit that the question has been answered in the case of Reema Aggarwal v.s Anupam and others, (2004) 3 SCC 199. With specific reference to a question as to who would be covered by the expression `husband' for attracting Section 498A, the apex court has held that etymologically in terms of the definitions of `husband' and `marriage' as given in the various law lexicons and dictionaries, the existence of a valid marriage may appear to be sine qua non for applying a penal provision and has opined that the concept of marriage to constitute the relationship of husband and wife may require strict interpretation where claims for civil rights, right to property, etc., may follow or flow and a liberal approach and the different perception cannot be an anathema when the question of curbing a social evil, such as, dowry is concerned.\nThe apex court has further observed that if the legality of the marriage itself is an issue, further legalistic problems do arise. In that, if the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then, the purpose for which Section 498A and Section 304-B IPC as well as Section 113E of the Indian Evidence Act, 1872 were introduced, cannot be lost sight of. The legislation enacted with some policy, to curb and alleviate some public evil rampant in society, requires to be interpreted with a certain element of realism. Therefore, the legalistic niceties would destroy the purpose of the provisions and therefore concluded that whatever be the legitimacy of the marriage itself, for the limited purpose of Section 498A and 304B of the Indian Penal Code, the interpretation known as purposive construction would come into play in such circumstances and the absence of a definition of `husband' is specifically include such persons who contract marriage ostensibly and cohabit with such woman, in the purported exercise of their role and status as `husband' is no ground to exclude them from the purview of the said sections.\n 10. The learned Government Pleader would therefore rely on the said judgment to support the contention that a legally valid marriage is not a precondition. This decision has been relied upon and applied in yet another judgment of the apex court in the case of U.Suvetha vs. State by Inspector of Police, 2009 (2) Crimes 357 and has cited with approval the opinion of the Kerala High Court in the case of John Idiculla vs. State of Kerala, 2005 MLJ(Crl.) 841, where a wider meaning to the word `second wife' has been given in the following words:- \"25. The test under Section 498A Indian Penal Code is whether in the facts of each case, it is probable that a woman is treated by friends, relatives, husband or society as a \"wife\" or as a mere \"mistress\". If from the pleading and evidence the Court finds that the woman concerned is regarded as wife and not as a mere mistress, she can be considered to be a `wife' and consequently as `the relative of the husband' for purpose of Section 498A IPC.\n Proof of a legal marriage in the rigid sense as required under civil law is unnecessary for establishing an offence under Section 498A IPC. The expression \"marriage\" or \"relative\" can be given only a diluted meaning which a common man or society may attribute to those concepts in the common parlance, for the purpose of Section 498A IPC. A second wife who is treated as wife by the husband, relatives, friends or society can be considered to be `the relative of the husband' for the purpose of Section 498A of IPC. If she inflicts cruelty on the legally-wedded wife of the husband, an offence under Section 498A IPC will not lie against her.\"\n And the learned Government Pleader would submit that the first ingredient of Section 498A stands satisfied insofar as the present case on hand, in that, there are certain photographs produced coupled with the fact that the petitioner had given an undertaking before the jurisdictional police and the eye-witness to the marriage were sufficient to establish that the petitioner had married the respondent.\nIt was not even a case where the marriage was alleged to be a second marriage, thereby rendering it a void marriage. It is not the case of the petitioner that the complainant was a stranger to him. The insistence on strict proof of marriage, as laid down in the above decisions, is not so.\n 11. Insofar as the cruelty which requires to be established is concerned, is on account of the fact that there was reluctance on the part of the petitioner to marry the complainant citing lack of financial independence, compelling the complainant to part with valuable property, coupled with the fact that cruelty, as contemplated under Section 498A has been defined in a wider sense and cannot be restricted in the manner as sought to be canvassed by the learned counsel for the petitioner. The punishment has been imposed with particular reference to the degree of cruelty that has been established and therefore, it is not a case which would warrant interference by this court in a revision and hence, the Government Pleader prays that the petition be dismissed.\n 12. In the above facts and circumstances and with reference to the law as laid down by the apex court, for purposes of Section 498A of the IPC, though it may not be essential that a legally valid marriage is established, it was necessary to establish that the petitioner and the complainant had lived together as husband and wife. In this regard, there is sadly no evidence is forthcoming. Therefore, even the wider definition applied to the expressions `husband' and `marriage' with reference to the decisions of the apex court referred to hereinabove would not come to the aid of the prosecution. Further, insofar as the second limb of the requirements under Section 498A is also not established for the reason that there is not even an allegation of the petitioner having demanded or coerced the complainant to meet any unlawful demand and of the complainant having been harassed on her failure to meet such demand. The mere allegation of desertion, whether it was bordered on cruelty, was never within the purview of the courts below and it is outside the scope of this revision petition.\nTherefore, the primary ingredients necessary to constitute an offence punishable under Section 498A were clearly absent and hence the conviction of the petitioner by both the courts below is clearly bad in law.\n Accordingly, the petition is allowed and the judgment of the courts below is set aside insofar as the conviction of the present petitioner is concerned.\n Sd/- JUDGE nv "
} |
{
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"labels": [
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],
"start": 89,
"text": "DISTRICT:"
}
},
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"text": "SUNDARGARH"
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"text": "HEADING OF DECISION IN CRIMINAL CASES"
}
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"start": 173,
"text": "IN THE COURT OF ADDITIONAL SESSIONS JUDGE,\n ROURKELA.\n\n **"
}
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"text": "* *** *"
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"end": 771,
"labels": [
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"start": 289,
"text": "**\nPresent:\n\n Sri S.K.Swain, LL.M.,\n 1st Addl.Sessions Judge,\n Rourkela.\n\n Sessions Trial No.218/2014\n(Arising out of GR Case No. 1312/14, corresponding to Sector7 PS Case\n\n No.40/14 committed on 21.11.2014)\n\nRourkela, Friday, the 23rd December, 2016\n\nState of Orissa Versus ..... Complainant\n\nUjawal Sahoo, aged about 25 years, Son of Kumar Sahoo,\nresident of Velwadihi, PsSimdega, DistJharkhand.\n\nAppearance:"
}
},
{
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"value": {
"end": 825,
"labels": [
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"start": 810,
"text": "..... Accused.\n"
}
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"value": {
"end": 917,
"labels": [
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"start": 825,
"text": "For the State ...... Shri A.K.Pradhan, Additional PP,\n\n Rourkela."
}
},
{
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"start": 917,
"text": "\n\nFor the accused ...... Shri B.N.Samanta and another,\n Advocates, Rourkela.\n\nDate of Argument .... 12.12.16\nDate of Judgment .... 23.12.16\n\n\n JUDGMENT"
}
},
{
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"id": "28b8353f1f614ea7b99f9096ddeb20cd",
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"start": 1133,
"text": "\n Offence Under Section 364 (A) of the Indian Penal Code."
}
},
{
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"id": "1dea2e3e8bbc4575991e2e38d654b291",
"to_name": "text",
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"value": {
"end": 1307,
"labels": [
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"start": 1196,
"text": "\n Accused Ujawal Sahoo stands charged for the offence punishable under section 364(A) of the Indian Penal Code."
}
},
{
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"id": "26f49dc2ba964f31937699240654543c",
"to_name": "text",
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"value": {
"end": 1631,
"labels": [
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],
"start": 1307,
"text": "\n 2. Prosecution case, as projected in the FIR in short is that, accused Ujwal, being the brotherinlaw (Sadu) of the son of the informant had visited their residential house at Qrs. No. E/7, Sector9, Rourkela on 05.06.2014 and on that day at about 6.00 PM kidnapped the grand son of the informant from their above residence."
}
},
{
"from_name": "label",
"id": "470276f5c7c640089b2fb8f6e07ea6dd",
"to_name": "text",
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"value": {
"end": 1748,
"labels": [
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],
"start": 1632,
"text": "He then threatened the family members to cause death of the minor child, if the money demanded by him will be given."
}
},
{
"from_name": "label",
"id": "cc4907b29963431a9789603e943c5895",
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"value": {
"end": 1869,
"labels": [
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],
"start": 1749,
"text": "So, on that day at about 9.00 PM, the informant lodged a FIR at Sector7 PS, Rourkela, which triggered the investigation."
}
},
{
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"id": "4597d12ce95e4373b0a869e376125211",
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"value": {
"end": 2043,
"labels": [
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"start": 1869,
"text": "\n 3. After completion of investigation, chargesheet was submitted and cognizance of the above offence having been taken, the case has been committed to this Court for trial."
}
},
{
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"id": "5d098fe7621545adb0357217064f59e7",
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"value": {
"end": 2120,
"labels": [
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],
"start": 2045,
"text": "4. The plea of the accused is one of complete denial and false implication."
}
},
{
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"id": "8e07350ebe534da3a39b63af3ea1366f",
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"value": {
"end": 2268,
"labels": [
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],
"start": 2121,
"text": "It was specifically pleaded by the accused that, after the death of his wife, his brotherinlaw falsely foisted this case, in order to take revenge."
}
},
{
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"id": "71f8ba8e5e094a488790a791895fa5f5",
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"value": {
"end": 2440,
"labels": [
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],
"start": 2268,
"text": "\n 5. So, the point for determination of this case is whether on 05.06.2014 at about 6.00 PM, the present accused kidnapped the minor grand son of the informant for ransom ?"
}
},
{
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"id": "11277e9516a6415686b9f9f9d2b93ee8",
"to_name": "text",
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"value": {
"end": 2670,
"labels": [
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],
"start": 2440,
"text": "\n 6. The prosecution in order to bring home the charge against the accused has examined altogether eight witnesses, of whom PW1 is the informant, PW2 is the mother of the victim child, whereas PW5 is the father of the above child."
}
},
{
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"id": "0f2ede5417c84f08ad78672abd1214d1",
"to_name": "text",
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"value": {
"end": 2766,
"labels": [
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],
"start": 2671,
"text": "PWs 3, 4 and 6 are the independent witnesses and PW7 is the Investigating Officer of this case."
}
},
{
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"id": "db09754d4e964f438f3d72599e9d4ef5",
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"value": {
"end": 2858,
"labels": [
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],
"start": 2767,
"text": "PW8 is the then ASI of Police of Birmitrapur PS, where the kidnapped child was handed over."
}
},
{
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"id": "a146b6f6017e4beabaeb790384480c55",
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"value": {
"end": 2986,
"labels": [
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],
"start": 2858,
"text": "\n From the side of the prosecution besides FIR marked as Ext1, other two relevant documents have also been admitted in evidence."
}
},
{
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"id": "f6584fc2e05740b3937e3038da665d3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 3083,
"labels": [
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],
"start": 2986,
"text": "\n 7. To substantiate the plea taken by the accused, two witnesses have been examined as DWs1 & 2."
}
},
{
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"id": "3c2d3dfff9e347b4b47ec0d8797b9086",
"to_name": "text",
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"value": {
"end": 3140,
"labels": [
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],
"start": 3084,
"text": "But, no document has been proved or produced in defence."
}
},
{
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"id": "5d1b1077b5fd4db9a8ca2a32783b29aa",
"to_name": "text",
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"value": {
"end": 3551,
"labels": [
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],
"start": 3140,
"text": "\n 8. The present case being a case of kidnap for ransom, prosecution has to prove its by positive evidence that : (a) the accused took or entice away the minor child; (b) such taking or enticing must be out of the keeping of the lawful guardian of such minor and without their consent and lastly ; (c) the accused also threatened to cause death to such minor in order to compel his family members to pay ransom."
}
},
{
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"id": "fa7b8260f1ad4670bb3211b91057d2cc",
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"value": {
"end": 3853,
"labels": [
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],
"start": 3551,
"text": "\n 9. In the case of Lohit KoushalVersusState of Harayana (2009), 17 SCC 106, it has been held that, kidnapping as understood U/s. 364 A IPC is a truly reprehensible crime and when a helpless child is kidnapped for ransom and that too by a close relative, the incident becomes all the more unacceptable."
}
},
{
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"id": "3fe2c6825b384e8ebc2def5e964b922b",
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"value": {
"end": 4032,
"labels": [
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"start": 3854,
"text": "Very gravity of the crime and abhorrence which it creates in the mind of the Court are, however, factors which also tend to militate causing, fair trial of the case in such case."
}
},
{
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"id": "b201b8a1e88f4cb4a2b3698bbde23136",
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"value": {
"end": 4219,
"labels": [
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],
"start": 4033,
"text": "The Court must therefore, guard against a possibility of being influenced in its judgment by sentiment, rather than by objectivity and judicial considerations, while evaluating evidence."
}
},
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"start": 4219,
"text": "\n 10. On the above principles of law, let me proceed to tender my findings on the above aspect as to whether the prosecution has led cogent evidence to establish the fact of kidnap for ransom, so as to warrant a conviction for the above purpose."
}
},
{
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"id": "bf247f91325944cfa9683e7c20b4252e",
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"end": 4569,
"labels": [
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],
"start": 4464,
"text": "\n 11. There is no dispute that, the victim child namely'; Bishal is a minor boy, aged about 6 to 7 years."
}
},
{
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"id": "4e3f2adb041d4b65b15ba6e2d18efcdd",
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"value": {
"end": 4721,
"labels": [
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],
"start": 4570,
"text": "This has also been established from the side of the prosecution by the evidence of his parents namely' PWs2 and 5 and the injury requisition vide Ext3."
}
},
{
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"id": "0ac6903aa40d4a3a8b5d17b6bf492af1",
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"end": 4892,
"labels": [
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"start": 4721,
"text": "\n There is also no dispute that, at the relevant time, Bishal was staying with his parents at Qr. No. E/67, Sector9, Rourkela and his parents are his lawful guardian.\n 12."
}
},
{
"from_name": "label",
"id": "e0c225768a544d1d8144ff5aaaea56c7",
"to_name": "text",
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"value": {
"end": 5023,
"labels": [
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],
"start": 4893,
"text": "So, it is to be seen whether on the relevant day, the victim child was taken away from their above quarter by the present accused."
}
},
{
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"id": "c6405c59295f4c87ae2cbeebfbb42d46",
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"value": {
"end": 5103,
"labels": [
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],
"start": 5023,
"text": "\n 13. The word \"take\" means to cause to go, to escort or to get into possession."
}
},
{
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"id": "367ac79cde014b10b44dc8cec35dde86",
"to_name": "text",
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"value": {
"end": 5215,
"labels": [
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],
"start": 5104,
"text": "The prosecution has also to prove that the accused had some active part in the child leaving his parents house."
}
},
{
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"id": "4a4e7060a4544c92978419d420f1838f",
"to_name": "text",
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"value": {
"end": 5412,
"labels": [
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],
"start": 5216,
"text": "Here in this case, the victim being only 6 to 7 years old, there is absolutely no chance that, he left his father\"s house voluntarily or knowingly or having capacity to know that what he is doing."
}
},
{
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"id": "bf2c657b672340069923946487cc12b3",
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"value": {
"end": 5536,
"labels": [
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],
"start": 5413,
"text": "So, it is from the evidence on record, the Court has to form an opinion as regards to the alleged taking away of the child."
}
},
{
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"id": "540f63b143694839ae48032765f58142",
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"value": {
"end": 5611,
"labels": [
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],
"start": 5536,
"text": "\n 14. PW1 is the informant as well as the grand father of the victim child."
}
},
{
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"id": "1993698718af4f68a5d14a27d6ece6f5",
"to_name": "text",
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"value": {
"end": 5761,
"labels": [
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],
"start": 5612,
"text": "It is stated by him that, on the relevant day, while he was in duty, he received a telephone call from their house about the kidnap of his grand son."
}
},
{
"from_name": "label",
"id": "bd5dc452434a4d0197308dcf004ebfef",
"to_name": "text",
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"value": {
"end": 5877,
"labels": [
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],
"start": 5762,
"text": "So, they searched for the little boy, but, could not get any clue, for which the matter was reported at Sector7 PS."
}
},
{
"from_name": "label",
"id": "583de4a5673649a1ae10af72ee949fe4",
"to_name": "text",
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"value": {
"end": 6041,
"labels": [
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],
"start": 5878,
"text": "Further, according to this witness, his daughter in law made attempt to contact the present accused over telephone, but, the accused did not respond to such calls."
}
},
{
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"id": "4af0de229d724bdaaaf7ca68f7c8fcf1",
"to_name": "text",
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"value": {
"end": 6192,
"labels": [
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],
"start": 6042,
"text": "However, on the same day in between 8.30 to 9.30 PM they received information that, their grand son, and the accused are in Birmitrapur policestation."
}
},
{
"from_name": "label",
"id": "fe1965e486c840e99f4a2341fc1681b2",
"to_name": "text",
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"value": {
"end": 6382,
"labels": [
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],
"start": 6193,
"text": "Accordingly, they went to Birmitrapur policestation and found this accused with their grand son there at the policestation and their grand son was handed over to them by Birmitrapur police."
}
},
{
"from_name": "label",
"id": "3cfc627130944d83b9323e282b1b1965",
"to_name": "text",
"type": "labels",
"value": {
"end": 6598,
"labels": [
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],
"start": 6384,
"text": "Though, this witness was declared hostile as he did not attempt to have lodged any FIR, but, his evidence can be relied if there are some other materials on the basis of which the said evidence can be corroborated."
}
},
{
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"id": "7d617fed69fd4e248f58c366fe7371fc",
"to_name": "text",
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"value": {
"end": 6785,
"labels": [
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],
"start": 6599,
"text": "More so, that part of the evidence of PW1 as contained in examination in chief remains unshaken even after cross examination, is fully reliable, even though he has been declared hostile."
}
},
{
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"id": "4531c94bca024bf7a93c33989136b13a",
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"value": {
"end": 6850,
"labels": [
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],
"start": 6786,
"text": "(See DevrajVersusState of Chhatisgarh, 2016 SAR (Criminal) 946)."
}
},
{
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"id": "678110fa7ec94e7daeb2e2b091cf2e46",
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"value": {
"end": 7077,
"labels": [
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"start": 6851,
"text": "15. The evidence of PW2, the mother of the victim discloses that, suspecting the role of the accused in the kidnapping of their son, because of on that day he had visited their house and both of them were missing from 7.00 PM."
}
},
{
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"id": "ecba2c85b72a465dba8bf0ec99ba13b3",
"to_name": "text",
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"value": {
"end": 7175,
"labels": [
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],
"start": 7078,
"text": "She telephoned the accused and the accused replied her that, he is at Birmitrapur with their son."
}
},
{
"from_name": "label",
"id": "b0490e6650cd4516a5e395382cfc4fb4",
"to_name": "text",
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"value": {
"end": 7348,
"labels": [
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],
"start": 7176,
"text": "Further, according to PW2, thereafter her husband went to Birmitrapur and brought their son from the police station where the accused was detained by police with their son."
}
},
{
"from_name": "label",
"id": "89197cd1b9004fa5a5a142950b8658c6",
"to_name": "text",
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"value": {
"end": 7468,
"labels": [
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],
"start": 7349,
"text": "This witness specifically claimed that, it is the accused, who kidnapped their son without their consent and knowledge."
}
},
{
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"id": "5b4bb31f25bf4b22bb2ca6fa381352d3",
"to_name": "text",
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"value": {
"end": 7710,
"labels": [
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],
"start": 7468,
"text": "\n 16. PW5, the father of the victim told to the Court that, on the relevant day, the accused being his brother in law (wife elder sister's husband) had come to their house and at about 6.00 PM, their son was found missing so also the accused."
}
},
{
"from_name": "label",
"id": "fa4792aad6f64f81bcacfddf8da364d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7801,
"labels": [
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],
"start": 7711,
"text": "So, he contacted the present accused, who informed him that he had left his son in a shop."
}
},
{
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"id": "0bc7a0f14d5c41e2a336265d89d5796f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7875,
"labels": [
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],
"start": 7802,
"text": "But, the child was not traced out in spite of search in the nearby shops."
}
},
{
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"id": "e5e3449a721740a4ad2cb7ead8fd93c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 7948,
"labels": [
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],
"start": 7876,
"text": "When the accused was contacted again, his mobile phone was switched off."
}
},
{
"from_name": "label",
"id": "bd52f10b52784c3c8c6878dae2b2d496",
"to_name": "text",
"type": "labels",
"value": {
"end": 8094,
"labels": [
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],
"start": 7948,
"text": "\n But, after sometime, the accused informed his wife over telephone that, he has taken their son and the victim will be handed over after 9.30 PM."
}
},
{
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"id": "9b8baedde55d41f780fbb3255337953b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8264,
"labels": [
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],
"start": 8095,
"text": "After sometime, he contacted the accused as well as a Autorickshaw driver present near him and informed the Autorickshaw driver that the accused had kidnapped their son."
}
},
{
"from_name": "label",
"id": "e54f273e50e841fbaf1a4221d6114087",
"to_name": "text",
"type": "labels",
"value": {
"end": 8445,
"labels": [
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],
"start": 8265,
"text": "Thereafter, the Autorickshaw driver took the accused along with their son to Birmitrapur policestation and handed over them to police and from policestation, their son was rescued."
}
},
{
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"id": "d56130a378104b37b83a735285e7f23d",
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"value": {
"end": 8641,
"labels": [
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],
"start": 8445,
"text": "\n 17. It is stated by PWs3,4 and 6 that, they got information about the kidnap of Bishal from his father and subsequently came to know that the child has been rescued by Birmitrapur policestation."
}
},
{
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"id": "b2452983a27f4f11a22f81c942c2db7d",
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"text": "Accordingly, they proceeded to Birmitrapur policestation where police handed over the child to them."
}
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"text": "18. PW7, the IO of this case stated that, after getting information about such kidnap, he deputed his staff to different places for search of the boy and during such search, he got clue that, accused with the kidnapped child were proceeding towards Birmitrapur in an Autorickshaw."
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"text": "So, he traced out the Autorickshaw driver namely; Balbig Singh and on examination could know that, a person along with a child who was crying and having fever were going in his Autorickshaw and suspecting the activities of the elderly persons, with the help of an other Auto driver, he took them to Birmitrapur police station and handed over them to police."
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"text": "Further, according to this witness after getting such information he proceeded to Birmitrapur policestation with the father of the child, identified the accused and his son there, and thereafter he brought the victim child as well as the accused to their police station and arrested the accused in connection with this case."
}
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"text": "\n 19. PW8, is the then ASI of police, Birmitrapur PS before whom the accused with the child were produced by the Autorickshaw driver."
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"text": "\n According to him, on the relevant day, in absence of their IIC, while he was at PS, a Autorickshaw driver brought a person along with a child to the policestation."
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"text": "By that time, the child was crying."
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"text": "So, he asked the above person his identity to which he disclosed his name to be Ujwal Sahu ( the present accused)."
}
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"text": "Further, according to him, he then collected the telephone number of the father of the child and informed him about the matter."
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"text": "The father of the child then arrived at Birmitrapur police station with the Police Officer of Sector7 PS and took the child with them."
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"text": "This witness also identified the present accused in the dock."
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"text": "\n 20. Thus, scrutinising the above ocular evidence, though it appears that, none of them has seen the accused while taking the child from their house, but, from their statements, which are very clear, cogent and reliable, the following facts can be said to have been well established.\n (a) On the relevant day, the accused had come to the quarter of PW1 at Sector9, Rourkela; (b) at about 7.00 PM, both the accused and the victim child were found missing from the above quarter; (c) after such missing, the family members searched for the child and the accused in the locality including local shops, but, in vain."
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"text": "\n (d) suspecting the present accused to have kidnapped their son, the mother of the child telephoned him and the accused replied that he is at Birmitrapur with their son (e) later on, the father of the child also contacted the present accused over telephone to which the accused replied that he had left their son in a shop; (f) after it the mobile phone of the accused was switched off and (g) in course of search of the missing child, Sector7 police got information that, a person was taking a child towards Birmitrapur in a Autorickshaw."
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"text": "\n (h) the IO traced out the above Autorickshaw driver and on examination could know that, suspecting the activities of thepresent accused, the child and the accused were handed over to Birmitrapur police by him with the help of some other Autorickshaw drivers."
}
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"text": "\n (i) after the child was handed over to Birmitrapur police, the father of the child was informed about it and thereafter P.Ws3,4,5 and 6 along with the police officer of Sector7 PS went to Birmitrapur PS where the child along with the present accused were handed over to them.\n 21."
}
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{
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"start": 12177,
"text": "So it is now to be seen whether from the above established facts and pieces of circumstantial evidence, the present accused can be connected with the alleged kidnap."
}
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"text": "\n 22. The principle how the circumstances be considered and weighed are well settled and summed up in Sharada Biridi Chand Sarada VersusState of Maharashtra (194) 4 SCC 116 as under."
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"text": "\n (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established."
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"text": "\n It may be noted here that this Court indicated that the circumstances concerned \" must or should\" and not \"may be \"\nestablished."
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},
{
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"text": "There is not only a grammatical, but, a legal distinction between \" may be proved\" and \" must be or should be proved\" as was held by this Court in Shivaji Sahabrao Bobade and anotherVersus State of Maharashtra, (1973) 2 SCC 793 where the observations were made : \" Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between \"may be\" and \"must be\" is long and divides vague conjectures from sure conclusions"
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"start": 13252,
"text": ".: (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty."
}
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"text": "\n (3) the circumstances should be of a conclusive nature and tendency."
}
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"text": "\n (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
}
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"text": "\n 23. In the present case, the circumstance which has been well established by the prosecution clearly indicates that, on the relevant day, the accused had come to the house of the informant and he along with the victim were found missing from the evening of that day and while the accused was moving in a suspicious manner at Birmitrapur with the child, he was handed over to police along with the child by some local Auto drivers."
}
},
{
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"start": 14291,
"text": "During such period, he was contacted over telephone by the parents of the victim and during such conversation, he admitted to have taken away their son and on some occasion, he even stated to have left their son in a shop."
}
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{
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"text": "\n 24. Thus, I am of the opinion that, the oral evidence as well as the circumstantial evidence established by the prosecution have formed a complete chain with a clearly finding that, the present accused took away the child up to Birmitrapur from their house without the consent and knowledge of his lawful guardian and no other conclusion suggesting the innocence of the accused appears to be reasonable or justified."
}
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"text": "\n 25. It is the settled principle of law that, in determining whether a person takes a minor out of the lawful keeping of its guardian, the distance is immaterial."
}
},
{
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"start": 15095,
"text": "Even if a minor was taken for distance of 20 or 30 yards, it would amount to taking him out of the keeping of his lawful guardian within the meaning of offence of kidnap."
}
},
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"text": "(AIR 1968 Punjab 439) (1995 Criminal Law Journal 581)."
}
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"text": "\n 26. So now it is to be seen whether there was demand of ransom or not after such kidnap."
}
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"start": 15411,
"text": "On perusal of the evidence on record, it reveals that, neither the parents of the victim nor any other witness examined on behalf of prosecution have whispered about the demand of ransom by the present accused."
}
},
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"id": "83800e0bc8d84800becf6635d1fa353f",
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"text": "\n 27. So, when the kidnap of the child is well established, but, there is no proof of ransom by the present accused and there is also nothing on record even to prove prima facie that, threatening was given to any of the family members of the victim to pay ransom, I think, the accused is to be held guilty U/s. 363 IPC and not U/s. 364A IPC."
}
},
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"end": 16050,
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"start": 15963,
"text": "( See Satyendra SinghVersusState of Rajsthan, 2007, Criminal Law Journal 3997 Raj.) 28."
}
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{
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"end": 16168,
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"start": 16051,
"text": "Thus, accused Ujawal Sahoo is established to have committed the offence U/s. 363 IPC instead of Section 364A IPC.\n 29"
}
},
{
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"start": 16168,
"text": ". In the result, I hold accused Ujawal Sahoo guilty U/s. 363 IPC and convicted him thereunder."
}
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"start": 16262,
"text": "\n Additional Sessions Judge, Rourkela."
}
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"start": 16300,
"text": "\n Judgment transcribed to my dictation and corrected by me.\nPronounced in open Court on this the 23rd day of December, 2016.\nGiven under my hand and seal of this Court."
}
},
{
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"id": "3926ea5ef8604ee2a961a9e1cdf369a6",
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"end": 16506,
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"start": 16468,
"text": "\n Additional Sessions Judge, Rourkela."
}
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"text": "30. In a case of such nature and when a little child has been kidnapped, it does not warrant any sympathy whatsoever."
}
},
{
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"text": "So, it is not desirable to release the convict on Probation of Offenders Act."
}
},
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"text": "\n HEARING ON THE QUESTION OF SENTENCE."
}
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{
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"text": "\n31. Heard the learned Additional Public Prosecutor and the advocate on behalf of the convict, on the question of sentence at length."
}
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"end": 16979,
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],
"start": 16874,
"text": "\n Learned advocate for the convict urged before me that, the convict is a young boy, aged about 25 years."
}
},
{
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"id": "d0d708f0bcaa4f73bdeaf08a9d85a70a",
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"end": 17055,
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"start": 16980,
"text": "Therefore, the Court should take a lenient view, while awarding punishment."
}
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"value": {
"end": 17242,
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],
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"text": "\n On the contrary, learned Additional Public Prosecutor submitted that, the Court may award punishment strictly in accordance with law, considering the nature and gravity of the offences."
}
},
{
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"id": "f7b1834e9f58494bb445374f98cc44cf",
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"value": {
"end": 17566,
"labels": [
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],
"start": 17242,
"text": "\n In the case of Sebak PerumarVersusState of Tamilnadu, 1991, 3 SCC 471, the Hon'ble Apex Court has cautioned that, undue sympathy to impose indequate sentence would do more harm to the Justice delivery system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats."
}
},
{
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"end": 17733,
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],
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"text": "\nIt is therefore the duty of every Court to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc."
}
},
{
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"value": {
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],
"start": 17733,
"text": "\n In view of the above settled legal position and considering the nature and gravity of the offences committed by the present convict and the manner in which it was committed, I sentence the convict to suffer Simple Imprisonment for three years and to pay a fine of Rs.\n3,000/ (three thousand), in default, Simple Imprisonment for two months more for the offence U/s. 363 IPC.\n "
}
},
{
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"value": {
"end": 18232,
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],
"start": 18111,
"text": "A sum of Rs. 2,000/(two thousand) be given to the victim child towards compensation, out of the fine amount, if realized."
}
},
{
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"value": {
"end": 18403,
"labels": [
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],
"start": 18234,
"text": "The UTP period, if any, be set off as per the provision of Section 428 of the Cr.P.C.\n Pronounced the sentence in the open Court, on this the 23rd day of December, 2016."
}
},
{
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"text": "Given under my hand and seal of this Court."
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"value": {
"end": 18485,
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"text": "\n Additional Sessions Judge, Rourkela."
}
},
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"end": 18604,
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],
"start": 18487,
"text": "List of witnesses examined for the Prosecution: PW 1 Tetru Sahu.\n PW 2 Pilabati Sahu.\n PW 3 Amit Kumar Sahu."
}
},
{
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"id": "0d23da3a8f3042fcaeab01398559b0e2",
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"end": 18629,
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],
"start": 18604,
"text": "\nPW 4 Abhaya Pattnaik."
}
},
{
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],
"start": 18629,
"text": "\n PW 5 Subash Ch.Sahu."
}
},
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"text": "\n PW 6 Subodh Sahu."
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"text": "\n PW 7 Pradipta Kumar Das."
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"text": "\n PW 8 Bhikshu Ch.Bhaisal."
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"text": "List of witnesses examined for the Defence: DW 1 Nandu Yadav.\nDW 2 Barekeswar Oda."
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"text": "List of documents marked for the prosecution: Ext. 1 FIR.\nExt. 1/1 Signature of PW 1 on Ext. 1 Ext. 1/2 Endorsement with signature of the then IIC."
}
},
{
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"text": "\nExt. 1/3 Formal FIR."
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"text": "Ext. 1/4."
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"text": "Ext. 1/5 Signature of PW1 on Ext1.\nExt. 2 Spot map.\nExt. 2/1 Signature of PW 7 on Ext. 2.\nExt3 Medical requisition.\nExt3/1 Signature of PW7 on Ext3.\n List of documents marked for the defence:"
}
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"text": "Nil Additional Sessions Judge, Rourkela."
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] | 1,767 | {
"text": " DISTRICT: SUNDARGARH\n HEADING OF DECISION IN CRIMINAL CASES\n\nIN THE COURT OF ADDITIONAL SESSIONS JUDGE,\n ROURKELA.\n\n *** *** ***\nPresent:\n\n Sri S.K.Swain, LL.M.,\n 1st Addl.Sessions Judge,\n Rourkela.\n\n Sessions Trial No.218/2014\n(Arising out of GR Case No. 1312/14, corresponding to Sector7 PS Case\n\n No.40/14 committed on 21.11.2014)\n\nRourkela, Friday, the 23rd December, 2016\n\nState of Orissa Versus ..... Complainant\n\nUjawal Sahoo, aged about 25 years, Son of Kumar Sahoo,\nresident of Velwadihi, PsSimdega, DistJharkhand.\n\nAppearance: ..... Accused.\nFor the State ...... Shri A.K.Pradhan, Additional PP,\n\n Rourkela.\n\nFor the accused ...... Shri B.N.Samanta and another,\n Advocates, Rourkela.\n\nDate of Argument .... 12.12.16\nDate of Judgment .... 23.12.16\n\n\n JUDGMENT\n Offence Under Section 364 (A) of the Indian Penal Code.\n Accused Ujawal Sahoo stands charged for the offence punishable under section 364(A) of the Indian Penal Code.\n 2. Prosecution case, as projected in the FIR in short is that, accused Ujwal, being the brotherinlaw (Sadu) of the son of the informant had visited their residential house at Qrs. No. E/7, Sector9, Rourkela on 05.06.2014 and on that day at about 6.00 PM kidnapped the grand son of the informant from their above residence. He then threatened the family members to cause death of the minor child, if the money demanded by him will be given. So, on that day at about 9.00 PM, the informant lodged a FIR at Sector7 PS, Rourkela, which triggered the investigation.\n 3. After completion of investigation, chargesheet was submitted and cognizance of the above offence having been taken, the case has been committed to this Court for trial.\n 4. The plea of the accused is one of complete denial and false implication. It was specifically pleaded by the accused that, after the death of his wife, his brotherinlaw falsely foisted this case, in order to take revenge.\n 5. So, the point for determination of this case is whether on 05.06.2014 at about 6.00 PM, the present accused kidnapped the minor grand son of the informant for ransom ?\n 6. The prosecution in order to bring home the charge against the accused has examined altogether eight witnesses, of whom PW1 is the informant, PW2 is the mother of the victim child, whereas PW5 is the father of the above child. PWs 3, 4 and 6 are the independent witnesses and PW7 is the Investigating Officer of this case. PW8 is the then ASI of Police of Birmitrapur PS, where the kidnapped child was handed over.\n From the side of the prosecution besides FIR marked as Ext1, other two relevant documents have also been admitted in evidence.\n 7. To substantiate the plea taken by the accused, two witnesses have been examined as DWs1 & 2. But, no document has been proved or produced in defence.\n 8. The present case being a case of kidnap for ransom, prosecution has to prove its by positive evidence that : (a) the accused took or entice away the minor child; (b) such taking or enticing must be out of the keeping of the lawful guardian of such minor and without their consent and lastly ; (c) the accused also threatened to cause death to such minor in order to compel his family members to pay ransom.\n 9. In the case of Lohit KoushalVersusState of Harayana (2009), 17 SCC 106, it has been held that, kidnapping as understood U/s. 364 A IPC is a truly reprehensible crime and when a helpless child is kidnapped for ransom and that too by a close relative, the incident becomes all the more unacceptable. Very gravity of the crime and abhorrence which it creates in the mind of the Court are, however, factors which also tend to militate causing, fair trial of the case in such case. The Court must therefore, guard against a possibility of being influenced in its judgment by sentiment, rather than by objectivity and judicial considerations, while evaluating evidence.\n 10. On the above principles of law, let me proceed to tender my findings on the above aspect as to whether the prosecution has led cogent evidence to establish the fact of kidnap for ransom, so as to warrant a conviction for the above purpose.\n 11. There is no dispute that, the victim child namely'; Bishal is a minor boy, aged about 6 to 7 years. This has also been established from the side of the prosecution by the evidence of his parents namely' PWs2 and 5 and the injury requisition vide Ext3.\n There is also no dispute that, at the relevant time, Bishal was staying with his parents at Qr. No. E/67, Sector9, Rourkela and his parents are his lawful guardian.\n 12. So, it is to be seen whether on the relevant day, the victim child was taken away from their above quarter by the present accused.\n 13. The word \"take\" means to cause to go, to escort or to get into possession. The prosecution has also to prove that the accused had some active part in the child leaving his parents house. Here in this case, the victim being only 6 to 7 years old, there is absolutely no chance that, he left his father\"s house voluntarily or knowingly or having capacity to know that what he is doing. So, it is from the evidence on record, the Court has to form an opinion as regards to the alleged taking away of the child.\n 14. PW1 is the informant as well as the grand father of the victim child. It is stated by him that, on the relevant day, while he was in duty, he received a telephone call from their house about the kidnap of his grand son. So, they searched for the little boy, but, could not get any clue, for which the matter was reported at Sector7 PS. Further, according to this witness, his daughter in law made attempt to contact the present accused over telephone, but, the accused did not respond to such calls. However, on the same day in between 8.30 to 9.30 PM they received information that, their grand son, and the accused are in Birmitrapur policestation. Accordingly, they went to Birmitrapur policestation and found this accused with their grand son there at the policestation and their grand son was handed over to them by Birmitrapur police.\n Though, this witness was declared hostile as he did not attempt to have lodged any FIR, but, his evidence can be relied if there are some other materials on the basis of which the said evidence can be corroborated. More so, that part of the evidence of PW1 as contained in examination in chief remains unshaken even after cross examination, is fully reliable, even though he has been declared hostile. (See DevrajVersusState of Chhatisgarh, 2016 SAR (Criminal) 946).\n15. The evidence of PW2, the mother of the victim discloses that, suspecting the role of the accused in the kidnapping of their son, because of on that day he had visited their house and both of them were missing from 7.00 PM. She telephoned the accused and the accused replied her that, he is at Birmitrapur with their son. Further, according to PW2, thereafter her husband went to Birmitrapur and brought their son from the police station where the accused was detained by police with their son. This witness specifically claimed that, it is the accused, who kidnapped their son without their consent and knowledge.\n 16. PW5, the father of the victim told to the Court that, on the relevant day, the accused being his brother in law (wife elder sister's husband) had come to their house and at about 6.00 PM, their son was found missing so also the accused. So, he contacted the present accused, who informed him that he had left his son in a shop. But, the child was not traced out in spite of search in the nearby shops. When the accused was contacted again, his mobile phone was switched off.\n But, after sometime, the accused informed his wife over telephone that, he has taken their son and the victim will be handed over after 9.30 PM. After sometime, he contacted the accused as well as a Autorickshaw driver present near him and informed the Autorickshaw driver that the accused had kidnapped their son. Thereafter, the Autorickshaw driver took the accused along with their son to Birmitrapur policestation and handed over them to police and from policestation, their son was rescued.\n 17. It is stated by PWs3,4 and 6 that, they got information about the kidnap of Bishal from his father and subsequently came to know that the child has been rescued by Birmitrapur policestation. Accordingly, they proceeded to Birmitrapur policestation where police handed over the child to them.\n 18. PW7, the IO of this case stated that, after getting information about such kidnap, he deputed his staff to different places for search of the boy and during such search, he got clue that, accused with the kidnapped child were proceeding towards Birmitrapur in an Autorickshaw. So, he traced out the Autorickshaw driver namely; Balbig Singh and on examination could know that, a person along with a child who was crying and having fever were going in his Autorickshaw and suspecting the activities of the elderly persons, with the help of an other Auto driver, he took them to Birmitrapur police station and handed over them to police. Further, according to this witness after getting such information he proceeded to Birmitrapur policestation with the father of the child, identified the accused and his son there, and thereafter he brought the victim child as well as the accused to their police station and arrested the accused in connection with this case.\n 19. PW8, is the then ASI of police, Birmitrapur PS before whom the accused with the child were produced by the Autorickshaw driver.\n According to him, on the relevant day, in absence of their IIC, while he was at PS, a Autorickshaw driver brought a person along with a child to the policestation. By that time, the child was crying. So, he asked the above person his identity to which he disclosed his name to be Ujwal Sahu ( the present accused). Further, according to him, he then collected the telephone number of the father of the child and informed him about the matter. The father of the child then arrived at Birmitrapur police station with the Police Officer of Sector7 PS and took the child with them. This witness also identified the present accused in the dock.\n 20. Thus, scrutinising the above ocular evidence, though it appears that, none of them has seen the accused while taking the child from their house, but, from their statements, which are very clear, cogent and reliable, the following facts can be said to have been well established.\n (a) On the relevant day, the accused had come to the quarter of PW1 at Sector9, Rourkela; (b) at about 7.00 PM, both the accused and the victim child were found missing from the above quarter; (c) after such missing, the family members searched for the child and the accused in the locality including local shops, but, in vain.\n (d) suspecting the present accused to have kidnapped their son, the mother of the child telephoned him and the accused replied that he is at Birmitrapur with their son (e) later on, the father of the child also contacted the present accused over telephone to which the accused replied that he had left their son in a shop; (f) after it the mobile phone of the accused was switched off and (g) in course of search of the missing child, Sector7 police got information that, a person was taking a child towards Birmitrapur in a Autorickshaw.\n (h) the IO traced out the above Autorickshaw driver and on examination could know that, suspecting the activities of thepresent accused, the child and the accused were handed over to Birmitrapur police by him with the help of some other Autorickshaw drivers.\n (i) after the child was handed over to Birmitrapur police, the father of the child was informed about it and thereafter P.Ws3,4,5 and 6 along with the police officer of Sector7 PS went to Birmitrapur PS where the child along with the present accused were handed over to them.\n 21. So it is now to be seen whether from the above established facts and pieces of circumstantial evidence, the present accused can be connected with the alleged kidnap.\n 22. The principle how the circumstances be considered and weighed are well settled and summed up in Sharada Biridi Chand Sarada VersusState of Maharashtra (194) 4 SCC 116 as under.\n (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.\n It may be noted here that this Court indicated that the circumstances concerned \" must or should\" and not \"may be \"\nestablished. There is not only a grammatical, but, a legal distinction between \" may be proved\" and \" must be or should be proved\" as was held by this Court in Shivaji Sahabrao Bobade and anotherVersus State of Maharashtra, (1973) 2 SCC 793 where the observations were made : \" Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between \"may be\" and \"must be\" is long and divides vague conjectures from sure conclusions.: (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.\n (3) the circumstances should be of a conclusive nature and tendency.\n (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.\n 23. In the present case, the circumstance which has been well established by the prosecution clearly indicates that, on the relevant day, the accused had come to the house of the informant and he along with the victim were found missing from the evening of that day and while the accused was moving in a suspicious manner at Birmitrapur with the child, he was handed over to police along with the child by some local Auto drivers. During such period, he was contacted over telephone by the parents of the victim and during such conversation, he admitted to have taken away their son and on some occasion, he even stated to have left their son in a shop.\n 24. Thus, I am of the opinion that, the oral evidence as well as the circumstantial evidence established by the prosecution have formed a complete chain with a clearly finding that, the present accused took away the child up to Birmitrapur from their house without the consent and knowledge of his lawful guardian and no other conclusion suggesting the innocence of the accused appears to be reasonable or justified.\n 25. It is the settled principle of law that, in determining whether a person takes a minor out of the lawful keeping of its guardian, the distance is immaterial. Even if a minor was taken for distance of 20 or 30 yards, it would amount to taking him out of the keeping of his lawful guardian within the meaning of offence of kidnap. (AIR 1968 Punjab 439) (1995 Criminal Law Journal 581).\n 26. So now it is to be seen whether there was demand of ransom or not after such kidnap. On perusal of the evidence on record, it reveals that, neither the parents of the victim nor any other witness examined on behalf of prosecution have whispered about the demand of ransom by the present accused.\n 27. So, when the kidnap of the child is well established, but, there is no proof of ransom by the present accused and there is also nothing on record even to prove prima facie that, threatening was given to any of the family members of the victim to pay ransom, I think, the accused is to be held guilty U/s. 363 IPC and not U/s. 364A IPC. ( See Satyendra SinghVersusState of Rajsthan, 2007, Criminal Law Journal 3997 Raj.) 28. Thus, accused Ujawal Sahoo is established to have committed the offence U/s. 363 IPC instead of Section 364A IPC.\n 29. In the result, I hold accused Ujawal Sahoo guilty U/s. 363 IPC and convicted him thereunder.\n Additional Sessions Judge, Rourkela.\n Judgment transcribed to my dictation and corrected by me.\nPronounced in open Court on this the 23rd day of December, 2016.\nGiven under my hand and seal of this Court.\n Additional Sessions Judge, Rourkela.\n 30. In a case of such nature and when a little child has been kidnapped, it does not warrant any sympathy whatsoever. So, it is not desirable to release the convict on Probation of Offenders Act.\n HEARING ON THE QUESTION OF SENTENCE.\n31. Heard the learned Additional Public Prosecutor and the advocate on behalf of the convict, on the question of sentence at length.\n Learned advocate for the convict urged before me that, the convict is a young boy, aged about 25 years. Therefore, the Court should take a lenient view, while awarding punishment.\n On the contrary, learned Additional Public Prosecutor submitted that, the Court may award punishment strictly in accordance with law, considering the nature and gravity of the offences.\n In the case of Sebak PerumarVersusState of Tamilnadu, 1991, 3 SCC 471, the Hon'ble Apex Court has cautioned that, undue sympathy to impose indequate sentence would do more harm to the Justice delivery system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.\nIt is therefore the duty of every Court to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc.\n In view of the above settled legal position and considering the nature and gravity of the offences committed by the present convict and the manner in which it was committed, I sentence the convict to suffer Simple Imprisonment for three years and to pay a fine of Rs.\n3,000/ (three thousand), in default, Simple Imprisonment for two months more for the offence U/s. 363 IPC.\n A sum of Rs. 2,000/(two thousand) be given to the victim child towards compensation, out of the fine amount, if realized.\n The UTP period, if any, be set off as per the provision of Section 428 of the Cr.P.C.\n Pronounced the sentence in the open Court, on this the 23rd day of December, 2016. Given under my hand and seal of this Court.\n Additional Sessions Judge, Rourkela.\n List of witnesses examined for the Prosecution: PW 1 Tetru Sahu.\n PW 2 Pilabati Sahu.\n PW 3 Amit Kumar Sahu.\nPW 4 Abhaya Pattnaik.\n PW 5 Subash Ch.Sahu.\n PW 6 Subodh Sahu.\n PW 7 Pradipta Kumar Das.\n PW 8 Bhikshu Ch.Bhaisal.\n List of witnesses examined for the Defence: DW 1 Nandu Yadav.\nDW 2 Barekeswar Oda.\n List of documents marked for the prosecution: Ext. 1 FIR.\nExt. 1/1 Signature of PW 1 on Ext. 1 Ext. 1/2 Endorsement with signature of the then IIC.\nExt. 1/3 Formal FIR.\nExt. 1/4. Signature of PW7 on Ext1.\nExt. 1/5 Signature of PW1 on Ext1.\nExt. 2 Spot map.\nExt. 2/1 Signature of PW 7 on Ext. 2.\nExt3 Medical requisition.\nExt3/1 Signature of PW7 on Ext3.\n List of documents marked for the defence: Nil List of Material Objects.\n Nil Additional Sessions Judge, Rourkela.\n"
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"text": "$~30\n IN THE HIGH COURT OF DELHI AT NEW DELHI\n Decided on:- 25th January, 2019"
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"text": "SRIHARSHA MAJETY ..... Petitioner\n Through: Mr. Mohit Mathur, Sr. Adv.\n with Mr. Narender Mann, Mr.\n Sachin Sharma,"
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"text": "Mr. Sumit\n Misra & Mr. Satyavrat Sharma,\n Advs.\n versus\n\n\n STATE OF NCT OF DELHI"
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"text": "Mr. Amit Ahlawat, APP for the\n State with SI Pawan Kumar, PS"
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"text": "\n Mr. Anirudh Bakhru, Mr. Aman\n Usman & Mr. Shadman"
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"text": "Siddiqui, Advs.\n\nCORAM:\nHON'BLE MR. JUSTICE R.K.GAUBA\n\n ORDER (ORAL) 1. "
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"text": "The petitioner has come up to this Court invoking the inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), feeling aggrieved by the order dated 11.01.2019 of the Metropolitan Magistrate whereby he, along with certain others, stands summoned as “additional accused” on the basis of supplementary report (supplementary charge-sheet) under Section 173 Cr.P.C.\nsubmitted on the said date by the police in the wake of further investigation carried out into first information report (FIR) no.\n251/2018 of police station Kalkaji.\n2. "
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"text": "The respondent/State accepts notice through Mr. Amit Ahlawat, Additional Public Prosecutor."
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"text": "The victim of the alleged offences namely Kanav Madnani has also appeared on his own with counsel and seeks to oppose the prayer in the petition."
}
},
{
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"text": "\n3. All sides have been heard and, with the assistance of the learned counsel, the record has been perused."
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"text": "\n4. The background facts leading to the present petition may be noted, albeit in brief, for present purposes. It appears"
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"text": "that the company named and styled as Bundl Technology Pvt. Ltd., which runs its business in the popular name of “Swiggy” has its corporate Head Office in Bangalore (Karnataka), the petitioner being its Chief Executive Officer (CEO) and Director."
}
},
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"text": "The company, through its online platform “Swiggy”, would facilitate collection of orders for food and beverages from various customers and arrange for the delivery from the concerned restaurants or food establishments including in or around Delhi through delivery personnel described as PDP (pick-up and delivery partners)."
}
},
{
"from_name": null,
"id": "e6e66b1b91b74e628e7b949ab6f4b52a",
"to_name": null,
"type": null,
"value": {
"end": 2875,
"labels": [
"FAC"
],
"start": 2749,
"text": "It appears that such arrangement also covered an establishment named Dilli-19, a restaurant in the area of Kalkaji, New Delhi."
}
},
{
"from_name": null,
"id": "e224a5757e8c4aad9254257c1d269d4e",
"to_name": null,
"type": null,
"value": {
"end": 3007,
"labels": [
"FAC"
],
"start": 2876,
"text": "It is stated that on 14.07.2018 there was a rush of PDPs at the said restaurant, there being some delay in services being provided."
}
},
{
"from_name": null,
"id": "5d4785f8973044bfbfe57d9d6ea8986a",
"to_name": null,
"type": null,
"value": {
"end": 3210,
"labels": [
"FAC"
],
"start": 3008,
"text": "It is also stated that the situation turned ugly on which account Mr. Amit Saini, Fleet Manager of the above-mentioned Swiggy was constrained to go to the place and ask the PDPs to disperse and go away."
}
},
{
"from_name": null,
"id": "fdcfe1c79cfa485494d1241a941bbdc0",
"to_name": null,
"type": null,
"value": {
"end": 3219,
"labels": [
"FAC"
],
"start": 3211,
"text": "5. "
}
},
{
"from_name": null,
"id": "eda391951d2143b995232d22dfa56502",
"to_name": null,
"type": null,
"value": {
"end": 3446,
"labels": [
"FAC"
],
"start": 3219,
"text": "Against the above backdrop, it is alleged that some of the PDPs returned to the scene and ransacked the restaurant in the course of which incident violence erupted and the afore-mentioned victim Kanav Madnani suffered injuries."
}
},
{
"from_name": null,
"id": "549be9a845e6491090adbbb2e4625f8e",
"to_name": null,
"type": null,
"value": {
"end": 3774,
"labels": [
"FAC"
],
"start": 3447,
"text": "Eventually, the police intervened and, on the basis of statement of Mr.Rohit Kubba, proprietor of the said restaurant, FIR was registered for the offences of which note was taken, on the basis of the then available material being punishable under Sections 147, 148, 149, 452, 427, 323, 506, 34 of Indian Penal Code, 1860 (IPC)."
}
},
{
"from_name": null,
"id": "8f800f00545e4611ad0eb2863217e31a",
"to_name": null,
"type": null,
"value": {
"end": 4473,
"labels": [
"FAC"
],
"start": 3775,
"text": "6. The case was investigated into and eventually charge-sheet dated 26.09.2018, forwarded by the ACP on 27.09.2018 was submitted, seeking trial of the persons then arrested, for offences punishable under Sections 147, 148, 149, 452, 427, 323, 506, 307, 34 IPC. The Metropolitan Magistrate took cognizance on the said charge-sheet and, in due course, after compliance with Section 207 Cr.P.C., committed the case to sessions.\n7. The court of Sessions, however, did not find any case made out against the persons so sent up for prosecution for trial for any offence exclusively triable by the sessions, there being a clear observation that charge under Section 307 IPC was not made out."
}
},
{
"from_name": null,
"id": "4e2785d34711440796d1f7d5b9c26111",
"to_name": null,
"type": null,
"value": {
"end": 4607,
"labels": [
"RLC"
],
"start": 4474,
"text": "In this view, the Additional Sessions Judge, by her order dated 13.12.2018, transferred the case back to the Metropolitan Magistrate."
}
},
{
"from_name": null,
"id": "1ce5f4885e4f4b91b14adb1e309ee812",
"to_name": null,
"type": null,
"value": {
"end": 4879,
"labels": [
"FAC"
],
"start": 4616,
"text": "It may be mentioned here that in the charge-sheet, initially submitted, the police had indicated that the matter was being subjected to further investigation inasmuch as role of the company, its officials and other persons connected thereto was being looked into."
}
},
{
"from_name": null,
"id": "80a9fff9ae09478da35de2a9d8b358bb",
"to_name": null,
"type": null,
"value": {
"end": 5432,
"labels": [
"RLC"
],
"start": 4880,
"text": " The supplementary charge-sheet, on the basis of which the impugned order was passed was finalized on 10.01.2019 and submitted before the Metropolitan Magistrate on 11.01.2019 in the course of proceedings pending there on account of the first charge-sheet, the persons set up for trial by the said first charge-sheet, most of them then in judicial custody, being present with or without their counsel.\n9. The impugned order passed on the supplementary charge-sheet on 11.01.2019 reads thus:- “Supplementary charge sheet has been filed."
}
},
{
"from_name": null,
"id": "4e0cff28464f472dafc0f741474a805e",
"to_name": null,
"type": null,
"value": {
"end": 5501,
"labels": [
"RLC"
],
"start": 5433,
"text": "Copy of the supplementary charge sheet given to all present accused."
}
},
{
"from_name": null,
"id": "5d90d182678c4dd180bee9c6cb7d2d43",
"to_name": null,
"type": null,
"value": {
"end": 5559,
"labels": [
"RLC"
],
"start": 5510,
"text": "Put up on 30.01.2019 for consideration on charge."
}
},
{
"from_name": null,
"id": "bea2c043a0c546ea965cee5deb7f9765",
"to_name": null,
"type": null,
"value": {
"end": 5591,
"labels": [
"FAC"
],
"start": 5568,
"text": "Rehnumai on 25.01.2019."
}
},
{
"from_name": null,
"id": "9ebeaab8c10642bb947e0b4977b217b5",
"to_name": null,
"type": null,
"value": {
"end": 5693,
"labels": [
"FAC"
],
"start": 5591,
"text": "\n The accused persons of supplementary charge sheet be summoned through the IO for 30.01.2019”."
}
},
{
"from_name": null,
"id": "15b1e6aad3714caca13bea85cfdbe523",
"to_name": null,
"type": null,
"value": {
"end": 5703,
"labels": [
"ANALYSIS"
],
"start": 5695,
"text": "10. "
}
},
{
"from_name": null,
"id": "2c0174a7ed3a471ebadda3ce3cdf9a7c",
"to_name": null,
"type": null,
"value": {
"end": 6072,
"labels": [
"ANALYSIS"
],
"start": 5703,
"text": "It is pointed out that by the supplementary charge-sheet, additional accused, including the petitioner, are sought to be prosecuted, it being indicated against the names of most of them that their trial is sought for the offence under Section 109 read with Section 338 IPC. Focusing more on the case of the prosecution through the said supplementary charge-sheet"
}
},
{
"from_name": null,
"id": "535f416cde454716b90442fef12d65d3",
"to_name": null,
"type": null,
"value": {
"end": 6450,
"labels": [
"ANALYSIS"
],
"start": 6072,
"text": ", it is noted that in the context of the petitioner it has been indicated that he was negligent in framing, inter alia, the policies with respect to employment of the delivery boys and he having failed to “take preventive steps” and thereby accused of having intentionally aided by illegal omission, the commission of the offence under Section 109 read with Section 338 IPC.\n11."
}
},
{
"from_name": null,
"id": "ca368aefe4f0400bbff31c1405379a91",
"to_name": null,
"type": null,
"value": {
"end": 6684,
"labels": [
"ANALYSIS"
],
"start": 6451,
"text": " Clearly, there is a yet unexplained switch of the prosecution case from one of the injuries having been intentionally caused to the position now taken that the injuries were suffered on account of rash or negligent act (s). "
}
},
{
"from_name": null,
"id": "d1012b1dadd540cea2246787c5a2a32d",
"to_name": null,
"type": null,
"value": {
"end": 7103,
"labels": [
"ANALYSIS"
],
"start": 6684,
"text": "Be that as it may, in the given facts and circumstances, taking note of the fact that the incident had occurred in Delhi, the role and responsibilities of the petitioner being that of CEO of the company, stationed and located far away in Bangalore, the Magistrate was expected to subject the entire material presented before him for seeking the petitioner and similarly placed others to be summoned, to closer scrutiny."
}
},
{
"from_name": null,
"id": "37edf2776fe3410bad0b2460e5eb86da",
"to_name": null,
"type": null,
"value": {
"end": 7200,
"labels": [
"RATIO"
],
"start": 7103,
"text": "\n12. The order of summoning, to say the least, does not pass the muster of a judicial order."
}
},
{
"from_name": null,
"id": "4de6a85af69b4249bd3cc2384ac8f715",
"to_name": null,
"type": null,
"value": {
"end": 7582,
"labels": [
"RATIO"
],
"start": 7201,
"text": "It does not reflect any consideration of the background facts, leave alone consideration of the evidence presented so as to draw connection between the offences on one hand and the role and responsibilities of the petitioner and similarly placed individuals on the other – all of them being additional accused persons who were not sent up for prosecution by the first charge-sheet."
}
},
{
"from_name": null,
"id": "7d777b574cd44d348ddba483e23ceb7e",
"to_name": null,
"type": null,
"value": {
"end": 7816,
"labels": [
"RPC"
],
"start": 7582,
"text": "\n13. In the above facts and circumstances, the impugned order dated 11.01.2019, insofar as thereby summoning order was passed against the petitioner and others on the basis of supplementary charge-sheet, is set aside and vacated."
}
},
{
"from_name": null,
"id": "1f0aa6afd5db4b3fb73a708702c3105f",
"to_name": null,
"type": null,
"value": {
"end": 7895,
"labels": [
"RPC"
],
"start": 7817,
"text": "The matter is remitted to the Metropolitan Magistrate for fresh consideration."
}
},
{
"from_name": null,
"id": "2e532d05f73642fcab1dda2797fbce4c",
"to_name": null,
"type": null,
"value": {
"end": 8011,
"labels": [
"RPC"
],
"start": 7896,
"text": "The said court will be expected to pass a proper reasoned order, one that would stand the test of a judicial order."
}
},
{
"from_name": null,
"id": "0ae2abafb68d4fd3a5f3041b8cfb245f",
"to_name": null,
"type": null,
"value": {
"end": 8161,
"labels": [
"RPC"
],
"start": 8011,
"text": "\n 14. The Metropolitan Magistrate will take up the matter for such fresh consideration on the date fixed after the receipt of copy of this order."
}
},
{
"from_name": null,
"id": "3740ff3b380f4b64857cba8e1f3e1474",
"to_name": null,
"type": null,
"value": {
"end": 8171,
"labels": [
"RPC"
],
"start": 8162,
"text": "15. "
}
},
{
"from_name": null,
"id": "e36c497bc2be4afbb266b6ea4bd2e0f4",
"to_name": null,
"type": null,
"value": {
"end": 8269,
"labels": [
"RPC"
],
"start": 8171,
"text": "Needless to add, nothing in this order will be construed as final expression of opinion on merits."
}
},
{
"from_name": null,
"id": "b26555957efa433f9658987f3bcf1d6f",
"to_name": null,
"type": null,
"value": {
"end": 8345,
"labels": [
"RPC"
],
"start": 8269,
"text": "\n16. This disposes of the petition and the application filed therewith."
}
},
{
"from_name": null,
"id": "ba7819b56ed946e192cc1b733fb642b9",
"to_name": null,
"type": null,
"value": {
"end": 8434,
"labels": [
"NONE"
],
"start": 8346,
"text": "17. Dasti under the signatures of Court Master.\n R.K.GAUBA, J.\n JANUARY 25, 2019 nk"
}
}
]
}
] | 4,122 | {
"text": "$~30\n IN THE HIGH COURT OF DELHI AT NEW DELHI\n Decided on:- 25th January, 2019\n\n\n+ CRL. M.C. 415/2019 & Crl.M.A. 1757-58/2019\n\n\n SRIHARSHA MAJETY ..... Petitioner\n Through: Mr. Mohit Mathur, Sr. Adv.\n with Mr. Narender Mann, Mr.\n Sachin Sharma, Mr. Sumit\n Misra & Mr. Satyavrat Sharma,\n Advs.\n versus\n\n\n STATE OF NCT OF DELHI ..... Respondent\n Through: Mr. Amit Ahlawat, APP for the\n State with SI Pawan Kumar, PS\n Kalkaji, New Delhi.\n Mr. Anirudh Bakhru, Mr. Aman\n Usman & Mr. Shadman\n Siddiqui, Advs.\n\nCORAM:\nHON'BLE MR. JUSTICE R.K.GAUBA\n\n ORDER (ORAL) 1. The petitioner has come up to this Court invoking the inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), feeling aggrieved by the order dated 11.01.2019 of the Metropolitan Magistrate whereby he, along with certain others, stands summoned as “additional accused” on the basis of supplementary report (supplementary charge-sheet) under Section 173 Cr.P.C.\nsubmitted on the said date by the police in the wake of further investigation carried out into first information report (FIR) no.\n251/2018 of police station Kalkaji.\n2. The respondent/State accepts notice through Mr. Amit Ahlawat, Additional Public Prosecutor. The victim of the alleged offences namely Kanav Madnani has also appeared on his own with counsel and seeks to oppose the prayer in the petition.\n3. All sides have been heard and, with the assistance of the learned counsel, the record has been perused.\n4. The background facts leading to the present petition may be noted, albeit in brief, for present purposes. It appears that the company named and styled as Bundl Technology Pvt. Ltd., which runs its business in the popular name of “Swiggy” has its corporate Head Office in Bangalore (Karnataka), the petitioner being its Chief Executive Officer (CEO) and Director. The company, through its online platform “Swiggy”, would facilitate collection of orders for food and beverages from various customers and arrange for the delivery from the concerned restaurants or food establishments including in or around Delhi through delivery personnel described as PDP (pick-up and delivery partners). It appears that such arrangement also covered an establishment named Dilli-19, a restaurant in the area of Kalkaji, New Delhi. It is stated that on 14.07.2018 there was a rush of PDPs at the said restaurant, there being some delay in services being provided. It is also stated that the situation turned ugly on which account Mr. Amit Saini, Fleet Manager of the above-mentioned Swiggy was constrained to go to the place and ask the PDPs to disperse and go away.\n5. Against the above backdrop, it is alleged that some of the PDPs returned to the scene and ransacked the restaurant in the course of which incident violence erupted and the afore-mentioned victim Kanav Madnani suffered injuries. Eventually, the police intervened and, on the basis of statement of Mr.Rohit Kubba, proprietor of the said restaurant, FIR was registered for the offences of which note was taken, on the basis of the then available material being punishable under Sections 147, 148, 149, 452, 427, 323, 506, 34 of Indian Penal Code, 1860 (IPC).\n6. The case was investigated into and eventually charge-sheet dated 26.09.2018, forwarded by the ACP on 27.09.2018 was submitted, seeking trial of the persons then arrested, for offences punishable under Sections 147, 148, 149, 452, 427, 323, 506, 307, 34 IPC. The Metropolitan Magistrate took cognizance on the said charge-sheet and, in due course, after compliance with Section 207 Cr.P.C., committed the case to sessions.\n7. The court of Sessions, however, did not find any case made out against the persons so sent up for prosecution for trial for any offence exclusively triable by the sessions, there being a clear observation that charge under Section 307 IPC was not made out. In this view, the Additional Sessions Judge, by her order dated 13.12.2018, transferred the case back to the Metropolitan Magistrate.\n8. It may be mentioned here that in the charge-sheet, initially submitted, the police had indicated that the matter was being subjected to further investigation inasmuch as role of the company, its officials and other persons connected thereto was being looked into. The supplementary charge-sheet, on the basis of which the impugned order was passed was finalized on 10.01.2019 and submitted before the Metropolitan Magistrate on 11.01.2019 in the course of proceedings pending there on account of the first charge-sheet, the persons set up for trial by the said first charge-sheet, most of them then in judicial custody, being present with or without their counsel.\n9. The impugned order passed on the supplementary charge-sheet on 11.01.2019 reads thus:- “Supplementary charge sheet has been filed. Copy of the supplementary charge sheet given to all present accused.\n Put up on 30.01.2019 for consideration on charge.\n Rehnumai on 25.01.2019.\n The accused persons of supplementary charge sheet be summoned through the IO for 30.01.2019”.\n 10. It is pointed out that by the supplementary charge-sheet, additional accused, including the petitioner, are sought to be prosecuted, it being indicated against the names of most of them that their trial is sought for the offence under Section 109 read with Section 338 IPC. Focusing more on the case of the prosecution through the said supplementary charge-sheet, it is noted that in the context of the petitioner it has been indicated that he was negligent in framing, inter alia, the policies with respect to employment of the delivery boys and he having failed to “take preventive steps” and thereby accused of having intentionally aided by illegal omission, the commission of the offence under Section 109 read with Section 338 IPC.\n11. Clearly, there is a yet unexplained switch of the prosecution case from one of the injuries having been intentionally caused to the position now taken that the injuries were suffered on account of rash or negligent act (s). Be that as it may, in the given facts and circumstances, taking note of the fact that the incident had occurred in Delhi, the role and responsibilities of the petitioner being that of CEO of the company, stationed and located far away in Bangalore, the Magistrate was expected to subject the entire material presented before him for seeking the petitioner and similarly placed others to be summoned, to closer scrutiny.\n12. The order of summoning, to say the least, does not pass the muster of a judicial order. It does not reflect any consideration of the background facts, leave alone consideration of the evidence presented so as to draw connection between the offences on one hand and the role and responsibilities of the petitioner and similarly placed individuals on the other – all of them being additional accused persons who were not sent up for prosecution by the first charge-sheet.\n13. In the above facts and circumstances, the impugned order dated 11.01.2019, insofar as thereby summoning order was passed against the petitioner and others on the basis of supplementary charge-sheet, is set aside and vacated. The matter is remitted to the Metropolitan Magistrate for fresh consideration. The said court will be expected to pass a proper reasoned order, one that would stand the test of a judicial order.\n 14. The Metropolitan Magistrate will take up the matter for such fresh consideration on the date fixed after the receipt of copy of this order.\n15. Needless to add, nothing in this order will be construed as final expression of opinion on merits.\n16. This disposes of the petition and the application filed therewith.\n17. Dasti under the signatures of Court Master.\n R.K.GAUBA, J.\n JANUARY 25, 2019 nk "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "2842b6187fd243d28c3b579f263185e8",
"to_name": null,
"type": null,
"value": {
"end": 88,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 27th DAY OF JUNE, 2016"
}
},
{
"from_name": null,
"id": "b6a574bd10524a37b1710e3d35392159",
"to_name": null,
"type": null,
"value": {
"end": 196,
"labels": [
"PREAMBLE"
],
"start": 88,
"text": "\n\n PRESENT\n\n THE HON'BLE MR. JUSTICE JAYANT PATEL\n\n AND"
}
},
{
"from_name": null,
"id": "fc7e4fcc078c4a45b1cb03c866673281",
"to_name": null,
"type": null,
"value": {
"end": 270,
"labels": [
"PREAMBLE"
],
"start": 196,
"text": "\n\nTHE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA\n\n I.T.A. NO.502/2015"
}
},
{
"from_name": null,
"id": "429269f5678c4ca3945375054ee4b469",
"to_name": null,
"type": null,
"value": {
"end": 280,
"labels": [
"PREAMBLE"
],
"start": 270,
"text": "\n\nBETWEEN:"
}
},
{
"from_name": null,
"id": "74968010e3544acc8950463a4bc40735",
"to_name": null,
"type": null,
"value": {
"end": 425,
"labels": [
"PREAMBLE"
],
"start": 282,
"text": "1. THE COMMISSIONER OF INCOME TAX TDS,\n NO.59, HMT BHAVAN, 4TH FLOOR\n BELLARY ROAD, GANGANAGAR\n BANGALORE 560 032.\n\n2."
}
},
{
"from_name": null,
"id": "d92cb509fe6846289f7d7b778bb3cc82",
"to_name": null,
"type": null,
"value": {
"end": 1184,
"labels": [
"PREAMBLE"
],
"start": 426,
"text": "THE ASST. COMMISSIONER OF INCOME-TAX (TDS)\n CIRCLE-16(2)\n NO.59, HMT BHAVAN, 4TH FLOOR\n BELLARY ROAD, GANGANAGAR\n BANGALORE 560 032.\n ... APPELLANTS\n\n(BY SRI.DILIP, ADV. AND\nSRI.K.V. ARAVIND, ADV.)\n\nAND:\n\nTHE KARNATAKA STATE APEX\nCO-OPERATIVE BANK LTD.,\nKORAMANGALA BRANCH\nBANGALORE.\n\n ... RESPONDENT\n\n\n THIS ITA FILED UNDER SECTION 260-A OF INCOME TAX\nACT 1961, ARISING OUT OF ORDER DATED 30.04.2015 PASSED\nIN ITA NO.1417/BANG/2014, FOR THE ASSESSMENT YEAR\n2011-2012.\n\n THIS APPEAL COMING ON FOR ORDERS THIS DAY,\nJAYANT PATEL J. DELIVERED THE FOLLOWING:\n\n JUDGMENT\n "
}
},
{
"from_name": null,
"id": "228cf039d85e489595582725184db26a",
"to_name": null,
"type": null,
"value": {
"end": 1278,
"labels": [
"ARG_PETITIONER"
],
"start": 1184,
"text": "This appeal is preferred by the Revenue by raising the following substantial questions of law."
}
},
{
"from_name": null,
"id": "540a94c641a144719d7ef158664dbe5c",
"to_name": null,
"type": null,
"value": {
"end": 1477,
"labels": [
"ISSUE"
],
"start": 1278,
"text": "\n (i) Whether the Tribunal is right in law in relying on Circular No.9/2002 when the same has been quashed by the Hon.Mumbai High Court in the case of Jalgaon District Central Co-operative Bank Ltd.?"
}
},
{
"from_name": null,
"id": "cd3e0dc3b2974f2f895223af3007218c",
"to_name": null,
"type": null,
"value": {
"end": 1686,
"labels": [
"ISSUE"
],
"start": 1477,
"text": "\n (ii) Whether the Tribunal was correct in holding that Co-operative Bank are not liable to deduct tax on the interest paid to its members on the ground that they are exempt u/s 194A(3)(v) of the IT Act, 1961?"
}
},
{
"from_name": null,
"id": "77f193c8c66b45f5804a7daad30369a9",
"to_name": null,
"type": null,
"value": {
"end": 1922,
"labels": [
"ISSUE"
],
"start": 1686,
"text": "\n (iii) Whether the Tribunal is right in law in overlooking the established principle of `generalia specialibus non derogant' vis-- vis the specific provisions of Sec.194A(3)(viia)(b) and general provisions of Sec.194A(3)(v) of the Act?"
}
},
{
"from_name": null,
"id": "ce30bdeec6e84eba907dd7b03ef6efab",
"to_name": null,
"type": null,
"value": {
"end": 2298,
"labels": [
"ISSUE"
],
"start": 1922,
"text": "\n (iv) Whether the tribunal was correct in not appreciating the fact that the provision of Section 194A(3)(v) is a general provision granting benefit to all co-operative societies, whereas, the provisions of Section 194A(3)(i)(b) deals with co- operative society carrying on the business of banking, hence specific provisions in any case overrides the general provisions?\"\n 2."
}
},
{
"from_name": null,
"id": "8599fe56b661482d99e63778152ef0fd",
"to_name": null,
"type": null,
"value": {
"end": 2396,
"labels": [
"ANALYSIS"
],
"start": 2299,
"text": "We have heard Mr.Dilip for Sri K.V. Aravind, learned counsel appearing for the appellant-Revenue."
}
},
{
"from_name": null,
"id": "3b75e91d742c49b6a47a831f0e7ef48f",
"to_name": null,
"type": null,
"value": {
"end": 2748,
"labels": [
"PRE_RELIED"
],
"start": 2396,
"text": "\n 3. After hearing the learned counsel appearing for the appellant-Revenue, we find that, the issues which arise for consideration in the present appeal are already covered by the decision of this Court dated 21.6.2016 in ITA No.604/2015 and other matters in case of The Commissioner of Income Tax and others Vs. The National Co-operative Bank Limited."
}
},
{
"from_name": null,
"id": "46d00fa35ba44b4fb87ef5e95af9af1c",
"to_name": null,
"type": null,
"value": {
"end": 3332,
"labels": [
"PRE_RELIED"
],
"start": 2749,
"text": "In the above referred decision, this Court observed thus: \"In all matters, the appellant-Revenue has preferred the appeals by raising following substantial questions of law: \"1. Whether the Tribunal is right in law in relying on Circular No.9/2002 when the same has been quashed by the Hon. Mumbai High Court in the case of Jalgaon District Central Co-Operative Bank Ltd.,?\n 2. Whether the Tribunal was correct in holding that Co-Operative Bank are not liable to deduct tax on the interest paid to its members on the ground that they are exempt U/s 194A(3)(v) of the IT Act 1961?\n 3."
}
},
{
"from_name": null,
"id": "c31fc973a8bf454983ef2606130d3500",
"to_name": null,
"type": null,
"value": {
"end": 3560,
"labels": [
"PRE_RELIED"
],
"start": 3333,
"text": "Whether the Tribunal is right in law in overlooking the established principle of `generalia specialibus non derogant' vis--vis the specific provisions of Sec.194A(3)(viia)(b) and general provisions of 194A(3)(v) of the Act?\n 4."
}
},
{
"from_name": null,
"id": "822f96f8239c498d93b576395b7a5f8a",
"to_name": null,
"type": null,
"value": {
"end": 3929,
"labels": [
"PRE_RELIED"
],
"start": 3561,
"text": "Whether the Tribunal was correct in not appreciating the fact that the provision of Section 194A(3)(v) is a general provision granting benefit to all co-operative societies, whereas, the provisions of Section 194A(3)(i)(b) deals with co-operative society carrying on the business of banking, hence specific provisions in any case overrides the general provisions?\"\n 2."
}
},
{
"from_name": null,
"id": "fff40c7e909c4ae691df2059f9520100",
"to_name": null,
"type": null,
"value": {
"end": 4005,
"labels": [
"NONE"
],
"start": 3930,
"text": "We have heard Mr.Aravind K.V., learned counsel appearing for the appellant."
}
},
{
"from_name": null,
"id": "ffa9acc2e02e45c2b5d1bee8d60f30c5",
"to_name": null,
"type": null,
"value": {
"end": 4146,
"labels": [
"ANALYSIS"
],
"start": 4006,
"text": "As such, if we see the observations of the Tribunal in this regard, the considerations are at paragraphs 12 to 14 which reads as under: \"12."
}
},
{
"from_name": null,
"id": "06704b91e2e24b939eecb5275ae15098",
"to_name": null,
"type": null,
"value": {
"end": 4183,
"labels": [
"ANALYSIS"
],
"start": 4147,
"text": "We have heard the rival submissions."
}
},
{
"from_name": null,
"id": "909bf5ec2586422a92050dc820441b40",
"to_name": null,
"type": null,
"value": {
"end": 4685,
"labels": [
"ANALYSIS"
],
"start": 4184,
"text": "At the time of hearing of the appeal, it was brought to our notice by the learned counsel for the assessee that the Bangalore Bench of ITAT in the case of Bagalkot District Central Co-op Bank, Vs JCIT (2014) 48 taxmann.com 117(Bangalore-Trib) held that Co-Operative Societies carrying on banking business while paying interest to members on time deposit and deposits other than time deposits need not deduct tax at source U/s 194-A of the Act by virtue of exemption granted U/s 194-A(3)(v) of the Act."
}
},
{
"from_name": null,
"id": "a30ca52f8539404aa9bf688a2930642a",
"to_name": null,
"type": null,
"value": {
"end": 4793,
"labels": [
"ANALYSIS"
],
"start": 4686,
"text": "The learned DR relied on the stand taken by the revenue in the grounds of appeal filed before the Tribunal."
}
},
{
"from_name": null,
"id": "53004bf0bbde43f7b2d4ac060baeb7d1",
"to_name": null,
"type": null,
"value": {
"end": 4840,
"labels": [
"ANALYSIS"
],
"start": 4793,
"text": "\n 13. We have considered the rival submissions."
}
},
{
"from_name": null,
"id": "e35c0f97539e47979c8b53b4544a9aa7",
"to_name": null,
"type": null,
"value": {
"end": 5113,
"labels": [
"ANALYSIS"
],
"start": 4841,
"text": "This tribunal in the case of Bagalkot District Central Co-operative Bank (supra) dealt with identical issue and identical stand taken by the revenue and the Assessee in the case of co-operative society engaged in banking business and have upheld identical order of CIT(A)."
}
},
{
"from_name": null,
"id": "9c93a6eed3dc4e47a8ac8796407f5d48",
"to_name": null,
"type": null,
"value": {
"end": 5192,
"labels": [
"ANALYSIS"
],
"start": 5114,
"text": "The relevant observations of the Tribunal in this regard were as follows: \"15."
}
},
{
"from_name": null,
"id": "4149111348754fd7be3dfb43bdcabf5e",
"to_name": null,
"type": null,
"value": {
"end": 5261,
"labels": [
"ANALYSIS"
],
"start": 5193,
"text": "We have given a very careful consideration to the rival submissions."
}
},
{
"from_name": null,
"id": "4b960dca7205445589cea1b38d97c273",
"to_name": null,
"type": null,
"value": {
"end": 5371,
"labels": [
"ANALYSIS"
],
"start": 5262,
"text": "We are of the view that the submissions made by the learned counsel for the Assessee deserves to be accepted."
}
},
{
"from_name": null,
"id": "d2b347c0f36d4820adb464ab75e9c4d2",
"to_name": null,
"type": null,
"value": {
"end": 5876,
"labels": [
"ANALYSIS"
],
"start": 5372,
"text": "As rightly contended by him Sec.194A(3)(i)(b) of the Act is a provision which mandates deduction of tax at source by a co-operative Society carrying on the business of banking, where the income in the form of interest which is paid by such society is in excess of ten thousand rupees. Sec.194A(3)(v) of the Act provides that tax need not be deducted at source where the income in the form of interest is credited or paid by a co-operative society to a member thereof or to any other co-operative society."
}
},
{
"from_name": null,
"id": "8fce8b1fc3c84ef49e3dd68da1609e6c",
"to_name": null,
"type": null,
"value": {
"end": 6006,
"labels": [
"ANALYSIS"
],
"start": 5877,
"text": "This provision therefore applies to all co-operative societies including co-operative society engaged in the business of banking."
}
},
{
"from_name": null,
"id": "402e5b40d7f34d6981800a6daa7caeb6",
"to_name": null,
"type": null,
"value": {
"end": 6444,
"labels": [
"STA"
],
"start": 6007,
"text": "It is not possible to exclude co- operative society engaged in the business of banking from the provisions of sec.\n194A(3)(v) of the Act on the ground that the same is covered by the provisions of sec.\n194A(3)(i)(b) of the Act. Sec.194A(3)(v) of the Act refers to payment by a co-operative society to a member and payment by a co- operative society to non-member continue to be governed by the provisions of Sec.194A(3)(i)(b) of the Act."
}
},
{
"from_name": null,
"id": "d1b224dc77c14cee8a7cc132a9c805b7",
"to_name": null,
"type": null,
"value": {
"end": 6648,
"labels": [
"ANALYSIS"
],
"start": 6445,
"text": "Similarly U/s 194A(3)(viia)(b) interest on deposits other than time deposits even if the payment is made to a non-member by a co-operative society, the co-operative society need not deduct tax at source."
}
},
{
"from_name": null,
"id": "e2bb5194ac93495bb99f969fdea32955",
"to_name": null,
"type": null,
"value": {
"end": 6728,
"labels": [
"ANALYSIS"
],
"start": 6649,
"text": "Thus this section carves out another exception to Sec.194A(3)(i)(b) of the Act."
}
},
{
"from_name": null,
"id": "6fa500463bd4495089d189bb53035728",
"to_name": null,
"type": null,
"value": {
"end": 6858,
"labels": [
"ANALYSIS"
],
"start": 6729,
"text": "We do not think that any of the above provisions can be called a general provision an other provision called specific provisions."
}
},
{
"from_name": null,
"id": "225e035f33764313a43760f60adcf4d1",
"to_name": null,
"type": null,
"value": {
"end": 6980,
"labels": [
"ANALYSIS"
],
"start": 6859,
"text": "Each provision over-lap and if read in the manner as indicated above, there is perfect harmony to the various provisions."
}
},
{
"from_name": null,
"id": "0b3a6d3b896540e487def918e7bfe12f",
"to_name": null,
"type": null,
"value": {
"end": 7334,
"labels": [
"PRE_NOT_RELIED"
],
"start": 6981,
"text": "We do not agree with the view expressed by the Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd(supra) when it says that co-operative society as mentioned in CL.(v) is a general species, whereas the other five categories of co-operative societies which are specifically referred to in other provisions are specific co-operative societies."
}
},
{
"from_name": null,
"id": "e4f19d851c9046788d8658bb0117ae7e",
"to_name": null,
"type": null,
"value": {
"end": 7539,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7335,
"text": " The further conclusion in the said decision that the term `co-operative society' in CL.(v) of S.194A(3) has to be interpreted as co-operative society other than co-operative bank, is again unsustainable."
}
},
{
"from_name": null,
"id": "960a4b8bee5147bcba6ab5077d1d7125",
"to_name": null,
"type": null,
"value": {
"end": 7670,
"labels": [
"ANALYSIS"
],
"start": 7540,
"text": "The law is well settled that by a process of interpretation one cannot add on words that are not found in the text of the statute."
}
},
{
"from_name": null,
"id": "57f36a241b3b40e68f2bf980a43898e7",
"to_name": null,
"type": null,
"value": {
"end": 7733,
"labels": [
"ANALYSIS"
],
"start": 7671,
"text": "Such a course is permitted only when there is \"causes omisus\"."
}
},
{
"from_name": null,
"id": "062bf8d76855413ca32bf83c62683cf4",
"to_name": null,
"type": null,
"value": {
"end": 7875,
"labels": [
"ANALYSIS"
],
"start": 7734,
"text": "We do not think that the provisions of Sec.194A(3)(v) suffers from any causes omisus as has been interpreted by the ITAT Pune Bench SMC.\n 16."
}
},
{
"from_name": null,
"id": "e24f4ad0c3b841db816c854f1f503469",
"to_name": null,
"type": null,
"value": {
"end": 8072,
"labels": [
"PRE_RELIED"
],
"start": 7876,
"text": "We are also of the view that the decision of the Hon'ble Kerala High Court in the case of Moolamattom Electricity Board Employees Co-op Bank Ltd(supra) supports the plea of the Assessee before us."
}
},
{
"from_name": null,
"id": "ac9606933f2e4298b8229b2a55c0ba42",
"to_name": null,
"type": null,
"value": {
"end": 8187,
"labels": [
"ANALYSIS"
],
"start": 8073,
"text": "The petitioners in that case were primary credit societies registered under the Kerala Co-operative Societies Act."
}
},
{
"from_name": null,
"id": "eecd2905c63041039f09f68ca3fa51ea",
"to_name": null,
"type": null,
"value": {
"end": 8326,
"labels": [
"ANALYSIS"
],
"start": 8188,
"text": "In view of the specific provisions of Sec.194A(3)(viia) of the Act, they claimed that they need not deduct tax at source on interest paid."
}
},
{
"from_name": null,
"id": "8320e3a3476947518a393448ef154854",
"to_name": null,
"type": null,
"value": {
"end": 8560,
"labels": [
"ANALYSIS"
],
"start": 8327,
"text": "It was submitted by the petitioner that sub-s.194A(3)(v) deals with such income credited or paid by a co- operative society to a member whereas sub.s(3)(viia)(a) provides a total exemption to deposits with the primary credit society."
}
},
{
"from_name": null,
"id": "59734362e2e44c6bafe1fa275b216c30",
"to_name": null,
"type": null,
"value": {
"end": 8955,
"labels": [
"ANALYSIS"
],
"start": 8561,
"text": "The Hon'ble Kerala High Court accepted there plea and in their judgment have observed that Sec.194A(3)(i) exemption limit of Rs.10,000/- to interest paid on time deposits with co-operative societies engaged in carrying on in business of banking is allowed but that does not mean that all co-operative societies who have credited or paid exceeding Rs.10,000/- are liable to deduct tax at source."
}
},
{
"from_name": null,
"id": "01405519a97744a19ad0e5a689a4d889",
"to_name": null,
"type": null,
"value": {
"end": 9126,
"labels": [
"ANALYSIS"
],
"start": 8956,
"text": "The Court held that co-operative society engaged in carrying on business of banking and primary credit societies stand on different footing and belong to different class."
}
},
{
"from_name": null,
"id": "068918b4d81c4441a4d3f011141b2483",
"to_name": null,
"type": null,
"value": {
"end": 9397,
"labels": [
"ANALYSIS"
],
"start": 9127,
"text": "That does not mean that Sec.194A(3)(v) of the Act is applicable only to co-operative societies other than co-operative societies carrying on the business of banking as observed in para 37 of its judgment the Pune ITAT in the case of Bhagani Nivedita Sah Bank Ltd(supra)."
}
},
{
"from_name": null,
"id": "a75ecd778aaf4d6393720f5c65d6e64a",
"to_name": null,
"type": null,
"value": {
"end": 9684,
"labels": [
"ANALYSIS"
],
"start": 9398,
"text": "In fact in para 2 of Circular No.9 dated: 11.09.2002, the CBDT has very clearly laid down that co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act.\n 17."
}
},
{
"from_name": null,
"id": "6466c31f493245888748379e4a019a22",
"to_name": null,
"type": null,
"value": {
"end": 9811,
"labels": [
"ANALYSIS"
],
"start": 9685,
"text": "We also find that the CBDT in Circular No.9 dated 11.09.2002 clarified certain aspects which are relevant to the present case."
}
},
{
"from_name": null,
"id": "543e5910b8d44619ac60f894ab26efcf",
"to_name": null,
"type": null,
"value": {
"end": 10237,
"labels": [
"ANALYSIS"
],
"start": 9812,
"text": "The same reads thus: \"Circular No.9 of 2002 \"Sub: Tax deduction at source Under Section 194A of the Income Tax Act 1961- Applicability of the provisions in respect of income paid or credited to a member of co-operative bank Reg.\n 11.09.2002 TDS 194A Under Section 194A of the Income Tax Act, 1961, Tax is deductible at source from any payment of income by way of interest other than income by way of interest on securities.\n"
}
},
{
"from_name": null,
"id": "f79bbcd0fe49450f80e1839040417afe",
"to_name": null,
"type": null,
"value": {
"end": 10394,
"labels": [
"STA"
],
"start": 10237,
"text": "Clause (V) of Sub Section (3) of Section.194A exempts such income credited or paid by a co-operative society to a member thereof from the requirement of TDS."
}
},
{
"from_name": null,
"id": "ffd7afe6fc554d6788c84db7fcf95deb",
"to_name": null,
"type": null,
"value": {
"end": 10684,
"labels": [
"STA"
],
"start": 10395,
"text": "On the other hand, clause(viia) of Sub Section(3) of Section 194A exempts from the requirement of TDS such income credited or paid in respect of deposits (other than time-deposits made on or after 1st July, 1995) with a co- operative society engaged in carrying on the business of banking."
}
},
{
"from_name": null,
"id": "d2f49ef4e61e47189f0022a63cd213c6",
"to_name": null,
"type": null,
"value": {
"end": 10913,
"labels": [
"ANALYSIS"
],
"start": 10684,
"text": "\n 2. Representations have been received in the Board seeking clarification as to whether a member of a co-operative bank may receive without TDS interest on time deposit made with the co-operative bank on or after 1st July, 1995."
}
},
{
"from_name": null,
"id": "532ca4119307466e955e6b8f7c9ecde3",
"to_name": null,
"type": null,
"value": {
"end": 11235,
"labels": [
"ANALYSIS"
],
"start": 10914,
"text": "The Board has considered the matter and it is clarified that a member of a co-operative bank shall receive interest on both time deposits and deposits other than time deposits with such co-operative bank without TDS Under Section 194A by virtue of exemption granted vide clause (v) of Sub Section (3) of the said section."
}
},
{
"from_name": null,
"id": "0d4d2c930d974b508c2141c84b15e75a",
"to_name": null,
"type": null,
"value": {
"end": 11509,
"labels": [
"ANALYSIS"
],
"start": 11236,
"text": "The provisions of clause (viia) of the said Sub Section are applicable only in case of a non- member depositor of the co-operative bank, who shall receive interest only on deposits other than time deposits made on or after 1st July, 1995 without TDS Under Section 194A.\n 3."
}
},
{
"from_name": null,
"id": "9d3f56df7f0f4136bf0e8af116358c1f",
"to_name": null,
"type": null,
"value": {
"end": 11674,
"labels": [
"ANALYSIS"
],
"start": 11510,
"text": "A question has also been raised as to whether normal members, associate members and sympathizer members are also covered by the exemptions Under Section 194A(3)(v)."
}
},
{
"from_name": null,
"id": "a927de01e6844abaa41beabb20495c37",
"to_name": null,
"type": null,
"value": {
"end": 11933,
"labels": [
"ANALYSIS"
],
"start": 11675,
"text": "It is hereby clarified that the exemption is available only to such members who have joined in application for the registration of the co-operative society and those who are admitted to membership after registration in accordance with the bye-laws and rules."
}
},
{
"from_name": null,
"id": "304653f58581461dab2c39d5d2241c7b",
"to_name": null,
"type": null,
"value": {
"end": 12291,
"labels": [
"ANALYSIS"
],
"start": 11934,
"text": "A member eligible for exemption Under Section 194A(3)(v) must have subscribed to and fully paid for at least one share of the co-operative bank, must be entitled to participate and vote in the General Body Meetings and/or Special General Body Meetings of the co-operative bank and must be entitled to receive share from the profits of the co-operative bank."
}
},
{
"from_name": null,
"id": "14fbf269c4534f9daaf78dfed32d468c",
"to_name": null,
"type": null,
"value": {
"end": 12727,
"labels": [
"ANALYSIS"
],
"start": 12291,
"text": "\n [F.No.275/106/2000-IT(B)] (2002) 177 CTR (St) 1\"\n 18. It can be seen from para 2 of the Circular refered to above that the CBDT has very clearly laid down that co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source. The above interpretation of the provision by the CBDT which is in favour of the Assessee, in our view is binding on the tax authorities.\n 19."
}
},
{
"from_name": null,
"id": "9c5d60ee17c34bcf8772a6e57d71a1de",
"to_name": null,
"type": null,
"value": {
"end": 13233,
"labels": [
"PRE_NOT_RELIED"
],
"start": 12728,
"text": "In the case decided by ITAT Panaji Bench in ITA No.85/PN/2013 for AY.09-10 in the case of the Bailhongal Uraban Co-op Bank Ltd Vs. JCIT order dated 28.08.2013, the Tribunal proceeded on the footing that the aforesaid Circular has been quashed by the Hon'ble Bombay High Court in the case of The Jalgaon District Central Co-Operative Bank Ltd. Vs. Union of India 265 ITR 423(Bom) and therefore choose to follow the decision rendered by Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd(supra)"
}
},
{
"from_name": null,
"id": "7013e744c61242879057ae1500a37119",
"to_name": null,
"type": null,
"value": {
"end": 13513,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13233,
"text": ". In our view the Hon'ble Bombay High Court in the case of Jalgaon District Central Co-Operative Bank Ltds case was dealing with a case of challenge to para 3 of CBDT Circular No.9 dated: 11.09.2002 which tried to interpret the word \"member\"\nas given in Sec.194A(3)(v) of the Act."
}
},
{
"from_name": null,
"id": "23af45acc20d4729ab3252a3ed773577",
"to_name": null,
"type": null,
"value": {
"end": 13710,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13514,
"text": "It is only that part of the Circular that had been quashed by the Hon'ble High Court and the other paragraphs of the Circular had no connection with the issue before the Hon'ble Bombay High Court."
}
},
{
"from_name": null,
"id": "b1698358a71c4321a655ea998aa6898e",
"to_name": null,
"type": null,
"value": {
"end": 13807,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13711,
"text": "How could it be said that the entire Circular has been quashed by the Hon'ble Bombay High Court?"
}
},
{
"from_name": null,
"id": "58325a8156994c149cd8c45904b68b7d",
"to_name": null,
"type": null,
"value": {
"end": 13987,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13808,
"text": "In our view para 2 of the Circular still holds good and the conclusion of the ITAT Pune Bench in the case of the Bailhongal Uraban Co-op Bank Ltd(supra) are not factually correct."
}
},
{
"from_name": null,
"id": "eb7ed82c5cd440b6973f7066be9540ce",
"to_name": null,
"type": null,
"value": {
"end": 14117,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13987,
"text": "\nConsequently, the conclusions drawn in the aforesaid decision also contrary to facts and hence cannot be considered as precedent."
}
},
{
"from_name": null,
"id": "5b949afa7b0c4fec85744c06443c252d",
"to_name": null,
"type": null,
"value": {
"end": 14520,
"labels": [
"PRE_RELIED"
],
"start": 14119,
"text": "20. The learned counsel for the Assessee as brought to our notice that the ITAT Vishakapatnam Bench in the case of The Vishakapatnam Co-operative Bank ITA No.5 and 19 of 2011 order dated: 29.08.2011 as held that co-operative societies carrying on banking business when it pays interest to its members on deposits it need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act."
}
},
{
"from_name": null,
"id": "2a86f2a8bd954700b04d6b525e40af1e",
"to_name": null,
"type": null,
"value": {
"end": 14679,
"labels": [
"PRE_RELIED"
],
"start": 14521,
"text": "Similar view has also been expressed by the Pune Bench of the ITAT in the case of Ozer Merchant Co- operative Bank ITA No.1588/PN/2012 order dated 30.10.2013."
}
},
{
"from_name": null,
"id": "562070818d3348428b8dbd2d7c219182",
"to_name": null,
"type": null,
"value": {
"end": 14837,
"labels": [
"ANALYSIS"
],
"start": 14680,
"text": "We may add that in both these decisions the discussion did not turn on the interpretation of Sec.194A(3)(i)(b) of the Act vis--vis Sec.194A(3)(v) of the Act."
}
},
{
"from_name": null,
"id": "84cd34d3eac540c5b305dee0a64d5fe1",
"to_name": null,
"type": null,
"value": {
"end": 15112,
"labels": [
"ANALYSIS"
],
"start": 14838,
"text": "It is thus clear that the preponderance of judicial opinion on this issue is that co- operative societies carrying on banking business when it pays interest to its members on deposits need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act.\n 21."
}
},
{
"from_name": null,
"id": "3cc154b7324642109f94683a29c7e5dc",
"to_name": null,
"type": null,
"value": {
"end": 15507,
"labels": [
"ANALYSIS"
],
"start": 15113,
"text": "For the reasons given above, we hold that the Assessee which is a co-operative society carrying on banking business when it pays interest income to a member both on time deposits and on deposits other than the deposits with such co-operative society need not deduct tax at source Under Section 194A by virtue of the exemption granted vide Clause (V) of Sub Section (3) of the said section\"\n 22."
}
},
{
"from_name": null,
"id": "714991cd22544376a1acb5d46edb6917",
"to_name": null,
"type": null,
"value": {
"end": 15629,
"labels": [
"ANALYSIS"
],
"start": 15508,
"text": "In our view the above decision rendered by the co-ordinate bench is squarely applicable to the facts of the present case."
}
},
{
"from_name": null,
"id": "d3939b72e645415bb7cf375aba8f3e24",
"to_name": null,
"type": null,
"value": {
"end": 15737,
"labels": [
"ANALYSIS"
],
"start": 15629,
"text": "\n In fact the CIT (A) in canceling the order of the AO has placed reliance on the aforesaid decision."
}
},
{
"from_name": null,
"id": "485abe98e0ce458da8ef294e1eb0b499",
"to_name": null,
"type": null,
"value": {
"end": 15854,
"labels": [
"ANALYSIS"
],
"start": 15738,
"text": "Respectfully following the decision of the co-ordinate bench referred to above, we uphold the order of the CIT (A).\""
}
},
{
"from_name": null,
"id": "079470601c8c4944a0e43c38c4246912",
"to_name": null,
"type": null,
"value": {
"end": 15999,
"labels": [
"ANALYSIS"
],
"start": 15856,
"text": "3. The aforesaid shows that the Tribunal was bound by its earlier decision in case of Bagalkot District Central Co-operative vs. JCIT (2014) 48"
}
},
{
"from_name": null,
"id": "be7662d450f447e3bd447565064e9da5",
"to_name": null,
"type": null,
"value": {
"end": 16011,
"labels": [
"ANALYSIS"
],
"start": 16000,
"text": "TAxmann.com"
}
},
{
"from_name": null,
"id": "dccab9b1c705407cadf7e73a07a404f9",
"to_name": null,
"type": null,
"value": {
"end": 16402,
"labels": [
"ANALYSIS"
],
"start": 16012,
"text": "117. When we further enquired from the learned counsel for the Revenue as to whether the decision of the Tribunal was carried by the Department before this Court or not and in response thereto, the learned counsel for the appellant has brought to our notice the decision of this Court dated 16.12.2015 in ITA 100116/2014 whereby, the view taken by the Tribunal has not been interfered with."
}
},
{
"from_name": null,
"id": "b16b61a460f2444fa5d47d013582ee58",
"to_name": null,
"type": null,
"value": {
"end": 16705,
"labels": [
"ANALYSIS"
],
"start": 16403,
"text": "We may record that this Court in the above referred decision observed thus: \"In this appeal by the Revenue, the issue involved is for consideration whether the Co- operative Bank was required to deduct tax while paying interest to its members on time deposits under Section 194-A of the Income Tax Act."
}
},
{
"from_name": null,
"id": "15cff19cb320474b89c95af785d83167",
"to_name": null,
"type": null,
"value": {
"end": 16955,
"labels": [
"ANALYSIS"
],
"start": 16707,
"text": "2. The Ministry of Finance, Government of India vide Circular No.19/2015 in F.No.142/14/2015- TPL, has held that the Co-operative Banks are not required to deduct tax at source on time deposits of its members paid or credited on or before 1.7.2015."
}
},
{
"from_name": null,
"id": "5ae38fef4c934e6fa4aed42b1e1d091b",
"to_name": null,
"type": null,
"value": {
"end": 17015,
"labels": [
"ANALYSIS"
],
"start": 16956,
"text": "The relevant portion of the circular reads as under: \"42.5."
}
},
{
"from_name": null,
"id": "e50fbfbf5cef4f9293a2927932bccb1e",
"to_name": null,
"type": null,
"value": {
"end": 17401,
"labels": [
"ANALYSIS"
],
"start": 17016,
"text": "In view of this, the provisions of the section 194A(3)(v) of the Income-tax Act have been amended so as to expressly provide that the exemption provided from deduction of tax from payment of interest to members by a co-operative society under section 194A(3)(v) of the Income-tax Act shall not apply to the payment of interest on time deposits by the co-operative banks to its members."
}
},
{
"from_name": null,
"id": "850cab3dc0bb414794a616442ab3ae14",
"to_name": null,
"type": null,
"value": {
"end": 17625,
"labels": [
"ANALYSIS"
],
"start": 17402,
"text": "As this amendment is effective from the prospective date of 1st June, 2015, the co-operative bank shall be required to deduct tax from the payment of interest on time deposits of its members, on or after the 1st June, 2015."
}
},
{
"from_name": null,
"id": "8fbdd9a7839148c08b0af7fa49220b4d",
"to_name": null,
"type": null,
"value": {
"end": 17788,
"labels": [
"ANALYSIS"
],
"start": 17626,
"text": "Hence, a cooperative bank was not required to deduct tax from the payment of interest on time deposits of its members paid or credited before 1st June, 2015.\"\n 3."
}
},
{
"from_name": null,
"id": "4ebbe5ed8e7f4cd1bbba108c94aeabbe",
"to_name": null,
"type": null,
"value": {
"end": 17900,
"labels": [
"ANALYSIS"
],
"start": 17789,
"text": "In view of the aforesaid circular, this appeal does not survive for consideration and is accordingly dismissed."
}
},
{
"from_name": null,
"id": "2a86e97e46274131bcd8281e34fd02e1",
"to_name": null,
"type": null,
"value": {
"end": 17911,
"labels": [
"ANALYSIS"
],
"start": 17901,
"text": "No costs.\""
}
},
{
"from_name": null,
"id": "d190679dcd1d4e0b88a859596a89e373",
"to_name": null,
"type": null,
"value": {
"end": 18196,
"labels": [
"ANALYSIS"
],
"start": 17913,
"text": "4. As such, in view of the referred decision of this Court in case of Bagalkot District Central Co-operative Bank referred supra, when the question is already covered by the decision of this Court, it cannot be said that any substantial question of law would arise for consideration."
}
},
{
"from_name": null,
"id": "787907ca33ba4bf7a25f93f70fdf596d",
"to_name": null,
"type": null,
"value": {
"end": 18733,
"labels": [
"ARG_PETITIONER"
],
"start": 18196,
"text": "\n 5. However, the learned counsel appearing for the appellant-Revenue made an attempt to contend and reiterate the same contention that in view of special provision Section 194A(3) (b), the general exemption as provided under 194A(3) (v), would not be applicable for the Co-operative Banks and he contended that the view taken by the Tribunal cannot be said as correct view and this Court may independently consider the matter and may hold that in view of specific provision general exemption would not be available to co-operative bank."
}
},
{
"from_name": null,
"id": "a55460246b43458c840c591b43b74884",
"to_name": null,
"type": null,
"value": {
"end": 18908,
"labels": [
"ANALYSIS"
],
"start": 18733,
"text": "\n Hence the TDS from the interest exceeding the amount of Rs.10,000/- was required to be deducted by the respondent-assessee in the present case which is a co- operative bank."
}
},
{
"from_name": null,
"id": "30c30d0cfff54f9d82590f50ac55f8a5",
"to_name": null,
"type": null,
"value": {
"end": 19117,
"labels": [
"RATIO"
],
"start": 18910,
"text": "6. As such, we are not impressed by the submission that there is any specific provision and therefore general exemption would not apply for the simple reason that the word `Members' is missing in clause (b)."
}
},
{
"from_name": null,
"id": "b7f340bc332c4785bb73c3f0a7732f1d",
"to_name": null,
"type": null,
"value": {
"end": 19408,
"labels": [
"RATIO"
],
"start": 19118,
"text": "Further, in Circular No.19/2015 dated 27.11.2015 at paragraph 42.5 it has been inter alia mentioned as under: \".........Hence, the Co-operative Bank was not required to deduct tax from the payment of interest on the time deposits of its members paid or credited before first June 2015'.\n 7."
}
},
{
"from_name": null,
"id": "dc0fa5f4eded4e2fb7c59948184aa6ab",
"to_name": null,
"type": null,
"value": {
"end": 19540,
"labels": [
"RATIO"
],
"start": 19409,
"text": "Under the circumstances, the question of specific provision as against general provision would not arise for further consideration."
}
},
{
"from_name": null,
"id": "932314005ad64e93b5bc289e14838843",
"to_name": null,
"type": null,
"value": {
"end": 19623,
"labels": [
"RATIO"
],
"start": 19541,
"text": "Hence, we find that no substantial questions of law would arise for consideration."
}
},
{
"from_name": null,
"id": "090120f24da94ecfb82c171546899bcc",
"to_name": null,
"type": null,
"value": {
"end": 19656,
"labels": [
"RPC"
],
"start": 19623,
"text": "\n All appeals are dismissed.\"\n 4."
}
},
{
"from_name": null,
"id": "1aad9ff278044622a7585cc4dfc87697",
"to_name": null,
"type": null,
"value": {
"end": 19790,
"labels": [
"RPC"
],
"start": 19657,
"text": "In view of the aforesaid reasons, the question of specific provisions as against general provision would not arise for consideration."
}
},
{
"from_name": null,
"id": "2f39253471bd4b66b082ca024d4ff357",
"to_name": null,
"type": null,
"value": {
"end": 19874,
"labels": [
"RPC"
],
"start": 19791,
"text": "Hence, we find that, no substantial questions of law would arise for consideration."
}
},
{
"from_name": null,
"id": "eefb5a7aae7b4b4094cf7f52a0627ab1",
"to_name": null,
"type": null,
"value": {
"end": 19921,
"labels": [
"RPC"
],
"start": 19875,
"text": "Under circumstances, this appeal is dismissed."
}
},
{
"from_name": null,
"id": "f5c5e74c3bb2474e8326b031815821fe",
"to_name": null,
"type": null,
"value": {
"end": 20034,
"labels": [
"RPC"
],
"start": 19921,
"text": "\n In view of the aforesaid decision on the merits of the appeal, the office objection, if any, would not survive."
}
},
{
"from_name": null,
"id": "f786a6e0bd4c4b6d8f0997f392016b6a",
"to_name": null,
"type": null,
"value": {
"end": 20060,
"labels": [
"NONE"
],
"start": 20034,
"text": "\n Sd/- JUDGE Sd/- JUDGE AP"
}
}
]
}
] | 4,069 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 27th DAY OF JUNE, 2016\n\n PRESENT\n\n THE HON'BLE MR. JUSTICE JAYANT PATEL\n\n AND\n\nTHE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA\n\n I.T.A. NO.502/2015\n\nBETWEEN:\n\n1. THE COMMISSIONER OF INCOME TAX TDS,\n NO.59, HMT BHAVAN, 4TH FLOOR\n BELLARY ROAD, GANGANAGAR\n BANGALORE 560 032.\n\n2. THE ASST. COMMISSIONER OF INCOME-TAX (TDS)\n CIRCLE-16(2)\n NO.59, HMT BHAVAN, 4TH FLOOR\n BELLARY ROAD, GANGANAGAR\n BANGALORE 560 032.\n ... APPELLANTS\n\n(BY SRI.DILIP, ADV. AND\nSRI.K.V. ARAVIND, ADV.)\n\nAND:\n\nTHE KARNATAKA STATE APEX\nCO-OPERATIVE BANK LTD.,\nKORAMANGALA BRANCH\nBANGALORE.\n\n ... RESPONDENT\n\n\n THIS ITA FILED UNDER SECTION 260-A OF INCOME TAX\nACT 1961, ARISING OUT OF ORDER DATED 30.04.2015 PASSED\nIN ITA NO.1417/BANG/2014, FOR THE ASSESSMENT YEAR\n2011-2012.\n\n THIS APPEAL COMING ON FOR ORDERS THIS DAY,\nJAYANT PATEL J. DELIVERED THE FOLLOWING:\n\n JUDGMENT\n This appeal is preferred by the Revenue by raising the following substantial questions of law.\n (i) Whether the Tribunal is right in law in relying on Circular No.9/2002 when the same has been quashed by the Hon.Mumbai High Court in the case of Jalgaon District Central Co-operative Bank Ltd.?\n (ii) Whether the Tribunal was correct in holding that Co-operative Bank are not liable to deduct tax on the interest paid to its members on the ground that they are exempt u/s 194A(3)(v) of the IT Act, 1961?\n (iii) Whether the Tribunal is right in law in overlooking the established principle of `generalia specialibus non derogant' vis-- vis the specific provisions of Sec.194A(3)(viia)(b) and general provisions of Sec.194A(3)(v) of the Act?\n (iv) Whether the tribunal was correct in not appreciating the fact that the provision of Section 194A(3)(v) is a general provision granting benefit to all co-operative societies, whereas, the provisions of Section 194A(3)(i)(b) deals with co- operative society carrying on the business of banking, hence specific provisions in any case overrides the general provisions?\"\n 2. We have heard Mr.Dilip for Sri K.V. Aravind, learned counsel appearing for the appellant-Revenue.\n 3. After hearing the learned counsel appearing for the appellant-Revenue, we find that, the issues which arise for consideration in the present appeal are already covered by the decision of this Court dated 21.6.2016 in ITA No.604/2015 and other matters in case of The Commissioner of Income Tax and others Vs. The National Co-operative Bank Limited. In the above referred decision, this Court observed thus: \"In all matters, the appellant-Revenue has preferred the appeals by raising following substantial questions of law: \"1. Whether the Tribunal is right in law in relying on Circular No.9/2002 when the same has been quashed by the Hon. Mumbai High Court in the case of Jalgaon District Central Co-Operative Bank Ltd.,?\n 2. Whether the Tribunal was correct in holding that Co-Operative Bank are not liable to deduct tax on the interest paid to its members on the ground that they are exempt U/s 194A(3)(v) of the IT Act 1961?\n 3. Whether the Tribunal is right in law in overlooking the established principle of `generalia specialibus non derogant' vis--vis the specific provisions of Sec.194A(3)(viia)(b) and general provisions of 194A(3)(v) of the Act?\n 4. Whether the Tribunal was correct in not appreciating the fact that the provision of Section 194A(3)(v) is a general provision granting benefit to all co-operative societies, whereas, the provisions of Section 194A(3)(i)(b) deals with co-operative society carrying on the business of banking, hence specific provisions in any case overrides the general provisions?\"\n 2. We have heard Mr.Aravind K.V., learned counsel appearing for the appellant. As such, if we see the observations of the Tribunal in this regard, the considerations are at paragraphs 12 to 14 which reads as under: \"12. We have heard the rival submissions. At the time of hearing of the appeal, it was brought to our notice by the learned counsel for the assessee that the Bangalore Bench of ITAT in the case of Bagalkot District Central Co-op Bank, Vs JCIT (2014) 48 taxmann.com 117(Bangalore-Trib) held that Co-Operative Societies carrying on banking business while paying interest to members on time deposit and deposits other than time deposits need not deduct tax at source U/s 194-A of the Act by virtue of exemption granted U/s 194-A(3)(v) of the Act. The learned DR relied on the stand taken by the revenue in the grounds of appeal filed before the Tribunal.\n 13. We have considered the rival submissions. This tribunal in the case of Bagalkot District Central Co-operative Bank (supra) dealt with identical issue and identical stand taken by the revenue and the Assessee in the case of co-operative society engaged in banking business and have upheld identical order of CIT(A). The relevant observations of the Tribunal in this regard were as follows: \"15. We have given a very careful consideration to the rival submissions. We are of the view that the submissions made by the learned counsel for the Assessee deserves to be accepted. As rightly contended by him Sec.194A(3)(i)(b) of the Act is a provision which mandates deduction of tax at source by a co-operative Society carrying on the business of banking, where the income in the form of interest which is paid by such society is in excess of ten thousand rupees. Sec.194A(3)(v) of the Act provides that tax need not be deducted at source where the income in the form of interest is credited or paid by a co-operative society to a member thereof or to any other co-operative society. This provision therefore applies to all co-operative societies including co-operative society engaged in the business of banking. It is not possible to exclude co- operative society engaged in the business of banking from the provisions of sec.\n194A(3)(v) of the Act on the ground that the same is covered by the provisions of sec.\n194A(3)(i)(b) of the Act. Sec.194A(3)(v) of the Act refers to payment by a co-operative society to a member and payment by a co- operative society to non-member continue to be governed by the provisions of Sec.194A(3)(i)(b) of the Act. Similarly U/s 194A(3)(viia)(b) interest on deposits other than time deposits even if the payment is made to a non-member by a co-operative society, the co-operative society need not deduct tax at source. Thus this section carves out another exception to Sec.194A(3)(i)(b) of the Act. We do not think that any of the above provisions can be called a general provision an other provision called specific provisions. Each provision over-lap and if read in the manner as indicated above, there is perfect harmony to the various provisions. We do not agree with the view expressed by the Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd(supra) when it says that co-operative society as mentioned in CL.(v) is a general species, whereas the other five categories of co-operative societies which are specifically referred to in other provisions are specific co-operative societies. The further conclusion in the said decision that the term `co-operative society' in CL.(v) of S.194A(3) has to be interpreted as co-operative society other than co-operative bank, is again unsustainable. The law is well settled that by a process of interpretation one cannot add on words that are not found in the text of the statute. Such a course is permitted only when there is \"causes omisus\". We do not think that the provisions of Sec.194A(3)(v) suffers from any causes omisus as has been interpreted by the ITAT Pune Bench SMC.\n 16. We are also of the view that the decision of the Hon'ble Kerala High Court in the case of Moolamattom Electricity Board Employees Co-op Bank Ltd(supra) supports the plea of the Assessee before us. The petitioners in that case were primary credit societies registered under the Kerala Co-operative Societies Act. In view of the specific provisions of Sec.194A(3)(viia) of the Act, they claimed that they need not deduct tax at source on interest paid. It was submitted by the petitioner that sub-s.194A(3)(v) deals with such income credited or paid by a co- operative society to a member whereas sub.s(3)(viia)(a) provides a total exemption to deposits with the primary credit society. The Hon'ble Kerala High Court accepted there plea and in their judgment have observed that Sec.194A(3)(i) exemption limit of Rs.10,000/- to interest paid on time deposits with co-operative societies engaged in carrying on in business of banking is allowed but that does not mean that all co-operative societies who have credited or paid exceeding Rs.10,000/- are liable to deduct tax at source. The Court held that co-operative society engaged in carrying on business of banking and primary credit societies stand on different footing and belong to different class. That does not mean that Sec.194A(3)(v) of the Act is applicable only to co-operative societies other than co-operative societies carrying on the business of banking as observed in para 37 of its judgment the Pune ITAT in the case of Bhagani Nivedita Sah Bank Ltd(supra). In fact in para 2 of Circular No.9 dated: 11.09.2002, the CBDT has very clearly laid down that co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act.\n 17. We also find that the CBDT in Circular No.9 dated 11.09.2002 clarified certain aspects which are relevant to the present case. The same reads thus: \"Circular No.9 of 2002 \"Sub: Tax deduction at source Under Section 194A of the Income Tax Act 1961- Applicability of the provisions in respect of income paid or credited to a member of co-operative bank Reg.\n 11.09.2002 TDS 194A Under Section 194A of the Income Tax Act, 1961, Tax is deductible at source from any payment of income by way of interest other than income by way of interest on securities.\nClause (V) of Sub Section (3) of Section.194A exempts such income credited or paid by a co-operative society to a member thereof from the requirement of TDS. On the other hand, clause(viia) of Sub Section(3) of Section 194A exempts from the requirement of TDS such income credited or paid in respect of deposits (other than time-deposits made on or after 1st July, 1995) with a co- operative society engaged in carrying on the business of banking.\n 2. Representations have been received in the Board seeking clarification as to whether a member of a co-operative bank may receive without TDS interest on time deposit made with the co-operative bank on or after 1st July, 1995. The Board has considered the matter and it is clarified that a member of a co-operative bank shall receive interest on both time deposits and deposits other than time deposits with such co-operative bank without TDS Under Section 194A by virtue of exemption granted vide clause (v) of Sub Section (3) of the said section. The provisions of clause (viia) of the said Sub Section are applicable only in case of a non- member depositor of the co-operative bank, who shall receive interest only on deposits other than time deposits made on or after 1st July, 1995 without TDS Under Section 194A.\n 3. A question has also been raised as to whether normal members, associate members and sympathizer members are also covered by the exemptions Under Section 194A(3)(v). It is hereby clarified that the exemption is available only to such members who have joined in application for the registration of the co-operative society and those who are admitted to membership after registration in accordance with the bye-laws and rules. A member eligible for exemption Under Section 194A(3)(v) must have subscribed to and fully paid for at least one share of the co-operative bank, must be entitled to participate and vote in the General Body Meetings and/or Special General Body Meetings of the co-operative bank and must be entitled to receive share from the profits of the co-operative bank.\n [F.No.275/106/2000-IT(B)] (2002) 177 CTR (St) 1\"\n 18. It can be seen from para 2 of the Circular refered to above that the CBDT has very clearly laid down that co-operative societies carrying on banking business when it pays interest on deposits by its members need not deduct tax at source. The above interpretation of the provision by the CBDT which is in favour of the Assessee, in our view is binding on the tax authorities.\n 19. In the case decided by ITAT Panaji Bench in ITA No.85/PN/2013 for AY.09-10 in the case of the Bailhongal Uraban Co-op Bank Ltd Vs. JCIT order dated 28.08.2013, the Tribunal proceeded on the footing that the aforesaid Circular has been quashed by the Hon'ble Bombay High Court in the case of The Jalgaon District Central Co-Operative Bank Ltd. Vs. Union of India 265 ITR 423(Bom) and therefore choose to follow the decision rendered by Pune ITAT SMC in the case of Bhagani Nivedita Sahakari Bank Ltd(supra). In our view the Hon'ble Bombay High Court in the case of Jalgaon District Central Co-Operative Bank Ltds case was dealing with a case of challenge to para 3 of CBDT Circular No.9 dated: 11.09.2002 which tried to interpret the word \"member\"\nas given in Sec.194A(3)(v) of the Act. It is only that part of the Circular that had been quashed by the Hon'ble High Court and the other paragraphs of the Circular had no connection with the issue before the Hon'ble Bombay High Court. How could it be said that the entire Circular has been quashed by the Hon'ble Bombay High Court? In our view para 2 of the Circular still holds good and the conclusion of the ITAT Pune Bench in the case of the Bailhongal Uraban Co-op Bank Ltd(supra) are not factually correct.\nConsequently, the conclusions drawn in the aforesaid decision also contrary to facts and hence cannot be considered as precedent.\n 20. The learned counsel for the Assessee as brought to our notice that the ITAT Vishakapatnam Bench in the case of The Vishakapatnam Co-operative Bank ITA No.5 and 19 of 2011 order dated: 29.08.2011 as held that co-operative societies carrying on banking business when it pays interest to its members on deposits it need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act. Similar view has also been expressed by the Pune Bench of the ITAT in the case of Ozer Merchant Co- operative Bank ITA No.1588/PN/2012 order dated 30.10.2013. We may add that in both these decisions the discussion did not turn on the interpretation of Sec.194A(3)(i)(b) of the Act vis--vis Sec.194A(3)(v) of the Act. It is thus clear that the preponderance of judicial opinion on this issue is that co- operative societies carrying on banking business when it pays interest to its members on deposits need not deduct tax at source in view of the provisions of Sec.194A(3)(v) of the Act.\n 21. For the reasons given above, we hold that the Assessee which is a co-operative society carrying on banking business when it pays interest income to a member both on time deposits and on deposits other than the deposits with such co-operative society need not deduct tax at source Under Section 194A by virtue of the exemption granted vide Clause (V) of Sub Section (3) of the said section\"\n 22. In our view the above decision rendered by the co-ordinate bench is squarely applicable to the facts of the present case.\n In fact the CIT (A) in canceling the order of the AO has placed reliance on the aforesaid decision. Respectfully following the decision of the co-ordinate bench referred to above, we uphold the order of the CIT (A).\"\n 3. The aforesaid shows that the Tribunal was bound by its earlier decision in case of Bagalkot District Central Co-operative vs. JCIT (2014) 48 TAxmann.com 117. When we further enquired from the learned counsel for the Revenue as to whether the decision of the Tribunal was carried by the Department before this Court or not and in response thereto, the learned counsel for the appellant has brought to our notice the decision of this Court dated 16.12.2015 in ITA 100116/2014 whereby, the view taken by the Tribunal has not been interfered with. We may record that this Court in the above referred decision observed thus: \"In this appeal by the Revenue, the issue involved is for consideration whether the Co- operative Bank was required to deduct tax while paying interest to its members on time deposits under Section 194-A of the Income Tax Act.\n 2. The Ministry of Finance, Government of India vide Circular No.19/2015 in F.No.142/14/2015- TPL, has held that the Co-operative Banks are not required to deduct tax at source on time deposits of its members paid or credited on or before 1.7.2015. The relevant portion of the circular reads as under: \"42.5. In view of this, the provisions of the section 194A(3)(v) of the Income-tax Act have been amended so as to expressly provide that the exemption provided from deduction of tax from payment of interest to members by a co-operative society under section 194A(3)(v) of the Income-tax Act shall not apply to the payment of interest on time deposits by the co-operative banks to its members. As this amendment is effective from the prospective date of 1st June, 2015, the co-operative bank shall be required to deduct tax from the payment of interest on time deposits of its members, on or after the 1st June, 2015. Hence, a cooperative bank was not required to deduct tax from the payment of interest on time deposits of its members paid or credited before 1st June, 2015.\"\n 3. In view of the aforesaid circular, this appeal does not survive for consideration and is accordingly dismissed. No costs.\"\n 4. As such, in view of the referred decision of this Court in case of Bagalkot District Central Co-operative Bank referred supra, when the question is already covered by the decision of this Court, it cannot be said that any substantial question of law would arise for consideration.\n 5. However, the learned counsel appearing for the appellant-Revenue made an attempt to contend and reiterate the same contention that in view of special provision Section 194A(3) (b), the general exemption as provided under 194A(3) (v), would not be applicable for the Co-operative Banks and he contended that the view taken by the Tribunal cannot be said as correct view and this Court may independently consider the matter and may hold that in view of specific provision general exemption would not be available to co-operative bank.\n Hence the TDS from the interest exceeding the amount of Rs.10,000/- was required to be deducted by the respondent-assessee in the present case which is a co- operative bank.\n 6. As such, we are not impressed by the submission that there is any specific provision and therefore general exemption would not apply for the simple reason that the word `Members' is missing in clause (b). Further, in Circular No.19/2015 dated 27.11.2015 at paragraph 42.5 it has been inter alia mentioned as under: \".........Hence, the Co-operative Bank was not required to deduct tax from the payment of interest on the time deposits of its members paid or credited before first June 2015'.\n 7. Under the circumstances, the question of specific provision as against general provision would not arise for further consideration. Hence, we find that no substantial questions of law would arise for consideration.\n All appeals are dismissed.\"\n 4. In view of the aforesaid reasons, the question of specific provisions as against general provision would not arise for consideration. Hence, we find that, no substantial questions of law would arise for consideration. Under circumstances, this appeal is dismissed.\n In view of the aforesaid decision on the merits of the appeal, the office objection, if any, would not survive.\n Sd/- JUDGE Sd/- JUDGE AP "
} |
{
"group": "Criminal"
} | [
{
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"labels": [
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],
"start": 0,
"text": "IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE;\n BONAI, DISTRICT-SUNDARGARH\n\nPresent: Sri Bimal Raul, LL.M.\n S.D.J.M.,Bonai\n\nG.R. Case No. 552 of 2017\n TR. No.520 of 2018\n\nDate of argument- 13.08.2018\nDate of judgment- 14.08.2018\n\nS T A T E"
}
},
{
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"id": "3d7395d266aa4f90890c6972f7ed843d",
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"labels": [
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],
"start": 327,
"text": "....Prosecution\n -versus- ... Accused\n\nKalindri Patra, aged about 46 years,\nS/O- Nilamani Patra\nVillage -Alekhapur,\nPolice Station- Bonai\nDistrict-Sundargarh, State-Odisha\n\nAppearances: : Sri P.S. Mishra, , Sri L.M. Behera\n For the Prosecution and Smt. Madhumita Amatya,\n\nA.P.Ps,Bonai\n\nFor the Defence : Sri A.M. Mohanty, SDC, Bonai\n\n J U D G M E N T"
}
},
{
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"id": "5e154624fb0649a5b675803ce3466e03",
"to_name": "text",
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"value": {
"end": 952,
"labels": [
"FAC"
],
"start": 769,
"text": "\nUnder section 341/323/294/506 IPC The above named accused-utp person stands prosecuted for the offences punishable u/s 341/323/294/506 of the Indian Penal Code (for short the I.P.C)."
}
},
{
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"id": "212711d26b904f12a42d03c87ec8c308",
"to_name": "text",
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"value": {
"end": 1406,
"labels": [
"FAC"
],
"start": 952,
"text": "\n 2. Stated briefly the case of the prosecution is that on dated 02.10.2017 the informant Smt. Pataphula Patra, aged about 56 years, w/o- Late Ghasia Patra of village Alekhapur, under Bonai police limits, District-Sundargarh lodged the written first information report (for short the F.I.R) at Bonai Police Station stating that on 11.09.2017 the accused, who is her co-villager assaulted her by a bamboo lathi for which she sustains fracture in her hand."
}
},
{
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"id": "2b67f485fc484efe901cfd27eb594fe8",
"to_name": "text",
"type": "labels",
"value": {
"end": 1547,
"labels": [
"FAC"
],
"start": 1407,
"text": "After treatment in the hospital while she was returning home the accused threatened to kill her and also scolded her uttering obscene words."
}
},
{
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"id": "3758d27a7d1441748b2128c6b09c0bf0",
"to_name": "text",
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"value": {
"end": 1654,
"labels": [
"FAC"
],
"start": 1548,
"text": "It is her further case that the accused threatened to behead her and carry her head to the police station."
}
},
{
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"id": "8ec14eea1c814a618a4883d2989cb427",
"to_name": "text",
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"value": {
"end": 1774,
"labels": [
"FAC"
],
"start": 1655,
"text": "It is her further case that the accused was not allowing her to stay in her house or in any other co- villager's house."
}
},
{
"from_name": "label",
"id": "062612e078354ff8819585e03f0a0017",
"to_name": "text",
"type": "labels",
"value": {
"end": 1861,
"labels": [
"FAC"
],
"start": 1775,
"text": "It is further alleged that he also threatened the Gramarakhi who was sent to call him."
}
},
{
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"id": "18c4c71adb4d47a0962704b60c0d465a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1924,
"labels": [
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],
"start": 1862,
"text": "Again such factual circumstances she lodged FIR on 02.10.2017."
}
},
{
"from_name": "label",
"id": "574d8294e2e645ea80b04d4496d67e7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 2232,
"labels": [
"FAC"
],
"start": 1926,
"text": "On receiving the written F.I.R of the informant, the Inspector-In-Charge (for short the IIC) registered Bonai P.S.\n Case No. 130 of 2017 Dtd.02.10.2017 for alleged commission of the offence u/s 341/325/294/506 IPC and directed the then Assistant Sub-Inspector Sri S.B. Pati for investigation of the matter."
}
},
{
"from_name": "label",
"id": "ba19402ed0bb493497a7a787e9ac7c07",
"to_name": "text",
"type": "labels",
"value": {
"end": 2406,
"labels": [
"FAC"
],
"start": 2233,
"text": "On completion of investigation the charge sheet no.120 Dtd.26.11.2017 was submitted against the accused Kalindri Patra for commission of the offence u/s 341/323/294/506 IPC."
}
},
{
"from_name": "label",
"id": "0538c8abbe2046c5813bb8407a5c9d18",
"to_name": "text",
"type": "labels",
"value": {
"end": 2424,
"labels": [
"FAC"
],
"start": 2407,
"text": "Hence, the trial."
}
},
{
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"id": "62e2eae67d634291984b916505ca25f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2574,
"labels": [
"FAC"
],
"start": 2425,
"text": " The accused-utp is facing his trial as under trial prisoners (for short the utp) as he has not furnished bail bond for his release since 09.02.2018."
}
},
{
"from_name": "label",
"id": "dcd3988b82eb4b6e9a7a61373d5768d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2683,
"labels": [
"ARG_RESPONDENT"
],
"start": 2574,
"text": "\n 3. The plea of the defence is one of complete denial and false implication of the accused-utp in this case."
}
},
{
"from_name": "label",
"id": "32512c60d6794b33b0376bf279f18435",
"to_name": "text",
"type": "labels",
"value": {
"end": 2948,
"labels": [
"ISSUE"
],
"start": 2683,
"text": "\n 4. The points for determination in this case are as follows: (i) Whether on dated 11.09.2017 in Alekhapur the accused-utp wrongfully restrained the informant?\n (ii) Whether the accused-utp on the above said date and place voluntarily caused hurt to the informant?"
}
},
{
"from_name": "label",
"id": "5514bdef6d9341f18f878c0a769aa7f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 3134,
"labels": [
"ISSUE"
],
"start": 2948,
"text": "\n (iii) Whether the accused-utp on the above stated date and thereafter uttered obscene words in or near a public place, namely the above stated place, to the annoyance of the informant?"
}
},
{
"from_name": "label",
"id": "cf8d9094d1584dba923a36040980afa7",
"to_name": "text",
"type": "labels",
"value": {
"end": 3298,
"labels": [
"ISSUE"
],
"start": 3135,
"text": "and (iv) Whether the accused-utp on the above stated dates and place criminally intimidated the informant with fatal consequence with intent to cause alarm to her?"
}
},
{
"from_name": "label",
"id": "8d877ba5e60d4227953417a05bc4bdae",
"to_name": "text",
"type": "labels",
"value": {
"end": 3390,
"labels": [
"ANALYSIS"
],
"start": 3298,
"text": "\n 5. In order to prove its case, the prosecution has examined eight witnesses on its behalf."
}
},
{
"from_name": "label",
"id": "769c7df8ede74da2938fd3d094e0130f",
"to_name": "text",
"type": "labels",
"value": {
"end": 3433,
"labels": [
"ANALYSIS"
],
"start": 3391,
"text": "PW 1 is the informant-victim of this case."
}
},
{
"from_name": "label",
"id": "7efeec78d6c0446e8947c2e452b6592f",
"to_name": "text",
"type": "labels",
"value": {
"end": 3473,
"labels": [
"ANALYSIS"
],
"start": 3434,
"text": "PW 2 is a co-villager of the informant."
}
},
{
"from_name": "label",
"id": "38cf49be3a254a37a175baea65b47ce7",
"to_name": "text",
"type": "labels",
"value": {
"end": 3505,
"labels": [
"ANALYSIS"
],
"start": 3474,
"text": "PW 3 is an independent witness."
}
},
{
"from_name": "label",
"id": "72bc869cda34452ba3e4be2101d35102",
"to_name": "text",
"type": "labels",
"value": {
"end": 3528,
"labels": [
"ANALYSIS"
],
"start": 3506,
"text": "PW 4 is an eyewitness."
}
},
{
"from_name": "label",
"id": "ddd5d9fecaab428b8c4687eb0a026602",
"to_name": "text",
"type": "labels",
"value": {
"end": 3573,
"labels": [
"ANALYSIS"
],
"start": 3529,
"text": "PWs 5 and 6 are other independent witnesses."
}
},
{
"from_name": "label",
"id": "93f635a3b196454c9ed68fed5db5d95a",
"to_name": "text",
"type": "labels",
"value": {
"end": 3640,
"labels": [
"ANALYSIS"
],
"start": 3574,
"text": "PW 7 is the Medical Officer who examined the informant as injured."
}
},
{
"from_name": "label",
"id": "900be2de12954868a78016cec2b587f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 3688,
"labels": [
"ANALYSIS"
],
"start": 3641,
"text": "PW 8 is the Investigating Officer in this case."
}
},
{
"from_name": "label",
"id": "65beaea361dd46d79462034c9391bc53",
"to_name": "text",
"type": "labels",
"value": {
"end": 3750,
"labels": [
"ANALYSIS"
],
"start": 3689,
"text": "The prosecution has adduced no further evidence in this case."
}
},
{
"from_name": "label",
"id": "0d172741499940fbaa4a3886cdfe6fb2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3809,
"labels": [
"ANALYSIS"
],
"start": 3751,
"text": "No evidence has been adduced on behalf of the accused-utp."
}
},
{
"from_name": "label",
"id": "dd0dfd0212054b32a9167a9920654068",
"to_name": "text",
"type": "labels",
"value": {
"end": 3907,
"labels": [
"ANALYSIS"
],
"start": 3809,
"text": "\n 6. In her evidence PW 1 who is the informant has not specifically stated the date of occurrence."
}
},
{
"from_name": "label",
"id": "d655649120bd46b7b82b4dc703482fb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 4083,
"labels": [
"ANALYSIS"
],
"start": 3908,
"text": "But she has stated that on a certain day at about 07:00 AM in her house the incident took place about 4-5 months before the day she deposed in the court i.e. 20th March, 2018."
}
},
{
"from_name": "label",
"id": "53944974c2b2440dbd1001f241232f43",
"to_name": "text",
"type": "labels",
"value": {
"end": 4210,
"labels": [
"ANALYSIS"
],
"start": 4084,
"text": "Interestingly, she has stated that prior to that incident she was abused in obscene words on certain night by the accused-utp."
}
},
{
"from_name": "label",
"id": "52b16f078ddd4532b9c8354198dd58d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 4273,
"labels": [
"ANALYSIS"
],
"start": 4211,
"text": "But the date of that incident has also not been stated by her."
}
},
{
"from_name": "label",
"id": "a44fd34137274e19a89f213dccbacdb7",
"to_name": "text",
"type": "labels",
"value": {
"end": 4404,
"labels": [
"ANALYSIS"
],
"start": 4274,
"text": "It is stated by her that in the morning the accused-utp assaulted her by a bamboo stick so that he sustained injury on her person."
}
},
{
"from_name": "label",
"id": "a3a3dad078664738a1c89deb7fc8ef8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4461,
"labels": [
"ANALYSIS"
],
"start": 4405,
"text": "She has stated further that her left hand got fractured."
}
},
{
"from_name": "label",
"id": "d1f119d04d6b4298afafc10c06829935",
"to_name": "text",
"type": "labels",
"value": {
"end": 4526,
"labels": [
"ANALYSIS"
],
"start": 4461,
"text": "\nIt is stated by her that the accused-utp threatened to kill her."
}
},
{
"from_name": "label",
"id": "fa80efd933c7484e815de3c5cca0e1f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 4725,
"labels": [
"ANALYSIS"
],
"start": 4526,
"text": "\nShe has further stated that she was taken to hospital by one Ananda and that while she was returning home after treatment the accused-utp again scolded her and threatened her with fatal consequence."
}
},
{
"from_name": "label",
"id": "484e5703cf9944df9ac80ad1a2cf36f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 4876,
"labels": [
"ANALYSIS"
],
"start": 4726,
"text": "It is stated by her that out of fear she went to her brother's house and some days after she lodged FIR marked as Ext.1 bearing her signature Ext.1/1."
}
},
{
"from_name": "label",
"id": "9b6b804950ce41b4868da5f575e499dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 4950,
"labels": [
"ANALYSIS"
],
"start": 4877,
"text": "She has stated to have put her signature in the injury report vide Ext.2."
}
},
{
"from_name": "label",
"id": "83a64c75cdd94c90b9843421705eef74",
"to_name": "text",
"type": "labels",
"value": {
"end": 5092,
"labels": [
"ANALYSIS"
],
"start": 4951,
"text": "It is clear from her cross examination that she had not reported about any earlier incident, but she reported this time as she got fractured."
}
},
{
"from_name": "label",
"id": "cfbb5c9b8d4a4f4dba4eabd0481a2f9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5217,
"labels": [
"ANALYSIS"
],
"start": 5093,
"text": "It is further stated by her that one Behera, a co- villager, scribed the FIR and read over and explained its content to her."
}
},
{
"from_name": "label",
"id": "e61f4c614fa04e0a91a34d1211cfa14e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5370,
"labels": [
"ANALYSIS"
],
"start": 5217,
"text": "\n 7. In evidence PW 2 has only sated that she was told by the informant about the incident that she was assaulted and intimidated with fatal consequence."
}
},
{
"from_name": "label",
"id": "356a91dacecb46f69d6639d75df0fcef",
"to_name": "text",
"type": "labels",
"value": {
"end": 5430,
"labels": [
"ANALYSIS"
],
"start": 5371,
"text": "It is stated by him that he took the informant to hospital."
}
},
{
"from_name": "label",
"id": "6762f969f47e433189a75c13538a0ea9",
"to_name": "text",
"type": "labels",
"value": {
"end": 5543,
"labels": [
"ANALYSIS"
],
"start": 5431,
"text": "PW 3 has stated that 4-5 months before 20th March, 2018 the day he deposed in the court the incident took place."
}
},
{
"from_name": "label",
"id": "675acf136da745d28314f5b82505e14f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5626,
"labels": [
"ANALYSIS"
],
"start": 5544,
"text": "Similarly, PW 4 has dated the incident back to 4-5 months before 20th March, 2018."
}
},
{
"from_name": "label",
"id": "d95aed47dfd44302a9757c7b6c70ed45",
"to_name": "text",
"type": "labels",
"value": {
"end": 5709,
"labels": [
"ANALYSIS"
],
"start": 5627,
"text": "He has stated that the incident took place in front of the house of the informant."
}
},
{
"from_name": "label",
"id": "5ab23f1ee3de46a8b12445d64d27fb86",
"to_name": "text",
"type": "labels",
"value": {
"end": 5794,
"labels": [
"ANALYSIS"
],
"start": 5710,
"text": "He has further stated the accused-utp was chasing and assaulting her simultaneously."
}
},
{
"from_name": "label",
"id": "a3fedd434c9f4119959046dee1b49533",
"to_name": "text",
"type": "labels",
"value": {
"end": 5898,
"labels": [
"ANALYSIS"
],
"start": 5795,
"text": "It is stated by him that because of assault by bamboo stick the informant sustained injury on her hand."
}
},
{
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"id": "268d2398e51142b1aa1529b9efb99c15",
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"end": 5992,
"labels": [
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],
"start": 5899,
"text": "He has also stated affirmatively about the fatal threatening given by the accused-utp to her."
}
},
{
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"id": "0c89e480d83e48e384c02d3af6c33a3f",
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"start": 5993,
"text": "However, he has stated that during the incident the informant being chased ran towards the house of Gramarakhi in order to escape from the accused-utp's assault."
}
},
{
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"id": "cf658338a5b84ff98111c7bbf3dbdb93",
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"labels": [
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"start": 6155,
"text": "It is further stated by him that on her returned from hospital she was further threatened by the accused-utp."
}
},
{
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"text": "PWs 5 and 6 have stated nothing about the incident."
}
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"start": 6316,
"text": "\n 8. In evidence PW 7 who was then working as Senior Pediatric Specialist at Sub Divisional Hospital, Bonai has confirmed that on 11.09.2017 she examined the informant injured as an outdoor patient and found one swelling of size 4 CM X 4CM."
}
},
{
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"labels": [
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"start": 6557,
"text": "It is stated by her that on police requisition dtd.03.10.2017 she has given her opinion vide Ext.2/1 bearing her signature Ext.2/2 as per the information available from the causality register of the hospital."
}
},
{
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],
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"text": "She has not ruled out the probability of such injury being caused by fall on rough and hard surface."
}
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],
"start": 6866,
"text": "\n 9. In evidence PW 8 the Investigating Officer who was working as Assistant Sub-Inspector of Police at the Bonai police station on 02.10.2017 has deposed that the then Inspector -In- Charge of the P.S registered Bonai P.S Case No.130 Dtd.02.10.2017 and directed him to investigate into the matter under his endorsement in the FIR vide Ext.1/2 for alleged commission of the offence u/s 341/325/294/506 IPC."
}
},
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"end": 7531,
"labels": [
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],
"start": 7273,
"text": "It is further stated by him that during investigation he has examined the complainant and other witnesses and visited the alleged place of occurrence in the village Alekhapur, which is in particular near an electric substation in the mid part of the village."
}
},
{
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"end": 7611,
"labels": [
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"start": 7532,
"text": "He has drawn a sketch map of the site vide Ext.3 bearing his signature Ext.3/1."
}
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{
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"end": 7734,
"labels": [
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"start": 7612,
"text": "He has confirmed to have issued the injury requisition to the injured informant vide Ext.2/3 bearing his signature Ex.2/4."
}
},
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"labels": [
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],
"start": 7735,
"text": "Confirming the arrest of the accused-utp and the receipt of the injury opinion report from the Medical Officer Dr. Jyoshna Lugun, he has confirmed to have submitted charge sheet against the accused-utp for alleged commission offence u/s 341/323/294/506 IPC."
}
},
{
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"end": 8165,
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],
"start": 7992,
"text": "\n 10. In the argument the learned counsel has brought to the notice of the court that prior hostility between the informant and the accused-utp is admitted by the informant."
}
},
{
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"id": "a942e2af9f45437f8b062386e7c95a6d",
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"end": 8300,
"labels": [
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"start": 8166,
"text": "Further, the Investigating Officer has also confirmed that there was no good relationship between the parties prior to the occurrence."
}
},
{
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"end": 8422,
"labels": [
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],
"start": 8301,
"text": "It is clear from the evidence of the informant that on earlier occasions she has not reported any incident to the police."
}
},
{
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"id": "7b022c572d17473eb862b28e6fc1b721",
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],
"start": 8423,
"text": "She has specifically admitted that as she sustains fractured in her hand, she reported the matter to the police."
}
},
{
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"labels": [
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"start": 8536,
"text": "Resulting in initiations of the present case against such background the prosecution would have adduced evidence as to the exact time of occurrence."
}
},
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"end": 8811,
"labels": [
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],
"start": 8685,
"text": "It is contended for the accused-utp that none of the prosecution witnesses have stated about the exact time of the occurrence."
}
},
{
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"id": "c17cf81dd2c14db0a0eb82ae83188b21",
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"labels": [
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],
"start": 8812,
"text": "Even if the informant claims that she was assaulted in the morning, she has not specifically stated the date on which she was so assaulted."
}
},
{
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"id": "c7c92c3e50514b2faf747bf2e2574023",
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"end": 9078,
"labels": [
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"start": 8952,
"text": "Rather, she has only stated that the incident took place about 4-5 months before on a certain day about 07: 00AM in her house."
}
},
{
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"id": "d562b3363c8646a8be6b564732e83d78",
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"value": {
"end": 9247,
"labels": [
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],
"start": 9079,
"text": "Learned counsel has brought to the notice of the court that the FIR reveals that on 11.09.2017 the informant was assaulted for which she sustained fracture in her hand."
}
},
{
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"id": "52769b5946674e59b7b17dda8897926d",
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"value": {
"end": 9296,
"labels": [
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],
"start": 9248,
"text": "But no exact time has been mentioned in the FIR."
}
},
{
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"id": "8c2154921b7343deadad7a7b3989bbc4",
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"value": {
"end": 9358,
"labels": [
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],
"start": 9297,
"text": "Nor does the FIR reveal on which hand she sustained fracture."
}
},
{
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"id": "eabfb68761744efc8710979c07eb1063",
"to_name": "text",
"type": "labels",
"value": {
"end": 9435,
"labels": [
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],
"start": 9359,
"text": "Only in her evidence she has stated she sustained fracture on her left hand."
}
},
{
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"id": "eb232678ecf24f88a74aab3da16b6956",
"to_name": "text",
"type": "labels",
"value": {
"end": 9588,
"labels": [
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],
"start": 9436,
"text": "From evidence of the Medical Officer it is clear that on 11.09.2017 the informant was treated only for swelling of size 4 C.M. X 4.CM on her left wrist."
}
},
{
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"id": "681969bb6d3642c796d9351d3b6cd3a6",
"to_name": "text",
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"value": {
"end": 9829,
"labels": [
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],
"start": 9588,
"text": "\nFurther the Medical Officer's evidence provides that the injury was simple and might have been caused by blunt object about 22 days before the day on which Medical Officer supplied the injury opinion report on the requisition of the police."
}
},
{
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"id": "09f8a47b70a94068a6700e48a23eb9fa",
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"value": {
"end": 9986,
"labels": [
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],
"start": 9830,
"text": "The learned counsel has therefore contended that the medical evidence does not corroborate the version of the informant as to any fracture sustained by her."
}
},
{
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"id": "9d6805b25d134744ba7b44cbf69bd43c",
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"value": {
"end": 10063,
"labels": [
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],
"start": 9987,
"text": "It is therefore contended that the case of the informant cannot be believed."
}
},
{
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"id": "0fb6858c396447c28cfb423ed4ce6571",
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"labels": [
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],
"start": 10063,
"text": "\n 11. It is brought to the notice of the court that the informant has admitted that after the occurrence she went to her brother's house and about 16-17 days after the incident she preferred to lodge the FIR."
}
},
{
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"id": "c59a8a1ea13844e69c2a898dfd106d77",
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"value": {
"end": 10406,
"labels": [
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],
"start": 10272,
"text": "Medical evidence clears that the injured was examined 22 days before the day injury requisition was issued in favour of the informant."
}
},
{
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"id": "b5955b13a19a405e9e2a9cda88a7b855",
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"end": 10629,
"labels": [
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],
"start": 10407,
"text": "From the evidence of the Investigating Officer it is clear that the FIR was lodged on 02.10.2017 and on that day the Investigating Officer visited the spot and thereafter issued injury requisition in favour of the injured."
}
},
{
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"id": "63561749d06d4e42b29063db05aaabb3",
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"value": {
"end": 10717,
"labels": [
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],
"start": 10630,
"text": "By the time injury requisition was issued, the injured had already undergone treatment."
}
},
{
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"id": "b0a30b57b78d4eba9c20b39cf7d736bb",
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"value": {
"end": 10952,
"labels": [
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],
"start": 10718,
"text": "It is therefore surprising that about 20 days after the incident, the Investigating Officer still issued injury requisition to the hospital reflecting that the informant sustained fracture on her hand without specifying right or left."
}
},
{
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"id": "ce060852fa8d45fb9803042d1f90c3c6",
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"value": {
"end": 11184,
"labels": [
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],
"start": 10953,
"text": "It is therefore contended that these facts together generate doubt over the credibility of prosecution case and suspicion over the fact as to why the informant lodged FIR after expiry of more than 20 days from the date of incident."
}
},
{
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"id": "00fda430c78d4fd38a7d8a59b9aed16b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11257,
"labels": [
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],
"start": 11185,
"text": "It is contended that such long delay in lodging FIR remains unexplained."
}
},
{
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"id": "a0708bba027940a3968c5f674711d951",
"to_name": "text",
"type": "labels",
"value": {
"end": 11410,
"labels": [
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],
"start": 11258,
"text": "Mere allegation that the accused-utp threatened her with fatal consequences cannot be sufficient ground to explain such a long delay in lodging the FIR."
}
},
{
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"id": "bc1e796492464096b66d80f91e7a39e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11513,
"labels": [
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],
"start": 11411,
"text": "The learned counsel has further contended that no specific obscene word has been mentioned in the FIR."
}
},
{
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"id": "eb9b108dfe484f4c95620d27016f0526",
"to_name": "text",
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"value": {
"end": 11611,
"labels": [
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],
"start": 11514,
"text": "Nor has the informant stated about any obscene words uttered by the accused-utp to her annoyance."
}
},
{
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"id": "2718f9d6cf5949819111d51ed3d05d05",
"to_name": "text",
"type": "labels",
"value": {
"end": 11802,
"labels": [
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],
"start": 11612,
"text": "No other witness including the eyewitness PW 4 has stated about any such specific obscene words uttered by the accused-utp in or near a public place to the annoyance of informant and others."
}
},
{
"from_name": "label",
"id": "3a31a2583aa941b2a6a1926916800098",
"to_name": "text",
"type": "labels",
"value": {
"end": 11963,
"labels": [
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],
"start": 11803,
"text": "The learned counsel has there contented that the case of prosecution seems to be fabricated one with a view to harassing the accused-utp for previous hostility."
}
},
{
"from_name": "label",
"id": "66272b8d366c4f969586916e05b1700f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12092,
"labels": [
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],
"start": 11963,
"text": "\n 12. On careful perusal of the FIR it can be found that the informant has not stated the specific place where she was assaulted."
}
},
{
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"id": "39aceee31d154620948490d15947841f",
"to_name": "text",
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"value": {
"end": 12176,
"labels": [
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],
"start": 12093,
"text": "Only in her evidence she has stated that the incident had taken place in her house."
}
},
{
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"id": "78b72e53898b4f80a2b2ee33bd4fe9d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12425,
"labels": [
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],
"start": 12177,
"text": "It is therefore contended that the sketch map of the spot of occurrence prepared by the Investigating Officer cannot be relied on as the same reflects that the incident took place in the middle of the village Alekhapur near the electric substation."
}
},
{
"from_name": "label",
"id": "b76cc790f0d54bd78ceb96b87f027809",
"to_name": "text",
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"value": {
"end": 12592,
"labels": [
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],
"start": 12426,
"text": "Learned counsel has therefore contended that such inconsistency and omission as to the place of occurrence also adversely impacts the credibility of prosecution case."
}
},
{
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"id": "b12c007e70b940faba974e1158c79e9e",
"to_name": "text",
"type": "labels",
"value": {
"end": 12707,
"labels": [
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],
"start": 12593,
"text": "Viewed from a different perspective this aspect of investigation also points towards impropriety of investigation."
}
},
{
"from_name": "label",
"id": "3d7b89bc75c04b1ea52b73a1a112c9f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12821,
"labels": [
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],
"start": 12707,
"text": "\n 13. In evidence the Investigating Officer has stated not to have seized any thenga, let alone the bamboo thenga."
}
},
{
"from_name": "label",
"id": "2e4c52416fa2493cab14582f156b66a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12909,
"labels": [
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],
"start": 12822,
"text": "Further, the Investigating Officer has not stated if the complaint had scribed the FIR."
}
},
{
"from_name": "label",
"id": "d25294290ac644d3967d943d81cfef95",
"to_name": "text",
"type": "labels",
"value": {
"end": 13001,
"labels": [
"ANALYSIS"
],
"start": 12910,
"text": "In evidence the informant has stated that the FIR was scribed by one Behera of her village."
}
},
{
"from_name": "label",
"id": "65eed1869ab64a8d873355ae9e6383a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 13108,
"labels": [
"ANALYSIS"
],
"start": 13002,
"text": "If this be so, it is not known as to why she has not been able to state the name of the scribe of the FIR."
}
},
{
"from_name": "label",
"id": "d0a6d6d5f89d49d39b491b1ef4842024",
"to_name": "text",
"type": "labels",
"value": {
"end": 13256,
"labels": [
"ANALYSIS"
],
"start": 13109,
"text": "Even her claim that she was read over and explaining to the content cannot be reliable since no endorsement is available in the FIR to that effect."
}
},
{
"from_name": "label",
"id": "c0f4236b129241d2b2b6eec16f8293b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13398,
"labels": [
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],
"start": 13257,
"text": "Learned counsel has therefore contended that this aspect of the case also throws a ray of suspicion over the genuineness of prosecution case."
}
},
{
"from_name": "label",
"id": "25f39ee1ddf540b887361d9e7effc27e",
"to_name": "text",
"type": "labels",
"value": {
"end": 13581,
"labels": [
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],
"start": 13399,
"text": "The learned counsel has therefore contended that no material is available as to any wrongfully restraint, uttering of obscene words, criminally intimidation or hurt to the informant."
}
},
{
"from_name": "label",
"id": "6973d6186aed43f882a3c9ff1188da0e",
"to_name": "text",
"type": "labels",
"value": {
"end": 13781,
"labels": [
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],
"start": 13582,
"text": "The learned counsel has therefore contended that overall the case is doubtful and it seems that the informant brought this case against the accused-utp only to harass her for certain ulterior motive."
}
},
{
"from_name": "label",
"id": "4a612bd69eda4fbe80b89260e89abe61",
"to_name": "text",
"type": "labels",
"value": {
"end": 14015,
"labels": [
"ARG_PETITIONER"
],
"start": 13781,
"text": "\n 14. On the contrary the Learned APPs have contended that the prosecution has proved its case beyond any reasonably doubt through the evidence of the informant, PW 4 the sole eyewitness, Medical Officer and the Investigating Officer."
}
},
{
"from_name": "label",
"id": "34749f7abf5045e3bbc248d7204429d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 14157,
"labels": [
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],
"start": 14016,
"text": "It is therefore contended that there is sufficient material on record to hold the accused-utp liable for the offence u/s 341/323/294/506 IPC."
}
},
{
"from_name": "label",
"id": "9ce42f9ccf8440bdae2fecf586ca8dc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 14393,
"labels": [
"ARG_PETITIONER"
],
"start": 14158,
"text": "It is further contended that the accused- utp who has been involved in another PS case for commission of offence u/s 457/427/294/323/307 IPC should be punished adequately, otherwise he cannot be checked from committing further offence."
}
},
{
"from_name": "label",
"id": "f9c1b0c1c0d94b2ab02c8eaee2661d62",
"to_name": "text",
"type": "labels",
"value": {
"end": 14451,
"labels": [
"ANALYSIS"
],
"start": 14393,
"text": "\n 15. I have perused the evidence available on the record."
}
},
{
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"id": "67a28889688e4113a4f3b71a196b87a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 14527,
"labels": [
"ANALYSIS"
],
"start": 14452,
"text": "I have given advertence to the contentions raised on behalf of the parties."
}
},
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"end": 14721,
"labels": [
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],
"start": 14528,
"text": "On careful consideration of the evidence on record I am of the opinion of that the contentions raised on behalf of the accused-utp need to be accepted in the factual circumstances of this case."
}
},
{
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"text": "I therefore respectfully subscribe to the contentions of the learned counsel."
}
},
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"text": "Added to this, in the FIR it is alleged that the informant was threatened with fatal consequence when she returned home after treatment from the hospital."
}
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"labels": [
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"text": "In evidence she has stated that out of fear for the threatening imparted to her she went to the brother's house and some days after, as discussed above, she lodged FIR."
}
},
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"labels": [
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"text": "PW 2 has also stated that the accused-utp threatened the informant for which he took her brother's house."
}
},
{
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],
"start": 15230,
"text": "PW 4 who is claimed as the eyewitness has stated that the accused-utp threatened the informant on the very day of occurrence and also on the day when she returned from home after treatment in the hospital."
}
},
{
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"text": "\nBut FIR does not reveal any threatening prescribed by the accused-utp on 11.09.2017."
}
},
{
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"text": "Against such factual background, it is relevant to lay down here that in the FIR the informant has alleged that she was not being allowed to stay either in her house or in any other house."
}
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],
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"text": "It can be stated that if she was so threatened time and again as to why she did not prefer to lodge any FIR immediately after the incident on 11.09.2017 or on the day she returned from hospital after treatment."
}
},
{
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"to_name": "text",
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"value": {
"end": 16158,
"labels": [
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],
"start": 15921,
"text": "In my considered opinion these facts lead to a conclusion that there was no reason as to why the informant may have been alarmed by any threatening from the side of the accused-utp when she only lodged the FIR 20 days after the incident."
}
},
{
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"labels": [
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"text": "Therefore, the ingredients necessary for constituting criminal intimidation is not satisfied in this case."
}
},
{
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"end": 16375,
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],
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"text": "In my considered opinion no conclusion can be drawn as to any criminal intimidation committed by the accused."
}
},
{
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"id": "584fd4e55b84428785c98528f97eea93",
"to_name": "text",
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"value": {
"end": 16466,
"labels": [
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],
"start": 16376,
"text": "It is settled in law that the prosecution must prove its case beyond all reasonable doubt."
}
},
{
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"end": 16554,
"labels": [
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],
"start": 16466,
"text": "\nBut in the present case in view of the foregoing discussion the case is quite doubtful."
}
},
{
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"labels": [
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],
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"text": "As a result the points for determination stand decided in the negative."
}
},
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"labels": [
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],
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"text": "\n 16. In the result, it is proper to hold that the prosecution has failed to prove its case beyond any reasonable doubt against the accused-utp for the offence u/s 341/323/294/506 IPC."
}
},
{
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"value": {
"end": 16983,
"labels": [
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],
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"text": "\nHence, I hold the accused-utp not guilty of the offence punishable u/s 341/323/294/506 IPC and acquit them therefrom under Section 248(1) of the Code of Criminal Procedure."
}
},
{
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"id": "3d31b2d3d5d54c579184058e36b75fb3",
"to_name": "text",
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"value": {
"end": 17066,
"labels": [
"RPC"
],
"start": 16983,
"text": "\n No order for disposal of property since no property has been seized in this case."
}
},
{
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"id": "517dd6d387cc4939a15879e1e554f1c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17127,
"labels": [
"RPC"
],
"start": 17068,
"text": "Enter this case as mistake of fact for statistical purpose."
}
},
{
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"id": "ae93fb88477045d9876843a1e66edee8",
"to_name": "text",
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"value": {
"end": 17156,
"labels": [
"NONE"
],
"start": 17127,
"text": "\n S.D.J.M., Bonai Dt 14-08-18"
}
},
{
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"id": "210f914301e64bf4a2a7fff46a033d9f",
"to_name": "text",
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"value": {
"end": 17376,
"labels": [
"NONE"
],
"start": 17157,
"text": "Pronounced by me in the open court on this the 14th day of August, 2018 under my hand and seal of the court in the presence of the accused-utp acquitted.\n Typed electronically to my dictation and corrected by me."
}
},
{
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"id": "e60d552dbf174ffebdc02b000e41ee28",
"to_name": "text",
"type": "labels",
"value": {
"end": 17405,
"labels": [
"NONE"
],
"start": 17378,
"text": "S.D.J.M., Bonai Dt 14-08-18"
}
},
{
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"id": "2006bab8f98b41809e7b07cc2e8b2104",
"to_name": "text",
"type": "labels",
"value": {
"end": 17417,
"labels": [
"NONE"
],
"start": 17406,
"text": "APPENDIX 1."
}
},
{
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"id": "3ce57f3eb92f415c933bee9dbe628cc7",
"to_name": "text",
"type": "labels",
"value": {
"end": 17639,
"labels": [
"NONE"
],
"start": 17418,
"text": "List of Prosecution Witnesses PW 1- Pataphula Patra PW 2- Sambaru Patra PW 3- Maheswar Patra PW 4- Brusa Bhanu Patra PW 5- Keshab Chandra Surya PW 6- Agasti Patra PW 7- Dr. Jyoshna Lugun PW 8- Sashi Bhusan Pati 2."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 17670,
"labels": [
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],
"start": 17640,
"text": "List of Defence Witnesses None"
}
},
{
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"id": "f071eb90c0fb4ad38ceae5367ebf3d91",
"to_name": "text",
"type": "labels",
"value": {
"end": 17993,
"labels": [
"NONE"
],
"start": 17671,
"text": "3. List of Prosecution Exhibits Ext-1 F.I.R.\n Ext.1/1 Signature of PW 1 on F.I.R.\n Ext.1/2 Signature with endorsement of IIC on FIR Ext.2 Signature of PW 1on injury report Ext.2/1 Injury report Ext.2/2 Signature of PW 7 on injury report Ext.2/3 Injury requisition Ext.2/4 Signature of P.W.8 on Injury requisition Ext.3 "
}
},
{
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"id": "0945dda9cab349a3be15407946c9b795",
"to_name": "text",
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"value": {
"end": 18116,
"labels": [
"NONE"
],
"start": 17993,
"text": "Sketch map of spot Ext.3/1 Signature of P.W.8 on sketch map 4. List of Defence Exhibits Nil S.D.J.M., Bonai Dt 14-08-18 ***"
}
}
]
}
] | 1,787 | {
"text": "IN THE COURT OF SUB-DIVISIONAL JUDICIAL MAGISTRATE;\n BONAI, DISTRICT-SUNDARGARH\n\nPresent: Sri Bimal Raul, LL.M.\n S.D.J.M.,Bonai\n\nG.R. Case No. 552 of 2017\n TR. No.520 of 2018\n\nDate of argument- 13.08.2018\nDate of judgment- 14.08.2018\n\nS T A T E ....Prosecution\n -versus- ... Accused\n\nKalindri Patra, aged about 46 years,\nS/O- Nilamani Patra\nVillage -Alekhapur,\nPolice Station- Bonai\nDistrict-Sundargarh, State-Odisha\n\nAppearances: : Sri P.S. Mishra, , Sri L.M. Behera\n For the Prosecution and Smt. Madhumita Amatya,\n\nA.P.Ps,Bonai\n\nFor the Defence : Sri A.M. Mohanty, SDC, Bonai\n\n J U D G M E N T\nUnder section 341/323/294/506 IPC The above named accused-utp person stands prosecuted for the offences punishable u/s 341/323/294/506 of the Indian Penal Code (for short the I.P.C).\n 2. Stated briefly the case of the prosecution is that on dated 02.10.2017 the informant Smt. Pataphula Patra, aged about 56 years, w/o- Late Ghasia Patra of village Alekhapur, under Bonai police limits, District-Sundargarh lodged the written first information report (for short the F.I.R) at Bonai Police Station stating that on 11.09.2017 the accused, who is her co-villager assaulted her by a bamboo lathi for which she sustains fracture in her hand. After treatment in the hospital while she was returning home the accused threatened to kill her and also scolded her uttering obscene words. It is her further case that the accused threatened to behead her and carry her head to the police station. It is her further case that the accused was not allowing her to stay in her house or in any other co- villager's house. It is further alleged that he also threatened the Gramarakhi who was sent to call him. Again such factual circumstances she lodged FIR on 02.10.2017.\n On receiving the written F.I.R of the informant, the Inspector-In-Charge (for short the IIC) registered Bonai P.S.\n Case No. 130 of 2017 Dtd.02.10.2017 for alleged commission of the offence u/s 341/325/294/506 IPC and directed the then Assistant Sub-Inspector Sri S.B. Pati for investigation of the matter. On completion of investigation the charge sheet no.120 Dtd.26.11.2017 was submitted against the accused Kalindri Patra for commission of the offence u/s 341/323/294/506 IPC. Hence, the trial. The accused-utp is facing his trial as under trial prisoners (for short the utp) as he has not furnished bail bond for his release since 09.02.2018.\n 3. The plea of the defence is one of complete denial and false implication of the accused-utp in this case.\n 4. The points for determination in this case are as follows: (i) Whether on dated 11.09.2017 in Alekhapur the accused-utp wrongfully restrained the informant?\n (ii) Whether the accused-utp on the above said date and place voluntarily caused hurt to the informant?\n (iii) Whether the accused-utp on the above stated date and thereafter uttered obscene words in or near a public place, namely the above stated place, to the annoyance of the informant? and (iv) Whether the accused-utp on the above stated dates and place criminally intimidated the informant with fatal consequence with intent to cause alarm to her?\n 5. In order to prove its case, the prosecution has examined eight witnesses on its behalf. PW 1 is the informant-victim of this case. PW 2 is a co-villager of the informant. PW 3 is an independent witness. PW 4 is an eyewitness. PWs 5 and 6 are other independent witnesses. PW 7 is the Medical Officer who examined the informant as injured. PW 8 is the Investigating Officer in this case. The prosecution has adduced no further evidence in this case. No evidence has been adduced on behalf of the accused-utp.\n 6. In her evidence PW 1 who is the informant has not specifically stated the date of occurrence. But she has stated that on a certain day at about 07:00 AM in her house the incident took place about 4-5 months before the day she deposed in the court i.e. 20th March, 2018. Interestingly, she has stated that prior to that incident she was abused in obscene words on certain night by the accused-utp. But the date of that incident has also not been stated by her. It is stated by her that in the morning the accused-utp assaulted her by a bamboo stick so that he sustained injury on her person. She has stated further that her left hand got fractured.\nIt is stated by her that the accused-utp threatened to kill her.\nShe has further stated that she was taken to hospital by one Ananda and that while she was returning home after treatment the accused-utp again scolded her and threatened her with fatal consequence. It is stated by her that out of fear she went to her brother's house and some days after she lodged FIR marked as Ext.1 bearing her signature Ext.1/1. She has stated to have put her signature in the injury report vide Ext.2. It is clear from her cross examination that she had not reported about any earlier incident, but she reported this time as she got fractured. It is further stated by her that one Behera, a co- villager, scribed the FIR and read over and explained its content to her.\n 7. In evidence PW 2 has only sated that she was told by the informant about the incident that she was assaulted and intimidated with fatal consequence. It is stated by him that he took the informant to hospital. PW 3 has stated that 4-5 months before 20th March, 2018 the day he deposed in the court the incident took place. Similarly, PW 4 has dated the incident back to 4-5 months before 20th March, 2018. He has stated that the incident took place in front of the house of the informant. He has further stated the accused-utp was chasing and assaulting her simultaneously. It is stated by him that because of assault by bamboo stick the informant sustained injury on her hand. He has also stated affirmatively about the fatal threatening given by the accused-utp to her. However, he has stated that during the incident the informant being chased ran towards the house of Gramarakhi in order to escape from the accused-utp's assault. It is further stated by him that on her returned from hospital she was further threatened by the accused-utp. PWs 5 and 6 have stated nothing about the incident.\n 8. In evidence PW 7 who was then working as Senior Pediatric Specialist at Sub Divisional Hospital, Bonai has confirmed that on 11.09.2017 she examined the informant injured as an outdoor patient and found one swelling of size 4 CM X 4CM. It is stated by her that on police requisition dtd.03.10.2017 she has given her opinion vide Ext.2/1 bearing her signature Ext.2/2 as per the information available from the causality register of the hospital. She has not ruled out the probability of such injury being caused by fall on rough and hard surface.\n 9. In evidence PW 8 the Investigating Officer who was working as Assistant Sub-Inspector of Police at the Bonai police station on 02.10.2017 has deposed that the then Inspector -In- Charge of the P.S registered Bonai P.S Case No.130 Dtd.02.10.2017 and directed him to investigate into the matter under his endorsement in the FIR vide Ext.1/2 for alleged commission of the offence u/s 341/325/294/506 IPC. It is further stated by him that during investigation he has examined the complainant and other witnesses and visited the alleged place of occurrence in the village Alekhapur, which is in particular near an electric substation in the mid part of the village. He has drawn a sketch map of the site vide Ext.3 bearing his signature Ext.3/1. He has confirmed to have issued the injury requisition to the injured informant vide Ext.2/3 bearing his signature Ex.2/4. Confirming the arrest of the accused-utp and the receipt of the injury opinion report from the Medical Officer Dr. Jyoshna Lugun, he has confirmed to have submitted charge sheet against the accused-utp for alleged commission offence u/s 341/323/294/506 IPC.\n 10. In the argument the learned counsel has brought to the notice of the court that prior hostility between the informant and the accused-utp is admitted by the informant. Further, the Investigating Officer has also confirmed that there was no good relationship between the parties prior to the occurrence. It is clear from the evidence of the informant that on earlier occasions she has not reported any incident to the police. She has specifically admitted that as she sustains fractured in her hand, she reported the matter to the police. Resulting in initiations of the present case against such background the prosecution would have adduced evidence as to the exact time of occurrence. It is contended for the accused-utp that none of the prosecution witnesses have stated about the exact time of the occurrence. Even if the informant claims that she was assaulted in the morning, she has not specifically stated the date on which she was so assaulted. Rather, she has only stated that the incident took place about 4-5 months before on a certain day about 07: 00AM in her house. Learned counsel has brought to the notice of the court that the FIR reveals that on 11.09.2017 the informant was assaulted for which she sustained fracture in her hand. But no exact time has been mentioned in the FIR. Nor does the FIR reveal on which hand she sustained fracture. Only in her evidence she has stated she sustained fracture on her left hand. From evidence of the Medical Officer it is clear that on 11.09.2017 the informant was treated only for swelling of size 4 C.M. X 4.CM on her left wrist.\nFurther the Medical Officer's evidence provides that the injury was simple and might have been caused by blunt object about 22 days before the day on which Medical Officer supplied the injury opinion report on the requisition of the police. The learned counsel has therefore contended that the medical evidence does not corroborate the version of the informant as to any fracture sustained by her. It is therefore contended that the case of the informant cannot be believed.\n 11. It is brought to the notice of the court that the informant has admitted that after the occurrence she went to her brother's house and about 16-17 days after the incident she preferred to lodge the FIR. Medical evidence clears that the injured was examined 22 days before the day injury requisition was issued in favour of the informant. From the evidence of the Investigating Officer it is clear that the FIR was lodged on 02.10.2017 and on that day the Investigating Officer visited the spot and thereafter issued injury requisition in favour of the injured. By the time injury requisition was issued, the injured had already undergone treatment. It is therefore surprising that about 20 days after the incident, the Investigating Officer still issued injury requisition to the hospital reflecting that the informant sustained fracture on her hand without specifying right or left. It is therefore contended that these facts together generate doubt over the credibility of prosecution case and suspicion over the fact as to why the informant lodged FIR after expiry of more than 20 days from the date of incident. It is contended that such long delay in lodging FIR remains unexplained. Mere allegation that the accused-utp threatened her with fatal consequences cannot be sufficient ground to explain such a long delay in lodging the FIR. The learned counsel has further contended that no specific obscene word has been mentioned in the FIR. Nor has the informant stated about any obscene words uttered by the accused-utp to her annoyance. No other witness including the eyewitness PW 4 has stated about any such specific obscene words uttered by the accused-utp in or near a public place to the annoyance of informant and others. The learned counsel has there contented that the case of prosecution seems to be fabricated one with a view to harassing the accused-utp for previous hostility.\n 12. On careful perusal of the FIR it can be found that the informant has not stated the specific place where she was assaulted. Only in her evidence she has stated that the incident had taken place in her house. It is therefore contended that the sketch map of the spot of occurrence prepared by the Investigating Officer cannot be relied on as the same reflects that the incident took place in the middle of the village Alekhapur near the electric substation. Learned counsel has therefore contended that such inconsistency and omission as to the place of occurrence also adversely impacts the credibility of prosecution case. Viewed from a different perspective this aspect of investigation also points towards impropriety of investigation.\n 13. In evidence the Investigating Officer has stated not to have seized any thenga, let alone the bamboo thenga. Further, the Investigating Officer has not stated if the complaint had scribed the FIR. In evidence the informant has stated that the FIR was scribed by one Behera of her village. If this be so, it is not known as to why she has not been able to state the name of the scribe of the FIR. Even her claim that she was read over and explaining to the content cannot be reliable since no endorsement is available in the FIR to that effect. Learned counsel has therefore contended that this aspect of the case also throws a ray of suspicion over the genuineness of prosecution case. The learned counsel has therefore contended that no material is available as to any wrongfully restraint, uttering of obscene words, criminally intimidation or hurt to the informant. The learned counsel has therefore contended that overall the case is doubtful and it seems that the informant brought this case against the accused-utp only to harass her for certain ulterior motive.\n 14. On the contrary the Learned APPs have contended that the prosecution has proved its case beyond any reasonably doubt through the evidence of the informant, PW 4 the sole eyewitness, Medical Officer and the Investigating Officer. It is therefore contended that there is sufficient material on record to hold the accused-utp liable for the offence u/s 341/323/294/506 IPC. It is further contended that the accused- utp who has been involved in another PS case for commission of offence u/s 457/427/294/323/307 IPC should be punished adequately, otherwise he cannot be checked from committing further offence.\n 15. I have perused the evidence available on the record. I have given advertence to the contentions raised on behalf of the parties. On careful consideration of the evidence on record I am of the opinion of that the contentions raised on behalf of the accused-utp need to be accepted in the factual circumstances of this case. I therefore respectfully subscribe to the contentions of the learned counsel. Added to this, in the FIR it is alleged that the informant was threatened with fatal consequence when she returned home after treatment from the hospital. In evidence she has stated that out of fear for the threatening imparted to her she went to the brother's house and some days after, as discussed above, she lodged FIR. PW 2 has also stated that the accused-utp threatened the informant for which he took her brother's house. PW 4 who is claimed as the eyewitness has stated that the accused-utp threatened the informant on the very day of occurrence and also on the day when she returned from home after treatment in the hospital.\nBut FIR does not reveal any threatening prescribed by the accused-utp on 11.09.2017. Against such factual background, it is relevant to lay down here that in the FIR the informant has alleged that she was not being allowed to stay either in her house or in any other house. It can be stated that if she was so threatened time and again as to why she did not prefer to lodge any FIR immediately after the incident on 11.09.2017 or on the day she returned from hospital after treatment. In my considered opinion these facts lead to a conclusion that there was no reason as to why the informant may have been alarmed by any threatening from the side of the accused-utp when she only lodged the FIR 20 days after the incident. Therefore, the ingredients necessary for constituting criminal intimidation is not satisfied in this case. In my considered opinion no conclusion can be drawn as to any criminal intimidation committed by the accused. It is settled in law that the prosecution must prove its case beyond all reasonable doubt.\nBut in the present case in view of the foregoing discussion the case is quite doubtful. As a result the points for determination stand decided in the negative.\n 16. In the result, it is proper to hold that the prosecution has failed to prove its case beyond any reasonable doubt against the accused-utp for the offence u/s 341/323/294/506 IPC.\nHence, I hold the accused-utp not guilty of the offence punishable u/s 341/323/294/506 IPC and acquit them therefrom under Section 248(1) of the Code of Criminal Procedure.\n No order for disposal of property since no property has been seized in this case.\n Enter this case as mistake of fact for statistical purpose.\n S.D.J.M., Bonai Dt 14-08-18 Pronounced by me in the open court on this the 14th day of August, 2018 under my hand and seal of the court in the presence of the accused-utp acquitted.\n Typed electronically to my dictation and corrected by me.\n S.D.J.M., Bonai Dt 14-08-18 APPENDIX 1. List of Prosecution Witnesses PW 1- Pataphula Patra PW 2- Sambaru Patra PW 3- Maheswar Patra PW 4- Brusa Bhanu Patra PW 5- Keshab Chandra Surya PW 6- Agasti Patra PW 7- Dr. Jyoshna Lugun PW 8- Sashi Bhusan Pati 2. List of Defence Witnesses None 3. List of Prosecution Exhibits Ext-1 F.I.R.\n Ext.1/1 Signature of PW 1 on F.I.R.\n Ext.1/2 Signature with endorsement of IIC on FIR Ext.2 Signature of PW 1on injury report Ext.2/1 Injury report Ext.2/2 Signature of PW 7 on injury report Ext.2/3 Injury requisition Ext.2/4 Signature of P.W.8 on Injury requisition Ext.3 Sketch map of spot Ext.3/1 Signature of P.W.8 on sketch map 4. List of Defence Exhibits Nil S.D.J.M., Bonai Dt 14-08-18 *** "
} |
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"labels": [
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],
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"text": "PETITIONER:\nCOMMISSIONER OF INCOME TAX, ASSAM, TRIPURA,MANIPUR & NAGALAN\n\n Vs."
}
},
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"id": "cb1b51b426434ec78cf831c3b44c4453",
"to_name": null,
"type": null,
"value": {
"end": 128,
"labels": [
"PREAMBLE"
],
"start": 85,
"text": "\n\nRESPONDENT:\nM/S. RAMESHWARI LAL SANWARMAL"
}
},
{
"from_name": null,
"id": "98cea976d37b499b82a38205c487b89d",
"to_name": null,
"type": null,
"value": {
"end": 156,
"labels": [
"PREAMBLE"
],
"start": 128,
"text": "\n\nDATE OF JUDGMENT22/09/1971"
}
},
{
"from_name": null,
"id": "8627a74093ca4c6da73de8a956e7fcc4",
"to_name": null,
"type": null,
"value": {
"end": 164,
"labels": [
"PREAMBLE"
],
"start": 156,
"text": "\n\nBENCH:"
}
},
{
"from_name": null,
"id": "232beb2786394b69bfb398794e5632dc",
"to_name": null,
"type": null,
"value": {
"end": 818,
"labels": [
"PREAMBLE"
],
"start": 166,
"text": "ACT:\nIncome-tax Act, 1922, ss. 27 and 34(3)-Assessment on S as\nindividual set aside under s. 27 and fresh assessment made\non S as karta of H.U.F.-Fresh assessment is on a different\nassessee and not one under s. 27-Cannot claim protection of\ns. 34(3) 2nd proviso.\nIncome-tax Act, 1922, s. 2(6A)-Shares of company in which\npublic are not substantially interested-Held in name of\nkarta in H.U.F.-Loan to karta by company whether liable to\nbe treated as 'dividend' under s. 2(6A).\n\nHEADNOTE:\nIn connection with the assessment year 1955-56 the Income-\ntax Officer issued notice under s. 22(2) of the Income-tax\nAct, 1922 to S in the status of an individual."
}
},
{
"from_name": null,
"id": "6816c62970de4ad78fc5c24d4500a3b8",
"to_name": null,
"type": null,
"value": {
"end": 877,
"labels": [
"PREAMBLE"
],
"start": 819,
"text": "He submitted\na return in the status of karta of his H.U.F."
}
},
{
"from_name": null,
"id": "1233804bd1604528be37ef9b91df9a05",
"to_name": null,
"type": null,
"value": {
"end": 973,
"labels": [
"PREAMBLE"
],
"start": 878,
"text": "The Income-tax\nOfficer passed an ex-parte assessment order on him as\nindividual under s. 23(4)."
}
},
{
"from_name": null,
"id": "6eea9ee1781b4f27bebc8143d77511cc",
"to_name": null,
"type": null,
"value": {
"end": 1053,
"labels": [
"PREAMBLE"
],
"start": 974,
"text": "The assessment was however set\naside on S's application under s. 27 of the Act."
}
},
{
"from_name": null,
"id": "95fb39b120b045ca8eeb01907e91c12e",
"to_name": null,
"type": null,
"value": {
"end": 1173,
"labels": [
"PREAMBLE"
],
"start": 1054,
"text": "A fresh\nassessment was made on the H.U.F. on February 6, 1961 on the\nbasis of the return submitted by S in that status."
}
},
{
"from_name": null,
"id": "ee4e23abfe41423aaf32f3360ac6a904",
"to_name": null,
"type": null,
"value": {
"end": 1263,
"labels": [
"PREAMBLE"
],
"start": 1174,
"text": "This\nassessment was made after the period of four years mentioned\nin s. 34(3) of the Act."
}
},
{
"from_name": null,
"id": "6621371b8a964052934deb55bb5b4c31",
"to_name": null,
"type": null,
"value": {
"end": 1443,
"labels": [
"PREAMBLE"
],
"start": 1264,
"text": "The question in appellate and\nreference proceedings was whether the latter assessment was\none under s. 27 and therefore protected as regards\nlimitation under s. 34(3) 2nd proviso."
}
},
{
"from_name": null,
"id": "523156a3794347e197b0bf54015477e9",
"to_name": null,
"type": null,
"value": {
"end": 1585,
"labels": [
"PREAMBLE"
],
"start": 1443,
"text": "\nIn the previous years relevant to the assessment years 1955-\n56 and 1956-57 certain loans were advanced to the aforesaid\nH.U.F. by a company."
}
},
{
"from_name": null,
"id": "b16e223d3f5e432c9dcba8237d82d58a",
"to_name": null,
"type": null,
"value": {
"end": 1648,
"labels": [
"PREAMBLE"
],
"start": 1586,
"text": "The tribunal found that S held certain\nshares in that company."
}
},
{
"from_name": null,
"id": "c006751003564da3aa8b4586ffaf8751",
"to_name": null,
"type": null,
"value": {
"end": 1725,
"labels": [
"PREAMBLE"
],
"start": 1649,
"text": "Its further finding was that he\nheld these shares as the karta of his H.U.F."
}
},
{
"from_name": null,
"id": "a0d6337e2a284e509ed1bd3ea85e464f",
"to_name": null,
"type": null,
"value": {
"end": 2097,
"labels": [
"PREAMBLE"
],
"start": 1726,
"text": "The company\nbeing one in which the public were not substantially in-\nterested the question was whether these loans could be\nconsidered as belonging to S and therefore any loan given by\nthe company to S could not come within the scope of cl. (3)\nto s. 2(6A).\n\n HELD : (i) The return submitted by S in respect of the year\n1955-56 was in his capacity as karta of his family."
}
},
{
"from_name": null,
"id": "19ec5e497d4447babd018aa1d1bae3c3",
"to_name": null,
"type": null,
"value": {
"end": 2139,
"labels": [
"PREAMBLE"
],
"start": 2098,
"text": "The\nstatus shown in the return was H.U.F."
}
},
{
"from_name": null,
"id": "8ec44a9fd85e4ac4939f24ccbd8ebeb3",
"to_name": null,
"type": null,
"value": {
"end": 2190,
"labels": [
"PREAMBLE"
],
"start": 2140,
"text": "He filed no return in\nthe status of an individual."
}
},
{
"from_name": null,
"id": "dc08b683153e4c7dbd832214d1dbbb40",
"to_name": null,
"type": null,
"value": {
"end": 2232,
"labels": [
"PREAMBLE"
],
"start": 2191,
"text": "The two capacities are totally\ndifferent."
}
},
{
"from_name": null,
"id": "9a735e63fb814b6e98858d4ac7a9f274",
"to_name": null,
"type": null,
"value": {
"end": 2278,
"labels": [
"PREAMBLE"
],
"start": 2233,
"text": "The ex-parte order was made against S in the\n"
}
},
{
"from_name": null,
"id": "c366c66bde8d4c56bacb5bd9f82ed6cb",
"to_name": null,
"type": null,
"value": {
"end": 2284,
"labels": [
"PREAMBLE"
],
"start": 2278,
"text": "status"
}
},
{
"from_name": null,
"id": "5e0e1faac1f94e4e86a56f11ce4803c4",
"to_name": null,
"type": null,
"value": {
"end": 2301,
"labels": [
"PREAMBLE"
],
"start": 2285,
"text": "of an individual"
}
},
{
"from_name": null,
"id": "1a6685ece7904e36a155e31a26f7333e",
"to_name": null,
"type": null,
"value": {
"end": 2396,
"labels": [
"PREAMBLE"
],
"start": 2301,
"text": ". What was set aside under s. 27 was\nthe assessment made on him in the status of an individual."
}
},
{
"from_name": null,
"id": "11e0b2647aad4756892acbf717827480",
"to_name": null,
"type": null,
"value": {
"end": 2453,
"labels": [
"PREAMBLE"
],
"start": 2396,
"text": "\nThere was no assessment against H.U.F. and there was no\n"
}
},
{
"from_name": null,
"id": "0f2b0c8f73b94888a84f47d56f979124",
"to_name": null,
"type": null,
"value": {
"end": 2461,
"labels": [
"PREAMBLE"
],
"start": 2453,
"text": "question"
}
},
{
"from_name": null,
"id": "c442bacddfeb4179b2c063a8539058de",
"to_name": null,
"type": null,
"value": {
"end": 2513,
"labels": [
"PREAMBLE"
],
"start": 2462,
"text": "of setting aside any assessment made against H.U.F."
}
},
{
"from_name": null,
"id": "d801ad1bb754463ba65577d69265d1bd",
"to_name": null,
"type": null,
"value": {
"end": 2650,
"labels": [
"PREAMBLE"
],
"start": 2514,
"text": "On February 6, 1961 the H.U.F. was assessed for the first\ntime though the Income-tax Officer wrongly. called /it as a\nfresh' assessment."
}
},
{
"from_name": null,
"id": "ea10f12875ab48c0839b54ee3c0146d3",
"to_name": null,
"type": null,
"value": {
"end": 2796,
"labels": [
"PREAMBLE"
],
"start": 2651,
"text": "On the facts established it was not\npossible to come to the conclusion that the assessment made\nagainst the H.U.F. was an assessment under s. 27."
}
},
{
"from_name": null,
"id": "9a56c106d5a34ee3a9367068a5e0deed",
"to_name": null,
"type": null,
"value": {
"end": 2898,
"labels": [
"PREAMBLE"
],
"start": 2797,
"text": "That\n\nbeing so the assessment made against the H.U.F. on February\n6, 1961 was clearly barred by time."
}
},
{
"from_name": null,
"id": "fc4e63f9c2174219bef05405d0bdcb10",
"to_name": null,
"type": null,
"value": {
"end": 2996,
"labels": [
"PREAMBLE"
],
"start": 2899,
"text": "The High ,Court was\naccordingly justified in answering the first question\nagainst the Department."
}
},
{
"from_name": null,
"id": "64606553d0244d609b386c64b351d401",
"to_name": null,
"type": null,
"value": {
"end": 3004,
"labels": [
"PREAMBLE"
],
"start": 2997,
"text": "[858 D-"
}
},
{
"from_name": null,
"id": "ebbe33550c7b4a07ba70228ed3fc3279",
"to_name": null,
"type": null,
"value": {
"end": 3015,
"labels": [
"PREAMBLE"
],
"start": 3004,
"text": "G](ii)Since"
}
},
{
"from_name": null,
"id": "a0911bef85fc4331aa1d30440ed65ce6",
"to_name": null,
"type": null,
"value": {
"end": 3144,
"labels": [
"PREAMBLE"
],
"start": 3016,
"text": "the High Court had not gone into the question\nwhether the shares were held by S in his individual capacity\nor as karta of H.U.F."
}
},
{
"from_name": null,
"id": "ec263e16ea504971a9ad7e6538381a10",
"to_name": null,
"type": null,
"value": {
"end": 3269,
"labels": [
"PREAMBLE"
],
"start": 3144,
"text": ", this Court had to proceed on the\nbasis of the finding of the Tribunal that he held those\nshares as the karta of his family."
}
},
{
"from_name": null,
"id": "351b4dceae4f43e98628648c23b1d6f9",
"to_name": null,
"type": null,
"value": {
"end": 3500,
"labels": [
"PREAMBLE"
],
"start": 3270,
"text": "This Court held in\nKishanchand Lunidasing Bajaj's case that when the shares\nacquired with the funds of H.U.F. were held in the name of\nthe karta, the H.U.F. could be assessed to tax under the Act\non the dividend from those shares."
}
},
{
"from_name": null,
"id": "7b085ddff97147dd93704dabab50f4cf",
"to_name": null,
"type": null,
"value": {
"end": 3617,
"labels": [
"PREAMBLE"
],
"start": 3501,
"text": "In view of that decision\nthe loan in question must be held to be dividend within the\nmeaning of cl. (e) of s. 2(6A)."
}
},
{
"from_name": null,
"id": "8d4a7962b7504d9f84913521100a9fcb",
"to_name": null,
"type": null,
"value": {
"end": 3845,
"labels": [
"PREAMBLE"
],
"start": 3618,
"text": "[The Court however made it\nclear that the loan granted in the account year previous to\nthe assessment year 1955-56 could not be brought to tax\nbecause assessment in respect of that year was not made\nwithin the time prescribed.]"
}
},
{
"from_name": null,
"id": "ae508263438c4ac9be709b961f893102",
"to_name": null,
"type": null,
"value": {
"end": 3855,
"labels": [
"PREAMBLE"
],
"start": 3846,
"text": "[859 B-H]"
}
},
{
"from_name": null,
"id": "f903435c95044c389924a1dcb0a7fcdb",
"to_name": null,
"type": null,
"value": {
"end": 3930,
"labels": [
"PREAMBLE"
],
"start": 3855,
"text": "\nKishanchand Lunidasing Bajaj v. C.I.T., Bangalore, 60 I.T.R,\n500, applied."
}
},
{
"from_name": null,
"id": "cb92c0b8a160453598bd86a8c7d7487f",
"to_name": null,
"type": null,
"value": {
"end": 3941,
"labels": [
"PREAMBLE"
],
"start": 3930,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "f2c9e333fc5848f9aa0b01307ef568eb",
"to_name": null,
"type": null,
"value": {
"end": 4040,
"labels": [
"NONE"
],
"start": 3941,
"text": "\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1956 and 1957 of 1969 and 1426 and 1427 of 1971."
}
},
{
"from_name": null,
"id": "653300d8f92f44b4940bc7bceac692f8",
"to_name": null,
"type": null,
"value": {
"end": 4200,
"labels": [
"NONE"
],
"start": 4041,
"text": "Appeals by certificate/special leave from the judgment and order dated May 10, 1965 of the Assam and Nagaland High Court in Income-tax Reference No. 2 of 1964."
}
},
{
"from_name": null,
"id": "aab4d70a5eed407d8bc3bb10027a6020",
"to_name": null,
"type": null,
"value": {
"end": 4275,
"labels": [
"NONE"
],
"start": 4200,
"text": "\nS.C. Manchanda and R. N. Sachthey, for the appellant (in all the appeals)."
}
},
{
"from_name": null,
"id": "2c2ab4420a8047ebb408fd074b57c9b6",
"to_name": null,
"type": null,
"value": {
"end": 4331,
"labels": [
"NONE"
],
"start": 4275,
"text": "\nO. P. Khaitan, for the respondent (in all the appeals)."
}
},
{
"from_name": null,
"id": "d3ca8749e28845eeaf530938ee710591",
"to_name": null,
"type": null,
"value": {
"end": 4384,
"labels": [
"NONE"
],
"start": 4331,
"text": "\nThe Judgment of the Court was delivered by Hegde, J."
}
},
{
"from_name": null,
"id": "782aa9c0c8984d85a75d77d2c7279015",
"to_name": null,
"type": null,
"value": {
"end": 4557,
"labels": [
"FAC"
],
"start": 4384,
"text": " Civil Appeals Nos. 1956-57 of 1969 by certificates have become infructuous as the certificates on the strength of which those appeals were brought were not properly issued."
}
},
{
"from_name": null,
"id": "920c38db2a52454ea563a6cb52c30030",
"to_name": null,
"type": null,
"value": {
"end": 4727,
"labels": [
"FAC"
],
"start": 4558,
"text": "To get over that difficulty, the Commissione of Income-tax applied for and obtained special leave to appeal against the judgment of the High Court of Assam and Nagaland."
}
},
{
"from_name": null,
"id": "3c87a3cc240842e9be6bb47aaa04ada8",
"to_name": null,
"type": null,
"value": {
"end": 4833,
"labels": [
"FAC"
],
"start": 4728,
"text": "The appeals filed on the basis of the special leave granted are Civil Appeals Nos. 1426 and 1427 of 1971."
}
},
{
"from_name": null,
"id": "2b5368ffa49f41dab223fc6f6a8301b1",
"to_name": null,
"type": null,
"value": {
"end": 4886,
"labels": [
"NONE"
],
"start": 4833,
"text": "\nAt present we are only concerned with those appeals."
}
},
{
"from_name": null,
"id": "88d718c2048e4c5ba067238993e83c03",
"to_name": null,
"type": null,
"value": {
"end": 5030,
"labels": [
"FAC"
],
"start": 4886,
"text": "\nThe judgment under appeal is one rendered in a reference under s. 66(1) of the Indian Income-tax Act, 1922 (.to be hereinafter called the Act)."
}
},
{
"from_name": null,
"id": "f63c5ec95b9642b1b858a1b13575746f",
"to_name": null,
"type": null,
"value": {
"end": 5162,
"labels": [
"ISSUE"
],
"start": 5031,
"text": "The Income-tax Appellate Tribunal after stating the case referred the following six questions for the opinion of the High Court \"1."
}
},
{
"from_name": null,
"id": "c77dc69bdcb3429f832749e248ae2693",
"to_name": null,
"type": null,
"value": {
"end": 5535,
"labels": [
"ISSUE"
],
"start": 5163,
"text": "Whether on the facts and in the circumstances of the case and upon a true interpretation of the provisions of the Second proviso to s. 3 4 ( 3 ), the assessment for the year 1955-56 on the applicant Hindu undivided family made on 6-2-1961, pursuant to an order under section 27, cancelling the assessment of Shri S. M. Saharia, as an individual, was barred by limitation ?"
}
},
{
"from_name": null,
"id": "38aef5bb8f9a44abbf9e1dc5e3356832",
"to_name": null,
"type": null,
"value": {
"end": 5712,
"labels": [
"ISSUE"
],
"start": 5536,
"text": " 2.Whether on the facts and in the circumstances of the case, and on a true interpretation of the terms of section 2 (6A) (e) of the Income-tax Act, 1922"
}
},
{
"from_name": null,
"id": "c48e269abdaa45fe9b18088c14a1497d",
"to_name": null,
"type": null,
"value": {
"end": 6161,
"labels": [
"ISSUE"
],
"start": 5712,
"text": ", the Tribunal was right in holding that the amounts of Rs.\n 2,21,702 (gross) and Rs. 3,43,5 05 (net) were taxable as dividends in the hands of the applicant H.U.F. for the assessment years 1955-56 and 1956-57 respectively, when the shares were registered in the name of Sri S.\n M. Saharia, the Karta of the family ?\n 3.Whether on the facts and in the circumstances of the case"
}
},
{
"from_name": null,
"id": "b8acd83fbe9745dcb98d8d1d71686c3d",
"to_name": null,
"type": null,
"value": {
"end": 6435,
"labels": [
"ISSUE"
],
"start": 6161,
"text": ", there was any material before the Tribunal to justify the conclusion that Sri S. M. Saharia was holding shares in Messrs. Shyam Sunder Tea Co.\n (Private) Ltd. in his capacity as Karta of the applicant family consistingof himself and his minor son ?"
}
},
{
"from_name": null,
"id": "ffbf25287c5c4a1db4765a493e4187f4",
"to_name": null,
"type": null,
"value": {
"end": 6806,
"labels": [
"ISSUE"
],
"start": 6435,
"text": "\n 4.Whether on the facts and in the circumstances of the case, there was any material before the Tribunal for the finding that the applicant family was the beneficiary up till 1678-1955 in respect of 50 shares registered in the name of Sri S. M. Saharia on 16-5-1953, before the disruption in the joint status of the family of Hanutram Ramprotap ?"
}
},
{
"from_name": null,
"id": "d0c62c040e104a3e93f089aef35134e6",
"to_name": null,
"type": null,
"value": {
"end": 7581,
"labels": [
"ISSUE"
],
"start": 6806,
"text": "\n 5.Whether on the facts and in the circumstances of the Case, the Tribunal was justified in holding that the Hindu undivided family of Hanutram Ramprotap was no,', a shareholder in M/s. Shyam Sundar Tea Company (P) Ltd. up till 16-8-1955 ?\n 6.Whether on the facts and in the circumstances of the case, in computing the accumulated profits of Messrs. Shyam Sunder Tea Co. (P) Ltd. within the meaning of Section 2 (6A) (e), the Tribunal acted rightly in refusing to allow, (a)deduction in respect of loans advanced by the said Company to the erstwhile family of Messrs. Hanutram Ramprotap which amounted to Rs. 3,60,989 as at 31-12-1954 and increased to Rs. 3,80,567 a$ at 16-8-1955 and written off at the end of the year 1.955."
}
},
{
"from_name": null,
"id": "4a9348a081b34705a91e2f57b503b466",
"to_name": null,
"type": null,
"value": {
"end": 7861,
"labels": [
"ISSUE"
],
"start": 7607,
"text": "(b)deduction in respect of Rs. 51,049 and Rs. 66,206 for the assessment years 1955-56 and 1956-57, respectively, being the difference between the written down value of depreciable assets of the said Company as per income-tax records and their book value?"
}
},
{
"from_name": null,
"id": "38a12214a9294393b61e8848b2b89448",
"to_name": null,
"type": null,
"value": {
"end": 8105,
"labels": [
"RLC"
],
"start": 7861,
"text": "The High Court has answered the first two questions in favour of the assessee and it did not go into the other questions as it opined that in view of the answers given to the second questions there was no need to answer the remaining questions."
}
},
{
"from_name": null,
"id": "412ea58d7000410fb8ad6b670a605c23",
"to_name": null,
"type": null,
"value": {
"end": 8303,
"labels": [
"ANALYSIS"
],
"start": 8106,
"text": "For the reasons to be presently stated, we have come to the conclusion that the answer given by the High Court to the first question is correct and that given by it to the second question is wrong."
}
},
{
"from_name": null,
"id": "fcd44a54c53d42c594118175a6a67cf8",
"to_name": null,
"type": null,
"value": {
"end": 8439,
"labels": [
"ANALYSIS"
],
"start": 8304,
"text": "As a result of our finding,, the appeal relating to the assessment year 1955-56 viz. Civil Appeal No. 1426 of 1971 has to be dismissed."
}
},
{
"from_name": null,
"id": "d93f37bc70674b5baa7566387524b684",
"to_name": null,
"type": null,
"value": {
"end": 8609,
"labels": [
"ANALYSIS"
],
"start": 8440,
"text": "But the appeal relating to the, assessment year 1956-57 should be allowed and the case remitted to the High Court for answering the questions that remain to be answered."
}
},
{
"from_name": null,
"id": "b838a04236be41ccbeab9ff1844a7987",
"to_name": null,
"type": null,
"value": {
"end": 8673,
"labels": [
"ANALYSIS"
],
"start": 8610,
"text": "Let us first refer to the facts relating to the first question."
}
},
{
"from_name": null,
"id": "4cd2547d294f42129e17d89e476487bb",
"to_name": null,
"type": null,
"value": {
"end": 8840,
"labels": [
"ANALYSIS"
],
"start": 8674,
"text": "As mentioned earlier this question exclusively relates to the assessment year 1955-56, the relevant previous year being Ramnaami year 2011 (ending on March 31, 1955)."
}
},
{
"from_name": null,
"id": "d8ef5341b16e49a292cd3873f6ea69e9",
"to_name": null,
"type": null,
"value": {
"end": 9004,
"labels": [
"ANALYSIS"
],
"start": 8841,
"text": "In respect of that assessment, the Income-tax, Officer issued a notice under S. 22(2) to Shri Sanwamal Saharia in the status of an individual on December 27, 1955."
}
},
{
"from_name": null,
"id": "a0ee042da2a14cf0ade31cf7196255a1",
"to_name": null,
"type": null,
"value": {
"end": 9070,
"labels": [
"ANALYSIS"
],
"start": 9004,
"text": "\nHe submitted a return on October 29, 1959 on behalf of his H.U.F."
}
},
{
"from_name": null,
"id": "bac2c39ec16346609bdd8cb0221af9db",
"to_name": null,
"type": null,
"value": {
"end": 9231,
"labels": [
"ANALYSIS"
],
"start": 9071,
"text": "On February 29, 1960, the Income-tax Officer passed an ex-parte assessment order on him as individual under s.\n23(4) without issuing any notice under s. 23 (2)."
}
},
{
"from_name": null,
"id": "3a71242cabc3433f988acb96575d543f",
"to_name": null,
"type": null,
"value": {
"end": 9327,
"labels": [
"ANALYSIS"
],
"start": 9232,
"text": "On March 22, 1960, Saharia filed an application under s. 27 to cancell the ex-parte assessment."
}
},
{
"from_name": null,
"id": "37118c1a421642fd90833f12f73cc286",
"to_name": null,
"type": null,
"value": {
"end": 9433,
"labels": [
"ANALYSIS"
],
"start": 9328,
"text": "On December 16, 1960, the Income-tax Officer set aside the order of assessment made on February 29, 1960."
}
},
{
"from_name": null,
"id": "329b524be7204806bc4c8359375193d1",
"to_name": null,
"type": null,
"value": {
"end": 9501,
"labels": [
"ANALYSIS"
],
"start": 9434,
"text": "Therein he stated that fresh assessment will be made in due course."
}
},
{
"from_name": null,
"id": "351574f1f0bd46bc8d7b365439cca269",
"to_name": null,
"type": null,
"value": {
"end": 9616,
"labels": [
"ANALYSIS"
],
"start": 9502,
"text": "An assessment was made on the H.U.F. on February 6, 1961 on the basis of the return submitted on October 29, 1959."
}
},
{
"from_name": null,
"id": "7f8ab72405c3407e8150a3c03778188d",
"to_name": null,
"type": null,
"value": {
"end": 10094,
"labels": [
"STA"
],
"start": 9617,
"text": "Prima facie this assessment is barred by s. 34(3) which says \"No order of assessment or reassessment, other than an order-of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable.\""
}
},
{
"from_name": null,
"id": "d7fb63ecb1024453923df0025b7dd86d",
"to_name": null,
"type": null,
"value": {
"end": 10288,
"labels": [
"ANALYSIS"
],
"start": 10094,
"text": "\nIt is not the case of the Department that the assessment in question either falls under clause (c) of sub-section (1) of section 28 or clause (a) of subsection (1) or sub-section (1A) of s. 34."
}
},
{
"from_name": null,
"id": "4bc2c73cc45f47b4ac27061c4b8ca70c",
"to_name": null,
"type": null,
"value": {
"end": 10364,
"labels": [
"ANALYSIS"
],
"start": 10289,
"text": "Therefore the Department cannot take any assistance from the main s- 34(3)."
}
},
{
"from_name": null,
"id": "1de4704bba8646abade9ee6408c32d71",
"to_name": null,
"type": null,
"value": {
"end": 10513,
"labels": [
"ANALYSIS"
],
"start": 10365,
"text": "But in support of its contention that the assess-ment was made within time, reliance was placed by the Department on the second proviso to s. 34(3)."
}
},
{
"from_name": null,
"id": "d50c7875361943deb57d9a786358c9ad",
"to_name": null,
"type": null,
"value": {
"end": 11094,
"labels": [
"ANALYSIS"
],
"start": 10514,
"text": "That proviso reads Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A.\"\nWhat was contended on behalf of the Department is that the reassessment in this case was made under s. 27."
}
},
{
"from_name": null,
"id": "106c73521ac044ca88f39a536e8358d0",
"to_name": null,
"type": null,
"value": {
"end": 11194,
"labels": [
"ANALYSIS"
],
"start": 11095,
"text": "That contention has been upheld by the Appellate Assistant Commissioner as well as by the Tribunal."
}
},
{
"from_name": null,
"id": "4ba4521ddbe94eb9988622d302e4923d",
"to_name": null,
"type": null,
"value": {
"end": 11295,
"labels": [
"ANALYSIS"
],
"start": 11195,
"text": "But the High Court has come to the conclusion that the reassessment was not made under that section."
}
},
{
"from_name": null,
"id": "4db99f5d639044b9931cc8756440bdf6",
"to_name": null,
"type": null,
"value": {
"end": 11434,
"labels": [
"ANALYSIS"
],
"start": 11295,
"text": "\nTo recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family."
}
},
{
"from_name": null,
"id": "a24248e901114a3a8f245020c3385e41",
"to_name": null,
"type": null,
"value": {
"end": 11475,
"labels": [
"ANALYSIS"
],
"start": 11435,
"text": "The status shown in the return is H.U.F."
}
},
{
"from_name": null,
"id": "94ab5175299e41efa738555f53a9972a",
"to_name": null,
"type": null,
"value": {
"end": 11526,
"labels": [
"ANALYSIS"
],
"start": 11476,
"text": "He filed no return in the status of an individual."
}
},
{
"from_name": null,
"id": "73e1aa1c2c15481eb8e2a88065bfd42b",
"to_name": null,
"type": null,
"value": {
"end": 11613,
"labels": [
"ANALYSIS"
],
"start": 11526,
"text": "\nThe same person can be taxed both as an individual as well as the karta of his family."
}
},
{
"from_name": null,
"id": "b58f1ffa70a94226b3343273c44520f9",
"to_name": null,
"type": null,
"value": {
"end": 11655,
"labels": [
"ANALYSIS"
],
"start": 11614,
"text": "The two capacities are totally different."
}
},
{
"from_name": null,
"id": "3c6c209ccdf047e4b58bc3eac4afa21b",
"to_name": null,
"type": null,
"value": {
"end": 11766,
"labels": [
"ANALYSIS"
],
"start": 11656,
"text": "The liability-to be taxed as an individual is different from the liability to be taxed on behalf of his H.U.F."
}
},
{
"from_name": null,
"id": "bde0b718ff1c469b898c2cf7568b0d7a",
"to_name": null,
"type": null,
"value": {
"end": 11837,
"labels": [
"ANALYSIS"
],
"start": 11767,
"text": "The individual and the H.U.F. are totally different units of taxation."
}
},
{
"from_name": null,
"id": "f324a534ab354fedaca396fd09456588",
"to_name": null,
"type": null,
"value": {
"end": 11871,
"labels": [
"ANALYSIS"
],
"start": 11838,
"text": "They are two different assessees."
}
},
{
"from_name": null,
"id": "ab00961235d340e18ef134360399db53",
"to_name": null,
"type": null,
"value": {
"end": 11968,
"labels": [
"ANALYSIS"
],
"start": 11872,
"text": "The ex-parte order was made on February 29, 1960 against Saharia in the status of an individual."
}
},
{
"from_name": null,
"id": "475e371706d847149d7336fe9f8cfac8",
"to_name": null,
"type": null,
"value": {
"end": 12062,
"labels": [
"ANALYSIS"
],
"start": 11969,
"text": "What was set aside under s.\n27 was the assessment made on him in the status of an individual."
}
},
{
"from_name": null,
"id": "41061366ceef40db9369af5bee3ae270",
"to_name": null,
"type": null,
"value": {
"end": 12101,
"labels": [
"ANALYSIS"
],
"start": 12063,
"text": "There was no assessment against H.U.F."
}
},
{
"from_name": null,
"id": "9b393cfea1a9421c93b6d14b838d70cc",
"to_name": null,
"type": null,
"value": {
"end": 12181,
"labels": [
"ANALYSIS"
],
"start": 12102,
"text": "Hence there was no question offsetting aside any assessment made against H.U.F."
}
},
{
"from_name": null,
"id": "c7892e1c0adf4a7db7a8a3838fe238c3",
"to_name": null,
"type": null,
"value": {
"end": 12314,
"labels": [
"ANALYSIS"
],
"start": 12182,
"text": "On February 6, 1961, the H.U.F. was assessed for the first time though the Income-tax officer wrong called it as a fresh assessment."
}
},
{
"from_name": null,
"id": "32c1c1293bcd4c14b1fbc320ed75a0b7",
"to_name": null,
"type": null,
"value": {
"end": 12462,
"labels": [
"ANALYSIS"
],
"start": 12315,
"text": "On the facts established, it is not possible to come to the conclusion that the assessment made a against the H.U.F. was an assessment under s. 27."
}
},
{
"from_name": null,
"id": "51781e4b155548bbb978340c9d65f356",
"to_name": null,
"type": null,
"value": {
"end": 12653,
"labels": [
"ANALYSIS"
],
"start": 12463,
"text": "That being so, the assessment made against the H.U.F. on February 6, 1961 is clearly barred by time Hence the High Court was justified in answering the first question against the Department."
}
},
{
"from_name": null,
"id": "12ffef36d63f4c2b82da67191f53182c",
"to_name": null,
"type": null,
"value": {
"end": 12796,
"labels": [
"ANALYSIS"
],
"start": 12653,
"text": "\nNow coming to the second question, the relevant facts are these : In the relevant previous years to the assessment years 1955- 56 and 1956-57."
}
},
{
"from_name": null,
"id": "61deef03482b4a7d986974740626a4d5",
"to_name": null,
"type": null,
"value": {
"end": 12899,
"labels": [
"ANALYSIS"
],
"start": 12797,
"text": "certain loans had been advanced to the H.U.F. by a company known as M/s. Shyam Sunder Tea Co. (P) Ltd."
}
},
{
"from_name": null,
"id": "4d6a10e5251045d48dc657af8371bd8c",
"to_name": null,
"type": null,
"value": {
"end": 12977,
"labels": [
"ANALYSIS"
],
"start": 12900,
"text": "The Tribunal has found that Saharia had held certain, shares in that company."
}
},
{
"from_name": null,
"id": "88f663b87c2443ec8c424d5484d61f01",
"to_name": null,
"type": null,
"value": {
"end": 13052,
"labels": [
"ANALYSIS"
],
"start": 12978,
"text": "Its further finding is that he held those shares as thekarta of his H.U.F."
}
},
{
"from_name": null,
"id": "f3c31b8980634cd39bba9bc33b6daa7e",
"to_name": null,
"type": null,
"value": {
"end": 13195,
"labels": [
"ANALYSIS"
],
"start": 13053,
"text": "Therefore the question that arose for decision was whether those loans can be considered as \"dividends\" as provided in clause (e) of s. 2(6A)."
}
},
{
"from_name": null,
"id": "4901845c4a814ff893cd2ad545944007",
"to_name": null,
"type": null,
"value": {
"end": 13337,
"labels": [
"ANALYSIS"
],
"start": 13196,
"text": "There was controversy between the parties whether those shares were held by Saharia in his individual capacity or as the karta of the family."
}
},
{
"from_name": null,
"id": "c1d80934fe364878825273412f9183c7",
"to_name": null,
"type": null,
"value": {
"end": 13396,
"labels": [
"ANALYSIS"
],
"start": 13338,
"text": "That controversy has not been gone into by the High Court."
}
},
{
"from_name": null,
"id": "5e1c64a9bebd49a8b25153d89444f007",
"to_name": null,
"type": null,
"value": {
"end": 13492,
"labels": [
"ANALYSIS"
],
"start": 13397,
"text": "At present we are proceeding on the basis that he held those shares as the karta of his family."
}
},
{
"from_name": null,
"id": "7a19908b0c24457dad0843288932b802",
"to_name": null,
"type": null,
"value": {
"end": 13976,
"labels": [
"STA"
],
"start": 13492,
"text": "\nClause (e) of s. 2(6A) says \"dividend\" includes......\n (e)any payment by a company, not being a company in which the public are substantially interested within the meaning of s. 23A, of any sum (whether as representing a part of the assets of company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent, to which the company in either case possesses accumulated profits.\""
}
},
{
"from_name": null,
"id": "c401440c43b74dbf8d8ab3244abeed57",
"to_name": null,
"type": null,
"value": {
"end": 14098,
"labels": [
"ANALYSIS"
],
"start": 13976,
"text": "\nIt is not disputed that M/s. Shyam Sunder Tea Co. (P) Ltd.\nis not a company in which public are substantially interested."
}
},
{
"from_name": null,
"id": "e4a41f4ad6734e80bc652b2fd06c3128",
"to_name": null,
"type": null,
"value": {
"end": 14123,
"labels": [
"ANALYSIS"
],
"start": 14099,
"text": "it is a private company."
}
},
{
"from_name": null,
"id": "6f6e56e266fd47819c6152d3ebc7f669",
"to_name": null,
"type": null,
"value": {
"end": 14224,
"labels": [
"ANALYSIS"
],
"start": 14124,
"text": "The only question that was in issue wag that as the shares in question stood in the name of Saharia."
}
},
{
"from_name": null,
"id": "f4e61e9d9adf40518e3aee8380e0acce",
"to_name": null,
"type": null,
"value": {
"end": 14284,
"labels": [
"ANALYSIS"
],
"start": 14225,
"text": "can they in law be considered as the shares of the H.U.F. ?"
}
},
{
"from_name": null,
"id": "639d0b591d8c4f8cad95bb958517d087",
"to_name": null,
"type": null,
"value": {
"end": 14518,
"labels": [
"RLC"
],
"start": 14285,
"text": "The High Court held for the purpose of the Act, they must be considered \"as the shares of Saharia and therefore any loan granted by M/s. Shyam Sunder Tea Co.\nLtd. to the H.U.F. cannot come within the scope of clause (e) to s. 2 (6A)."
}
},
{
"from_name": null,
"id": "6ec0137700364f7490de108a3a577ae1",
"to_name": null,
"type": null,
"value": {
"end": 15077,
"labels": [
"ANALYSIS"
],
"start": 14519,
"text": "In arriving at that conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income- tax, Mysore(1), wherein that Court held that provisions of s. 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment to income-tax dividend income derived by a benami holder of shares should be treated as his own income and not that die real owner of the shares which have yielded the dividend income."
}
},
{
"from_name": null,
"id": "acb8dcf1d125492b9f11a3f0142282fe",
"to_name": null,
"type": null,
"value": {
"end": 15196,
"labels": [
"PRE_RELIED"
],
"start": 15078,
"text": "That decision was affirmed by this Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income-tax, Bangalore(2 )."
}
},
{
"from_name": null,
"id": "7450cad0255b41078746aaffc9a9e3fb",
"to_name": null,
"type": null,
"value": {
"end": 15397,
"labels": [
"PRE_RELIED"
],
"start": 15197,
"text": "Therein this Court held that where the shares acquired with the funds of H.U.F. were held in the name of the karta, the H.U.F. could be assessed to tax under the Act on the dividend from those shares."
}
},
{
"from_name": null,
"id": "477df9025fbd4b3d8aefdabc9397ec0d",
"to_name": null,
"type": null,
"value": {
"end": 15499,
"labels": [
"RATIO"
],
"start": 15398,
"text": "In view of that decision we must hold that the High Court erred in its answer to the second question."
}
},
{
"from_name": null,
"id": "518b387ec93447fcb9aa39012d44416c",
"to_name": null,
"type": null,
"value": {
"end": 15601,
"labels": [
"RATIO"
],
"start": 15500,
"text": "Hence that answer is discharged and in its place we answer that question in favour of the Department."
}
},
{
"from_name": null,
"id": "a96e05bc710e4834bc1f2969a0d9acc8",
"to_name": null,
"type": null,
"value": {
"end": 15884,
"labels": [
"RPC"
],
"start": 15601,
"text": "\n But we hasten to make it clear that in respect of the loan granted in the account year previous to the (1) 53ITR 605. (2) 60 I.T.R, 500.\n assessment year 1955-56,the same cannot be brought to tax,as assessmet in respect of that year was not made within the time prescribed.\n "
}
},
{
"from_name": null,
"id": "7c2e0933e30b49ea972c9c3e99ec9c30",
"to_name": null,
"type": null,
"value": {
"end": 15975,
"labels": [
"RPC"
],
"start": 15884,
"text": "In the result Civil Appeals Nos. 1956-57 of 1959 are dis- missed as being not maintainable."
}
},
{
"from_name": null,
"id": "06a01510e8794687b01fec6abbdc0664",
"to_name": null,
"type": null,
"value": {
"end": 16028,
"labels": [
"RPC"
],
"start": 15976,
"text": "There will be no order as to costs in those appeals."
}
},
{
"from_name": null,
"id": "8e40de5dd7fd4971badcc83bf9cefce4",
"to_name": null,
"type": null,
"value": {
"end": 16366,
"labels": [
"RPC"
],
"start": 16029,
"text": "So far as Civil Appeal No. 1426 of 1971 (appeal relating to assessment year 1955-56) is concerned, it is also dismissed but Civil Appeal No. 1427 of 1971 (appeal relating to assessment year 1956-57) is allowed to the extent mentioned above and the case remitted to the High Court for answering the questions that were not answered by it."
}
},
{
"from_name": null,
"id": "b753bfd547be4407a2af4ab1c0d4c2ee",
"to_name": null,
"type": null,
"value": {
"end": 16475,
"labels": [
"RPC"
],
"start": 16367,
"text": "As both sides have partly succeeded and partly failed before this Court, there will be no order as to costs."
}
},
{
"from_name": null,
"id": "2010387eb5e144c29217afebd54a5f24",
"to_name": null,
"type": null,
"value": {
"end": 16542,
"labels": [
"NONE"
],
"start": 16477,
"text": "G.C. Ordered accordingly."
}
}
]
}
] | 4,192 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME TAX, ASSAM, TRIPURA,MANIPUR & NAGALAN\n\n Vs.\n\nRESPONDENT:\nM/S. RAMESHWARI LAL SANWARMAL\n\nDATE OF JUDGMENT22/09/1971\n\nBENCH:\n\nACT:\nIncome-tax Act, 1922, ss. 27 and 34(3)-Assessment on S as\nindividual set aside under s. 27 and fresh assessment made\non S as karta of H.U.F.-Fresh assessment is on a different\nassessee and not one under s. 27-Cannot claim protection of\ns. 34(3) 2nd proviso.\nIncome-tax Act, 1922, s. 2(6A)-Shares of company in which\npublic are not substantially interested-Held in name of\nkarta in H.U.F.-Loan to karta by company whether liable to\nbe treated as 'dividend' under s. 2(6A).\n\nHEADNOTE:\nIn connection with the assessment year 1955-56 the Income-\ntax Officer issued notice under s. 22(2) of the Income-tax\nAct, 1922 to S in the status of an individual. He submitted\na return in the status of karta of his H.U.F. The Income-tax\nOfficer passed an ex-parte assessment order on him as\nindividual under s. 23(4). The assessment was however set\naside on S's application under s. 27 of the Act. A fresh\nassessment was made on the H.U.F. on February 6, 1961 on the\nbasis of the return submitted by S in that status. This\nassessment was made after the period of four years mentioned\nin s. 34(3) of the Act. The question in appellate and\nreference proceedings was whether the latter assessment was\none under s. 27 and therefore protected as regards\nlimitation under s. 34(3) 2nd proviso.\nIn the previous years relevant to the assessment years 1955-\n56 and 1956-57 certain loans were advanced to the aforesaid\nH.U.F. by a company. The tribunal found that S held certain\nshares in that company. Its further finding was that he\nheld these shares as the karta of his H.U.F. The company\nbeing one in which the public were not substantially in-\nterested the question was whether these loans could be\nconsidered as belonging to S and therefore any loan given by\nthe company to S could not come within the scope of cl. (3)\nto s. 2(6A).\n\n HELD : (i) The return submitted by S in respect of the year\n1955-56 was in his capacity as karta of his family. The\nstatus shown in the return was H.U.F. He filed no return in\nthe status of an individual. The two capacities are totally\ndifferent. The ex-parte order was made against S in the\nstatus of an individual. What was set aside under s. 27 was\nthe assessment made on him in the status of an individual.\nThere was no assessment against H.U.F. and there was no\nquestion of setting aside any assessment made against H.U.F.\nOn February 6, 1961 the H.U.F. was assessed for the first\ntime though the Income-tax Officer wrongly. called /it as a\nfresh' assessment. On the facts established it was not\npossible to come to the conclusion that the assessment made\nagainst the H.U.F. was an assessment under s. 27. That\n\nbeing so the assessment made against the H.U.F. on February\n6, 1961 was clearly barred by time. The High ,Court was\naccordingly justified in answering the first question\nagainst the Department. [858 D-G](ii)Since the High Court had not gone into the question\nwhether the shares were held by S in his individual capacity\nor as karta of H.U.F., this Court had to proceed on the\nbasis of the finding of the Tribunal that he held those\nshares as the karta of his family. This Court held in\nKishanchand Lunidasing Bajaj's case that when the shares\nacquired with the funds of H.U.F. were held in the name of\nthe karta, the H.U.F. could be assessed to tax under the Act\non the dividend from those shares. In view of that decision\nthe loan in question must be held to be dividend within the\nmeaning of cl. (e) of s. 2(6A). [The Court however made it\nclear that the loan granted in the account year previous to\nthe assessment year 1955-56 could not be brought to tax\nbecause assessment in respect of that year was not made\nwithin the time prescribed.] [859 B-H]\nKishanchand Lunidasing Bajaj v. C.I.T., Bangalore, 60 I.T.R,\n500, applied.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1956 and 1957 of 1969 and 1426 and 1427 of 1971.\nAppeals by certificate/special leave from the judgment and order dated May 10, 1965 of the Assam and Nagaland High Court in Income-tax Reference No. 2 of 1964.\nS.C. Manchanda and R. N. Sachthey, for the appellant (in all the appeals).\nO. P. Khaitan, for the respondent (in all the appeals).\nThe Judgment of the Court was delivered by Hegde, J. Civil Appeals Nos. 1956-57 of 1969 by certificates have become infructuous as the certificates on the strength of which those appeals were brought were not properly issued. To get over that difficulty, the Commissione of Income-tax applied for and obtained special leave to appeal against the judgment of the High Court of Assam and Nagaland. The appeals filed on the basis of the special leave granted are Civil Appeals Nos. 1426 and 1427 of 1971.\nAt present we are only concerned with those appeals.\nThe judgment under appeal is one rendered in a reference under s. 66(1) of the Indian Income-tax Act, 1922 (.to be hereinafter called the Act). The Income-tax Appellate Tribunal after stating the case referred the following six questions for the opinion of the High Court \"1. Whether on the facts and in the circumstances of the case and upon a true interpretation of the provisions of the Second proviso to s. 3 4 ( 3 ), the assessment for the year 1955-56 on the applicant Hindu undivided family made on 6-2-1961, pursuant to an order under section 27, cancelling the assessment of Shri S. M. Saharia, as an individual, was barred by limitation ? 2.Whether on the facts and in the circumstances of the case, and on a true interpretation of the terms of section 2 (6A) (e) of the Income-tax Act, 1922, the Tribunal was right in holding that the amounts of Rs.\n 2,21,702 (gross) and Rs. 3,43,5 05 (net) were taxable as dividends in the hands of the applicant H.U.F. for the assessment years 1955-56 and 1956-57 respectively, when the shares were registered in the name of Sri S.\n M. Saharia, the Karta of the family ?\n 3.Whether on the facts and in the circumstances of the case, there was any material before the Tribunal to justify the conclusion that Sri S. M. Saharia was holding shares in Messrs. Shyam Sunder Tea Co.\n (Private) Ltd. in his capacity as Karta of the applicant family consistingof himself and his minor son ?\n 4.Whether on the facts and in the circumstances of the case, there was any material before the Tribunal for the finding that the applicant family was the beneficiary up till 1678-1955 in respect of 50 shares registered in the name of Sri S. M. Saharia on 16-5-1953, before the disruption in the joint status of the family of Hanutram Ramprotap ?\n 5.Whether on the facts and in the circumstances of the Case, the Tribunal was justified in holding that the Hindu undivided family of Hanutram Ramprotap was no,', a shareholder in M/s. Shyam Sundar Tea Company (P) Ltd. up till 16-8-1955 ?\n 6.Whether on the facts and in the circumstances of the case, in computing the accumulated profits of Messrs. Shyam Sunder Tea Co. (P) Ltd. within the meaning of Section 2 (6A) (e), the Tribunal acted rightly in refusing to allow, (a)deduction in respect of loans advanced by the said Company to the erstwhile family of Messrs. Hanutram Ramprotap which amounted to Rs. 3,60,989 as at 31-12-1954 and increased to Rs. 3,80,567 a$ at 16-8-1955 and written off at the end of the year 1.955.\n (b)deduction in respect of Rs. 51,049 and Rs. 66,206 for the assessment years 1955-56 and 1956-57, respectively, being the difference between the written down value of depreciable assets of the said Company as per income-tax records and their book value?The High Court has answered the first two questions in favour of the assessee and it did not go into the other questions as it opined that in view of the answers given to the second questions there was no need to answer the remaining questions. For the reasons to be presently stated, we have come to the conclusion that the answer given by the High Court to the first question is correct and that given by it to the second question is wrong. As a result of our finding,, the appeal relating to the assessment year 1955-56 viz. Civil Appeal No. 1426 of 1971 has to be dismissed. But the appeal relating to the, assessment year 1956-57 should be allowed and the case remitted to the High Court for answering the questions that remain to be answered.\nLet us first refer to the facts relating to the first question. As mentioned earlier this question exclusively relates to the assessment year 1955-56, the relevant previous year being Ramnaami year 2011 (ending on March 31, 1955). In respect of that assessment, the Income-tax, Officer issued a notice under S. 22(2) to Shri Sanwamal Saharia in the status of an individual on December 27, 1955.\nHe submitted a return on October 29, 1959 on behalf of his H.U.F. On February 29, 1960, the Income-tax Officer passed an ex-parte assessment order on him as individual under s.\n23(4) without issuing any notice under s. 23 (2). On March 22, 1960, Saharia filed an application under s. 27 to cancell the ex-parte assessment. On December 16, 1960, the Income-tax Officer set aside the order of assessment made on February 29, 1960. Therein he stated that fresh assessment will be made in due course. An assessment was made on the H.U.F. on February 6, 1961 on the basis of the return submitted on October 29, 1959. Prima facie this assessment is barred by s. 34(3) which says \"No order of assessment or reassessment, other than an order-of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable.\"\nIt is not the case of the Department that the assessment in question either falls under clause (c) of sub-section (1) of section 28 or clause (a) of subsection (1) or sub-section (1A) of s. 34. Therefore the Department cannot take any assistance from the main s- 34(3). But in support of its contention that the assess-ment was made within time, reliance was placed by the Department on the second proviso to s. 34(3). That proviso reads Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A.\"\nWhat was contended on behalf of the Department is that the reassessment in this case was made under s. 27. That contention has been upheld by the Appellate Assistant Commissioner as well as by the Tribunal. But the High Court has come to the conclusion that the reassessment was not made under that section.\nTo recapitulate the facts which we have earlier mentioned, the return submitted by Saharia was in his capacity as the karta of his family. The status shown in the return is H.U.F. He filed no return in the status of an individual.\nThe same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability-to be taxed as an individual is different from the liability to be taxed on behalf of his H.U.F. The individual and the H.U.F. are totally different units of taxation. They are two different assessees. The ex-parte order was made on February 29, 1960 against Saharia in the status of an individual. What was set aside under s.\n27 was the assessment made on him in the status of an individual. There was no assessment against H.U.F. Hence there was no question offsetting aside any assessment made against H.U.F. On February 6, 1961, the H.U.F. was assessed for the first time though the Income-tax officer wrong called it as a fresh assessment. On the facts established, it is not possible to come to the conclusion that the assessment made a against the H.U.F. was an assessment under s. 27. That being so, the assessment made against the H.U.F. on February 6, 1961 is clearly barred by time Hence the High Court was justified in answering the first question against the Department.\nNow coming to the second question, the relevant facts are these : In the relevant previous years to the assessment years 1955- 56 and 1956-57. certain loans had been advanced to the H.U.F. by a company known as M/s. Shyam Sunder Tea Co. (P) Ltd. The Tribunal has found that Saharia had held certain, shares in that company. Its further finding is that he held those shares as thekarta of his H.U.F. Therefore the question that arose for decision was whether those loans can be considered as \"dividends\" as provided in clause (e) of s. 2(6A). There was controversy between the parties whether those shares were held by Saharia in his individual capacity or as the karta of the family. That controversy has not been gone into by the High Court. At present we are proceeding on the basis that he held those shares as the karta of his family.\nClause (e) of s. 2(6A) says \"dividend\" includes......\n (e)any payment by a company, not being a company in which the public are substantially interested within the meaning of s. 23A, of any sum (whether as representing a part of the assets of company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent, to which the company in either case possesses accumulated profits.\"\nIt is not disputed that M/s. Shyam Sunder Tea Co. (P) Ltd.\nis not a company in which public are substantially interested. it is a private company. The only question that was in issue wag that as the shares in question stood in the name of Saharia. can they in law be considered as the shares of the H.U.F. ? The High Court held for the purpose of the Act, they must be considered \"as the shares of Saharia and therefore any loan granted by M/s. Shyam Sunder Tea Co.\nLtd. to the H.U.F. cannot come within the scope of clause (e) to s. 2 (6A). In arriving at that conclusion, the High Court differed from the view taken by the Mysore High Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income- tax, Mysore(1), wherein that Court held that provisions of s. 18(5), 23A and 16(2) and other provisions of the Act relating to shares and dividends do not lead to the conclusion that for the purposes of assessment to income-tax dividend income derived by a benami holder of shares should be treated as his own income and not that die real owner of the shares which have yielded the dividend income. That decision was affirmed by this Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income-tax, Bangalore(2 ). Therein this Court held that where the shares acquired with the funds of H.U.F. were held in the name of the karta, the H.U.F. could be assessed to tax under the Act on the dividend from those shares. In view of that decision we must hold that the High Court erred in its answer to the second question. Hence that answer is discharged and in its place we answer that question in favour of the Department.\n But we hasten to make it clear that in respect of the loan granted in the account year previous to the (1) 53ITR 605. (2) 60 I.T.R, 500.\n assessment year 1955-56,the same cannot be brought to tax,as assessmet in respect of that year was not made within the time prescribed.\n In the result Civil Appeals Nos. 1956-57 of 1959 are dis- missed as being not maintainable. There will be no order as to costs in those appeals. So far as Civil Appeal No. 1426 of 1971 (appeal relating to assessment year 1955-56) is concerned, it is also dismissed but Civil Appeal No. 1427 of 1971 (appeal relating to assessment year 1956-57) is allowed to the extent mentioned above and the case remitted to the High Court for answering the questions that were not answered by it. As both sides have partly succeeded and partly failed before this Court, there will be no order as to costs.\n G.C. Ordered accordingly.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "43a6b93d2e8941f5bc235f734caabfb0",
"to_name": null,
"type": null,
"value": {
"end": 97,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " \n\nIN THE HIGH COURT OF KARNATAKA AT\n BANGALORE"
}
},
{
"from_name": null,
"id": "654ef854c1ad4fdc9849bc50284eb62b",
"to_name": null,
"type": null,
"value": {
"end": 135,
"labels": [
"PREAMBLE"
],
"start": 97,
"text": "\n\nDATED THIS THE 27TH DAY OF MAY, 2013"
}
},
{
"from_name": null,
"id": "d8591160e1b1430c809a7ea00068bc01",
"to_name": null,
"type": null,
"value": {
"end": 609,
"labels": [
"PREAMBLE"
],
"start": 135,
"text": "\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\nCRIMINAL PETITION No.809 of 2013\n\nBETWEEN:\n\nMr. Dhahir @ Syed ...PETITIONER\n@ Syed Abdehir\n@ Tahir @ Syed Abthahir,\nSon of Habib,\nAged about 51 years,\nResident of No.272/C,\n37th Cross, 8th Block,\nBangalore 560 021.\n\n(By Shri. Shaikh Saoud, Advocate)\n\nAND:\n\n1. The C.B.C.I.D. Changai,\n M.G.R. East District Police,\n C.B.C.I.D. Metro,\n Chennai (Tamil Nadu).\n\n2."
}
},
{
"from_name": null,
"id": "8720a72c1f7d4179bd9f85ae60255327",
"to_name": null,
"type": null,
"value": {
"end": 739,
"labels": [
"PREAMBLE"
],
"start": 610,
"text": "The State of Karnataka\n by Jainagar, 4th Block Police\n through State Public Prosecutor,\n High Court, Bangalore"
}
},
{
"from_name": null,
"id": "eded67d4f25047ea9b0b6a2a72c07220",
"to_name": null,
"type": null,
"value": {
"end": 907,
"labels": [
"PREAMBLE"
],
"start": 740,
"text": " 560 001.\n ...RESPONDENTS\n\n(By Shri. Satish R Girji, Government Pleader)\n\n *****\n "
}
},
{
"from_name": null,
"id": "ec9c0e441b0b42de9913355ae9530af5",
"to_name": null,
"type": null,
"value": {
"end": 1455,
"labels": [
"PREAMBLE"
],
"start": 907,
"text": "This Criminal Petition is filed under Section 438 of the\nCode of Criminal Procedure, 1973, praying to enlarge the\npetitioner on bail in the event of his arrest in C.C.No.376 of\n2011 under Sections 409, 414 and 477A of Indian Penal Code,\n1860, split up case, which is pending for disposal in first\nJudicial Magistrate First Class, Thiruvellore (Tamil Nadu) to\nenable him to travel and face the regular trial in the said court.\n\n This petition coming on for Orders this day, the court\nmade the following:\n\n ORDER"
}
},
{
"from_name": null,
"id": "2987c245e22d4da6b9e7d533b035f37a",
"to_name": null,
"type": null,
"value": {
"end": 1537,
"labels": [
"NONE"
],
"start": 1455,
"text": "\n Heard the learned Counsel for the petitioner and the learned Government Pleader."
}
},
{
"from_name": null,
"id": "89293bdd110c442d8c8ff6a2c504601f",
"to_name": null,
"type": null,
"value": {
"end": 1815,
"labels": [
"FAC"
],
"start": 1539,
"text": "2. The petitioner is before this court seeking anticipatory bail, apprehending his arrest by the respondent Police, for offences punishable under Sections 409, 414, 477A read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the `IPC', for brevity) ."
}
},
{
"from_name": null,
"id": "4a5544696d5343c39c491c36cc9983e9",
"to_name": null,
"type": null,
"value": {
"end": 2035,
"labels": [
"FAC"
],
"start": 1815,
"text": "\n In a case in CC No.376/2011, pending before the Judicial Magistrate First Court, Thiruvellore, Tamil Nadu, a non-bailable warrant was issued against the petitioner and other accused, who are said to be public servants."
}
},
{
"from_name": null,
"id": "1027ca15fa4f4bd9a2674b6225c2fe70",
"to_name": null,
"type": null,
"value": {
"end": 2498,
"labels": [
"ARG_PETITIONER"
],
"start": 2036,
"text": "It is the petitioner's case that he is not a public servant and therefore, the question of offences having been committed by the petitioner under the above provisions, is remote and he would be put to great hardship, as he has undergone a open heart surgery in the recent past, to be put through the proceedings of arrest and his production before the appropriate court and therefore, seeks anticipatory bail in order to enable him to overcome the situation.\n 3."
}
},
{
"from_name": null,
"id": "cf0de3a977fb4bb3b898791d08725e27",
"to_name": null,
"type": null,
"value": {
"end": 2861,
"labels": [
"ARG_RESPONDENT"
],
"start": 2499,
"text": "The learned Government Pleader, on the other hand, would raise a serious objection that admittedly, the petitioner is sought to be arrested in a pending case before a court in Tamil Nadu and since this court would have no jurisdiction over that court or the investigating authorities, it would be improper to consider the petitioner's case for anticipatory bail."
}
},
{
"from_name": null,
"id": "fc8bafc2fc694a97a1a02fc478083a4b",
"to_name": null,
"type": null,
"value": {
"end": 3030,
"labels": [
"ARG_RESPONDENT"
],
"start": 2861,
"text": "\nHence, without anything more, the learned Government Pleader would submit that the petition be rejected, leaving the petitioner to his remedies before some other forum."
}
},
{
"from_name": null,
"id": "e8ea4023721b4831b29a1f36d8bf5d6c",
"to_name": null,
"type": null,
"value": {
"end": 3721,
"labels": [
"ARG_PETITIONER"
],
"start": 3030,
"text": "\n 4. However, the learned Counsel for the petitioner would place reliance on a decision of this court in the case of L.R.Naidu vs. State of Karnataka, 1984 Cri.LJ 475, where in a similar situation, this court, relying on the decisions in B.R.Sinha vs. State, 1982 Cri.LJ 61; Pritam Singh vs. State of Punjab, 1981 Cr.LJ NOC 59 and Gurubaksh Singh vs. State of Punjab, AIR 1980 SC 1632, has pointed out that it would not be impermissible for a court of one State to grant anticipatory bail, if the petitioner resides within its jurisdiction, in respect of apprehended arrest in a case pending in some other State, without the jurisdiction of the court and seeks to place reliance on the same."
}
},
{
"from_name": null,
"id": "5c32a3c17b8b4da092cb518a79bfcfb6",
"to_name": null,
"type": null,
"value": {
"end": 4222,
"labels": [
"PRE_RELIED"
],
"start": 3721,
"text": "\n It is to be seen that the Supreme Court, while dealing with a prayer for anticipatory bail , in Gurubaksh Singh, supra, has held as follows:- \"In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.\n "
}
},
{
"from_name": null,
"id": "3ed2c702ed9047d287896c470db2a073",
"to_name": null,
"type": null,
"value": {
"end": 4424,
"labels": [
"PRE_RELIED"
],
"start": 4222,
"text": "On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made."
}
},
{
"from_name": null,
"id": "4b7bebd3f0ea46cab3c6aa2ab7ed8e2e",
"to_name": null,
"type": null,
"value": {
"end": 4488,
"labels": [
"PRE_RELIED"
],
"start": 4425,
"text": "But the converse of these propositions is not necessarily true."
}
},
{
"from_name": null,
"id": "420b9fabcabe4514b1178d2c92c97a99",
"to_name": null,
"type": null,
"value": {
"end": 4765,
"labels": [
"PRE_RELIED"
],
"start": 4489,
"text": "That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond."
}
},
{
"from_name": null,
"id": "8eff0e20ba9840388939ac63079fcf7d",
"to_name": null,
"type": null,
"value": {
"end": 4934,
"labels": [
"PRE_RELIED"
],
"start": 4766,
"text": "There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail."
}
},
{
"from_name": null,
"id": "d37d5e2ff50c4068894abc68c0459bcb",
"to_name": null,
"type": null,
"value": {
"end": 5380,
"labels": [
"PRE_RELIED"
],
"start": 4935,
"text": "The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, reasonable apprehension that witnesses will be tampered with and \"the larger interests of the public or the State\" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.\"\n "
}
},
{
"from_name": null,
"id": "abba6c3457844de98a112309d5eeb937",
"to_name": null,
"type": null,
"value": {
"end": 5790,
"labels": [
"PRE_RELIED"
],
"start": 5380,
"text": "And the Calcutta High Court has held as follows in identical circumstances as arising in the case on hand:- \"Considering the provisions laid down in S. 438 of the Code and the principles of law with regard to anticipatory bail explained by their Lordship in Gurubaksh Singh's case (1982 Cr. L. J., 1125) (S.C.) and also considering the view taken by atleast three Division Benches to the case referred to above"
}
},
{
"from_name": null,
"id": "5db95dc21bd14723b5caeff81edb3511",
"to_name": null,
"type": null,
"value": {
"end": 6079,
"labels": [
"PRE_RELIED"
],
"start": 5790,
"text": ", we are of the opinion that this Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides within the jurisdiction of the Court, though he apprehends arrest in connection with a case which has been started outside the jurisdiction of this Court\".\n "
}
},
{
"from_name": null,
"id": "8edf0e2d7f4844e7bd9929329b27aacf",
"to_name": null,
"type": null,
"value": {
"end": 6181,
"labels": [
"RATIO"
],
"start": 6079,
"text": "And therefore, the petitioner has made out a case for grant of anticipatory bail for a limited period."
}
},
{
"from_name": null,
"id": "2f4c8281aa0c4c52837f8513bbde423f",
"to_name": null,
"type": null,
"value": {
"end": 6542,
"labels": [
"RPC"
],
"start": 6181,
"text": "\n Accordingly, in the event of the Police arresting the petitioner in CC No.376/2011, pending before the Judicial Magistrate First Court, Thiruvellore, Tamil Nadu, they are directed to release him on bail, on his executing a bond in a sum of Rs.20,000/- (Rupees Twenty Thousand only), with a solvent surety for a like sum to the satisfaction of the said Police."
}
},
{
"from_name": null,
"id": "0f3c6cc2b115417799c0ce9ef71cd0f0",
"to_name": null,
"type": null,
"value": {
"end": 6682,
"labels": [
"RPC"
],
"start": 6543,
"text": "The petitioner shall appear before the appropriate court in Tamil Nadu within ten days from the date of his arrest by the concerned Police."
}
},
{
"from_name": null,
"id": "f4526cf087cd4333ba3c7f4d5b12b57b",
"to_name": null,
"type": null,
"value": {
"end": 6905,
"labels": [
"RPC"
],
"start": 6683,
"text": "In case he makes any application, within the time referred to hereinabove, the court shall consider such application and this order will be in force till such time that court passes an appropriate order on his application."
}
},
{
"from_name": null,
"id": "f755016ab0b54cf083f3338f6a103ced",
"to_name": null,
"type": null,
"value": {
"end": 6949,
"labels": [
"RPC"
],
"start": 6905,
"text": "\n The petition is allowed in terms as above."
}
},
{
"from_name": null,
"id": "c869411f85ac408db6a83b8fc0a3583f",
"to_name": null,
"type": null,
"value": {
"end": 6964,
"labels": [
"NONE"
],
"start": 6949,
"text": "\n Sd/- JUDGE nv"
}
}
]
}
] | 4,096 | {
"text": " \n\nIN THE HIGH COURT OF KARNATAKA AT\n BANGALORE\n\nDATED THIS THE 27TH DAY OF MAY, 2013\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\nCRIMINAL PETITION No.809 of 2013\n\nBETWEEN:\n\nMr. Dhahir @ Syed ...PETITIONER\n@ Syed Abdehir\n@ Tahir @ Syed Abthahir,\nSon of Habib,\nAged about 51 years,\nResident of No.272/C,\n37th Cross, 8th Block,\nBangalore 560 021.\n\n(By Shri. Shaikh Saoud, Advocate)\n\nAND:\n\n1. The C.B.C.I.D. Changai,\n M.G.R. East District Police,\n C.B.C.I.D. Metro,\n Chennai (Tamil Nadu).\n\n2. The State of Karnataka\n by Jainagar, 4th Block Police\n through State Public Prosecutor,\n High Court, Bangalore 560 001.\n ...RESPONDENTS\n\n(By Shri. Satish R Girji, Government Pleader)\n\n *****\n This Criminal Petition is filed under Section 438 of the\nCode of Criminal Procedure, 1973, praying to enlarge the\npetitioner on bail in the event of his arrest in C.C.No.376 of\n2011 under Sections 409, 414 and 477A of Indian Penal Code,\n1860, split up case, which is pending for disposal in first\nJudicial Magistrate First Class, Thiruvellore (Tamil Nadu) to\nenable him to travel and face the regular trial in the said court.\n\n This petition coming on for Orders this day, the court\nmade the following:\n\n ORDER\n Heard the learned Counsel for the petitioner and the learned Government Pleader.\n 2. The petitioner is before this court seeking anticipatory bail, apprehending his arrest by the respondent Police, for offences punishable under Sections 409, 414, 477A read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the `IPC', for brevity) .\n In a case in CC No.376/2011, pending before the Judicial Magistrate First Court, Thiruvellore, Tamil Nadu, a non-bailable warrant was issued against the petitioner and other accused, who are said to be public servants. It is the petitioner's case that he is not a public servant and therefore, the question of offences having been committed by the petitioner under the above provisions, is remote and he would be put to great hardship, as he has undergone a open heart surgery in the recent past, to be put through the proceedings of arrest and his production before the appropriate court and therefore, seeks anticipatory bail in order to enable him to overcome the situation.\n 3. The learned Government Pleader, on the other hand, would raise a serious objection that admittedly, the petitioner is sought to be arrested in a pending case before a court in Tamil Nadu and since this court would have no jurisdiction over that court or the investigating authorities, it would be improper to consider the petitioner's case for anticipatory bail.\nHence, without anything more, the learned Government Pleader would submit that the petition be rejected, leaving the petitioner to his remedies before some other forum.\n 4. However, the learned Counsel for the petitioner would place reliance on a decision of this court in the case of L.R.Naidu vs. State of Karnataka, 1984 Cri.LJ 475, where in a similar situation, this court, relying on the decisions in B.R.Sinha vs. State, 1982 Cri.LJ 61; Pritam Singh vs. State of Punjab, 1981 Cr.LJ NOC 59 and Gurubaksh Singh vs. State of Punjab, AIR 1980 SC 1632, has pointed out that it would not be impermissible for a court of one State to grant anticipatory bail, if the petitioner resides within its jurisdiction, in respect of apprehended arrest in a case pending in some other State, without the jurisdiction of the court and seeks to place reliance on the same.\n It is to be seen that the Supreme Court, while dealing with a prayer for anticipatory bail , in Gurubaksh Singh, supra, has held as follows:- \"In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.\n On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, reasonable apprehension that witnesses will be tampered with and \"the larger interests of the public or the State\" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.\"\n And the Calcutta High Court has held as follows in identical circumstances as arising in the case on hand:- \"Considering the provisions laid down in S. 438 of the Code and the principles of law with regard to anticipatory bail explained by their Lordship in Gurubaksh Singh's case (1982 Cr. L. J., 1125) (S.C.) and also considering the view taken by atleast three Division Benches to the case referred to above, we are of the opinion that this Court has jurisdiction to entertain application for anticipatory bail of a petitioner who resides within the jurisdiction of the Court, though he apprehends arrest in connection with a case which has been started outside the jurisdiction of this Court\".\n And therefore, the petitioner has made out a case for grant of anticipatory bail for a limited period.\n Accordingly, in the event of the Police arresting the petitioner in CC No.376/2011, pending before the Judicial Magistrate First Court, Thiruvellore, Tamil Nadu, they are directed to release him on bail, on his executing a bond in a sum of Rs.20,000/- (Rupees Twenty Thousand only), with a solvent surety for a like sum to the satisfaction of the said Police. The petitioner shall appear before the appropriate court in Tamil Nadu within ten days from the date of his arrest by the concerned Police. In case he makes any application, within the time referred to hereinabove, the court shall consider such application and this order will be in force till such time that court passes an appropriate order on his application.\n The petition is allowed in terms as above.\n Sd/- JUDGE nv "
} |
{
"group": "Criminal"
} | [
{
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"end": 261,
"labels": [
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],
"start": 0,
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL WRIT PETITION NO.2050 OF 2019\n\nAsiya Anwar shaikh ]\nAge-34 years, Occupation : Marketing, ]"
}
},
{
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"id": "3e4fed2022e8496d8848538704b46069",
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"value": {
"end": 350,
"labels": [
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],
"start": 262,
"text": "Residing at Goa Galli, Takai Nagar ]\nNear Bholenath Mandir, Daund, Dist. Pune"
}
},
{
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"id": "7d049ed3e2b849ccb416539d713bda0d",
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"end": 357,
"labels": [
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"start": 351,
"text": " ]"
}
},
{
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"value": {
"end": 374,
"labels": [
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],
"start": 357,
"text": "..... Petitioner."
}
},
{
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"id": "80e64e1259cd4c2da03e0bbba8504c88",
"to_name": null,
"type": null,
"value": {
"end": 387,
"labels": [
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],
"start": 374,
"text": "\n\n Versus"
}
},
{
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"type": null,
"value": {
"end": 401,
"labels": [
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],
"start": 389,
"text": "1] The State"
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 416,
"labels": [
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],
"start": 402,
"text": "of Maharashtra"
}
},
{
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"id": "5a1cd38d065646bea150237feb970adc",
"to_name": null,
"type": null,
"value": {
"end": 481,
"labels": [
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],
"start": 416,
"text": ", ]\n through the Pandharpur Taluka Police"
}
},
{
"from_name": null,
"id": "618c8af03e6b46e49a77fd622e3a0e1a",
"to_name": null,
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"value": {
"end": 632,
"labels": [
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],
"start": 482,
"text": " ]\n Station, Dist Solapur ]\n ]\n2] XYZ.... ]....."
}
},
{
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"id": "69eb2b03466345ae92015ce9a74ddd17",
"to_name": null,
"type": null,
"value": {
"end": 645,
"labels": [
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],
"start": 633,
"text": "Respondents."
}
},
{
"from_name": null,
"id": "e3c53b4ab93b494b825d91bdf42bcb3b",
"to_name": null,
"type": null,
"value": {
"end": 686,
"labels": [
"PREAMBLE"
],
"start": 645,
"text": "\n\nMr. Satyavrat Joshi for the Petitioner."
}
},
{
"from_name": null,
"id": "a17d1b7b5f0d4db996195d5a65e008bd",
"to_name": null,
"type": null,
"value": {
"end": 731,
"labels": [
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],
"start": 686,
"text": "\nMr. A R Patil, APP for the Respondent/State."
}
},
{
"from_name": null,
"id": "395983d9c3174436a0bec71530c89bbb",
"to_name": null,
"type": null,
"value": {
"end": 825,
"labels": [
"PREAMBLE"
],
"start": 746,
"text": "CORAM : S. S. SHINDE, J\n Reserved on : 24th June 2019\n "
}
},
{
"from_name": null,
"id": "119ed7c8bce54239b242fd699502817e",
"to_name": null,
"type": null,
"value": {
"end": 867,
"labels": [
"PREAMBLE"
],
"start": 825,
"text": "Pronounced on : 11th July 2019\n\nJUDGMENT :"
}
},
{
"from_name": null,
"id": "b930c2a6ae0d4d80bec6e2fa3d498192",
"to_name": null,
"type": null,
"value": {
"end": 981,
"labels": [
"NONE"
],
"start": 868,
"text": "1 Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard."
}
},
{
"from_name": null,
"id": "b1014e3738e2452c9a80f753cff9ed46",
"to_name": null,
"type": null,
"value": {
"end": 1363,
"labels": [
"FAC"
],
"start": 983,
"text": "2 At the outset it is required to be noted that since the crime registered by the Police is under the Immoral Traffic (Prevention) Act, 1956 so also under the Indian Penal Code and Respondent No.2 Victim XYZ is alleged to have been compelled to involve herself in prostitution, the identity of Respondent No.2 herein needs to be concealed, and hence she is referred to as XYZ."
}
},
{
"from_name": null,
"id": "996542a5844f4fe4a3de7eaa1c1f4191",
"to_name": null,
"type": null,
"value": {
"end": 1424,
"labels": [
"NONE"
],
"start": 1364,
"text": "The Registry is directed to maintain the record accordingly."
}
},
{
"from_name": null,
"id": "a95dceb3fe5d48f69c2ddcbfd78dd17f",
"to_name": null,
"type": null,
"value": {
"end": 1435,
"labels": [
"RLC"
],
"start": 1426,
"text": "3 "
}
},
{
"from_name": null,
"id": "23d6dc1767ce47e88475c4997b7f48d0",
"to_name": null,
"type": null,
"value": {
"end": 2091,
"labels": [
"RLC"
],
"start": 1435,
"text": "By this Writ Petition, the Petitioner takes exception to the order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur by which order the Criminal Appeal No.17 of 2019 filed by the Petitioner herein came to be rejected and resultantly the order dated 23/01/2019 passed by the learned 2nd Joint Judicial Magistrate First Class, Pandharpur, District Solapur, in Crime No.19 of 2019 sending Respondent No.2 herein i.e. Victim XYZ in the aforesaid crime for a period of one year for her care and protection in Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune came to be confirmed."
}
},
{
"from_name": null,
"id": "af804b35440b45c29035c6cec13cc3a0",
"to_name": null,
"type": null,
"value": {
"end": 2327,
"labels": [
"FAC"
],
"start": 2091,
"text": "\n 4 Brief facts leading to filing of the present Writ Petition are as under:- It is the case of the prosecution that Respondent No.2 herein was found in a lodge in a raid effected by the Sub Divisional Police Officer, Pandharpur."
}
},
{
"from_name": null,
"id": "4aa19bc8e3ea45d58870917ba7d234c3",
"to_name": null,
"type": null,
"value": {
"end": 2444,
"labels": [
"FAC"
],
"start": 2328,
"text": "FIR bearing CR No.19 of 2019 came to be registered with Pandharpur Taluka Police Station against 11 accused persons."
}
},
{
"from_name": null,
"id": "cf215e6cbabf4bcdb9be6a9e3639f7a6",
"to_name": null,
"type": null,
"value": {
"end": 2563,
"labels": [
"FAC"
],
"start": 2445,
"text": "Respondent No.2 XYZ being victim of the crime was rescued and was temporarily kept in the custody of a social worker."
}
},
{
"from_name": null,
"id": "893e45bbb57d48cfa58868bff206c4de",
"to_name": null,
"type": null,
"value": {
"end": 2806,
"labels": [
"FAC"
],
"start": 2564,
"text": "The Pandharpur Taluka Police filed an application before the learned JMFC, Pandharpur praying therein to issue directions to keep Respondent No.2 XYZ in the Corrective Institution i.e.\n Mahila Sudhargruh, Solapur for her care and protection."
}
},
{
"from_name": null,
"id": "5d79c75825ec4825b5e7d04746a62c2b",
"to_name": null,
"type": null,
"value": {
"end": 3066,
"labels": [
"FAC"
],
"start": 2807,
"text": "Thereafter the Petitioner and Respondent No.2 have filed their respective applications before the learned JMFC, Pandharpur praying for granting custody of Respondent No.2 to the Petitioner, who is the believed mother ( ekuysyh vkbZ ) of Respondent No.2 - XYZ."
}
},
{
"from_name": null,
"id": "da98bd1a576445d4af4ac03daf593744",
"to_name": null,
"type": null,
"value": {
"end": 3155,
"labels": [
"FAC"
],
"start": 3067,
"text": "The learned JMFC has recorded the statements of both the Petitioner and Respondent No.2."
}
},
{
"from_name": null,
"id": "26b650ed88014803aef9ddc1569ded12",
"to_name": null,
"type": null,
"value": {
"end": 3334,
"labels": [
"FAC"
],
"start": 3156,
"text": "The learned JMFC also directed the Probation Officer to make an inquiry as contemplated by Section 17(2) of the Immoral Traffic (Prevention) Act, 1956 (for short \"the said Act\")."
}
},
{
"from_name": null,
"id": "cc45042834f44839a792066696d5d979",
"to_name": null,
"type": null,
"value": {
"end": 3431,
"labels": [
"FAC"
],
"start": 3335,
"text": "Accordingly the probation officer after making inquiry submitted his report to the learned JMFC."
}
},
{
"from_name": null,
"id": "e1b8eb8e758548879ca233b3b5b78256",
"to_name": null,
"type": null,
"value": {
"end": 3794,
"labels": [
"RLC"
],
"start": 3432,
"text": "As indicated herein above, the learned JMFC rejected the applications of the Petitioner and Respondent No.2 by the impugned order dated 23/01/2019 thereby sending Respondent No.-XYZ to the above mentioned Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for her care and protection for a period of one year."
}
},
{
"from_name": null,
"id": "e7491d6509d145809bc56acd2d3a2368",
"to_name": null,
"type": null,
"value": {
"end": 3999,
"labels": [
"FAC"
],
"start": 3794,
"text": "\n 5 Being aggrieved by the said order dated 23/01/2019 passed by the learned JMFC, the Petitioner herein has filed Criminal Appeal No.17 of 2019 before the learned Additional Sessions Judge, Pandharpur."
}
},
{
"from_name": null,
"id": "d5d46b730bb54be08b9bb4117df23fb3",
"to_name": null,
"type": null,
"value": {
"end": 4081,
"labels": [
"FAC"
],
"start": 4000,
"text": "The Petitioner has also filed application for interim custody of Respondent No.2."
}
},
{
"from_name": null,
"id": "55b6abe0f4c64a4683c1ec6f0e8ac73e",
"to_name": null,
"type": null,
"value": {
"end": 4235,
"labels": [
"FAC"
],
"start": 4082,
"text": "The Petitioner as well as the Prosecution have filed their written arguments in the said Appeal before the learned Additional Sessions Judge, Pandharpur."
}
},
{
"from_name": null,
"id": "55b47d35843244baa095787a95b59daa",
"to_name": null,
"type": null,
"value": {
"end": 4395,
"labels": [
"RLC"
],
"start": 4236,
"text": "After hearing both the parties, the learned Additional Sessions Judge, Pandharpur has dismissed the Appeal by the impugned judgment and order dated 20/03/2019."
}
},
{
"from_name": null,
"id": "8aa913781ed1445dab9b0de0f2b689b6",
"to_name": null,
"type": null,
"value": {
"end": 4598,
"labels": [
"FAC"
],
"start": 4396,
"text": "It is the said order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur, rejecting the Appeal of the Petitioner which is taken exception to by way of the present Writ Petition."
}
},
{
"from_name": null,
"id": "5a3179c82ef24ed5a6b636ae49a4b499",
"to_name": null,
"type": null,
"value": {
"end": 4647,
"labels": [
"NONE"
],
"start": 4598,
"text": "\n 6 Heard the learned counsel for the parties."
}
},
{
"from_name": null,
"id": "eb90171217f4461e84de33e3efd06b21",
"to_name": null,
"type": null,
"value": {
"end": 5093,
"labels": [
"ARG_PETITIONER"
],
"start": 4648,
"text": "The learned counsel for the Petitioner Mr. Satyavrat Joshi submitted that The Immoral Traffic (Prevention) Act is enacted by the Parliament of India in the year 1956 and the statement of Objects and Reasons, as was originally incorporated, is that the said Act was in the year 1950, the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others."
}
},
{
"from_name": null,
"id": "b2454af4d6b0469fbbc2eefe0b71905c",
"to_name": null,
"type": null,
"value": {
"end": 5277,
"labels": [
"ARG_PETITIONER"
],
"start": 5094,
"text": "He further submitted that under Article 23 of the Constitution of India, traffic in human being is prohibited and any contravention of the prohibition is an offence punishable by law."
}
},
{
"from_name": null,
"id": "43dc16448b90403a9ac042ac8759af2f",
"to_name": null,
"type": null,
"value": {
"end": 5576,
"labels": [
"ARG_PETITIONER"
],
"start": 5278,
"text": "He also submitted that the said Act has been amended further in the year 1978 (Amendment Act 46 of 1978) wherein an additional Statement of Objects and Reasons was incorporated, and in the year 1986 again the said Act was amended wherein further Statement of Objects and Reasons was incorporated.\n "
}
},
{
"from_name": null,
"id": "84bbd9f2185944b5bf536f79711c2a42",
"to_name": null,
"type": null,
"value": {
"end": 5727,
"labels": [
"ARG_PETITIONER"
],
"start": 5576,
"text": "He further submitted that in view of the objects and reasons of the Act, certain amendments were made to the said Act, 1986 (Amendment Act 44 of 1986)."
}
},
{
"from_name": null,
"id": "d250e51d40b547cb8825417ec780e341",
"to_name": null,
"type": null,
"value": {
"end": 6091,
"labels": [
"ARG_PETITIONER"
],
"start": 5729,
"text": "The learned counsel for the Petitioner relying upon the scope and ambit of the said Act which provides for certain penal provisions in relation to exploitation of women running, owing, occupying brothels, living on the earning of prostitutes etc. submitted that under the Scheme of the said Act, neither the victims nor the customers are liable to be prosecuted."
}
},
{
"from_name": null,
"id": "2288400375bc448591e98bf5177cb019",
"to_name": null,
"type": null,
"value": {
"end": 6315,
"labels": [
"ARG_PETITIONER"
],
"start": 6092,
"text": "The learned counsel for the Petitioner further submitted that the said Act provides various mechanism to curb trafficking and immoral traffic and one of the mechanism provided under the said Act is under Sections 16 and 17."
}
},
{
"from_name": null,
"id": "725438a8b29f45198ef9d3686fc37a35",
"to_name": null,
"type": null,
"value": {
"end": 6667,
"labels": [
"ARG_PETITIONER"
],
"start": 6316,
"text": "He also submitted that section 16 of the said Act provides for rescue of victims whereas section 17 provides for mechanism which is to be followed by a learned Magistrate before whom such victims are produced and, if this provision is to be seen in the light of objects and reasons of the Act, the victim under the said Act is immune from prosecution."
}
},
{
"from_name": null,
"id": "67d23181d2cb42deb9fa26a2eda5c0be",
"to_name": null,
"type": null,
"value": {
"end": 6959,
"labels": [
"ARG_PETITIONER"
],
"start": 6668,
"text": "He further submitted that the mechanism which is provided under Sections 16 and 17 is not punitive, however, it is reformatory in nature The question for determination is whether such mechanism can be used for the reform of a victim, more particularly an adult in absence of her willingness."
}
},
{
"from_name": null,
"id": "57cd79b3abea4a43a3e7b38c6dcdc0c3",
"to_name": null,
"type": null,
"value": {
"end": 7248,
"labels": [
"ARG_PETITIONER"
],
"start": 6960,
"text": "The learned counsel for the Petitioner contended that it is the bounden duty of the State to protect the interest of the victim having organizations such as protection homes but at the same time in the absence of the willingness of an adult victim she cannot be kept in a protection home."
}
},
{
"from_name": null,
"id": "fcceb6f0607541319dd0c68bb6028615",
"to_name": null,
"type": null,
"value": {
"end": 7420,
"labels": [
"ARG_PETITIONER"
],
"start": 7249,
"text": "He also submitted that Article 19 of the Constitution of India guarantees the right of freedom and Article 23 provides for abolition of beggar or slavery or forced labour."
}
},
{
"from_name": null,
"id": "0b615b48fe4848d8a81284f3b97db957",
"to_name": null,
"type": null,
"value": {
"end": 7708,
"labels": [
"ARG_PETITIONER"
],
"start": 7421,
"text": "He also submitted that under the Constitution of India every Indian citizen has right to move freely through the territory of India as also has a right to choose a vocation, but at the same time, there are reasonable restrictions cast upon them while exercising those fundamental rights."
}
},
{
"from_name": null,
"id": "3953c1893a124a049d32f26931d0cfde",
"to_name": null,
"type": null,
"value": {
"end": 7997,
"labels": [
"ARG_PETITIONER"
],
"start": 7709,
"text": "The learned counsel for the Petitioner further submitted that a person, who has attained the age of majority cannot be restricted or cannot be kept in home since he/she has a right to carry out his/her own vocation as also he/she has a right to freely move through the territory of India."
}
},
{
"from_name": null,
"id": "e125622865d74a669793882097cbfec9",
"to_name": null,
"type": null,
"value": {
"end": 8640,
"labels": [
"ARG_PETITIONER"
],
"start": 7998,
"text": "He also submitted that the object of the said Act is to secure the ends of justice by ensuring that the victim is not further exploited and, whether a victim is required to be kept in a protection home needs to be decided by taking into consideration of the age of victim, examination of the social strata, examination of the economic condition of the victim as also examination of the facts of the case in relation to, which the victim is sought to be kept in protection home by prima facie recording a finding that a person who is demanding custody of such woman, should not be indirectly or directly connected with the offence in question."
}
},
{
"from_name": null,
"id": "b7204dbdaca24a80a4057f1ea42dc947",
"to_name": null,
"type": null,
"value": {
"end": 8949,
"labels": [
"ARG_PETITIONER"
],
"start": 8641,
"text": "He submitted that mental capacity and understanding of such victim is also required to be ascertained prior to passing the order by consulting panel of psychologists who may ascertain the mental condition of the women as also whether reasons behind the victim being subjected to prostitution/immoral traffic."
}
},
{
"from_name": null,
"id": "dd07008025eb46ef8cfad84509ace39e",
"to_name": null,
"type": null,
"value": {
"end": 9329,
"labels": [
"ARG_PETITIONER"
],
"start": 8950,
"text": "He further submitted that legal assistance at each and every stage should be provided to the victim and panel of eminent persons from the legal fraternity should be appointed so as to ascertain (I) whether the victim was exploited and the reasons as to why she is exploited; (ii) the probation officer should be assisted by at least one such eminent person from the field of law."
}
},
{
"from_name": null,
"id": "88ce4714c7a14e5ab6ef821f32bdfbdf",
"to_name": null,
"type": null,
"value": {
"end": 9633,
"labels": [
"ARG_PETITIONER"
],
"start": 9330,
"text": "Relying upon the objects and reasons of the said Act, the learned counsel for the Petitioner submitted that immoral trafficking is a stigma not only upon a victim but upon the society as a whole, and therefore, the record of the victim should be maintained with all police stations throughout the State."
}
},
{
"from_name": null,
"id": "42c818fd789c45a4b196423a368230e5",
"to_name": null,
"type": null,
"value": {
"end": 9952,
"labels": [
"ARG_PETITIONER"
],
"start": 9634,
"text": "In so far as the minors are concerned, custody should be only given to those persons after making a detailed inquiry through a probation officer as regards the circumstances under which all such minors were forced into prosecution, the compelling reason behind the minor being inducted into the racket of prostitution."
}
},
{
"from_name": null,
"id": "2ff8073460e64b16801a40c7e303d5e1",
"to_name": null,
"type": null,
"value": {
"end": 10733,
"labels": [
"ARG_PETITIONER"
],
"start": 9953,
"text": "Ordinarily custody should not be granted of minors only because the same is claimed by parents or natural guardians, however, antecedents of parents, natural guardians and persons who are claiming custody of such minors should be verified by (a) the Police Station Officers investigating the case; (b) antecedents may also be verified by an independent police agency such as the Local Crime Branch which is the Central Investigating Agency in rural areas as also by the Crime Branch of Police Commissionerate; (c) before granting custody of minors based on the report of these Two agencies, the Court concerned prior to granting such custody should be satisfied by recording reasons that grant of custody would not be prejudicial in any manner to the interest of the victim/child."
}
},
{
"from_name": null,
"id": "1c565a3cc44a4fea85f2f39488849983",
"to_name": null,
"type": null,
"value": {
"end": 10807,
"labels": [
"ARG_PETITIONER"
],
"start": 10734,
"text": "He submitted that Sections 14 and 15 contemplate Special Police Officers."
}
},
{
"from_name": null,
"id": "2779fcf9b00a4a7fa5c80967f7590088",
"to_name": null,
"type": null,
"value": {
"end": 11004,
"labels": [
"ARG_PETITIONER"
],
"start": 10808,
"text": "However, the police officers are not equipped or are not adequately trained for the purpose of handling victims at the time of carrying out investigations pertaining to offences under the said Act"
}
},
{
"from_name": null,
"id": "7f0b085e66f248188db1f413f48aa97e",
"to_name": null,
"type": null,
"value": {
"end": 11317,
"labels": [
"ARG_PETITIONER"
],
"start": 11005,
"text": "and the paramount consideration should be given to the rescue of the victims as also the investigating officers must adopt a sensitive approach towards the well being of the victim, more specifically if the victims are minors, hence special training in that regard has to be given to the special police officers."
}
},
{
"from_name": null,
"id": "683fd585c6204f84a675cac42611b15e",
"to_name": null,
"type": null,
"value": {
"end": 11724,
"labels": [
"ARG_PETITIONER"
],
"start": 11318,
"text": "It is further submitted that the offecnes under the said Act should be investigated by one Central Agency, and such a similar arrangement can also be made in district places as investigations of such crimes require specialized care and attention, and it is apt that Senior Police Officers, preferably Lady Police Officers supported by trained staff of police officers should investigate into such offences."
}
},
{
"from_name": null,
"id": "dc11481c35834c2c89e21a835d881e24",
"to_name": null,
"type": null,
"value": {
"end": 12009,
"labels": [
"ARG_PETITIONER"
],
"start": 11725,
"text": "It is also submitted that Section 17 of the Act has also to be construed from the point of securing the presence of victim at the time of trial and hence before a victim is released, her details regarding her names and addressed can be verified and record thereof can be maintained.\n "
}
},
{
"from_name": null,
"id": "97ee1e5e50024abe983a1f0568954bb8",
"to_name": null,
"type": null,
"value": {
"end": 12307,
"labels": [
"ARG_PETITIONER"
],
"start": 12009,
"text": "7 The learned counsel for the Petitioner also submits that the learned JMFC has not complied with the mandate laid down in Section 17(5) of the said Act, and the direction being mandatory in nature, non - compliance of the same would render the impugned order liable to be quashed and set aside."
}
},
{
"from_name": null,
"id": "891c49c23ef94b1f899962d7e1ddc62b",
"to_name": null,
"type": null,
"value": {
"end": 12546,
"labels": [
"ARG_PETITIONER"
],
"start": 12308,
"text": "He further contended that though Respondent No.2 has nowhere stated that Petitioner had compelled her to do prostitution, both the Courts have erred in recording a fact that the Petitioner had compelled Respondent No.2 to do prostitution."
}
},
{
"from_name": null,
"id": "92cfe742de6b48359792ccd18fbf4b67",
"to_name": null,
"type": null,
"value": {
"end": 12795,
"labels": [
"ARG_PETITIONER"
],
"start": 12547,
"text": "It is the contention of the learned counsel for the Petitioner that the wish of Respondent No.2 to stay with the Petitioner, as Respondent No.2 is a major of 22 years, has to be considered, however, both the Courts below have ignored the said fact."
}
},
{
"from_name": null,
"id": "f6fa446b94124827a2eaf8535e5785cb",
"to_name": null,
"type": null,
"value": {
"end": 13064,
"labels": [
"ARG_PETITIONER"
],
"start": 12796,
"text": "It is further contended that though the Probation Officer, after taking into consideration various factors, in his report opined that the custody of Respondent No.2 may be given to the Petitioner, both the Courts below have ignored the report of the probation officer."
}
},
{
"from_name": null,
"id": "1289b9dff5584e1099e95cdba1aa08d4",
"to_name": null,
"type": null,
"value": {
"end": 13333,
"labels": [
"ARG_PETITIONER"
],
"start": 13065,
"text": "It is also contended that Respondent No.2 has stated in the statement recorded by the learned JMFC that she was doing the work of cooking in the said lodge and therefore there is no material to show that the Petitioner had compelled Respondent No.2 to do prostitution."
}
},
{
"from_name": null,
"id": "22ef3303006c4f4d8bc1bdbf286e651a",
"to_name": null,
"type": null,
"value": {
"end": 13509,
"labels": [
"ARG_PETITIONER"
],
"start": 13334,
"text": "The learned counsel for the Petitioner submitted that, Respondent No.2 has one and half year old child and the Petitioner has expressed her desire to maintain Respondent No.2."
}
},
{
"from_name": null,
"id": "deec18754f40463f8913a472c1e542dd",
"to_name": null,
"type": null,
"value": {
"end": 14070,
"labels": [
"ARG_PETITIONER"
],
"start": 13510,
"text": "The learned counsel for the Petitioner in support of the aforesaid contentions relied upon the unreported judgment of the Division Bench of this Court (Coram : Mrs.\n Roshan Dalvi & Mrs. Shalini Phansalkar-Joshi, JJ) in Criminal Public Interest Litigation No.4 of 2015 in the matter of Freedom Firm v/s. Commissioner of Police, Pune and ors., and another unreported judgment of the Division Bench of this Court (Coram : A.S.Oka & A.A.Sayed, JJ) in Criminal Writ Petition No.3184 of 2016 in the matter of Krishna Surendra Singh v/s. State of Maharashtra and anr."
}
},
{
"from_name": null,
"id": "07b65fb29a0f440490371973f632c1c3",
"to_name": null,
"type": null,
"value": {
"end": 14326,
"labels": [
"ARG_PETITIONER"
],
"start": 14071,
"text": "He therefore submitted that the present Petition may be allowed by quashing the impugned orders passed by both the Courts and the custody of Respondent No.2 herein may be handed over to the Petitioner in the interest and welfare of Respondent No.2 herein."
}
},
{
"from_name": null,
"id": "f6e4aa8d3c4d45e7b9bfe041d6ab3ba9",
"to_name": null,
"type": null,
"value": {
"end": 14806,
"labels": [
"ARG_RESPONDENT"
],
"start": 14326,
"text": "\n 8 The learned APP relying upon the reasons assigned by the learned JMFC as well as the learned Additional Sessions Judge submitted that both the Courts below upon appreciation of the material place on record and keeping in view the interest of victim has passed the orders sending Respondent No.2 herein for her care and protection for a period of one year in a the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune."
}
},
{
"from_name": null,
"id": "51f1441e637640cd8e48a49377a8c09b",
"to_name": null,
"type": null,
"value": {
"end": 14929,
"labels": [
"ANALYSIS"
],
"start": 14806,
"text": "\n 9 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions."
}
},
{
"from_name": null,
"id": "e2e11fc3ab094dc19ea2d076f66b6ac5",
"to_name": null,
"type": null,
"value": {
"end": 15093,
"labels": [
"ANALYSIS"
],
"start": 14930,
"text": "I have perused the grounds taken in the Writ Petition and annexures thereto as also the reasons assigned by both the Courts below and the material place on record."
}
},
{
"from_name": null,
"id": "d2d678f2b13a4ab4a0f784abdf62d9a1",
"to_name": null,
"type": null,
"value": {
"end": 15284,
"labels": [
"ANALYSIS"
],
"start": 15094,
"text": "It appears that the Petitioner herein posed her as a real mother of the Respondent No.2 - Victim XYZ, and it was stated before the learned JMFC that Respondent No.2 - Victim is her daughter."
}
},
{
"from_name": null,
"id": "6b121d2d160e41b2bbbada212d33b38d",
"to_name": null,
"type": null,
"value": {
"end": 15414,
"labels": [
"ANALYSIS"
],
"start": 15285,
"text": "However, the learned JMFC, on interaction with the Petitioner, found that she is not the real mother of Respondent No.2 - Victim."
}
},
{
"from_name": null,
"id": "b84945e758aa40c390a5d305ece79738",
"to_name": null,
"type": null,
"value": {
"end": 15578,
"labels": [
"ANALYSIS"
],
"start": 15415,
"text": "It appears that the Petitioner told before the learned JMFC that she did not give birth to Respondent No.2 - Victim XYZ, but she maintains her since her childhood."
}
},
{
"from_name": null,
"id": "62c9857e80bd4f36abfd2bb9c06779a0",
"to_name": null,
"type": null,
"value": {
"end": 15722,
"labels": [
"ANALYSIS"
],
"start": 15579,
"text": "The learned Additional Sessions Judge has also taken note of such conduct of the Petitioner in paragraph 12 of the impugned Judgment and order."
}
},
{
"from_name": null,
"id": "0621b487eb1a43fa93e022e9e03fed2e",
"to_name": null,
"type": null,
"value": {
"end": 15836,
"labels": [
"ANALYSIS"
],
"start": 15723,
"text": "The said conduct of the Petitioner not to disclose the true facts before the learned JMFC cannot be countenanced."
}
},
{
"from_name": null,
"id": "ad57bff8e6e342cb89dd608ee3e53ce1",
"to_name": null,
"type": null,
"value": {
"end": 15957,
"labels": [
"ANALYSIS"
],
"start": 15837,
"text": "A person approaching the Court shall approach the Court with clean hands and shall disclose all true and relevant facts."
}
},
{
"from_name": null,
"id": "772db5c7b0d24b5992f70627c504de16",
"to_name": null,
"type": null,
"value": {
"end": 16127,
"labels": [
"ANALYSIS"
],
"start": 15957,
"text": "\nSuppression of vital information or telling lie before the Court that the Petitioner is a real mother of Respondent No.2 - Victim cannot be countenanced by any standard."
}
},
{
"from_name": null,
"id": "0832108431244b2cbbcf9e8693d456bc",
"to_name": null,
"type": null,
"value": {
"end": 16183,
"labels": [
"ANALYSIS"
],
"start": 16128,
"text": "This Petition can be rejected on the said ground alone."
}
},
{
"from_name": null,
"id": "1f6eabb73c2441f39027b17b9a874442",
"to_name": null,
"type": null,
"value": {
"end": 16337,
"labels": [
"ANALYSIS"
],
"start": 16184,
"text": "However, keeping in view the interest of Respondent No.2 Victim, the contentions of the learned counsel for the parties needs to be considered on merits."
}
},
{
"from_name": null,
"id": "6414b05d3a9c4036a4b1aa42e24e422d",
"to_name": null,
"type": null,
"value": {
"end": 16517,
"labels": [
"ANALYSIS"
],
"start": 16339,
"text": "10 It appears that the probation officer, who was appointed, has submitted his inquiry report and opined that it is appropriate to give custody of the Victim to the Petitioner."
}
},
{
"from_name": null,
"id": "f0dcce8374ee4539829d997e9692151a",
"to_name": null,
"type": null,
"value": {
"end": 16794,
"labels": [
"ANALYSIS"
],
"start": 16518,
"text": "It appears in spite of the report of the probation officer, the learned JMFC deemed it appropriate to send Respondent No.2 Victim for her care and protection in the said Corrective Institution i.e.\n Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune."
}
},
{
"from_name": null,
"id": "9b729a0989914632a350a0793b0cdad7",
"to_name": null,
"type": null,
"value": {
"end": 17132,
"labels": [
"ANALYSIS"
],
"start": 16794,
"text": "\n Upon careful perusal of the reasons assigned by the Trial Court as well as the Appellate Court it can be safely stated that the learned JMFC, keeping in view of the interest of Respondent No.2 XYZ, has passed the order sending her to the said Corrective Institution for her care and protection with a hope of reformation of the victim."
}
},
{
"from_name": null,
"id": "81e48fb4987840a5967c05fbf1a49218",
"to_name": null,
"type": null,
"value": {
"end": 17286,
"labels": [
"ANALYSIS"
],
"start": 17133,
"text": "It appears that the learned JMFC has also taken care of the contention of the Petitioner that Respondent No.2 Victim has one and half year sucking child."
}
},
{
"from_name": null,
"id": "04dd3e2bea6e496eb955dbc6cf57f493",
"to_name": null,
"type": null,
"value": {
"end": 17556,
"labels": [
"ANALYSIS"
],
"start": 17286,
"text": "\n 11 However, the important question that has been raised in this Petition is that, Respondent No.2 - Victim being major can be sent to the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune against her wishes."
}
},
{
"from_name": null,
"id": "f8f7c57319204f3da3a988e3ae7ce29d",
"to_name": null,
"type": null,
"value": {
"end": 17759,
"labels": [
"ANALYSIS"
],
"start": 17557,
"text": "The learned counsel for the Petitioner submits that Respondent No.2 -Victim has a right to reside at the place of her choice, to move freely through out the territory of India and to chose her vocation."
}
},
{
"from_name": null,
"id": "25d26328bae14ccfa233fd4691439643",
"to_name": null,
"type": null,
"value": {
"end": 17966,
"labels": [
"ANALYSIS"
],
"start": 17759,
"text": "\n It is true that every citizen has right to chose his/her vocation, to move from one place to another through out the territory of India, and other fundamental rights enshrined in the Constitution of India."
}
},
{
"from_name": null,
"id": "41144d68515946348511a5982f71e72d",
"to_name": null,
"type": null,
"value": {
"end": 18395,
"labels": [
"STA"
],
"start": 17967,
"text": "Under Clause (1) of Article 19 all citizens shall have the right --- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form association or unions (or co-operative societies); (d) to move freely through out the territory of India; (e) to reside and settle in any part of the territory of India, and [****] (g) to practise any profession, or to carry on any occupation, trade or business."
}
},
{
"from_name": null,
"id": "9438c177866548c0973fc209e06a331d",
"to_name": null,
"type": null,
"value": {
"end": 18502,
"labels": [
"ANALYSIS"
],
"start": 18395,
"text": "\n 12 Indisputably Respondent No.2 Victim XYZ is major, therefore it is imperative to consider her wishes."
}
},
{
"from_name": null,
"id": "7d6558d16f024003a99b75e05445bc6f",
"to_name": null,
"type": null,
"value": {
"end": 18723,
"labels": [
"ANALYSIS"
],
"start": 18503,
"text": "There is no doubt that the State Government within its power under the said Act, keeping in view of the interest of the victim, can seek appropriate directions from the Court to send the victim to Corrective Institution."
}
},
{
"from_name": null,
"id": "4a4cb178752f4c0abde70efcc5bb3e0f",
"to_name": null,
"type": null,
"value": {
"end": 18899,
"labels": [
"ANALYSIS"
],
"start": 18724,
"text": "It is true that the fundamental rights conferred upon the citizen of India in Part III of the Constitution of India are with reasonable restrictions mentioned in each Article."
}
},
{
"from_name": null,
"id": "4531dd6ec2ff47d5814fe7eb247dfd58",
"to_name": null,
"type": null,
"value": {
"end": 19089,
"labels": [
"ANALYSIS"
],
"start": 18900,
"text": "The fundamental rights of the citizen enshrined in Part III of the Constitution of India stand on higher pedestal vis-a-vis statutory right or any other rights conferred by the general law."
}
},
{
"from_name": null,
"id": "03eaa7e7b7474f52b89db17374d708a9",
"to_name": null,
"type": null,
"value": {
"end": 19545,
"labels": [
"ANALYSIS"
],
"start": 19090,
"text": "Therefore I find considerable force in the submission made by the learned counsel for the Petitioner that the victim being major, her fundamental right to move from one place to another place, reside at the place of her choice and to chose her vocation has to be considered, and contrary to her wishes she cannot be asked to reside in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n 13 "
}
},
{
"from_name": null,
"id": "c504689a21ee45f9b758b133690e90a1",
"to_name": null,
"type": null,
"value": {
"end": 19875,
"labels": [
"ANALYSIS"
],
"start": 19545,
"text": "It is pertinent to mention at this stage that the police machinery has not brought on record any material suggesting that Respondent No.2 Victim XYZ is suffering from disability or her case is covered by reasonable restrictions under Article 19 of the Constitution of India, and setting her free would cause danger to the society."
}
},
{
"from_name": null,
"id": "5cbd842e7d07472980f1cd33b5a1c7a9",
"to_name": null,
"type": null,
"value": {
"end": 20147,
"labels": [
"ANALYSIS"
],
"start": 19876,
"text": "It is also required to be noted that nothing is placed on record by the police which would show that her right to move from one place to another place or reside at the place of her choice is hampered due to restrictions imposed in Article 19 of the Constitution of India."
}
},
{
"from_name": null,
"id": "1bff19cee98f4bdcb12a31b8441f2bbc",
"to_name": null,
"type": null,
"value": {
"end": 20439,
"labels": [
"ANALYSIS"
],
"start": 20147,
"text": "\n 14 In the facts of the present case, Respondent No.2 - Victim XYZ was sent and/or kept in the Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for her care and protection, by order dated 23/01/2019 passed by the learned JMFC."
}
},
{
"from_name": null,
"id": "e21052b5b1ed465586e9e7cd2ecf16a3",
"to_name": null,
"type": null,
"value": {
"end": 20787,
"labels": [
"ANALYSIS"
],
"start": 20440,
"text": "Prior to passing the order by the learned JJMC, a raid was conducted by the Taluka Police Station Pandharpur at Hotel Sangam Lodge, Pandharpur and during the said raid, the victim was found in the said lodge and, as alleged by the concerned Police Department, Respondent No.2 - Victim XYZ along with other victims was involved in the prostitution."
}
},
{
"from_name": null,
"id": "8a4702d732ab47fc9efe3e37fa4bb47f",
"to_name": null,
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"value": {
"end": 21124,
"labels": [
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],
"start": 20788,
"text": "The accused are being prosecuted by registering Crime being C.R.No.19 of 2019 under Sections 370, 343 of the Indian Penal Code and, under Sections 5, 6, 7 of the Immoral Traffic (Prevention) Act, 1956, and in the said Crime Respondent No.2 Victim XYZ is treated as victim and sent in Corrective Institution for her care and protection."
}
},
{
"from_name": null,
"id": "33223e97f323495ba75876eba312b73b",
"to_name": null,
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"value": {
"end": 21232,
"labels": [
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],
"start": 21125,
"text": "Therefore, it can be said that she was sent in the said Corrective Institution for her care and protection."
}
},
{
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"id": "fb17576dfaed4b38af5f4439cc6e7539",
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"text": "\n 15 Respondent No.2- Victim XYZ is in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist.\nPune. for more than six months."
}
},
{
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"text": "Therefore considering the report of probation officer and also considering the fact that Respondent No.2 - Victim XYZ has spent a period of more than six months in the said Corrective Instituion, the ends of justice would be met in the present case, if the directions are given to release Respondent No.2 - Victim XYZ from the said Corrective Institution i.e.\nShaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n 16 However, it needs to be mentioned at this stage that during inquiry by the learned JMFC, it is found that the Petitioner is not the real mother of Respondent No.2 - Victim XYZ and, Respondent No.2 Victim is major and therefore, no restrictions can be put upon Respondent No.2 Victim by issuing direction to give her custody to the Petitioner."
}
},
{
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"to_name": null,
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"labels": [
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],
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"text": "Since Respondent No.2 Victim XYZ is major after her release she is free to move as per her wish."
}
},
{
"from_name": null,
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"labels": [
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"text": "\n 17 In the light of the discussion in foregoing paragraphs, the ends of justice would be met, if the impugned orders passed by the Courts below are modified to the extent mentioned herein below."
}
},
{
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"id": "efca41ff924b4f6280c39394eaa029d7",
"to_name": null,
"type": null,
"value": {
"end": 23073,
"labels": [
"RPC"
],
"start": 22520,
"text": "Hence the the following order is passed :- 1] The direction issued by the 2nd Joint Judicial Magistrate First Class, Pandharpur, District Solapur, sending/keeping the Victim XYZ in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for one year stands modified/curtailed to the period already spent by Respondent No.2 - Victim XYZ in the said Corrective Institution, however, subject to clause (2) mentioned herein under, and upon completion of usual procedural formalities.\n 2] "
}
},
{
"from_name": null,
"id": "928a6c1a10e846a8abd2da17220793cc",
"to_name": null,
"type": null,
"value": {
"end": 23365,
"labels": [
"RPC"
],
"start": 23073,
"text": "Respondent No.2 - Victim XYZ should be set at liberty and to be released forthwith, however, after ascertaining her wish, whether she desires to continue her stay in the said Corrective Institution for remaining period or wants to be set at liberty/freed from the said Corrective Institution."
}
},
{
"from_name": null,
"id": "c4064dad94474458b6dce46dfe458f91",
"to_name": null,
"type": null,
"value": {
"end": 23616,
"labels": [
"RPC"
],
"start": 23367,
"text": "3] The prayer of the Petitioner to handover the custody of the Respondent No.2 - Victim XYZ to the Petitioner stands rejected, and as observed herein above after Respondent No.2 - Victim XYZ is released, she is free to move as per her wishes.\n 4] "
}
},
{
"from_name": null,
"id": "f979241f53834287ac455f6a23a497ba",
"to_name": null,
"type": null,
"value": {
"end": 23680,
"labels": [
"RPC"
],
"start": 23616,
"text": "With the aforesaid directions, the Writ Petition is disposed of."
}
},
{
"from_name": null,
"id": "61f87af674604e2c8af644d2b94647f2",
"to_name": null,
"type": null,
"value": {
"end": 23727,
"labels": [
"RPC"
],
"start": 23681,
"text": "Rule is made absolute to the aforesaid extent."
}
},
{
"from_name": null,
"id": "e75d705be60d48ab85cf97122212d9f3",
"to_name": null,
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"value": {
"end": 23747,
"labels": [
"NONE"
],
"start": 23727,
"text": "\n [S. S. SHINDE , J]"
}
}
]
}
] | 4,072 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL WRIT PETITION NO.2050 OF 2019\n\nAsiya Anwar shaikh ]\nAge-34 years, Occupation : Marketing, ]\nResiding at Goa Galli, Takai Nagar ]\nNear Bholenath Mandir, Daund, Dist. Pune ]..... Petitioner.\n\n Versus\n\n1] The State of Maharashtra, ]\n through the Pandharpur Taluka Police ]\n Station, Dist Solapur ]\n ]\n2] XYZ.... ]..... Respondents.\n\nMr. Satyavrat Joshi for the Petitioner.\nMr. A R Patil, APP for the Respondent/State.\n\n CORAM : S. S. SHINDE, J\n Reserved on : 24th June 2019\n Pronounced on : 11th July 2019\n\nJUDGMENT : 1 Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard.\n 2 At the outset it is required to be noted that since the crime registered by the Police is under the Immoral Traffic (Prevention) Act, 1956 so also under the Indian Penal Code and Respondent No.2 Victim XYZ is alleged to have been compelled to involve herself in prostitution, the identity of Respondent No.2 herein needs to be concealed, and hence she is referred to as XYZ. The Registry is directed to maintain the record accordingly.\n 3 By this Writ Petition, the Petitioner takes exception to the order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur by which order the Criminal Appeal No.17 of 2019 filed by the Petitioner herein came to be rejected and resultantly the order dated 23/01/2019 passed by the learned 2nd Joint Judicial Magistrate First Class, Pandharpur, District Solapur, in Crime No.19 of 2019 sending Respondent No.2 herein i.e. Victim XYZ in the aforesaid crime for a period of one year for her care and protection in Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune came to be confirmed.\n 4 Brief facts leading to filing of the present Writ Petition are as under:- It is the case of the prosecution that Respondent No.2 herein was found in a lodge in a raid effected by the Sub Divisional Police Officer, Pandharpur. FIR bearing CR No.19 of 2019 came to be registered with Pandharpur Taluka Police Station against 11 accused persons. Respondent No.2 XYZ being victim of the crime was rescued and was temporarily kept in the custody of a social worker. The Pandharpur Taluka Police filed an application before the learned JMFC, Pandharpur praying therein to issue directions to keep Respondent No.2 XYZ in the Corrective Institution i.e.\n Mahila Sudhargruh, Solapur for her care and protection. Thereafter the Petitioner and Respondent No.2 have filed their respective applications before the learned JMFC, Pandharpur praying for granting custody of Respondent No.2 to the Petitioner, who is the believed mother ( ekuysyh vkbZ ) of Respondent No.2 - XYZ. The learned JMFC has recorded the statements of both the Petitioner and Respondent No.2. The learned JMFC also directed the Probation Officer to make an inquiry as contemplated by Section 17(2) of the Immoral Traffic (Prevention) Act, 1956 (for short \"the said Act\"). Accordingly the probation officer after making inquiry submitted his report to the learned JMFC. As indicated herein above, the learned JMFC rejected the applications of the Petitioner and Respondent No.2 by the impugned order dated 23/01/2019 thereby sending Respondent No.-XYZ to the above mentioned Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for her care and protection for a period of one year.\n 5 Being aggrieved by the said order dated 23/01/2019 passed by the learned JMFC, the Petitioner herein has filed Criminal Appeal No.17 of 2019 before the learned Additional Sessions Judge, Pandharpur. The Petitioner has also filed application for interim custody of Respondent No.2. The Petitioner as well as the Prosecution have filed their written arguments in the said Appeal before the learned Additional Sessions Judge, Pandharpur. After hearing both the parties, the learned Additional Sessions Judge, Pandharpur has dismissed the Appeal by the impugned judgment and order dated 20/03/2019. It is the said order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur, rejecting the Appeal of the Petitioner which is taken exception to by way of the present Writ Petition.\n 6 Heard the learned counsel for the parties. The learned counsel for the Petitioner Mr. Satyavrat Joshi submitted that The Immoral Traffic (Prevention) Act is enacted by the Parliament of India in the year 1956 and the statement of Objects and Reasons, as was originally incorporated, is that the said Act was in the year 1950, the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. He further submitted that under Article 23 of the Constitution of India, traffic in human being is prohibited and any contravention of the prohibition is an offence punishable by law. He also submitted that the said Act has been amended further in the year 1978 (Amendment Act 46 of 1978) wherein an additional Statement of Objects and Reasons was incorporated, and in the year 1986 again the said Act was amended wherein further Statement of Objects and Reasons was incorporated.\n He further submitted that in view of the objects and reasons of the Act, certain amendments were made to the said Act, 1986 (Amendment Act 44 of 1986).\n The learned counsel for the Petitioner relying upon the scope and ambit of the said Act which provides for certain penal provisions in relation to exploitation of women running, owing, occupying brothels, living on the earning of prostitutes etc. submitted that under the Scheme of the said Act, neither the victims nor the customers are liable to be prosecuted. The learned counsel for the Petitioner further submitted that the said Act provides various mechanism to curb trafficking and immoral traffic and one of the mechanism provided under the said Act is under Sections 16 and 17. He also submitted that section 16 of the said Act provides for rescue of victims whereas section 17 provides for mechanism which is to be followed by a learned Magistrate before whom such victims are produced and, if this provision is to be seen in the light of objects and reasons of the Act, the victim under the said Act is immune from prosecution. He further submitted that the mechanism which is provided under Sections 16 and 17 is not punitive, however, it is reformatory in nature The question for determination is whether such mechanism can be used for the reform of a victim, more particularly an adult in absence of her willingness.\nThe learned counsel for the Petitioner contended that it is the bounden duty of the State to protect the interest of the victim having organizations such as protection homes but at the same time in the absence of the willingness of an adult victim she cannot be kept in a protection home. He also submitted that Article 19 of the Constitution of India guarantees the right of freedom and Article 23 provides for abolition of beggar or slavery or forced labour. He also submitted that under the Constitution of India every Indian citizen has right to move freely through the territory of India as also has a right to choose a vocation, but at the same time, there are reasonable restrictions cast upon them while exercising those fundamental rights. The learned counsel for the Petitioner further submitted that a person, who has attained the age of majority cannot be restricted or cannot be kept in home since he/she has a right to carry out his/her own vocation as also he/she has a right to freely move through the territory of India. He also submitted that the object of the said Act is to secure the ends of justice by ensuring that the victim is not further exploited and, whether a victim is required to be kept in a protection home needs to be decided by taking into consideration of the age of victim, examination of the social strata, examination of the economic condition of the victim as also examination of the facts of the case in relation to, which the victim is sought to be kept in protection home by prima facie recording a finding that a person who is demanding custody of such woman, should not be indirectly or directly connected with the offence in question. He submitted that mental capacity and understanding of such victim is also required to be ascertained prior to passing the order by consulting panel of psychologists who may ascertain the mental condition of the women as also whether reasons behind the victim being subjected to prostitution/immoral traffic. He further submitted that legal assistance at each and every stage should be provided to the victim and panel of eminent persons from the legal fraternity should be appointed so as to ascertain (I) whether the victim was exploited and the reasons as to why she is exploited; (ii) the probation officer should be assisted by at least one such eminent person from the field of law. Relying upon the objects and reasons of the said Act, the learned counsel for the Petitioner submitted that immoral trafficking is a stigma not only upon a victim but upon the society as a whole, and therefore, the record of the victim should be maintained with all police stations throughout the State. In so far as the minors are concerned, custody should be only given to those persons after making a detailed inquiry through a probation officer as regards the circumstances under which all such minors were forced into prosecution, the compelling reason behind the minor being inducted into the racket of prostitution. Ordinarily custody should not be granted of minors only because the same is claimed by parents or natural guardians, however, antecedents of parents, natural guardians and persons who are claiming custody of such minors should be verified by (a) the Police Station Officers investigating the case; (b) antecedents may also be verified by an independent police agency such as the Local Crime Branch which is the Central Investigating Agency in rural areas as also by the Crime Branch of Police Commissionerate; (c) before granting custody of minors based on the report of these Two agencies, the Court concerned prior to granting such custody should be satisfied by recording reasons that grant of custody would not be prejudicial in any manner to the interest of the victim/child. He submitted that Sections 14 and 15 contemplate Special Police Officers. However, the police officers are not equipped or are not adequately trained for the purpose of handling victims at the time of carrying out investigations pertaining to offences under the said Act and the paramount consideration should be given to the rescue of the victims as also the investigating officers must adopt a sensitive approach towards the well being of the victim, more specifically if the victims are minors, hence special training in that regard has to be given to the special police officers. It is further submitted that the offecnes under the said Act should be investigated by one Central Agency, and such a similar arrangement can also be made in district places as investigations of such crimes require specialized care and attention, and it is apt that Senior Police Officers, preferably Lady Police Officers supported by trained staff of police officers should investigate into such offences. It is also submitted that Section 17 of the Act has also to be construed from the point of securing the presence of victim at the time of trial and hence before a victim is released, her details regarding her names and addressed can be verified and record thereof can be maintained.\n 7 The learned counsel for the Petitioner also submits that the learned JMFC has not complied with the mandate laid down in Section 17(5) of the said Act, and the direction being mandatory in nature, non - compliance of the same would render the impugned order liable to be quashed and set aside. He further contended that though Respondent No.2 has nowhere stated that Petitioner had compelled her to do prostitution, both the Courts have erred in recording a fact that the Petitioner had compelled Respondent No.2 to do prostitution. It is the contention of the learned counsel for the Petitioner that the wish of Respondent No.2 to stay with the Petitioner, as Respondent No.2 is a major of 22 years, has to be considered, however, both the Courts below have ignored the said fact. It is further contended that though the Probation Officer, after taking into consideration various factors, in his report opined that the custody of Respondent No.2 may be given to the Petitioner, both the Courts below have ignored the report of the probation officer. It is also contended that Respondent No.2 has stated in the statement recorded by the learned JMFC that she was doing the work of cooking in the said lodge and therefore there is no material to show that the Petitioner had compelled Respondent No.2 to do prostitution. The learned counsel for the Petitioner submitted that, Respondent No.2 has one and half year old child and the Petitioner has expressed her desire to maintain Respondent No.2. The learned counsel for the Petitioner in support of the aforesaid contentions relied upon the unreported judgment of the Division Bench of this Court (Coram : Mrs.\n Roshan Dalvi & Mrs. Shalini Phansalkar-Joshi, JJ) in Criminal Public Interest Litigation No.4 of 2015 in the matter of Freedom Firm v/s. Commissioner of Police, Pune and ors., and another unreported judgment of the Division Bench of this Court (Coram : A.S.Oka & A.A.Sayed, JJ) in Criminal Writ Petition No.3184 of 2016 in the matter of Krishna Surendra Singh v/s. State of Maharashtra and anr. He therefore submitted that the present Petition may be allowed by quashing the impugned orders passed by both the Courts and the custody of Respondent No.2 herein may be handed over to the Petitioner in the interest and welfare of Respondent No.2 herein.\n 8 The learned APP relying upon the reasons assigned by the learned JMFC as well as the learned Additional Sessions Judge submitted that both the Courts below upon appreciation of the material place on record and keeping in view the interest of victim has passed the orders sending Respondent No.2 herein for her care and protection for a period of one year in a the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n 9 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. I have perused the grounds taken in the Writ Petition and annexures thereto as also the reasons assigned by both the Courts below and the material place on record. It appears that the Petitioner herein posed her as a real mother of the Respondent No.2 - Victim XYZ, and it was stated before the learned JMFC that Respondent No.2 - Victim is her daughter. However, the learned JMFC, on interaction with the Petitioner, found that she is not the real mother of Respondent No.2 - Victim. It appears that the Petitioner told before the learned JMFC that she did not give birth to Respondent No.2 - Victim XYZ, but she maintains her since her childhood. The learned Additional Sessions Judge has also taken note of such conduct of the Petitioner in paragraph 12 of the impugned Judgment and order. The said conduct of the Petitioner not to disclose the true facts before the learned JMFC cannot be countenanced. A person approaching the Court shall approach the Court with clean hands and shall disclose all true and relevant facts.\nSuppression of vital information or telling lie before the Court that the Petitioner is a real mother of Respondent No.2 - Victim cannot be countenanced by any standard. This Petition can be rejected on the said ground alone. However, keeping in view the interest of Respondent No.2 Victim, the contentions of the learned counsel for the parties needs to be considered on merits.\n 10 It appears that the probation officer, who was appointed, has submitted his inquiry report and opined that it is appropriate to give custody of the Victim to the Petitioner. It appears in spite of the report of the probation officer, the learned JMFC deemed it appropriate to send Respondent No.2 Victim for her care and protection in the said Corrective Institution i.e.\n Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n Upon careful perusal of the reasons assigned by the Trial Court as well as the Appellate Court it can be safely stated that the learned JMFC, keeping in view of the interest of Respondent No.2 XYZ, has passed the order sending her to the said Corrective Institution for her care and protection with a hope of reformation of the victim. It appears that the learned JMFC has also taken care of the contention of the Petitioner that Respondent No.2 Victim has one and half year sucking child.\n 11 However, the important question that has been raised in this Petition is that, Respondent No.2 - Victim being major can be sent to the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune against her wishes. The learned counsel for the Petitioner submits that Respondent No.2 -Victim has a right to reside at the place of her choice, to move freely through out the territory of India and to chose her vocation.\n It is true that every citizen has right to chose his/her vocation, to move from one place to another through out the territory of India, and other fundamental rights enshrined in the Constitution of India. Under Clause (1) of Article 19 all citizens shall have the right --- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form association or unions (or co-operative societies); (d) to move freely through out the territory of India; (e) to reside and settle in any part of the territory of India, and [****] (g) to practise any profession, or to carry on any occupation, trade or business.\n 12 Indisputably Respondent No.2 Victim XYZ is major, therefore it is imperative to consider her wishes. There is no doubt that the State Government within its power under the said Act, keeping in view of the interest of the victim, can seek appropriate directions from the Court to send the victim to Corrective Institution. It is true that the fundamental rights conferred upon the citizen of India in Part III of the Constitution of India are with reasonable restrictions mentioned in each Article. The fundamental rights of the citizen enshrined in Part III of the Constitution of India stand on higher pedestal vis-a-vis statutory right or any other rights conferred by the general law. Therefore I find considerable force in the submission made by the learned counsel for the Petitioner that the victim being major, her fundamental right to move from one place to another place, reside at the place of her choice and to chose her vocation has to be considered, and contrary to her wishes she cannot be asked to reside in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n 13 It is pertinent to mention at this stage that the police machinery has not brought on record any material suggesting that Respondent No.2 Victim XYZ is suffering from disability or her case is covered by reasonable restrictions under Article 19 of the Constitution of India, and setting her free would cause danger to the society. It is also required to be noted that nothing is placed on record by the police which would show that her right to move from one place to another place or reside at the place of her choice is hampered due to restrictions imposed in Article 19 of the Constitution of India.\n 14 In the facts of the present case, Respondent No.2 - Victim XYZ was sent and/or kept in the Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for her care and protection, by order dated 23/01/2019 passed by the learned JMFC. Prior to passing the order by the learned JJMC, a raid was conducted by the Taluka Police Station Pandharpur at Hotel Sangam Lodge, Pandharpur and during the said raid, the victim was found in the said lodge and, as alleged by the concerned Police Department, Respondent No.2 - Victim XYZ along with other victims was involved in the prostitution. The accused are being prosecuted by registering Crime being C.R.No.19 of 2019 under Sections 370, 343 of the Indian Penal Code and, under Sections 5, 6, 7 of the Immoral Traffic (Prevention) Act, 1956, and in the said Crime Respondent No.2 Victim XYZ is treated as victim and sent in Corrective Institution for her care and protection. Therefore, it can be said that she was sent in the said Corrective Institution for her care and protection.\n 15 Respondent No.2- Victim XYZ is in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist.\nPune. for more than six months. Therefore considering the report of probation officer and also considering the fact that Respondent No.2 - Victim XYZ has spent a period of more than six months in the said Corrective Instituion, the ends of justice would be met in the present case, if the directions are given to release Respondent No.2 - Victim XYZ from the said Corrective Institution i.e.\nShaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.\n 16 However, it needs to be mentioned at this stage that during inquiry by the learned JMFC, it is found that the Petitioner is not the real mother of Respondent No.2 - Victim XYZ and, Respondent No.2 Victim is major and therefore, no restrictions can be put upon Respondent No.2 Victim by issuing direction to give her custody to the Petitioner. Since Respondent No.2 Victim XYZ is major after her release she is free to move as per her wish.\n 17 In the light of the discussion in foregoing paragraphs, the ends of justice would be met, if the impugned orders passed by the Courts below are modified to the extent mentioned herein below. Hence the the following order is passed :- 1] The direction issued by the 2nd Joint Judicial Magistrate First Class, Pandharpur, District Solapur, sending/keeping the Victim XYZ in the said Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for one year stands modified/curtailed to the period already spent by Respondent No.2 - Victim XYZ in the said Corrective Institution, however, subject to clause (2) mentioned herein under, and upon completion of usual procedural formalities.\n 2] Respondent No.2 - Victim XYZ should be set at liberty and to be released forthwith, however, after ascertaining her wish, whether she desires to continue her stay in the said Corrective Institution for remaining period or wants to be set at liberty/freed from the said Corrective Institution.\n 3] The prayer of the Petitioner to handover the custody of the Respondent No.2 - Victim XYZ to the Petitioner stands rejected, and as observed herein above after Respondent No.2 - Victim XYZ is released, she is free to move as per her wishes.\n 4] With the aforesaid directions, the Writ Petition is disposed of. Rule is made absolute to the aforesaid extent.\n [S. S. SHINDE , J] "
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"text": "\n\n WRIT PETITION NO.432 OF 2007\n\nN.V.Marketing Pvt.Ltd."
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"text": ". ...Respondents.\n\n AND\n\n "
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"text": "WRIT PETITION NO.435 OF 2009"
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"text": "M/s.Mumbailaxmi Enterprises."
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"text": "WRIT PETITION NO.533 OF 2007"
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"text": "\n\nvs.\n\n1.The Commissioner of Small\nSavings & Lotteries & ors."
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"text": "\n\n AND\n\n WRIT PETITION NO.629 OF 2007\n\nSugal & Damani Lottery Agency"
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"text": "WRIT PETITION NO.1111 OF 2007"
}
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}
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"text": "\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors."
}
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"text": "WRIT PETITION NO.1126 OF 2007"
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}
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"text": "WRIT PETITION NO.1127 OF 2007"
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}
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"text": "vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others."
}
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"text": "AND\n\n WRIT PETITION NO.425 OF 2009"
}
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"text": "\n\n vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors."
}
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"text": "\n\n AND\n\n WRIT PETITION NO.436 OF 2009\n\nPradeep Lunkad. ..."
}
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"text": "\n\n vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. ..."
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"text": "Respondents."
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"text": "\n\n\n AND\n\n "
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"text": "WRIT PETITION NO.444 OF 2009"
}
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"text": "M/s.Utsav Gaming Solutions"
}
},
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"text": " ...Petitioner."
}
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"text": "\nPvt.Ltd."
}
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"text": "\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. "
}
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"text": "\n\n ---\n\nDr.V.V.Tulzapurkar with R.D.Soni & V.R.Kasle i/b. Ram\n& Co., for Petitioners in WP Nos.413/09, 533/09,\n1111/07, 1126/07, 436/09, 425/09, 1127/07."
}
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"start": 2358,
"text": "\n\nMr.R.D.Soni @ V.R.Kasle i/b. Ram & Co., for\nPetitioners in WP 435/09."
}
},
{
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"id": "3284d5db751e43da9cb039119f9850d3",
"to_name": null,
"type": null,
"value": {
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"labels": [
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],
"start": 2429,
"text": "\n\nMr.S.H.Doctor, Sr. Advocate i/b. B.B.Parikh, for\nPetitioners in WP 432/07."
}
},
{
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"id": "c35df890b047433e9e712260ed32a234",
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"value": {
"end": 2585,
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],
"start": 2505,
"text": "\n\nMr.S.Bharucha i/b. Thakore Jariwala & Associate, for\nPetitioners in WP 629/07."
}
},
{
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"end": 2684,
"labels": [
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],
"start": 2585,
"text": "\n\nMr.Aspi Chinoy, Sr.Advocate with Ms.Gita Shastri, AGP\nfor Respondent-State in WP 435/07 & 436/09."
}
},
{
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"id": "f0087b50ad724bbd9b2438a69435fd0b",
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"end": 2825,
"labels": [
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],
"start": 2686,
"text": "Mr.A.A.Kumbhakoni with Ms.Gita Shastri, AGP for\nRespondent-State in WP 432/07 & 533/07, 629/07,\n1111/07, 1126/07, 1127/09, 425/09 & 444/09."
}
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"text": "---\n\n\n "
}
},
{
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"labels": [
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],
"start": 2888,
"text": "CORAM: D.K.DESHMUKH &\n R.S.MOHITE, JJ."
}
},
{
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"id": "7205cb9f7855473abd21ef5bcfe09a07",
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],
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"text": "DATED: 14th August,2009."
}
},
{
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"id": "a71a444aece8408f9845b8c2c18795f2",
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],
"start": 2982,
"text": "\n\nJUDGMENT: (PER D.K.DESHMUKH, J) "
}
},
{
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"id": "0d8d30fff4d343e3b388d074d00e84bc",
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"type": null,
"value": {
"end": 3220,
"labels": [
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],
"start": 3016,
"text": "1. In all theses petitions the constitutional validity of the Maharashtra Tax on Lotteries Act,2006 has been challenged and therefore, all these petitions can be conveniently disposed of by common order."
}
},
{
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"id": "301c0c4095134e4ebe92ac83a063c015",
"to_name": null,
"type": null,
"value": {
"end": 3400,
"labels": [
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],
"start": 3220,
"text": "\n 2. The petitioners are the distributors of lottery tickets for sale in State of Maharashtra, of various States organizing, conducting and promoting their own lotteries in India."
}
},
{
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"id": "80b1f976f5a74ddc90f5e10e9a5d6362",
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"value": {
"end": 3496,
"labels": [
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],
"start": 3401,
"text": "The Respondent-State Government is also organizing, conducting and promoting its own lotteries."
}
},
{
"from_name": null,
"id": "1b0d0f9f52174f6595c6e65e5fa9b03a",
"to_name": null,
"type": null,
"value": {
"end": 3698,
"labels": [
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],
"start": 3497,
"text": "It is submitted that the State of Maharashtra firstly levied and imposed sales tax on lottery tickets of the lotteries organized by the other State Governments by treating the lottery tickets as goods."
}
},
{
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"id": "919d35fb0e674a7dbbe9ff4935fe5305",
"to_name": null,
"type": null,
"value": {
"end": 3943,
"labels": [
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],
"start": 3699,
"text": "However, when it was held that lottery tickets are not goods, the sales tax imposed on lottery tickets was withdrawn by the State Government and the Maharashtra Tax on Lotteries Act, 2006 (hereinafter referred to as the State Act ) was enacted."
}
},
{
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"id": "751f4b2d248846e488503321a32b7de5",
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"type": null,
"value": {
"end": 4277,
"labels": [
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],
"start": 3943,
"text": "\n 3. It is the contention of the petitioners that the legislature of State of Maharashtra has no legislative power to enact Laws relating to State Lotteries including Laws relating to taxation, and therefore, according to the petitioners, the State Act is beyond the legislative competence of the legislature of State of Maharashtra."
}
},
{
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"id": "c6df8f2ddc8f48459946e7ff6fd552a9",
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"value": {
"end": 4454,
"labels": [
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],
"start": 4278,
"text": "The second submission is that the enactment of the State Act is colourable exercise of the legislative power inasmuch as it is another method of levying tax on lottery tickets."
}
},
{
"from_name": null,
"id": "362cccb3c8ad416096fb849951d8db5d",
"to_name": null,
"type": null,
"value": {
"end": 4662,
"labels": [
"ARG_PETITIONER"
],
"start": 4455,
"text": "The third submission is that the State Act seeks to levy tax on lottery schemes, tax is collected in advance in respect of each draw in the lottery scheme at the rate specified in Section 3 of the State Act."
}
},
{
"from_name": null,
"id": "b4d016bd09da465dbbfe65fab28e6135",
"to_name": null,
"type": null,
"value": {
"end": 4895,
"labels": [
"ARG_PETITIONER"
],
"start": 4663,
"text": "It is submitted that lottery scheme of all other State organizing and conducting lotteries save and except that of Maharashtra are formulated outside the State of Maharashtra and therefore, the Law has extra territorial application."
}
},
{
"from_name": null,
"id": "fcfd658e7c27433899d4da632ed67850",
"to_name": null,
"type": null,
"value": {
"end": 5112,
"labels": [
"ARG_PETITIONER"
],
"start": 4896,
"text": "The fourth submission is that the State Act levies tax on lottery schemes but the term lottery scheme is not defined anywhere and therefore, it is violative of guarantee under Article 14 of the Constitution of India."
}
},
{
"from_name": null,
"id": "5d0fe6971e6949829f89caf6da1a24aa",
"to_name": null,
"type": null,
"value": {
"end": 5454,
"labels": [
"ARG_PETITIONER"
],
"start": 5113,
"text": "It was also contended that the State Act has been enacted to impose tax on sale of lottery tickets conducted by other States in State of Maharashtra so as to make selling of lottery tickets by the other States uneconomical, unviable and thereby creating monopoly in the lottery tickets of the lotteries conducted by the State of Maharashtra."
}
},
{
"from_name": null,
"id": "874c9c323e834be1bc26fa2cca78f49f",
"to_name": null,
"type": null,
"value": {
"end": 5651,
"labels": [
"ARG_PETITIONER"
],
"start": 5454,
"text": "\n 4. Elaborating the first submission, the learned Counsel appearing for petitioners submitted that the legislature of State of Maharashtra has no legislative competence to enact the impugned Act."
}
},
{
"from_name": null,
"id": "e7a884c2f5c04569b38eeba0be231d20",
"to_name": null,
"type": null,
"value": {
"end": 5724,
"labels": [
"ARG_PETITIONER"
],
"start": 5652,
"text": " By the impugned Act, tax is sought to be levied on the lottery schemes."
}
},
{
"from_name": null,
"id": "9884f00e9fbd4a1abba01c9702fc504d",
"to_name": null,
"type": null,
"value": {
"end": 6084,
"labels": [
"ARG_PETITIONER"
],
"start": 5725,
"text": "The subject Lotteries organised by the Government of India or the Government of a State comes in Entry 40 of List-I in the Seventh Schedule of the Constitution of India, and therefore, only Parliament is empowered to enact Law relating to lotteries governed by Government of India or the Government of a State or any law relating to such tax on the lotteries."
}
},
{
"from_name": null,
"id": "e6d357d0fe1b4d8f85746dc5fc14671e",
"to_name": null,
"type": null,
"value": {
"end": 6261,
"labels": [
"ARG_PETITIONER"
],
"start": 6085,
"text": "It is submitted that the State legislature does not have competence to levy tax on the lotteries under Entry 62 of List II of the Seventh Schedule of the Constitution of India."
}
},
{
"from_name": null,
"id": "ece0393a5f854c08ae1800046931858a",
"to_name": null,
"type": null,
"value": {
"end": 6874,
"labels": [
"ARG_PETITIONER"
],
"start": 6262,
"text": "The learned Counsel relied on the judgments of the Supreme Court in the cases H.Anraj & others Vs. State of Maharashtra, AIR 1984(2) Supreme Court 781 and H.Anraj & others Vs. Government of Tamilnadu, AIR 1986 Supreme Court 63 and it was submitted that the lotteries organized by the State are necessarily excluded from betting and gambling mentioned in Entry 62 of List II of the Seventh schedule, and then it was contended that the State of Maharashtra has not shown any other source of power except Entry 62 of List II of the Seventh Schedule and therefore, the State Act is beyond its legislative competence."
}
},
{
"from_name": null,
"id": "5deaeb3166ef4c65af5285fbde4e6e30",
"to_name": null,
"type": null,
"value": {
"end": 7214,
"labels": [
"ARG_PETITIONER"
],
"start": 6874,
"text": "\n 5. Elaborating the second submission, it was submitted that prior to the decision of the Constitution Bench of the Supreme Court in the case M/s.Sunrise Associates Vs. Govt. of NCT of Delhi & Ors., AIR 2006 Supreme Court 1908 , the State of Maharashtra has been collecting tax on State lottery tickets treating lottery tickets as goods ."
}
},
{
"from_name": null,
"id": "b43403ae813144039d087ac8bf7dc0d9",
"to_name": null,
"type": null,
"value": {
"end": 7412,
"labels": [
"ARG_PETITIONER"
],
"start": 7215,
"text": "However, once it was held to be unconstitutional as lottery tickets were held not to be the goods, now again tax is being collected on sale of lottery tickets under the provisions of the State Act."
}
},
{
"from_name": null,
"id": "b05c0b218795443f9300a4632c29d1e8",
"to_name": null,
"type": null,
"value": {
"end": 7537,
"labels": [
"ARG_PETITIONER"
],
"start": 7412,
"text": "\n 6. Elaborating the third submission, it was contended that the State Act seeks to levy and collect tax on lottery schemes."
}
},
{
"from_name": null,
"id": "ce1b3ceb95da4ee7bc4c4075f6df6b59",
"to_name": null,
"type": null,
"value": {
"end": 7981,
"labels": [
"ARG_PETITIONER"
],
"start": 7538,
"text": "It was submitted that the lottery schemes of other States organizing and conducting lotteries save and except that of State of Maharashtra are formulated outside State of Maharashtra and in the respective State organizing and conducting lotteries and the draws in respect of the said schemes are also held in the said States itself and the results are also declared in the said States and published in the official Gazettes of the said States."
}
},
{
"from_name": null,
"id": "c26426cb0e3c46f993d2d12471af0e0b",
"to_name": null,
"type": null,
"value": {
"end": 8219,
"labels": [
"ARG_PETITIONER"
],
"start": 7982,
"text": "Thus, by seeking to charge and collect tax on lottery schemes, the State Act seeks to tax events which have occurred outside the State and hence, the State Act is dealing with the subject which is not within its territorial jurisdiction."
}
},
{
"from_name": null,
"id": "e068a320ca7343e3aa5d404f49ed581d",
"to_name": null,
"type": null,
"value": {
"end": 8374,
"labels": [
"ARG_PETITIONER"
],
"start": 8219,
"text": "\n 7. Elaborating the fourth submission, it was contended that though tax is imposed in relation to the schemes, the term Scheme is not defined in the Act."
}
},
{
"from_name": null,
"id": "f81b3a79c20d460f9636ab1377dfa3a7",
"to_name": null,
"type": null,
"value": {
"end": 8567,
"labels": [
"ARG_PETITIONER"
],
"start": 8375,
"text": "Thus, the tax is being levied with reference to the concept which is extremely vague and therefore, levying of tax in such a situation violates the guarantee of Article 14 of the Constitution."
}
},
{
"from_name": null,
"id": "aae10d9aabd648b3a51d2535aea8ea89",
"to_name": null,
"type": null,
"value": {
"end": 8894,
"labels": [
"ARG_PETITIONER"
],
"start": 8568,
"text": "It was also submitted that extremely large amount has been collected as tax under the Act with a view to make it uneconomical to sell tickets of lotteries conducted by other States in the State of Maharashtra with a view to create monopoly in relation to the lottery tickets of the lotteries conducted by State of Maharashtra."
}
},
{
"from_name": null,
"id": "65a02014da9044d88cad56d6fd725c04",
"to_name": null,
"type": null,
"value": {
"end": 8979,
"labels": [
"ARG_PETITIONER"
],
"start": 8894,
"text": "\n Thus, according to the petitioners, it is colourable exercise of legislative power."
}
},
{
"from_name": null,
"id": "28ed1790f432405d9472dee079ecf363",
"to_name": null,
"type": null,
"value": {
"end": 9332,
"labels": [
"ARG_RESPONDENT"
],
"start": 8979,
"text": "\n 8. On behalf of the Respondent-State of Maharashtra, on the other hand, it was contended that the State Act has been enacted under Entry 62 of List II of the Seventh Schedule of the Constitution of India relying on the Judgment of the Supreme Court in the Case State of W.B. Vs. Kesoram Industries Ltd.\n And others, (2004)10 Supreme Court Cases 201 ."
}
},
{
"from_name": null,
"id": "a0209d9c79d347ceab7b7b0c72d4839e",
"to_name": null,
"type": null,
"value": {
"end": 9487,
"labels": [
"ARG_RESPONDENT"
],
"start": 9333,
"text": "It was contended that considering the constitutional scheme, it cannot be said that the State legislature does not have competence to enact the State Act."
}
},
{
"from_name": null,
"id": "28a4fa4f13fe42ccbc02b395c164b432",
"to_name": null,
"type": null,
"value": {
"end": 9697,
"labels": [
"ARG_RESPONDENT"
],
"start": 9488,
"text": "The learned Counsel took us through the provisions of the Act to show that by reading the definition of term lottery it becomes clear that what is the meaning of term scheme used in Section 3 of the State Act."
}
},
{
"from_name": null,
"id": "e3a6c03cbdf94be8acbc6568cbdae4de",
"to_name": null,
"type": null,
"value": {
"end": 9783,
"labels": [
"ARG_RESPONDENT"
],
"start": 9698,
"text": "It was pointed out that it cannot be said that there is any vagueness in this matter."
}
},
{
"from_name": null,
"id": "6e2f972bea2b41cc8f1b88a4549e3e45",
"to_name": null,
"type": null,
"value": {
"end": 9983,
"labels": [
"ARG_RESPONDENT"
],
"start": 9784,
"text": "It was then submitted that the tax is not being collected on sale of lottery tickets but the tax is collected in relation to the lottery schemes once tickets are imported in the State of Maharashtra."
}
},
{
"from_name": null,
"id": "6116c9ebf092445f8ba8db85bf9ac3a7",
"to_name": null,
"type": null,
"value": {
"end": 10307,
"labels": [
"ARG_RESPONDENT"
],
"start": 9984,
"text": "It was submitted that there is no material placed by the petitioners on record as to how, because of the tax imposed, the business of sale of lottery tickets of the lotteries conducted by the other States in the State of Maharashtra becomes unviable, and therefore, the contention raised on that basis cannot be considered."
}
},
{
"from_name": null,
"id": "9e6671e4015942e3b84c19a6aa279574",
"to_name": null,
"type": null,
"value": {
"end": 10552,
"labels": [
"ANALYSIS"
],
"start": 10307,
"text": "\n 9. Now, in order to consider the first submission in relation to the legislative competence of the legislature of State of Maharashtra to enact the State Act, in our opinion, it becomes necessary to first refer to the Scheme of the State Act."
}
},
{
"from_name": null,
"id": "854e6dc826564fba834995e647b2bd30",
"to_name": null,
"type": null,
"value": {
"end": 10825,
"labels": [
"STA"
],
"start": 10553,
"text": "Section 3 of the State Act is the charging section which reads as under:- 3. (1) There shall be levied and collected a tax on the lottery schemes specified in column (2) of the Table hereunder, at the rates specified against them in column (3) of the said Table:- TABLE No"
}
},
{
"from_name": null,
"id": "c4185f78090443bc84387e5ea7ecc157",
"to_name": null,
"type": null,
"value": {
"end": 10908,
"labels": [
"STA"
],
"start": 10825,
"text": ". Lottery Schemes Rate of Tax 1 2 3 1 2 "
}
},
{
"from_name": null,
"id": "71237249d0234d1b883a79080d815f99",
"to_name": null,
"type": null,
"value": {
"end": 11153,
"labels": [
"STA"
],
"start": 10908,
"text": "Weekly lottery scheme 50,000 3 Fortnightly lottery scheme or any 1,00,000 4 lottery scheme between week and fortnight Monthly lottery scheme or any 2,00,000 lottery scheme of any duration exceeding fortnight Bumper lottery scheme"
}
},
{
"from_name": null,
"id": "d26aa5ee3b9643c394024e27a4b9c925",
"to_name": null,
"type": null,
"value": {
"end": 11246,
"labels": [
"STA"
],
"start": 11154,
"text": " 10,00,000 (2) The tax levied under sub-section (1) shall be paid by the Promoter."
}
},
{
"from_name": null,
"id": "ba2ef401bef54d1ba2b77f1994e31c68",
"to_name": null,
"type": null,
"value": {
"end": 11383,
"labels": [
"ANALYSIS"
],
"start": 11248,
"text": "Perusal of the above quoted Section 3 shows that tax is levied and collected on the lottery schemes specified in Column 2 of the Table."
}
},
{
"from_name": null,
"id": "7fac8139285b4752a943a07a671d50da",
"to_name": null,
"type": null,
"value": {
"end": 11604,
"labels": [
"ANALYSIS"
],
"start": 11384,
"text": "Perusal of Column 2 of the table shows that the Act contemplates four kinds of lottery schemes viz. (i) Weekly lottery scheme, (ii) fortnightly lottery scheme, (iii) monthly lottery scheme and (iv) bumper lottery scheme."
}
},
{
"from_name": null,
"id": "ab11bdb433bf43c2b82a1ebeba6e5379",
"to_name": null,
"type": null,
"value": {
"end": 11747,
"labels": [
"STA"
],
"start": 11605,
"text": "Though the term scheme has not been defined in the Act, the term lottery has been defined by Section 2(d) of the Act which reads as under:- 2."
}
},
{
"from_name": null,
"id": "8197390fb15b408cb5bf48a3d93288c4",
"to_name": null,
"type": null,
"value": {
"end": 12071,
"labels": [
"STA"
],
"start": 11748,
"text": "In this Act, unless the context otherwise requires- (d) lottery means a scheme, in whatever form and by whatever name called, for distribution of prizes by lot or chances to those persons participating in the chances of a prize, by purchasing tickets, conducted as per the provisions of the Lotteries (Regulation) Act,1998."
}
},
{
"from_name": null,
"id": "5b95629f880d4a30b88d1aa49918b1e6",
"to_name": null,
"type": null,
"value": {
"end": 12186,
"labels": [
"ANALYSIS"
],
"start": 12073,
"text": "Perusal of the above definition shows that Lottery means a scheme for distribution of prizes by lot or by chance."
}
},
{
"from_name": null,
"id": "6f3644f39dd1443f8d6c886cea7feaac",
"to_name": null,
"type": null,
"value": {
"end": 12287,
"labels": [
"ANALYSIS"
],
"start": 12187,
"text": "It is, thus, clear that lottery is nothing but a scheme for distribution of prizes by lot or chance."
}
},
{
"from_name": null,
"id": "dc0f9e545dec42d98b2ce1bceeb3a8df",
"to_name": null,
"type": null,
"value": {
"end": 12459,
"labels": [
"ANALYSIS"
],
"start": 12288,
"text": "It is clear from the provision of sub-section (2) of Section 3 of the Act that the tax levied under sub-section (1) of Section 3 of the Act has to be paid by the Promoter."
}
},
{
"from_name": null,
"id": "0ed0ef565f594eed8701157ddc6f8388",
"to_name": null,
"type": null,
"value": {
"end": 12942,
"labels": [
"STA"
],
"start": 12460,
"text": "The term Promoter is defined under sub-section (f) of Section 2 of the Act, which reads as under:- 2(f) Promoter means the Government of any State or an Union Territory or any country organizing, conducting or promoting a lottery and includes any person appointed as first importer for marketing lottery tickets in the State of Maharashtra on behalf of such Government or country where such Government or country is not directly marketing or conducting lottery schemes in the State."
}
},
{
"from_name": null,
"id": "b9950d279d984c3e94382444cbb8e812",
"to_name": null,
"type": null,
"value": {
"end": 13298,
"labels": [
"ANALYSIS"
],
"start": 12942,
"text": "\n From the definition of the term Promoter it is clear that the promoter can be either the Government of any State or an Union Territory or any country which is organizing a lottery and it can also be a person who has been appointed as first importer for marketing lottery tickets in the State of Maharashtra by such Government, Union territory or country."
}
},
{
"from_name": null,
"id": "cb47d75180b7406b8ac7f9cdd5cd930d",
"to_name": null,
"type": null,
"value": {
"end": 13361,
"labels": [
"ANALYSIS"
],
"start": 13299,
"text": " The petitioners, in this petition, claim to be the promoters."
}
},
{
"from_name": null,
"id": "df0f20e16c6745cebb12819e1a21b450",
"to_name": null,
"type": null,
"value": {
"end": 13574,
"labels": [
"ANALYSIS"
],
"start": 13362,
"text": "The Respondent-State is relying on Entry 62 in List II of the Seventh Schedule of the Constitution which reads as under:- 62.Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling."
}
},
{
"from_name": null,
"id": "e17faf6356234f83a8db87977391f027",
"to_name": null,
"type": null,
"value": {
"end": 13631,
"labels": [
"ANALYSIS"
],
"start": 13574,
"text": "\n Petitioners do not dispute that the lottery is betting."
}
},
{
"from_name": null,
"id": "b2cab5384ebc4c84b9999a06cad631e5",
"to_name": null,
"type": null,
"value": {
"end": 13823,
"labels": [
"ANALYSIS"
],
"start": 13632,
"text": "According to them, under Entry 62 in List II of the Seventh Schedule, the State legislature does not have power to impose tax on lottery because of Entry 40 in List I of the Seventh Schedule."
}
},
{
"from_name": null,
"id": "43b7226ad1ba44fea8d3488679ba0427",
"to_name": null,
"type": null,
"value": {
"end": 13887,
"labels": [
"STA"
],
"start": 13824,
"text": "Entry 40 in List I of the Seventh Schedule reads as under:- 40."
}
},
{
"from_name": null,
"id": "74d19416977b4a59a9dad3ba8def3d95",
"to_name": null,
"type": null,
"value": {
"end": 13964,
"labels": [
"STA"
],
"start": 13888,
"text": "Lotteries organised by the Government of India or the Government of a State."
}
},
{
"from_name": null,
"id": "1b4e656c47a440729f2c9e2e0f8fe3d3",
"to_name": null,
"type": null,
"value": {
"end": 14262,
"labels": [
"ANALYSIS"
],
"start": 13964,
"text": "\n According to the petitioners, because the power to legislate in relation to lotteries organised by the Government of India or the Government of State is vested in Parliament, the State legislature cannot impose tax in exercise of its legislative power under Entry 62 in relation to the lotteries."
}
},
{
"from_name": null,
"id": "4f14ef51720c4b7aa89cf88231de0872",
"to_name": null,
"type": null,
"value": {
"end": 14719,
"labels": [
"ANALYSIS"
],
"start": 14263,
"text": "It is submitted that Entry 34 of List II of the Seventh Schedule of the Constitution empowers the State Government to legislate in relation to betting and gambling, but because of Entry 40 in List I of the Seventh Schedule of the Constitution, lottery is excluded from the ambit of the term betting in Entry 34 of List II of the Seventh Schedule and it also stands excluded from the ambit of the term betting in Entry 62 of List II of the Seventh Schedule."
}
},
{
"from_name": null,
"id": "cf5aa6af84be492a8739baaff6fce819",
"to_name": null,
"type": null,
"value": {
"end": 14800,
"labels": [
"ANALYSIS"
],
"start": 14720,
"text": "In our opinion, the entire argument is misconceived and against the settled law."
}
},
{
"from_name": null,
"id": "614cd68a4c1d40989b783e86fa122fd3",
"to_name": null,
"type": null,
"value": {
"end": 15175,
"labels": [
"ANALYSIS"
],
"start": 14801,
"text": "In nutshell, the argument of petitioners is that because of Entry 40 in List I of the Seventh Schedule, the Parliament has power to regulate lotteries run by the State Government, and therefore, it excludes State lotteries from the ambit of the term Betting not only from Entry 34 in List II of the Seventh Schedule but also from Entry 62 of List II of the Seventh Schedule."
}
},
{
"from_name": null,
"id": "5a3c006517cb47eea2e17c453a8d871f",
"to_name": null,
"type": null,
"value": {
"end": 15430,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15176,
"text": "The scheme underlying the Seventh Schedule of the Constitution has been considered in a judgment by the Constitutional Bench of the Hon ble Supreme Court in the case State of W.B. Vs. Kesoram Industries Ltd. And others, (2004)10 Supreme Court Cases 201 ."
}
},
{
"from_name": null,
"id": "0a8cae2a8eb44484bf4ad2a4e189639a",
"to_name": null,
"type": null,
"value": {
"end": 15543,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15431,
"text": "The observations of the Hon ble Supreme Court in paragraphs 74, 75 and 76 are relevant, they read as under:- 74."
}
},
{
"from_name": null,
"id": "33d94d34f9b44262948cada32d7658ce",
"to_name": null,
"type": null,
"value": {
"end": 15634,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15544,
"text": "It is necessary to examine the scheme underlying the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "8e712d9998674ffb893e13d2525def4e",
"to_name": null,
"type": null,
"value": {
"end": 16115,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15635,
"text": "We are relieved of the need of embarking upon any maiden voyage in this direction in view of the availability of a Constitution Bench decision in M.P.V.Sundararamier & Co. Vs. State of A.P., Venkatarama Aiyar, J., speaking for the Constitution Bench, traced the history of legislations preceding the Constitution, analysed the scheme underlying the division of legislative powers between the Centre and the States and then succinctly summed up the quintessence of the analysis."
}
},
{
"from_name": null,
"id": "de1d6ca33d4740e3883e32c2b8c8042e",
"to_name": null,
"type": null,
"value": {
"end": 16246,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16116,
"text": "It was held, inter alia: 1.In List I Entries 1 to 81 mention the several matters over which Parliament has authority to legislate."
}
},
{
"from_name": null,
"id": "70b20e1202d74064866c987f25f269b3",
"to_name": null,
"type": null,
"value": {
"end": 16330,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16247,
"text": "Entries 82 to 92 enumerate the taxes which could be imposed by a law of Parliament."
}
},
{
"from_name": null,
"id": "9422574e9b2b466d8256951933a5f012",
"to_name": null,
"type": null,
"value": {
"end": 16518,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16331,
"text": "An examination of these two groups of entries shows that while the main subject of legislation figures in the first group, a tax in relation thereto is separately mentioned in the second."
}
},
{
"from_name": null,
"id": "e20452e07cc645edb538dbe84327d76e",
"to_name": null,
"type": null,
"value": {
"end": 16624,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16518,
"text": "\n 2.In list II Entries 1 to 44 form one group mentioning the subjects on which the States could legislate."
}
},
{
"from_name": null,
"id": "99cc6d6bc1b34efcba07f8e1ce361f17",
"to_name": null,
"type": null,
"value": {
"end": 16700,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16625,
"text": "Entries 45 to 63 in that list form another group, and they deal with taxes."
}
},
{
"from_name": null,
"id": "e3d463cee19048caba15cedb6f617af2",
"to_name": null,
"type": null,
"value": {
"end": 16721,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16701,
"text": "(AIR p.493, para 51)"
}
},
{
"from_name": null,
"id": "2869da39a6cf4ef0af664aeaa423a0b9",
"to_name": null,
"type": null,
"value": {
"end": 16931,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16722,
"text": "3.Taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence."
}
},
{
"from_name": null,
"id": "922dae4e7a9b4c96bbc86329b9dfae8d",
"to_name": null,
"type": null,
"value": {
"end": 17067,
"labels": [
"PRE_NOT_RELIED"
],
"start": 16932,
"text": "And this distinction is also manifest in the language of Article 248 clauses (1) and (2) and of Entry 97 in List I of the Constitution."
}
},
{
"from_name": null,
"id": "8754d150ee984349a743eb8fc37e9da3",
"to_name": null,
"type": null,
"value": {
"end": 17182,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17068,
"text": "Under the Scheme of the entries in the lists, taxation is regarded as a distinct matter and is separately set out."
}
},
{
"from_name": null,
"id": "c7780ce6fd004700b30887e40ea7b336",
"to_name": null,
"type": null,
"value": {
"end": 17207,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17183,
"text": "(AIR 494, paras 51 & 55)"
}
},
{
"from_name": null,
"id": "f6add8a97c514bacb93230c8329abea1",
"to_name": null,
"type": null,
"value": {
"end": 17334,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17208,
"text": "4.The entries in the legislative lists must be construed broadly and not narrowly or in a pedantic manner.(AIR p.494, para 56)"
}
},
{
"from_name": null,
"id": "0588e09909124f7d9fa3b1b3a88eb453",
"to_name": null,
"type": null,
"value": {
"end": 17438,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17335,
"text": "5.The entries in the two lists Lists I and II must be construed, if possible, so as to avoid conflict."
}
},
{
"from_name": null,
"id": "6257011d7af949b98b1bb10e9f561696",
"to_name": null,
"type": null,
"value": {
"end": 17572,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17439,
"text": "Faced with a suggested conflict between entries in List I and List II, what has first to be decided is whether there is any conflict."
}
},
{
"from_name": null,
"id": "b3c4573ad3e54807b9c48fa2c3dc5df8",
"to_name": null,
"type": null,
"value": {
"end": 17673,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17572,
"text": "\n If there is none, the question of application of the non obstante clause subject to does not arise."
}
},
{
"from_name": null,
"id": "3a40e4fbbcea480a92fa1f04d2ae79ff",
"to_name": null,
"type": null,
"value": {
"end": 17866,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17674,
"text": "And, if there be conflict, the correct approach to the question is to see whether it was possible to effect a reconciliation between the two entries so a s to avoid a conflict and overlapping."
}
},
{
"from_name": null,
"id": "a47605fc6b8947a389673bbaad063980",
"to_name": null,
"type": null,
"value": {
"end": 17880,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17866,
"text": "\n Illustration"
}
},
{
"from_name": null,
"id": "7ea3a0edfb9a439db965e73b2f4856fd",
"to_name": null,
"type": null,
"value": {
"end": 18140,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17881,
"text": "If it is possible to construe Entry 42 in List I as not including tax on inter-State sales it should be so construed and the power to levy such tax must be held to be included in Entry 54 in List II (entries as they existed per- Forty-second Amendment, 1976)."
}
},
{
"from_name": null,
"id": "5d13a899ef0f4087b37352b3275a92c4",
"to_name": null,
"type": null,
"value": {
"end": 18245,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18141,
"text": " (See Governor General in Council V. Province of Madras and Province of Madras V. Boddu Paidanna & Sons."
}
},
{
"from_name": null,
"id": "a7289e01ff8c4944921625f04c66fce5",
"to_name": null,
"type": null,
"value": {
"end": 18273,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18246,
"text": "(AIR p.495, paras 56-57) 6."
}
},
{
"from_name": null,
"id": "c7f2099f9c854498a376d32f61b346ad",
"to_name": null,
"type": null,
"value": {
"end": 18547,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18274,
"text": "In the event of a dispute arising it should be determined by applying the doctrine of pith and substance to find out whether between two entries assigned to two different legislatures the particular subject of the legislation falls within the ambit of the one or the other."
}
},
{
"from_name": null,
"id": "fc935774301d40cfb752be73e902f229",
"to_name": null,
"type": null,
"value": {
"end": 18709,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18548,
"text": "Where there is a clear and irreconcilable conflict of jurisdiction between the Centre and a Provincial Legislature it is the law of the Centre that must prevail."
}
},
{
"from_name": null,
"id": "75ee089299f0446ea142742f574f4576",
"to_name": null,
"type": null,
"value": {
"end": 18901,
"labels": [
"PRE_RELIED"
],
"start": 18709,
"text": "\n 75. Referring to M.P.V.Sundararamier & Co.\nSabyasachi Mukharji, J. (as His Lordship then was) speaking for six out of the seven Judges constituting the Bench in Synthetics and Chemicals Ltd."
}
},
{
"from_name": null,
"id": "be9100d0b8624854b78f3386dd4a9bf9",
"to_name": null,
"type": null,
"value": {
"end": 19073,
"labels": [
"PRE_RELIED"
],
"start": 18902,
"text": "V. State of U.P. held that under the constitutional scheme of division of powers in the Seventh Schedule, there are separate entries pertaining to taxation and other laws."
}
},
{
"from_name": null,
"id": "aa1c5073a58d4cac8596b372bb96ae03",
"to_name": null,
"type": null,
"value": {
"end": 19119,
"labels": [
"PRE_RELIED"
],
"start": 19074,
"text": "A tax cannot be levied under a general entry."
}
},
{
"from_name": null,
"id": "c40a107a361749b5af3f44bbfb8c6b8b",
"to_name": null,
"type": null,
"value": {
"end": 19943,
"labels": [
"ANALYSIS"
],
"start": 19119,
"text": "\n 76. The abovesaid principles continue to hold the field and have been followed in cases after cases.\n General Power of regulation and control does not include power of taxation.\n Applying the principles laid down by the Supreme Court in the above said paragraphs to the present case, it can safely be said that because of Entry 40 of List I of the Seventh Schedule, the State legislature does not have power to legislate in relation to the lotteries organized by the Government of India or Government of State under Entry 34 of List II of the Seventh Schedule, but because of that the State legislature will not lose its power under Entry 62 of List II of the Seventh Schedule to impose tax in relation to the lotteries organized by the Government of India or other State under Entry 62 of List II treating it as betting."
}
},
{
"from_name": null,
"id": "9c95a5618d764a4984b9db20b1c6b7fc",
"to_name": null,
"type": null,
"value": {
"end": 20054,
"labels": [
"ANALYSIS"
],
"start": 19944,
"text": "There is no debate before us on the question that lottery amounts to betting and it was the admitted position."
}
},
{
"from_name": null,
"id": "56ad082e6c774aafa0d675a896913fb8",
"to_name": null,
"type": null,
"value": {
"end": 20450,
"labels": [
"ANALYSIS"
],
"start": 20056,
"text": "10. It was then contended before us that though there is specific power vested in the State legislature under Entry 62 of List II of the Seventh Schedule, because of Entry 40 in List I of the Seventh Schedule of the Constitution of India, the Parliament will have legislative competence to levy tax under Article 248 and Entry 97 in List I of the Seventh Schedule of the Constitution of India."
}
},
{
"from_name": null,
"id": "b7633299a5fe42f187f2ae65b50b7aa1",
"to_name": null,
"type": null,
"value": {
"end": 20745,
"labels": [
"ANALYSIS"
],
"start": 20451,
"text": "In our opinion, this submission has also no force, because power to tax is not an incidental power and under the residuary power the Parliament will be entitled to impose tax only if that power is not specifically vested in the State legislature by any entry in List II of the Seventh Schedule."
}
},
{
"from_name": null,
"id": "69d793d9d0064f56bbbb4057cdb7eb96",
"to_name": null,
"type": null,
"value": {
"end": 20939,
"labels": [
"ANALYSIS"
],
"start": 20746,
"text": "We can draw support for this conclusion reached by us, by what is observed by the Supreme Court in paragraphs 100 to 107 of its judgment in the case of State of W.B. Vs. Kesoram Industries Ltd."
}
},
{
"from_name": null,
"id": "5369b1c575e6467aa0f048dc839a062e",
"to_name": null,
"type": null,
"value": {
"end": 20995,
"labels": [
"STA"
],
"start": 20940,
"text": "And others referred to above, they read as under:- 100."
}
},
{
"from_name": null,
"id": "42e2fbe6579e4fe18dee060fa92a8c10",
"to_name": null,
"type": null,
"value": {
"end": 21081,
"labels": [
"STA"
],
"start": 20996,
"text": "Article 265 mandates no tax shall be levied or collected except by authority of law."
}
},
{
"from_name": null,
"id": "756c6a8304984a9f8dd804cc95dbaadf",
"to_name": null,
"type": null,
"value": {
"end": 21243,
"labels": [
"ANALYSIS"
],
"start": 21082,
"text": "The scheme of the Seventh Schedule reveals an exhaustive enumeration of legislative subjects, considerably enlarged over the predecessor Government of India Act."
}
},
{
"from_name": null,
"id": "55e802bc19f14a92b0dcd9b1cef19def",
"to_name": null,
"type": null,
"value": {
"end": 21303,
"labels": [
"ANALYSIS"
],
"start": 21243,
"text": "\n Entry 97 in List I confers residuary powers on Parliament."
}
},
{
"from_name": null,
"id": "721b282a805c4a0ca0133baaec82220a",
"to_name": null,
"type": null,
"value": {
"end": 21521,
"labels": [
"ANALYSIS"
],
"start": 21304,
"text": "Article 248 of the Constitution which speaks of residuary powers of legislation confers exclusive power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or the State List."
}
},
{
"from_name": null,
"id": "15135732155a4ff99a0b6b999dcad9d6",
"to_name": null,
"type": null,
"value": {
"end": 21674,
"labels": [
"ANALYSIS"
],
"start": 21522,
"text": "At the same time, it provides that such residuary power shall include the power of making any law imposing a tax not mentioned in either of those lists."
}
},
{
"from_name": null,
"id": "e02bf03525ba4aef97c87a3369212b95",
"to_name": null,
"type": null,
"value": {
"end": 21858,
"labels": [
"ANALYSIS"
],
"start": 21674,
"text": "\n It is, thus, clear that if any power to tax is clearly mentioned in List II, the same would not be available to be exercised by Parliament based on the assumption of residuary power."
}
},
{
"from_name": null,
"id": "7f1bff6441fd4e6492951d9da80bccd6",
"to_name": null,
"type": null,
"value": {
"end": 22085,
"labels": [
"ANALYSIS"
],
"start": 21859,
"text": "The seven-Judge Bench in Union of India V. Harbhajan Singh Dhillon ruled, by a majority of 4:3, that the power to legislate in respect of a matter does not carry with it a power to impose a tax under our constitutional scheme."
}
},
{
"from_name": null,
"id": "12b1bccf7c144724a2e51940999d7730",
"to_name": null,
"type": null,
"value": {
"end": 22188,
"labels": [
"ANALYSIS"
],
"start": 22086,
"text": "According to Seervai (Constitutional Law of India, 4th/Silver Jubilee Edn. Vol.3, para22.191): 22.191."
}
},
{
"from_name": null,
"id": "5367e0638c7e42659faa9396ec5793a5",
"to_name": null,
"type": null,
"value": {
"end": 22359,
"labels": [
"ANALYSIS"
],
"start": 22189,
"text": "Although in Dhillon case conflicting view were expressed about the nature of the residuary power, the nature of that power was stated authoritatively in Kesavananda case."
}
},
{
"from_name": null,
"id": "acd516c47abd4d8095a9b7a5059e7fa5",
"to_name": null,
"type": null,
"value": {
"end": 22735,
"labels": [
"ANALYSIS"
],
"start": 22360,
"text": "Earlier, in Golak Nath case, Subba Rao, C.J. (for himself, Shah, Sikri, Shelat and Vaidyalingam, JJ.) had held that Article 368 only provided the procedure for the amendment of the Constitution, but that the power to amend the Constitution was to be found in the residuary power conferred on Parliament by Articles 245 and 246(1) read with Entry 97 List I and by Article 248."
}
},
{
"from_name": null,
"id": "180adc3fcef74a9fb6e8a91ab6ca91cb",
"to_name": null,
"type": null,
"value": {
"end": 22913,
"labels": [
"ANALYSIS"
],
"start": 22736,
"text": "Seven out of the nine Judges who overruled Golak Nath case held, inter alia, that the power to amend the Constitution could not be located in the residuary powers of Parliament."
}
},
{
"from_name": null,
"id": "e4a58a94acc9441e831a8622643295c0",
"to_name": null,
"type": null,
"value": {
"end": 22951,
"labels": [
"ANALYSIS"
],
"start": 22914,
"text": "Hegde and Mukherjea, JJ. held that --"
}
},
{
"from_name": null,
"id": "1705096da6ee488dbc552f1223d38e81",
"to_name": null,
"type": null,
"value": {
"end": 23017,
"labels": [
"ANALYSIS"
],
"start": 22952,
"text": "It is obvious that these lists have been very carefully prepared."
}
},
{
"from_name": null,
"id": "361563e618d94c1baff655c8da8db8f3",
"to_name": null,
"type": null,
"value": {
"end": 23051,
"labels": [
"ANALYSIS"
],
"start": 23018,
"text": "They are by and large exhaustive."
}
},
{
"from_name": null,
"id": "c71f818c5e564694a3bc608cb3c47023",
"to_name": null,
"type": null,
"value": {
"end": 23137,
"labels": [
"ANALYSIS"
],
"start": 23052,
"text": "Entry 97 in List I was included to meet some unexpected and unforeseen contingencies."
}
},
{
"from_name": null,
"id": "589944ebff064d2f94d18736a8e4a92a",
"to_name": null,
"type": null,
"value": {
"end": 23487,
"labels": [
"ANALYSIS"
],
"start": 23138,
"text": "It is difficult to believe that our Constitution-makers who were keenly conscious of the importance of the provision relating to the amendment of the Constitution and debated that question for several days, would have left the important power hidden in Entry 97 of List I leaving it to the off chance of the courts locating that power in that entry."
}
},
{
"from_name": null,
"id": "eb8d06499ff844d1b090613f4f0c9cf0",
"to_name": null,
"type": null,
"value": {
"end": 23721,
"labels": [
"ANALYSIS"
],
"start": 23488,
"text": "We are unable to agree with those learned Judges when they sought to place reliance on Articles 245, 246 and 248 and Entry 97 of List I for the purpose of locating the power of amendment in the residuary power conferred on the Union."
}
},
{
"from_name": null,
"id": "27b409715ab04de3b55fab50fe0a5046",
"to_name": null,
"type": null,
"value": {
"end": 23749,
"labels": [
"ANALYSIS"
],
"start": 23721,
"text": "\n(emphasis in original) 101."
}
},
{
"from_name": null,
"id": "e9f25591c7a64d6c9d58922498091e68",
"to_name": null,
"type": null,
"value": {
"end": 23801,
"labels": [
"ANALYSIS"
],
"start": 23750,
"text": " Similar views were expressed by five other Judges."
}
},
{
"from_name": null,
"id": "78e4fbc8f5d945bdb4ed1370ddbc7652",
"to_name": null,
"type": null,
"value": {
"end": 24046,
"labels": [
"ANALYSIS"
],
"start": 23802,
"text": "According to Seervai: \"The law laid down in Kesavananda's Case is that if a subject of legislation was prominently present to the minds of the framer of our Constitution, they would not have left it to be found by courts in the residuary power."
}
},
{
"from_name": null,
"id": "370d4b68d9584aad9c8c2c2a8b1d1dfc",
"to_name": null,
"type": null,
"value": {
"end": 24268,
"labels": [
"ANALYSIS"
],
"start": 24047,
"text": "It is submitted that a fortiori, if a subject of legislative power was not only present to the minds of the framers but was expressly denied to Parliament, it cannot be located in the residuary power of Parliament.\"\n 102."
}
},
{
"from_name": null,
"id": "1aab7bd4abec4bf9a75ddf20f1623794",
"to_name": null,
"type": null,
"value": {
"end": 24330,
"labels": [
"ANALYSIS"
],
"start": 24269,
"text": "Vide para 22.194 the eminent jurist poses a question: 22.194."
}
},
{
"from_name": null,
"id": "783d9dafd7594677aa9eace02c59d43c",
"to_name": null,
"type": null,
"value": {
"end": 24643,
"labels": [
"ANALYSIS"
],
"start": 24331,
"text": "Does Article 248 add anything to the exclusive residuary power of Parliament under Article 246 (1) read with Entry 97 List I, to make laws in respect of \"any other matter\" not mentioned in List II and List III, including any tax not mentioned in those Lists?\"\nand answers by saying __ \"The answer is 'No'.\"\n 103."
}
},
{
"from_name": null,
"id": "7223b7b690bb4f2d80a32ac8534aae8f",
"to_name": null,
"type": null,
"value": {
"end": 25000,
"labels": [
"ANALYSIS"
],
"start": 24644,
"text": "As to the riddle arising in the context of mines and mineral development legislation by reference to the Entries in List I and List II, Seervai states: \"The regulation of mines and mineral development is a subject of exclusive State legislation, but for the limitation placed upon that power by making it subject to the provisions in that behalf in List I."
}
},
{
"from_name": null,
"id": "ab1eaa6a314f4a4eb16ff43c71bae59e",
"to_name": null,
"type": null,
"value": {
"end": 25129,
"labels": [
"ANALYSIS"
],
"start": 25001,
"text": "If Parliament does not exercise its power under Entry 54, List I, the States' power under Entry 23, List II would remain intact."
}
},
{
"from_name": null,
"id": "b1fcb43dbe374bf1bcbd4c1fe542fbc3",
"to_name": null,
"type": null,
"value": {
"end": 25319,
"labels": [
"ANALYSIS"
],
"start": 25130,
"text": "If Parliament exercised its power under Entry 54,List I, only on a part of the field, as for example, major minerals, the States' legislative power over minor minerals would remain intact.\""
}
},
{
"from_name": null,
"id": "a3a080519035442c9e29a3629de9a3ae",
"to_name": null,
"type": null,
"value": {
"end": 25343,
"labels": [
"ANALYSIS"
],
"start": 25320,
"text": "(para 22.195 at p.2433)"
}
},
{
"from_name": null,
"id": "ed3a9f9a45df4cddac6ad4dc68167225",
"to_name": null,
"type": null,
"value": {
"end": 25399,
"labels": [
"ANALYSIS"
],
"start": 25344,
"text": "Power to tax must be express, else no power to tax 104."
}
},
{
"from_name": null,
"id": "51e6c522fe1e4770ba3a172bc392d0ea",
"to_name": null,
"type": null,
"value": {
"end": 25446,
"labels": [
"ANALYSIS"
],
"start": 25400,
"text": "There is nothing like an implied power to tax."
}
},
{
"from_name": null,
"id": "2e8e8693c07c40c2ada7b57064bd19c1",
"to_name": null,
"type": null,
"value": {
"end": 25641,
"labels": [
"ANALYSIS"
],
"start": 25447,
"text": "The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference."
}
},
{
"from_name": null,
"id": "4269400192a148499bb7f42a294c18cc",
"to_name": null,
"type": null,
"value": {
"end": 25737,
"labels": [
"ANALYSIS"
],
"start": 25642,
"text": "States Cooley in Taxation (Vol.1, 4th Edn): \"There is no such thing as taxation by implication."
}
},
{
"from_name": null,
"id": "fc30d4f885c341799283b9dfc7922543",
"to_name": null,
"type": null,
"value": {
"end": 25869,
"labels": [
"ANALYSIS"
],
"start": 25738,
"text": "The burden is always upon the taxing authority to point to the act of assembly which authorizes the imposition of the tax claimed.\""
}
},
{
"from_name": null,
"id": "49c834adcc154601b8cdbba7bc924e98",
"to_name": null,
"type": null,
"value": {
"end": 25890,
"labels": [
"ANALYSIS"
],
"start": 25870,
"text": "(para 122 at p.278)."
}
},
{
"from_name": null,
"id": "6d3d070113c14a318116f89c0e2a27e5",
"to_name": null,
"type": null,
"value": {
"end": 25896,
"labels": [
"ANALYSIS"
],
"start": 25890,
"text": "\n 105."
}
},
{
"from_name": null,
"id": "63531f830f3943a48b146e6d7cd553d0",
"to_name": null,
"type": null,
"value": {
"end": 26120,
"labels": [
"ANALYSIS"
],
"start": 25897,
"text": "Justice G.P. Singh in Principles of Statutory Interpretation (Eighth Edition, 2001) while dealing with general principles of strict construction of taxation statutes states :__ \"A taxing statute is to be strictly construed."
}
},
{
"from_name": null,
"id": "bcff4243ab98410eab72b04266dca9ec",
"to_name": null,
"type": null,
"value": {
"end": 26417,
"labels": [
"ANALYSIS"
],
"start": 26121,
"text": "The well established rule in the familiar words of Lord Wensleydale, reaffirmed by Lord Halsbury and Lord Simonds, means : \"The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words\"."
}
},
{
"from_name": null,
"id": "ed53b1a1993a4dc091147a5842a4de76",
"to_name": null,
"type": null,
"value": {
"end": 26631,
"labels": [
"ANALYSIS"
],
"start": 26418,
"text": "In a classic passage Lord Cairns stated the principle thus : \"If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be."
}
},
{
"from_name": null,
"id": "a5f8131ebfa14db0b460facca4180908",
"to_name": null,
"type": null,
"value": {
"end": 26850,
"labels": [
"ANALYSIS"
],
"start": 26632,
"text": "On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be."
}
},
{
"from_name": null,
"id": "f05c502496394d99b5c8a4d0eba021c0",
"to_name": null,
"type": null,
"value": {
"end": 27073,
"labels": [
"ANALYSIS"
],
"start": 26851,
"text": "In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute."
}
},
{
"from_name": null,
"id": "cacd79c2db054105b74cbc86471743d5",
"to_name": null,
"type": null,
"value": {
"end": 27251,
"labels": [
"ANALYSIS"
],
"start": 27074,
"text": "Viscount Simon quoted with approval a passage from Rowlatt, J. expressing the principle in the following words : \"In a taxing Act one has to look merely at what is clearly said."
}
},
{
"from_name": null,
"id": "daf60694222d4e2286e3c2851ec73a81",
"to_name": null,
"type": null,
"value": {
"end": 27288,
"labels": [
"ANALYSIS"
],
"start": 27252,
"text": "There is no room for any intendment."
}
},
{
"from_name": null,
"id": "750e47f501474b4d829dfa4e10bcfdd5",
"to_name": null,
"type": null,
"value": {
"end": 27320,
"labels": [
"ANALYSIS"
],
"start": 27289,
"text": "There is no equity about a tax."
}
},
{
"from_name": null,
"id": "87288d716d82439197d19863d7622728",
"to_name": null,
"type": null,
"value": {
"end": 27355,
"labels": [
"ANALYSIS"
],
"start": 27320,
"text": "\nThere is no presumption as to tax."
}
},
{
"from_name": null,
"id": "15b9ef3f04c140b0841dd768ea9d1be1",
"to_name": null,
"type": null,
"value": {
"end": 27407,
"labels": [
"ANALYSIS"
],
"start": 27356,
"text": "Nothing is to be read in, nothing is to be implied."
}
},
{
"from_name": null,
"id": "ee27e84d9f1c433ea8007dfb40d2b2ae",
"to_name": null,
"type": null,
"value": {
"end": 27455,
"labels": [
"ANALYSIS"
],
"start": 27408,
"text": "One can only look fairly at the language used.\""
}
},
{
"from_name": null,
"id": "3867771f42e042debf0ab6c8e91fef5b",
"to_name": null,
"type": null,
"value": {
"end": 27471,
"labels": [
"ANALYSIS"
],
"start": 27456,
"text": "(at p.635) 106."
}
},
{
"from_name": null,
"id": "6fdcca6dd5f9468490e2464752aa4972",
"to_name": null,
"type": null,
"value": {
"end": 27683,
"labels": [
"ANALYSIS"
],
"start": 27472,
"text": "The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles: (i) in interpreting a taxing statute, equitable considerations are entirely out of place."
}
},
{
"from_name": null,
"id": "4795f54a03c446dabfb69f50ae931076",
"to_name": null,
"type": null,
"value": {
"end": 27755,
"labels": [
"ANALYSIS"
],
"start": 27684,
"text": "Taxing statutes cannot be interpreted on any presumption or assumption."
}
},
{
"from_name": null,
"id": "1520ec1485984ca3bd55ca57c9980247",
"to_name": null,
"type": null,
"value": {
"end": 28227,
"labels": [
"ANALYSIS"
],
"start": 27756,
"text": "A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the Section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject."
}
},
{
"from_name": null,
"id": "712dcfad6b4a4125ac0de1c31bf05211",
"to_name": null,
"type": null,
"value": {
"end": 28384,
"labels": [
"ANALYSIS"
],
"start": 28228,
"text": "There is nothing unjust in the tax-payer escaping if the letter of the law fails to catch him on account of Legislature's failure to express itself clearly."
}
},
{
"from_name": null,
"id": "dc873683e85c44069147356078c3e6ad",
"to_name": null,
"type": null,
"value": {
"end": 28491,
"labels": [
"ANALYSIS"
],
"start": 28385,
"text": "(See, Justice G.P.\n Singh, ibid, pp.638-639).\n 107. Power to tax is not an incidental power."
}
},
{
"from_name": null,
"id": "6304b4233aac40189b799d97a79c2d2d",
"to_name": null,
"type": null,
"value": {
"end": 28656,
"labels": [
"ANALYSIS"
],
"start": 28492,
"text": "According to Seervai, although legislative power includes all incidental and subsidiary power, the power to impose a tax is not such a power under our Constitution."
}
},
{
"from_name": null,
"id": "6e97ad1543d94b1caf569c4c2f026788",
"to_name": null,
"type": null,
"value": {
"end": 29015,
"labels": [
"ANALYSIS"
],
"start": 28672,
"text": "It is for this reason that it was held that the power to legislate in respect of inter- state trade and commerce (Entry 42, List I, Schedule 7) did not carry with it the power to tax the sale of goods in inter-state trade and commerce before the insertion of Entry 92A in List I and such power belonged to the States under Entry 54 in List II."
}
},
{
"from_name": null,
"id": "4bbfa247ab0d488ba3e6710521ed5717",
"to_name": null,
"type": null,
"value": {
"end": 29252,
"labels": [
"ANALYSIS"
],
"start": 29016,
"text": "Entry 97 in List I also militated against the contention that the power to tax is an incidental power under our Constitution (See: Seervai H.M.:Constitutional Law of India, 4th/Silver Jubilee Edn, Vol.3, para 22.20) (emphasis supplied)."
}
},
{
"from_name": null,
"id": "8e724076572242ccb2bc1e092a065bae",
"to_name": null,
"type": null,
"value": {
"end": 29537,
"labels": [
"ANALYSIS"
],
"start": 29254,
"text": "It is clear from the above quoted observations that if the power to tax in relation to a subject is clearly mentioned in List II of the Seventh Schedule of the Constitution, the same would not be available to be exercised by the Parliament based on the assumption of residuary power."
}
},
{
"from_name": null,
"id": "8b58dc0619c44674b9826c25d0efb181",
"to_name": null,
"type": null,
"value": {
"end": 29768,
"labels": [
"ANALYSIS"
],
"start": 29538,
"text": "Entry 62 of List II of the Seventh Schedule specifically empowers the State legislature to impose tax in relation to the lotteries because admittedly the lotteries are included within the ambit of the meaning of the term betting ."
}
},
{
"from_name": null,
"id": "80d98c2660fa420d9cbaf452a4177745",
"to_name": null,
"type": null,
"value": {
"end": 29946,
"labels": [
"ANALYSIS"
],
"start": 29769,
"text": "It cannot be said that the Parliament gets legislative competence to impose tax in relation to the lotteries because of the residuary Entry 97 in List I of the Seventh Schedule."
}
},
{
"from_name": null,
"id": "1e1d62cd9c6f40238dc1dc27cbbe7541",
"to_name": null,
"type": null,
"value": {
"end": 30092,
"labels": [
"ANALYSIS"
],
"start": 29947,
"text": "Entry 34 of List II of the Seventh Schedule confers legislative competence on the State legislature to legislate regulating betting and gambling."
}
},
{
"from_name": null,
"id": "88ba407e714942819d192d1468f14ec5",
"to_name": null,
"type": null,
"value": {
"end": 30519,
"labels": [
"ANALYSIS"
],
"start": 30093,
"text": "As observed above, before us it is an admitted position that the lottery is included within the ambit of meaning of the term betting , therefore, had there been no Entry 40 in List I of the Seventh Schedule, the State legislature would have got, because of Entry 34 in List II of the Seventh Schedule, competence to legislate in relation to organisation and regulation of the lotteries organised by the State Governments also."
}
},
{
"from_name": null,
"id": "ff59e60cc7d64534bffdf61144a6f3e1",
"to_name": null,
"type": null,
"value": {
"end": 31002,
"labels": [
"ANALYSIS"
],
"start": 30520,
"text": "The State legislature cannot make law under Entry 34 in List II of the Seventh Schedule in relation to organisation and regulation of lotteries organised by Government of India and Government of State, because of Entry 40 in List I of the Seventh Schedule of the Constitution by that entry organisation and regulation of lotteries organised by Government of India and Government of State is excluded from the ambit of Entry 34 in List II of the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "df4d072cddab4a409dbca655311319d2",
"to_name": null,
"type": null,
"value": {
"end": 31285,
"labels": [
"ANALYSIS"
],
"start": 31003,
"text": "In other words, so far as the term betting appearing in Entry 34 of List II of the Seventh Schedule is concerned, it gives legislative competence to the State legislature to enact law regulating lotteries which may not be organised by the Government of India or Government of State."
}
},
{
"from_name": null,
"id": "a9d3a095c09b4d5db90f31ba10e53065",
"to_name": null,
"type": null,
"value": {
"end": 31582,
"labels": [
"ANALYSIS"
],
"start": 31286,
"text": "Thus, from the ambit of the term betting appearing in Entry 34 in List II of the Seventh Schedule of the Constitution of India, competence to legislate in relation to organisation and regulation of lotteries organised only by the Government of India and the Government of State has been excluded."
}
},
{
"from_name": null,
"id": "0369df7d35654633be8bde596b9ae7b3",
"to_name": null,
"type": null,
"value": {
"end": 31781,
"labels": [
"ANALYSIS"
],
"start": 31583,
"text": "Perusal of Entry 62 in List II of the Seventh Schedule of the Constitution shows that it confers legislative competence on State legislature to impose tax among other things on betting and gambling."
}
},
{
"from_name": null,
"id": "95203b06881546c09f1452716294f6f2",
"to_name": null,
"type": null,
"value": {
"end": 31976,
"labels": [
"ANALYSIS"
],
"start": 31781,
"text": "\nThus, there is specific entry made in Entry 62 in List II of the Seventh Schedule of the Constitution conferring power on the State legislation to legislate imposing tax on betting and gambling."
}
},
{
"from_name": null,
"id": "9b89debcd38c4ea6a01ad474eaed5e64",
"to_name": null,
"type": null,
"value": {
"end": 32421,
"labels": [
"ANALYSIS"
],
"start": 31977,
"text": "There is no specific entry in List I of the Seventh Schedule like Entry 40 in List I of the Seventh Schedule of the Constitution conferring legislative competence on the Parliament to impose tax on betting and gambling and therefore, the lotteries organised by the Government of India and State Government will not stand excluded from the meaning of the term betting occurring in Entry 62 in List II of the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "6f120a63deed4fc187136dcd7b820cee",
"to_name": null,
"type": null,
"value": {
"end": 32627,
"labels": [
"ANALYSIS"
],
"start": 32422,
"text": "Therefore, we find that there is specific entry in List II of the Seventh Schedule of the Constitution conferring legislative competence on the State legislature to impose tax in relation to the lotteries."
}
},
{
"from_name": null,
"id": "8e30f7a143d84e8e9a9af3d148c4a940",
"to_name": null,
"type": null,
"value": {
"end": 32939,
"labels": [
"PRE_NOT_RELIED"
],
"start": 32628,
"text": "In view of the law laid down by the Supreme Court in its judgment in the case State of W.B. Vs. Kesoram Industries Ltd. And others referred to above the Parliament cannot be said to have power to impose tax in relation to lotteries under residuary Entry 97 of List I of the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "37ee51727f564fdeb58e98f08c4c61f4",
"to_name": null,
"type": null,
"value": {
"end": 33158,
"labels": [
"PRE_NOT_RELIED"
],
"start": 32940,
"text": "Thus, we find that there is absolutely no substance in the contention that the State legislature did not have competence to legislate the State Act under Entry 62 of List II of the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "c12ded1895674fa5807f8cc49d175439",
"to_name": null,
"type": null,
"value": {
"end": 33338,
"labels": [
"ANALYSIS"
],
"start": 33158,
"text": "\n 11. Now so far as the submission that the State Act in fact levies tax on sale of lottery tickets is concerned, in our opinion, this submission also does not have any substance."
}
},
{
"from_name": null,
"id": "b00f3dd318d44a1aab104e132fffaea1",
"to_name": null,
"type": null,
"value": {
"end": 33428,
"labels": [
"ANALYSIS"
],
"start": 33339,
"text": "Looking to the scheme of the Act, it is clear that Draw is used only as a measure of tax."
}
},
{
"from_name": null,
"id": "bd31aa03d3cf40b3b301960b463580a3",
"to_name": null,
"type": null,
"value": {
"end": 33478,
"labels": [
"ANALYSIS"
],
"start": 33429,
"text": "What is said to be taxed is betting and gambling."
}
},
{
"from_name": null,
"id": "0708e1dcfb8741f4a812eed3aa552fdb",
"to_name": null,
"type": null,
"value": {
"end": 33601,
"labels": [
"ANALYSIS"
],
"start": 33479,
"text": "From the preamble of the State Act it is clear that levy and collection of tax is on the lotteries (betting and gambling)."
}
},
{
"from_name": null,
"id": "4db3bb5b737c41a2a0d8cd613e1ba893",
"to_name": null,
"type": null,
"value": {
"end": 33700,
"labels": [
"ANALYSIS"
],
"start": 33602,
"text": "The tax , as defined under the State legislation, means the tax levied and collected on lotteries."
}
},
{
"from_name": null,
"id": "e5de045ba5d045a0a6e0e607c622e180",
"to_name": null,
"type": null,
"value": {
"end": 33911,
"labels": [
"ANALYSIS"
],
"start": 33701,
"text": "The Act does not levy tax on Draws or sale of tickets, the levy of tax is on betting and gambling which is offered within the State of Maharashtra by organising sale of tickets for participation in the lottery."
}
},
{
"from_name": null,
"id": "f13e918aa7f749a28182b0f36677a5df",
"to_name": null,
"type": null,
"value": {
"end": 34047,
"labels": [
"ANALYSIS"
],
"start": 33912,
"text": "The measure of levying of tax depends upon as to whether the lottery organised is relating to weekly draw, monthly draw or bumper draw."
}
},
{
"from_name": null,
"id": "34b06ecca2d847d2b1f2e58752b999eb",
"to_name": null,
"type": null,
"value": {
"end": 34136,
"labels": [
"ANALYSIS"
],
"start": 34048,
"text": "It is, thus, clear that levying of tax is not on the draw which takes outside the State."
}
},
{
"from_name": null,
"id": "46ffdfee34504291b30a1a149a51454f",
"to_name": null,
"type": null,
"value": {
"end": 34217,
"labels": [
"ANALYSIS"
],
"start": 34137,
"text": "The draw is only a measure of tax and the tax is not imposed on the draw itself."
}
},
{
"from_name": null,
"id": "d7eb2e538fd7409a9d9b0d7f49c1df0c",
"to_name": null,
"type": null,
"value": {
"end": 34278,
"labels": [
"RATIO"
],
"start": 34217,
"text": "\n 12. We do not find any vagueness in the scheme of the Act."
}
},
{
"from_name": null,
"id": "1f83194023de4c559983222fa90da016",
"to_name": null,
"type": null,
"value": {
"end": 34388,
"labels": [
"RATIO"
],
"start": 34279,
"text": "Merely because the term Scheme is not defined, the provisions under Section 3 of the Act do not become vague."
}
},
{
"from_name": null,
"id": "d6897ba925db43febfdbeae1d1b6599d",
"to_name": null,
"type": null,
"value": {
"end": 34731,
"labels": [
"RATIO"
],
"start": 34388,
"text": "\n 13. So far as the submission that exercise of legislative power is colourable is concerned, in our opinion, once we find that there is clear legislative competence in the State legislature to legislate, there is no exercise of power being colorable merely because earlier a particular type of tax was levied which was found to be not legal."
}
},
{
"from_name": null,
"id": "7b0ed4b3ab024d5c8153820f3c04740e",
"to_name": null,
"type": null,
"value": {
"end": 35072,
"labels": [
"RATIO"
],
"start": 34732,
"text": "So far as the submission that the State Act has been enacted to make the business of selling of lottery tickets of the lotteries organised by the other States unviable is concerned, we find from the petition that there is no material placed in support of this submission, and therefore, it is not possible for us to examine this submission."
}
},
{
"from_name": null,
"id": "956a49acde854c22a77ba9ac48691c4c",
"to_name": null,
"type": null,
"value": {
"end": 35173,
"labels": [
"RPC"
],
"start": 35072,
"text": "\n 14. Taking overall view of the matter, therefore, we do not find any substance in these petitions."
}
},
{
"from_name": null,
"id": "924b8d75480f440dbefcb35e9f7af2c2",
"to_name": null,
"type": null,
"value": {
"end": 35206,
"labels": [
"RPC"
],
"start": 35174,
"text": "They are liable to be dismissed."
}
},
{
"from_name": null,
"id": "83d98bd5670746ff9856c01af8dcdbf5",
"to_name": null,
"type": null,
"value": {
"end": 35257,
"labels": [
"RPC"
],
"start": 35207,
"text": "They are, accordingly so, ordered to be dismissed."
}
},
{
"from_name": null,
"id": "98ee9779f364400fbec0c065de0e290b",
"to_name": null,
"type": null,
"value": {
"end": 35274,
"labels": [
"RPC"
],
"start": 35258,
"text": "Rule discharged."
}
},
{
"from_name": null,
"id": "a617fe6c4fc2403e87ac52b8acc2bd57",
"to_name": null,
"type": null,
"value": {
"end": 35296,
"labels": [
"RPC"
],
"start": 35275,
"text": "No order as to costs."
}
},
{
"from_name": null,
"id": "788a402055e64b4483f51d19f021359b",
"to_name": null,
"type": null,
"value": {
"end": 35333,
"labels": [
"NONE"
],
"start": 35296,
"text": "\n (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)"
}
}
]
}
] | 4,206 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n ORDINARY ORIGINAL CIVIL JURISDICTION\n\n WRIT PETITION NO.432 OF 2007\n\nN.V.Marketing Pvt.Ltd. ...Petitioner.\n\nvs.\n\n1.State of Maharashtra & others. ...Respondents.\n\n AND\n\n WRIT PETITION NO.435 OF 2009\n\nM/s.Mumbailaxmi Enterprises. ...Petitioner.\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& others. ...Respondents.\n\n AND\n\n WRIT PETITION NO.533 OF 2007\n\nM/s.Mahalaxmi Company. ...Petitioner.\n\nvs.\n\n1.The Commissioner of Small\nSavings & Lotteries & ors. ...Respondents.\n\n AND\n\n WRIT PETITION NO.629 OF 2007\n\nSugal & Damani Lottery Agency ...Petitioner.\nPvt.Ltd.\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others. ...Respondents.\n\n AND\n\n WRIT PETITION NO.1111 OF 2007\n\nM/s.Sweta Enterprises. ...Petitioner.\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. ...Respondents.\n\n AND\n\n WRIT PETITION NO.1126 OF 2007\n\nM/s.Kenlott Gaming Solutions ...Petitioner.\nPvt.Ltd.\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others. ...Respondents.\n\n\n AND\n\n WRIT PETITION NO.1127 OF 2007\n\nM/s.Tashi Delek Gaming Solutions\n\nPvt.Ltd. ...Petitioner.\n\n vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others. ...Respondents.\n\n AND\n\n WRIT PETITION NO.425 OF 2009\n\nM/s.Shree Enterprises ...Petitioner.\n\n vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. ...Respondents.\n\n AND\n\n WRIT PETITION NO.436 OF 2009\n\nPradeep Lunkad. ...Petitioner.\n\n vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. ...Respondents.\n\n\n AND\n\n WRIT PETITION NO.444 OF 2009\n\nM/s.Utsav Gaming Solutions ...Petitioner.\nPvt.Ltd.\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & ors. ...Respondents.\n\n ---\n\nDr.V.V.Tulzapurkar with R.D.Soni & V.R.Kasle i/b. Ram\n& Co., for Petitioners in WP Nos.413/09, 533/09,\n1111/07, 1126/07, 436/09, 425/09, 1127/07.\n\nMr.R.D.Soni @ V.R.Kasle i/b. Ram & Co., for\nPetitioners in WP 435/09.\n\nMr.S.H.Doctor, Sr. Advocate i/b. B.B.Parikh, for\nPetitioners in WP 432/07.\n\nMr.S.Bharucha i/b. Thakore Jariwala & Associate, for\nPetitioners in WP 629/07.\n\nMr.Aspi Chinoy, Sr.Advocate with Ms.Gita Shastri, AGP\nfor Respondent-State in WP 435/07 & 436/09.\n\nMr.A.A.Kumbhakoni with Ms.Gita Shastri, AGP for\nRespondent-State in WP 432/07 & 533/07, 629/07,\n1111/07, 1126/07, 1127/09, 425/09 & 444/09.\n\n ---\n\n\n CORAM: D.K.DESHMUKH &\n R.S.MOHITE, JJ.\n\n DATED: 14th August,2009.\n\nJUDGMENT: (PER D.K.DESHMUKH, J) 1. In all theses petitions the constitutional validity of the Maharashtra Tax on Lotteries Act,2006 has been challenged and therefore, all these petitions can be conveniently disposed of by common order.\n 2. The petitioners are the distributors of lottery tickets for sale in State of Maharashtra, of various States organizing, conducting and promoting their own lotteries in India. The Respondent-State Government is also organizing, conducting and promoting its own lotteries. It is submitted that the State of Maharashtra firstly levied and imposed sales tax on lottery tickets of the lotteries organized by the other State Governments by treating the lottery tickets as goods. However, when it was held that lottery tickets are not goods, the sales tax imposed on lottery tickets was withdrawn by the State Government and the Maharashtra Tax on Lotteries Act, 2006 (hereinafter referred to as the State Act ) was enacted.\n 3. It is the contention of the petitioners that the legislature of State of Maharashtra has no legislative power to enact Laws relating to State Lotteries including Laws relating to taxation, and therefore, according to the petitioners, the State Act is beyond the legislative competence of the legislature of State of Maharashtra. The second submission is that the enactment of the State Act is colourable exercise of the legislative power inasmuch as it is another method of levying tax on lottery tickets. The third submission is that the State Act seeks to levy tax on lottery schemes, tax is collected in advance in respect of each draw in the lottery scheme at the rate specified in Section 3 of the State Act. It is submitted that lottery scheme of all other State organizing and conducting lotteries save and except that of Maharashtra are formulated outside the State of Maharashtra and therefore, the Law has extra territorial application. The fourth submission is that the State Act levies tax on lottery schemes but the term lottery scheme is not defined anywhere and therefore, it is violative of guarantee under Article 14 of the Constitution of India. It was also contended that the State Act has been enacted to impose tax on sale of lottery tickets conducted by other States in State of Maharashtra so as to make selling of lottery tickets by the other States uneconomical, unviable and thereby creating monopoly in the lottery tickets of the lotteries conducted by the State of Maharashtra.\n 4. Elaborating the first submission, the learned Counsel appearing for petitioners submitted that the legislature of State of Maharashtra has no legislative competence to enact the impugned Act. By the impugned Act, tax is sought to be levied on the lottery schemes. The subject Lotteries organised by the Government of India or the Government of a State comes in Entry 40 of List-I in the Seventh Schedule of the Constitution of India, and therefore, only Parliament is empowered to enact Law relating to lotteries governed by Government of India or the Government of a State or any law relating to such tax on the lotteries. It is submitted that the State legislature does not have competence to levy tax on the lotteries under Entry 62 of List II of the Seventh Schedule of the Constitution of India. The learned Counsel relied on the judgments of the Supreme Court in the cases H.Anraj & others Vs. State of Maharashtra, AIR 1984(2) Supreme Court 781 and H.Anraj & others Vs. Government of Tamilnadu, AIR 1986 Supreme Court 63 and it was submitted that the lotteries organized by the State are necessarily excluded from betting and gambling mentioned in Entry 62 of List II of the Seventh schedule, and then it was contended that the State of Maharashtra has not shown any other source of power except Entry 62 of List II of the Seventh Schedule and therefore, the State Act is beyond its legislative competence.\n 5. Elaborating the second submission, it was submitted that prior to the decision of the Constitution Bench of the Supreme Court in the case M/s.Sunrise Associates Vs. Govt. of NCT of Delhi & Ors., AIR 2006 Supreme Court 1908 , the State of Maharashtra has been collecting tax on State lottery tickets treating lottery tickets as goods . However, once it was held to be unconstitutional as lottery tickets were held not to be the goods, now again tax is being collected on sale of lottery tickets under the provisions of the State Act.\n 6. Elaborating the third submission, it was contended that the State Act seeks to levy and collect tax on lottery schemes. It was submitted that the lottery schemes of other States organizing and conducting lotteries save and except that of State of Maharashtra are formulated outside State of Maharashtra and in the respective State organizing and conducting lotteries and the draws in respect of the said schemes are also held in the said States itself and the results are also declared in the said States and published in the official Gazettes of the said States. Thus, by seeking to charge and collect tax on lottery schemes, the State Act seeks to tax events which have occurred outside the State and hence, the State Act is dealing with the subject which is not within its territorial jurisdiction.\n 7. Elaborating the fourth submission, it was contended that though tax is imposed in relation to the schemes, the term Scheme is not defined in the Act. Thus, the tax is being levied with reference to the concept which is extremely vague and therefore, levying of tax in such a situation violates the guarantee of Article 14 of the Constitution. It was also submitted that extremely large amount has been collected as tax under the Act with a view to make it uneconomical to sell tickets of lotteries conducted by other States in the State of Maharashtra with a view to create monopoly in relation to the lottery tickets of the lotteries conducted by State of Maharashtra.\n Thus, according to the petitioners, it is colourable exercise of legislative power.\n 8. On behalf of the Respondent-State of Maharashtra, on the other hand, it was contended that the State Act has been enacted under Entry 62 of List II of the Seventh Schedule of the Constitution of India relying on the Judgment of the Supreme Court in the Case State of W.B. Vs. Kesoram Industries Ltd.\n And others, (2004)10 Supreme Court Cases 201 . It was contended that considering the constitutional scheme, it cannot be said that the State legislature does not have competence to enact the State Act. The learned Counsel took us through the provisions of the Act to show that by reading the definition of term lottery it becomes clear that what is the meaning of term scheme used in Section 3 of the State Act. It was pointed out that it cannot be said that there is any vagueness in this matter. It was then submitted that the tax is not being collected on sale of lottery tickets but the tax is collected in relation to the lottery schemes once tickets are imported in the State of Maharashtra. It was submitted that there is no material placed by the petitioners on record as to how, because of the tax imposed, the business of sale of lottery tickets of the lotteries conducted by the other States in the State of Maharashtra becomes unviable, and therefore, the contention raised on that basis cannot be considered.\n 9. Now, in order to consider the first submission in relation to the legislative competence of the legislature of State of Maharashtra to enact the State Act, in our opinion, it becomes necessary to first refer to the Scheme of the State Act. Section 3 of the State Act is the charging section which reads as under:- 3. (1) There shall be levied and collected a tax on the lottery schemes specified in column (2) of the Table hereunder, at the rates specified against them in column (3) of the said Table:- TABLE No. Lottery Schemes Rate of Tax 1 2 3 1 2 Weekly lottery scheme 50,000 3 Fortnightly lottery scheme or any 1,00,000 4 lottery scheme between week and fortnight Monthly lottery scheme or any 2,00,000 lottery scheme of any duration exceeding fortnight Bumper lottery scheme 10,00,000 (2) The tax levied under sub-section (1) shall be paid by the Promoter.\n Perusal of the above quoted Section 3 shows that tax is levied and collected on the lottery schemes specified in Column 2 of the Table. Perusal of Column 2 of the table shows that the Act contemplates four kinds of lottery schemes viz. (i) Weekly lottery scheme, (ii) fortnightly lottery scheme, (iii) monthly lottery scheme and (iv) bumper lottery scheme. Though the term scheme has not been defined in the Act, the term lottery has been defined by Section 2(d) of the Act which reads as under:- 2. In this Act, unless the context otherwise requires- (d) lottery means a scheme, in whatever form and by whatever name called, for distribution of prizes by lot or chances to those persons participating in the chances of a prize, by purchasing tickets, conducted as per the provisions of the Lotteries (Regulation) Act,1998.\n Perusal of the above definition shows that Lottery means a scheme for distribution of prizes by lot or by chance. It is, thus, clear that lottery is nothing but a scheme for distribution of prizes by lot or chance. It is clear from the provision of sub-section (2) of Section 3 of the Act that the tax levied under sub-section (1) of Section 3 of the Act has to be paid by the Promoter. The term Promoter is defined under sub-section (f) of Section 2 of the Act, which reads as under:- 2(f) Promoter means the Government of any State or an Union Territory or any country organizing, conducting or promoting a lottery and includes any person appointed as first importer for marketing lottery tickets in the State of Maharashtra on behalf of such Government or country where such Government or country is not directly marketing or conducting lottery schemes in the State.\n From the definition of the term Promoter it is clear that the promoter can be either the Government of any State or an Union Territory or any country which is organizing a lottery and it can also be a person who has been appointed as first importer for marketing lottery tickets in the State of Maharashtra by such Government, Union territory or country. The petitioners, in this petition, claim to be the promoters. The Respondent-State is relying on Entry 62 in List II of the Seventh Schedule of the Constitution which reads as under:- 62.Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling.\n Petitioners do not dispute that the lottery is betting. According to them, under Entry 62 in List II of the Seventh Schedule, the State legislature does not have power to impose tax on lottery because of Entry 40 in List I of the Seventh Schedule. Entry 40 in List I of the Seventh Schedule reads as under:- 40. Lotteries organised by the Government of India or the Government of a State.\n According to the petitioners, because the power to legislate in relation to lotteries organised by the Government of India or the Government of State is vested in Parliament, the State legislature cannot impose tax in exercise of its legislative power under Entry 62 in relation to the lotteries. It is submitted that Entry 34 of List II of the Seventh Schedule of the Constitution empowers the State Government to legislate in relation to betting and gambling, but because of Entry 40 in List I of the Seventh Schedule of the Constitution, lottery is excluded from the ambit of the term betting in Entry 34 of List II of the Seventh Schedule and it also stands excluded from the ambit of the term betting in Entry 62 of List II of the Seventh Schedule. In our opinion, the entire argument is misconceived and against the settled law. In nutshell, the argument of petitioners is that because of Entry 40 in List I of the Seventh Schedule, the Parliament has power to regulate lotteries run by the State Government, and therefore, it excludes State lotteries from the ambit of the term Betting not only from Entry 34 in List II of the Seventh Schedule but also from Entry 62 of List II of the Seventh Schedule. The scheme underlying the Seventh Schedule of the Constitution has been considered in a judgment by the Constitutional Bench of the Hon ble Supreme Court in the case State of W.B. Vs. Kesoram Industries Ltd. And others, (2004)10 Supreme Court Cases 201 . The observations of the Hon ble Supreme Court in paragraphs 74, 75 and 76 are relevant, they read as under:- 74. It is necessary to examine the scheme underlying the Seventh Schedule of the Constitution. We are relieved of the need of embarking upon any maiden voyage in this direction in view of the availability of a Constitution Bench decision in M.P.V.Sundararamier & Co. Vs. State of A.P., Venkatarama Aiyar, J., speaking for the Constitution Bench, traced the history of legislations preceding the Constitution, analysed the scheme underlying the division of legislative powers between the Centre and the States and then succinctly summed up the quintessence of the analysis. It was held, inter alia: 1.In List I Entries 1 to 81 mention the several matters over which Parliament has authority to legislate. Entries 82 to 92 enumerate the taxes which could be imposed by a law of Parliament. An examination of these two groups of entries shows that while the main subject of legislation figures in the first group, a tax in relation thereto is separately mentioned in the second.\n 2.In list II Entries 1 to 44 form one group mentioning the subjects on which the States could legislate. Entries 45 to 63 in that list form another group, and they deal with taxes. (AIR p.493, para 51) 3.Taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Article 248 clauses (1) and (2) and of Entry 97 in List I of the Constitution. Under the Scheme of the entries in the lists, taxation is regarded as a distinct matter and is separately set out. (AIR 494, paras 51 & 55) 4.The entries in the legislative lists must be construed broadly and not narrowly or in a pedantic manner.(AIR p.494, para 56) 5.The entries in the two lists Lists I and II must be construed, if possible, so as to avoid conflict. Faced with a suggested conflict between entries in List I and List II, what has first to be decided is whether there is any conflict.\n If there is none, the question of application of the non obstante clause subject to does not arise. And, if there be conflict, the correct approach to the question is to see whether it was possible to effect a reconciliation between the two entries so a s to avoid a conflict and overlapping.\n Illustration If it is possible to construe Entry 42 in List I as not including tax on inter-State sales it should be so construed and the power to levy such tax must be held to be included in Entry 54 in List II (entries as they existed per- Forty-second Amendment, 1976). (See Governor General in Council V. Province of Madras and Province of Madras V. Boddu Paidanna & Sons. (AIR p.495, paras 56-57) 6. In the event of a dispute arising it should be determined by applying the doctrine of pith and substance to find out whether between two entries assigned to two different legislatures the particular subject of the legislation falls within the ambit of the one or the other. Where there is a clear and irreconcilable conflict of jurisdiction between the Centre and a Provincial Legislature it is the law of the Centre that must prevail.\n 75. Referring to M.P.V.Sundararamier & Co.\nSabyasachi Mukharji, J. (as His Lordship then was) speaking for six out of the seven Judges constituting the Bench in Synthetics and Chemicals Ltd. V. State of U.P. held that under the constitutional scheme of division of powers in the Seventh Schedule, there are separate entries pertaining to taxation and other laws. A tax cannot be levied under a general entry.\n 76. The abovesaid principles continue to hold the field and have been followed in cases after cases.\n General Power of regulation and control does not include power of taxation.\n Applying the principles laid down by the Supreme Court in the above said paragraphs to the present case, it can safely be said that because of Entry 40 of List I of the Seventh Schedule, the State legislature does not have power to legislate in relation to the lotteries organized by the Government of India or Government of State under Entry 34 of List II of the Seventh Schedule, but because of that the State legislature will not lose its power under Entry 62 of List II of the Seventh Schedule to impose tax in relation to the lotteries organized by the Government of India or other State under Entry 62 of List II treating it as betting. There is no debate before us on the question that lottery amounts to betting and it was the admitted position.\n 10. It was then contended before us that though there is specific power vested in the State legislature under Entry 62 of List II of the Seventh Schedule, because of Entry 40 in List I of the Seventh Schedule of the Constitution of India, the Parliament will have legislative competence to levy tax under Article 248 and Entry 97 in List I of the Seventh Schedule of the Constitution of India. In our opinion, this submission has also no force, because power to tax is not an incidental power and under the residuary power the Parliament will be entitled to impose tax only if that power is not specifically vested in the State legislature by any entry in List II of the Seventh Schedule. We can draw support for this conclusion reached by us, by what is observed by the Supreme Court in paragraphs 100 to 107 of its judgment in the case of State of W.B. Vs. Kesoram Industries Ltd. And others referred to above, they read as under:- 100. Article 265 mandates no tax shall be levied or collected except by authority of law. The scheme of the Seventh Schedule reveals an exhaustive enumeration of legislative subjects, considerably enlarged over the predecessor Government of India Act.\n Entry 97 in List I confers residuary powers on Parliament. Article 248 of the Constitution which speaks of residuary powers of legislation confers exclusive power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or the State List. At the same time, it provides that such residuary power shall include the power of making any law imposing a tax not mentioned in either of those lists.\n It is, thus, clear that if any power to tax is clearly mentioned in List II, the same would not be available to be exercised by Parliament based on the assumption of residuary power. The seven-Judge Bench in Union of India V. Harbhajan Singh Dhillon ruled, by a majority of 4:3, that the power to legislate in respect of a matter does not carry with it a power to impose a tax under our constitutional scheme. According to Seervai (Constitutional Law of India, 4th/Silver Jubilee Edn. Vol.3, para22.191): 22.191. Although in Dhillon case conflicting view were expressed about the nature of the residuary power, the nature of that power was stated authoritatively in Kesavananda case. Earlier, in Golak Nath case, Subba Rao, C.J. (for himself, Shah, Sikri, Shelat and Vaidyalingam, JJ.) had held that Article 368 only provided the procedure for the amendment of the Constitution, but that the power to amend the Constitution was to be found in the residuary power conferred on Parliament by Articles 245 and 246(1) read with Entry 97 List I and by Article 248.\nSeven out of the nine Judges who overruled Golak Nath case held, inter alia, that the power to amend the Constitution could not be located in the residuary powers of Parliament. Hegde and Mukherjea, JJ. held that -- It is obvious that these lists have been very carefully prepared. They are by and large exhaustive. Entry 97 in List I was included to meet some unexpected and unforeseen contingencies. It is difficult to believe that our Constitution-makers who were keenly conscious of the importance of the provision relating to the amendment of the Constitution and debated that question for several days, would have left the important power hidden in Entry 97 of List I leaving it to the off chance of the courts locating that power in that entry. We are unable to agree with those learned Judges when they sought to place reliance on Articles 245, 246 and 248 and Entry 97 of List I for the purpose of locating the power of amendment in the residuary power conferred on the Union.\n(emphasis in original) 101. Similar views were expressed by five other Judges. According to Seervai: \"The law laid down in Kesavananda's Case is that if a subject of legislation was prominently present to the minds of the framer of our Constitution, they would not have left it to be found by courts in the residuary power. It is submitted that a fortiori, if a subject of legislative power was not only present to the minds of the framers but was expressly denied to Parliament, it cannot be located in the residuary power of Parliament.\"\n 102. Vide para 22.194 the eminent jurist poses a question: 22.194. Does Article 248 add anything to the exclusive residuary power of Parliament under Article 246 (1) read with Entry 97 List I, to make laws in respect of \"any other matter\" not mentioned in List II and List III, including any tax not mentioned in those Lists?\"\nand answers by saying __ \"The answer is 'No'.\"\n 103. As to the riddle arising in the context of mines and mineral development legislation by reference to the Entries in List I and List II, Seervai states: \"The regulation of mines and mineral development is a subject of exclusive State legislation, but for the limitation placed upon that power by making it subject to the provisions in that behalf in List I. If Parliament does not exercise its power under Entry 54, List I, the States' power under Entry 23, List II would remain intact. If Parliament exercised its power under Entry 54,List I, only on a part of the field, as for example, major minerals, the States' legislative power over minor minerals would remain intact.\" (para 22.195 at p.2433) Power to tax must be express, else no power to tax 104. There is nothing like an implied power to tax. The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. States Cooley in Taxation (Vol.1, 4th Edn): \"There is no such thing as taxation by implication. The burden is always upon the taxing authority to point to the act of assembly which authorizes the imposition of the tax claimed.\" (para 122 at p.278).\n 105. Justice G.P. Singh in Principles of Statutory Interpretation (Eighth Edition, 2001) while dealing with general principles of strict construction of taxation statutes states :__ \"A taxing statute is to be strictly construed. The well established rule in the familiar words of Lord Wensleydale, reaffirmed by Lord Halsbury and Lord Simonds, means : \"The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words\". In a classic passage Lord Cairns stated the principle thus : \"If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute. Viscount Simon quoted with approval a passage from Rowlatt, J. expressing the principle in the following words : \"In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax.\nThere is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.\" (at p.635) 106. The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles: (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the Section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. There is nothing unjust in the tax-payer escaping if the letter of the law fails to catch him on account of Legislature's failure to express itself clearly. (See, Justice G.P.\n Singh, ibid, pp.638-639).\n 107. Power to tax is not an incidental power. According to Seervai, although legislative power includes all incidental and subsidiary power, the power to impose a tax is not such a power under our Constitution.\n It is for this reason that it was held that the power to legislate in respect of inter- state trade and commerce (Entry 42, List I, Schedule 7) did not carry with it the power to tax the sale of goods in inter-state trade and commerce before the insertion of Entry 92A in List I and such power belonged to the States under Entry 54 in List II. Entry 97 in List I also militated against the contention that the power to tax is an incidental power under our Constitution (See: Seervai H.M.:Constitutional Law of India, 4th/Silver Jubilee Edn, Vol.3, para 22.20) (emphasis supplied).\n It is clear from the above quoted observations that if the power to tax in relation to a subject is clearly mentioned in List II of the Seventh Schedule of the Constitution, the same would not be available to be exercised by the Parliament based on the assumption of residuary power. Entry 62 of List II of the Seventh Schedule specifically empowers the State legislature to impose tax in relation to the lotteries because admittedly the lotteries are included within the ambit of the meaning of the term betting . It cannot be said that the Parliament gets legislative competence to impose tax in relation to the lotteries because of the residuary Entry 97 in List I of the Seventh Schedule. Entry 34 of List II of the Seventh Schedule confers legislative competence on the State legislature to legislate regulating betting and gambling. As observed above, before us it is an admitted position that the lottery is included within the ambit of meaning of the term betting , therefore, had there been no Entry 40 in List I of the Seventh Schedule, the State legislature would have got, because of Entry 34 in List II of the Seventh Schedule, competence to legislate in relation to organisation and regulation of the lotteries organised by the State Governments also. The State legislature cannot make law under Entry 34 in List II of the Seventh Schedule in relation to organisation and regulation of lotteries organised by Government of India and Government of State, because of Entry 40 in List I of the Seventh Schedule of the Constitution by that entry organisation and regulation of lotteries organised by Government of India and Government of State is excluded from the ambit of Entry 34 in List II of the Seventh Schedule of the Constitution. In other words, so far as the term betting appearing in Entry 34 of List II of the Seventh Schedule is concerned, it gives legislative competence to the State legislature to enact law regulating lotteries which may not be organised by the Government of India or Government of State. Thus, from the ambit of the term betting appearing in Entry 34 in List II of the Seventh Schedule of the Constitution of India, competence to legislate in relation to organisation and regulation of lotteries organised only by the Government of India and the Government of State has been excluded. Perusal of Entry 62 in List II of the Seventh Schedule of the Constitution shows that it confers legislative competence on State legislature to impose tax among other things on betting and gambling.\nThus, there is specific entry made in Entry 62 in List II of the Seventh Schedule of the Constitution conferring power on the State legislation to legislate imposing tax on betting and gambling. There is no specific entry in List I of the Seventh Schedule like Entry 40 in List I of the Seventh Schedule of the Constitution conferring legislative competence on the Parliament to impose tax on betting and gambling and therefore, the lotteries organised by the Government of India and State Government will not stand excluded from the meaning of the term betting occurring in Entry 62 in List II of the Seventh Schedule of the Constitution. Therefore, we find that there is specific entry in List II of the Seventh Schedule of the Constitution conferring legislative competence on the State legislature to impose tax in relation to the lotteries. In view of the law laid down by the Supreme Court in its judgment in the case State of W.B. Vs. Kesoram Industries Ltd. And others referred to above the Parliament cannot be said to have power to impose tax in relation to lotteries under residuary Entry 97 of List I of the Seventh Schedule of the Constitution. Thus, we find that there is absolutely no substance in the contention that the State legislature did not have competence to legislate the State Act under Entry 62 of List II of the Seventh Schedule of the Constitution.\n 11. Now so far as the submission that the State Act in fact levies tax on sale of lottery tickets is concerned, in our opinion, this submission also does not have any substance. Looking to the scheme of the Act, it is clear that Draw is used only as a measure of tax. What is said to be taxed is betting and gambling. From the preamble of the State Act it is clear that levy and collection of tax is on the lotteries (betting and gambling). The tax , as defined under the State legislation, means the tax levied and collected on lotteries. The Act does not levy tax on Draws or sale of tickets, the levy of tax is on betting and gambling which is offered within the State of Maharashtra by organising sale of tickets for participation in the lottery. The measure of levying of tax depends upon as to whether the lottery organised is relating to weekly draw, monthly draw or bumper draw. It is, thus, clear that levying of tax is not on the draw which takes outside the State. The draw is only a measure of tax and the tax is not imposed on the draw itself.\n 12. We do not find any vagueness in the scheme of the Act. Merely because the term Scheme is not defined, the provisions under Section 3 of the Act do not become vague.\n 13. So far as the submission that exercise of legislative power is colourable is concerned, in our opinion, once we find that there is clear legislative competence in the State legislature to legislate, there is no exercise of power being colorable merely because earlier a particular type of tax was levied which was found to be not legal. So far as the submission that the State Act has been enacted to make the business of selling of lottery tickets of the lotteries organised by the other States unviable is concerned, we find from the petition that there is no material placed in support of this submission, and therefore, it is not possible for us to examine this submission.\n 14. Taking overall view of the matter, therefore, we do not find any substance in these petitions. They are liable to be dismissed. They are, accordingly so, ordered to be dismissed. Rule discharged. No order as to costs.\n (D.K.DESHMUKH, J.) (R.S.MOHITE, J.) "
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"start": 92,
"text": "SUNDARGARH."
}
},
{
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"start": 105,
"text": "PRESENT:"
}
},
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"text": "DISTRICT:"
}
},
{
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"text": "SUNDARGARH."
}
},
{
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"value": {
"end": 239,
"labels": [
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],
"start": 172,
"text": "Shri Hara Prasad Padhy,LL.B,\n S.D.J.M.,Sundargarh."
}
},
{
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"value": {
"end": 287,
"labels": [
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"start": 259,
"text": "2(a) CC CASE No. 249 of 2011"
}
},
{
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"end": 384,
"labels": [
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],
"start": 287,
"text": "\n Trial No. 120 of 2012\n\n Date of argument : 25.08.2016"
}
},
{
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"value": {
"end": 450,
"labels": [
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],
"start": 403,
"text": "Date of Judgment : 08.09.2016\n\nState of Odisha."
}
},
{
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"value": {
"end": 469,
"labels": [
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],
"start": 451,
"text": " ........."
}
},
{
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"id": "6ba11e27cfeb46c98f6153122d170c24",
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"value": {
"end": 495,
"labels": [
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],
"start": 470,
"text": " Prosecution."
}
},
{
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"id": "01d8e9fdb9014a45a76d2c6cce58c286",
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"value": {
"end": 523,
"labels": [
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],
"start": 495,
"text": "\n -vrs.-\n\n1"
}
},
{
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"id": "01291b8c17bd471d9eb1f1ff654eb2e7",
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"value": {
"end": 558,
"labels": [
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],
"start": 523,
"text": ". Kalabati Sa, aged about 30 years,"
}
},
{
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"id": "c97dd042c2b941e992dc69f24811939d",
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"type": null,
"value": {
"end": 665,
"labels": [
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],
"start": 567,
"text": "Wife of Kamaru Sa, Resident of Village-\n Subdega( Bakupada), PS. Talsara,\n District."
}
},
{
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"id": "0ef605c910d744879a0cb461cef71bdc",
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"value": {
"end": 677,
"labels": [
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],
"start": 666,
"text": "Sundargarh."
}
},
{
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"id": "70fd1a4b7c924f1ba41074b8be630ac8",
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"value": {
"end": 744,
"labels": [
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],
"start": 735,
"text": "........."
}
},
{
"from_name": null,
"id": "2d50a85e5556490b999dcae23cf77fb9",
"to_name": null,
"type": null,
"value": {
"end": 760,
"labels": [
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],
"start": 745,
"text": "Accused person."
}
},
{
"from_name": null,
"id": "df57181ed9374417a287ef608377c6a0",
"to_name": null,
"type": null,
"value": {
"end": 820,
"labels": [
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],
"start": 760,
"text": "\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act.."
}
},
{
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"id": "46422cd3b93a4c59a2a61b79c5fc283c",
"to_name": null,
"type": null,
"value": {
"end": 868,
"labels": [
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],
"start": 822,
"text": "Counsel for the State : Sri Debasish Shit, APP"
}
},
{
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"id": "885f6df8e2bd483d88a77f2fa289faf6",
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"value": {
"end": 933,
"labels": [
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],
"start": 870,
"text": "Counsel for the Defence : Sri N.K.Patel & associates, Advocate."
}
},
{
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"id": "5e78c54112fd40f083942c0a332475c8",
"to_name": null,
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"value": {
"end": 968,
"labels": [
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],
"start": 933,
"text": "\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "d73525bf81d74d04a8e1d1d373943fda",
"to_name": null,
"type": null,
"value": {
"end": 1102,
"labels": [
"FAC"
],
"start": 970,
"text": "1. Accused person stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. Liquor."
}
},
{
"from_name": null,
"id": "449a5fb51ba945ba80a3ede90cecf478",
"to_name": null,
"type": null,
"value": {
"end": 1429,
"labels": [
"FAC"
],
"start": 1102,
"text": "\n 2. The story of the prosecution in brief is that on 07.12.2011 at about 10.50 a.m., while the SI of Excise, EI & EB, Unit , Sambalpur was performing patrolling duty along with staff at Subdega ( Bakupada) village area noticed that the accused Kalabati Sa was going on the road by carrying one plastic jerry cane in her hand."
}
},
{
"from_name": null,
"id": "6bbd67f3da984d3384f0fb19f64bc1bf",
"to_name": null,
"type": null,
"value": {
"end": 1687,
"labels": [
"FAC"
],
"start": 1430,
"text": "On suspicion the SI of Excise detained her on the road and directed the lady constable for search and on search she recovered five litres of ID liquor containing in the said plastic jerry cane from the possession of the accused in presence of the witnesses."
}
},
{
"from_name": null,
"id": "2575e974170948cab960d830c3e352e4",
"to_name": null,
"type": null,
"value": {
"end": 1872,
"labels": [
"FAC"
],
"start": 1688,
"text": "Thereafter he conducted blue litmus test, smell test, hydrometer test and from above tests and his prolonged service experience, he ascertained that the seized article was I.D. liquor."
}
},
{
"from_name": null,
"id": "0e64f6abdd46474c94c960f219021d31",
"to_name": null,
"type": null,
"value": {
"end": 2092,
"labels": [
"FAC"
],
"start": 1872,
"text": "\n Thereafter, he collected sample, sent the same for chemical examination and after completion of his inquiry submitted final PR against the accused person U/s. 47(a)(i) of Bihar & Orissa Excise Act suggesting his trial."
}
},
{
"from_name": null,
"id": "1acad751c84f400db4a13cd969563116",
"to_name": null,
"type": null,
"value": {
"end": 2108,
"labels": [
"FAC"
],
"start": 2094,
"text": "3. "
}
},
{
"from_name": null,
"id": "2a797c7005094a2690773c3ba8d128f3",
"to_name": null,
"type": null,
"value": {
"end": 2216,
"labels": [
"FAC"
],
"start": 2108,
"text": "The plea of the accused person is one of complete denial and false implication only for statistical purpose."
}
},
{
"from_name": null,
"id": "6d98db6b29874ba99288d79902224e8b",
"to_name": null,
"type": null,
"value": {
"end": 2232,
"labels": [
"ISSUE"
],
"start": 2218,
"text": "4. "
}
},
{
"from_name": null,
"id": "6f5a926b4e5147199e99413d88d83192",
"to_name": null,
"type": null,
"value": {
"end": 2292,
"labels": [
"ISSUE"
],
"start": 2232,
"text": "The points for determination of this case are as follows: i."
}
},
{
"from_name": null,
"id": "d5269db592ee4cd180125dfe60d5472a",
"to_name": null,
"type": null,
"value": {
"end": 2505,
"labels": [
"ISSUE"
],
"start": 2293,
"text": "Whether on 07.12.2011 at about 9.45 a.m., on the road of village Subdega (Bakupada), the SI of Excise seized five litres of ID liquor kept in a plastic jerry cane for the purpose of selling without any authority?"
}
},
{
"from_name": null,
"id": "b8b7735f678f4cb099dd03ee7c78a76d",
"to_name": null,
"type": null,
"value": {
"end": 2648,
"labels": [
"ISSUE"
],
"start": 2507,
"text": "ii. Whether on the same date, time and place the said five litres of ID liquor has been seized from your exclusive and conscious possession ?"
}
},
{
"from_name": null,
"id": "b61bc7af5a5542b598e07fa81340aa9d",
"to_name": null,
"type": null,
"value": {
"end": 2704,
"labels": [
"ISSUE"
],
"start": 2648,
"text": "\n iii. Whether the seized article is I.D. liquor or not?"
}
},
{
"from_name": null,
"id": "5eab3b839d694081b8f1b69fcbfedb9f",
"to_name": null,
"type": null,
"value": {
"end": 2785,
"labels": [
"NONE"
],
"start": 2704,
"text": "\n 5. To prove its case, prosecution has examined only three witnesses."
}
},
{
"from_name": null,
"id": "89c848ca934641b3b23adec228f11a6c",
"to_name": null,
"type": null,
"value": {
"end": 2893,
"labels": [
"NONE"
],
"start": 2786,
"text": "Out of whom P.W. 3 is the SI of Excise, EI & EB, Sambalpur and P.W. 1 is the accompanying Excise constable."
}
},
{
"from_name": null,
"id": "ecf0739bba8f4f2f90bbca95928ae8de",
"to_name": null,
"type": null,
"value": {
"end": 2966,
"labels": [
"NONE"
],
"start": 2894,
"text": "Pw 2 is the cited independent seizure witness to the alleged occurrence."
}
},
{
"from_name": null,
"id": "d5264e93998e461daf730b1cd6e52521",
"to_name": null,
"type": null,
"value": {
"end": 3029,
"labels": [
"NONE"
],
"start": 2967,
"text": "Prosecution proved certain documents marked as Ext. 1 & Ext. 2"
}
},
{
"from_name": null,
"id": "1af50cb7f8e54034b1c377201784a101",
"to_name": null,
"type": null,
"value": {
"end": 3133,
"labels": [
"ANALYSIS"
],
"start": 3029,
"text": ". On the other hand, no oral or documentary evidence adduced on behalf of accused person in his defence."
}
},
{
"from_name": null,
"id": "49c73c516e254c4a945c26687bb7b7d9",
"to_name": null,
"type": null,
"value": {
"end": 3612,
"labels": [
"FAC"
],
"start": 3133,
"text": "\n 6. On analysis of the evidence on record P.W. 3 the SI of Excise deposed that on 07.12.2011, while he was performing patrolling duty at Subdega (Bakupada) area and found that the accused was coming on the road by holding a plastic jerry cane in her hand, so on suspicion he detained the accused Kalabati Sa and directed the lady constable for search and on search, she recovered five litres of ID liquor containing in the plastic jerry cane from the possession of the accused."
}
},
{
"from_name": null,
"id": "9ffb4601db0a4f61b7831597dd224438",
"to_name": null,
"type": null,
"value": {
"end": 3779,
"labels": [
"FAC"
],
"start": 3613,
"text": "According to this witness he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list."
}
},
{
"from_name": null,
"id": "ea16300ac1df4b2fbb4412fd02a222d5",
"to_name": null,
"type": null,
"value": {
"end": 3871,
"labels": [
"FAC"
],
"start": 3780,
"text": "He further deposed that he collected the sample and sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "9ef1235aa2474eb4b12342dc619b952a",
"to_name": null,
"type": null,
"value": {
"end": 4048,
"labels": [
"FAC"
],
"start": 3872,
"text": "Another official witness PW 1 (Excise constable) like wise supported the version of P.W 3 in respect of patrolling and seizure of the liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "ad614dbfc0fe48bd8b1ea9ed91b450e2",
"to_name": null,
"type": null,
"value": {
"end": 4167,
"labels": [
"FAC"
],
"start": 4049,
"text": "Specific version of both the witnesses is that seizure was conducted by the SI of Excise in presence of the witnesses."
}
},
{
"from_name": null,
"id": "479942e261604238995bd8a581a479d5",
"to_name": null,
"type": null,
"value": {
"end": 4296,
"labels": [
"FAC"
],
"start": 4168,
"text": "Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration."
}
},
{
"from_name": null,
"id": "ad028de978ea485cbd909136b37e4c3a",
"to_name": null,
"type": null,
"value": {
"end": 4425,
"labels": [
"FAC"
],
"start": 4297,
"text": "P.W. 2, the independent seizure witness in evidence did not support the version of P.W.3 at all in respect of factum of seizure."
}
},
{
"from_name": null,
"id": "ad97bad8a5184f82a1313aca5e87cd2c",
"to_name": null,
"type": null,
"value": {
"end": 4546,
"labels": [
"FAC"
],
"start": 4425,
"text": "\n According to him nothing was seized in his presence by any Excise staff and he has put his thumb impression on a paper."
}
},
{
"from_name": null,
"id": "8f7ffbb08a524960bf71e591b07bdbca",
"to_name": null,
"type": null,
"value": {
"end": 4654,
"labels": [
"ANALYSIS"
],
"start": 4547,
"text": "Hence there is discrepancy between the testimony of independent seizure witness and the official witnesses."
}
},
{
"from_name": null,
"id": "ed670037a8394566852bf6a88ba3ab45",
"to_name": null,
"type": null,
"value": {
"end": 4854,
"labels": [
"ANALYSIS"
],
"start": 4654,
"text": "\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "abd7773327f1413ebc5873ede320f5bc",
"to_name": null,
"type": null,
"value": {
"end": 4937,
"labels": [
"ANALYSIS"
],
"start": 4855,
"text": "But in this case the seizure witness did not support the factum of seizure at all."
}
},
{
"from_name": null,
"id": "ccbf4fabaee94c5a8397f2728b241301",
"to_name": null,
"type": null,
"value": {
"end": 5054,
"labels": [
"ANALYSIS"
],
"start": 4938,
"text": "Further the SI of Excise PW 3 in cross-examination admitted that he had not known the accused prior to the incident."
}
},
{
"from_name": null,
"id": "abf77cbcd6e04149a943fba744097e73",
"to_name": null,
"type": null,
"value": {
"end": 5095,
"labels": [
"ANALYSIS"
],
"start": 5055,
"text": "The spot is a village road and busy one."
}
},
{
"from_name": null,
"id": "97da790f565d4cd0bb16e48cec66843b",
"to_name": null,
"type": null,
"value": {
"end": 5178,
"labels": [
"ANALYSIS"
],
"start": 5095,
"text": "\n He further deposed that he has not produced the seized articles before the court."
}
},
{
"from_name": null,
"id": "8d6e9e79dbe648c98691b2b2ded4c954",
"to_name": null,
"type": null,
"value": {
"end": 5372,
"labels": [
"ANALYSIS"
],
"start": 5179,
"text": "Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism."
}
},
{
"from_name": null,
"id": "d6e7ca364889452fae17ffafe63b6b9c",
"to_name": null,
"type": null,
"value": {
"end": 5476,
"labels": [
"ARG_RESPONDENT"
],
"start": 5373,
"text": "The plea of the defence is that a false case has been foisted against her only for statistical purpose."
}
},
{
"from_name": null,
"id": "b587231c1fac41d091fa3aa7baef042e",
"to_name": null,
"type": null,
"value": {
"end": 5707,
"labels": [
"ARG_RESPONDENT"
],
"start": 5477,
"text": "There is no material on record to show the exact place of seizure as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "8ac71715ec3f4ce6b11d56a7e09121dc",
"to_name": null,
"type": null,
"value": {
"end": 5828,
"labels": [
"ARG_RESPONDENT"
],
"start": 5708,
"text": "More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "249e33fe96fc417a9000d12cf8109856",
"to_name": null,
"type": null,
"value": {
"end": 5905,
"labels": [
"ARG_RESPONDENT"
],
"start": 5828,
"text": "\n Further, independent seizure witness did not support the factum of seizure."
}
},
{
"from_name": null,
"id": "7f71fa23277b481c8f6875ebbda2d101",
"to_name": null,
"type": null,
"value": {
"end": 6062,
"labels": [
"ANALYSIS"
],
"start": 5906,
"text": "In such premises I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration."
}
},
{
"from_name": null,
"id": "f21af5e0244945079fdaa6115cc2f011",
"to_name": null,
"type": null,
"value": {
"end": 6176,
"labels": [
"ANALYSIS"
],
"start": 6063,
"text": "Hence the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "b9aadf9bc6514e1581e7a4f9646d72d0",
"to_name": null,
"type": null,
"value": {
"end": 6249,
"labels": [
"ANALYSIS"
],
"start": 6176,
"text": "\n 8. With regard to nature of seized article whether it is liquor or not."
}
},
{
"from_name": null,
"id": "6e9408f9f9b241d98454856e42d4d120",
"to_name": null,
"type": null,
"value": {
"end": 6304,
"labels": [
"ANALYSIS"
],
"start": 6249,
"text": "\n P.W. 3 stated that the seized article is I.D. liquor."
}
},
{
"from_name": null,
"id": "254d7cae849d4b929886d113f428806f",
"to_name": null,
"type": null,
"value": {
"end": 6415,
"labels": [
"ANALYSIS"
],
"start": 6305,
"text": "PW 3 has filed the xerox copy of distillery training certificate so also xerox copy of experience certificate."
}
},
{
"from_name": null,
"id": "cadfc80ea151443a8ec6a1766f71728e",
"to_name": null,
"type": null,
"value": {
"end": 6530,
"labels": [
"ANALYSIS"
],
"start": 6416,
"text": "But the learned defence counsel vehemently argued that the SI of Excise has not produced his original certificate."
}
},
{
"from_name": null,
"id": "d633a19cfaa74c849872573952ef2351",
"to_name": null,
"type": null,
"value": {
"end": 6657,
"labels": [
"ANALYSIS"
],
"start": 6531,
"text": "Further this witness has admittedly stated in cross-examination that he has not produced the seized articles before the court."
}
},
{
"from_name": null,
"id": "434a2757de7e40e59cebc89ef1668e91",
"to_name": null,
"type": null,
"value": {
"end": 6728,
"labels": [
"ANALYSIS"
],
"start": 6658,
"text": "He has also not seized any document regarding identity of the accused."
}
},
{
"from_name": null,
"id": "1be036017c58492589280132375135ae",
"to_name": null,
"type": null,
"value": {
"end": 6856,
"labels": [
"ANALYSIS"
],
"start": 6729,
"text": "He has also not proved the chemical examination report and has also not cited the Scientific officer as a witness in this case."
}
},
{
"from_name": null,
"id": "93449c6221c1460e8fab89e9075e5cc9",
"to_name": null,
"type": null,
"value": {
"end": 6947,
"labels": [
"ANALYSIS"
],
"start": 6857,
"text": "Hence, I hold that prosecution failed to establish that the seized article is I.D. Liquor."
}
},
{
"from_name": null,
"id": "b5ff374a522344c7bcc310d404dbd9eb",
"to_name": null,
"type": null,
"value": {
"end": 7331,
"labels": [
"RATIO"
],
"start": 6949,
"text": "9. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure is from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused person for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "475538ce45f548ae9ec6d6e17d4ead02",
"to_name": null,
"type": null,
"value": {
"end": 7404,
"labels": [
"RPC"
],
"start": 7332,
"text": "Hence, I acquit her therefrom under the provisions of Sec.248(1) Cr.P.C."
}
},
{
"from_name": null,
"id": "bb33740bde9e49f1a9f5ce3f6b483968",
"to_name": null,
"type": null,
"value": {
"end": 7461,
"labels": [
"RPC"
],
"start": 7405,
"text": "She be set at liberty and discharged from her bail bond."
}
},
{
"from_name": null,
"id": "89d3e96436cf4382838bddc64f41aa0f",
"to_name": null,
"type": null,
"value": {
"end": 7497,
"labels": [
"RPC"
],
"start": 7463,
"text": "Enter the case as mistake of fact."
}
},
{
"from_name": null,
"id": "ebf9c2b9a1294dfea86f74de62caf112",
"to_name": null,
"type": null,
"value": {
"end": 7691,
"labels": [
"RPC"
],
"start": 7497,
"text": "\n The seized liquor kept at Excise Malkhana, be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court."
}
},
{
"from_name": null,
"id": "4e80760496534bdb994cd15efbbd97a8",
"to_name": null,
"type": null,
"value": {
"end": 7796,
"labels": [
"NONE"
],
"start": 7691,
"text": "\n S.D.J.M.,Sundargarh.\n 08.09.2016."
}
},
{
"from_name": null,
"id": "6510570d95c24bc49d1cced5ce06a164",
"to_name": null,
"type": null,
"value": {
"end": 8016,
"labels": [
"NONE"
],
"start": 7798,
"text": "The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 08th day of September, 2016 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List"
}
},
{
"from_name": null,
"id": "f68d5bba6ea14e16aa654a32a7ecd868",
"to_name": null,
"type": null,
"value": {
"end": 8025,
"labels": [
"NONE"
],
"start": 8017,
"text": "of P.Ws."
}
},
{
"from_name": null,
"id": "09d7b8ba5607498c8083ee190996c52c",
"to_name": null,
"type": null,
"value": {
"end": 8042,
"labels": [
"NONE"
],
"start": 8026,
"text": "examined: P.W. 1"
}
},
{
"from_name": null,
"id": "4074ea0234f7461e97a721713baaf791",
"to_name": null,
"type": null,
"value": {
"end": 8079,
"labels": [
"NONE"
],
"start": 8052,
"text": "Gayatri Sa P.W. 2 "
}
},
{
"from_name": null,
"id": "cbad878d08b94b8b9a07282d3116db43",
"to_name": null,
"type": null,
"value": {
"end": 8099,
"labels": [
"NONE"
],
"start": 8079,
"text": "Bhagirathi Sa P.W.3."
}
},
{
"from_name": null,
"id": "8223599063ad47ef8696aa80f21797d8",
"to_name": null,
"type": null,
"value": {
"end": 8123,
"labels": [
"NONE"
],
"start": 8109,
"text": "Debasish Patel"
}
},
{
"from_name": null,
"id": "f575bab9b9bd4f388952b2de56dc9f2e",
"to_name": null,
"type": null,
"value": {
"end": 8209,
"labels": [
"NONE"
],
"start": 8124,
"text": "List of D.Ws examined: N i l.\n List of Exts.marked for the complnt.\n Ext.1 "
}
},
{
"from_name": null,
"id": "f98572ad8a114992b34817d71948a5ce",
"to_name": null,
"type": null,
"value": {
"end": 8315,
"labels": [
"NONE"
],
"start": 8209,
"text": "Seizure list .\n Ext.1/1 Signature of P.W 1.\n Ext.1/2 Signature of P.W 3.\n Ext.1/3 "
}
},
{
"from_name": null,
"id": "bf18ec43451a491d85a361dec6c8545a",
"to_name": null,
"type": null,
"value": {
"end": 8321,
"labels": [
"NONE"
],
"start": 8315,
"text": "Tested"
}
},
{
"from_name": null,
"id": "20c55868c2c34201a93fd2d5a4110caf",
"to_name": null,
"type": null,
"value": {
"end": 8346,
"labels": [
"NONE"
],
"start": 8322,
"text": "blue litmus paper Ext.2."
}
},
{
"from_name": null,
"id": "1a21d97ab5cf4308b4cc31c62906fc8b",
"to_name": null,
"type": null,
"value": {
"end": 8426,
"labels": [
"NONE"
],
"start": 8356,
"text": "Hydrometer test.\n Ext.2/1 Signature of PW 3.\n Ext.3 "
}
},
{
"from_name": null,
"id": "855da3ed61f94ef5a57e56a2d94ea409",
"to_name": null,
"type": null,
"value": {
"end": 8476,
"labels": [
"NONE"
],
"start": 8426,
"text": "Xerox copy of distillery training Ext.4 "
}
},
{
"from_name": null,
"id": "a8f488a012f94efabce6d7c7ed67d183",
"to_name": null,
"type": null,
"value": {
"end": 8522,
"labels": [
"NONE"
],
"start": 8476,
"text": "Xerox attested copy of experience certificate."
}
},
{
"from_name": null,
"id": "dc132cc2c15d4d2bb7e83bbf8cde778d",
"to_name": null,
"type": null,
"value": {
"end": 8590,
"labels": [
"NONE"
],
"start": 8524,
"text": "List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh."
}
}
]
}
] | 4,276 | {
"text": "IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\nPRESENT: DISTRICT: SUNDARGARH.\n\n Shri Hara Prasad Padhy,LL.B,\n S.D.J.M.,Sundargarh.\n\n 2(a) CC CASE No. 249 of 2011\n Trial No. 120 of 2012\n\n Date of argument : 25.08.2016\n Date of Judgment : 08.09.2016\n\nState of Odisha. ......... Prosecution.\n -vrs.-\n\n1. Kalabati Sa, aged about 30 years,\n Wife of Kamaru Sa, Resident of Village-\n Subdega( Bakupada), PS. Talsara,\n District. Sundargarh.\n ......... Accused person.\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act..\n\nCounsel for the State : Sri Debasish Shit, APP\n\nCounsel for the Defence : Sri N.K.Patel & associates, Advocate.\n\n J U D G M E N T\n 1. Accused person stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. Liquor.\n 2. The story of the prosecution in brief is that on 07.12.2011 at about 10.50 a.m., while the SI of Excise, EI & EB, Unit , Sambalpur was performing patrolling duty along with staff at Subdega ( Bakupada) village area noticed that the accused Kalabati Sa was going on the road by carrying one plastic jerry cane in her hand. On suspicion the SI of Excise detained her on the road and directed the lady constable for search and on search she recovered five litres of ID liquor containing in the said plastic jerry cane from the possession of the accused in presence of the witnesses. Thereafter he conducted blue litmus test, smell test, hydrometer test and from above tests and his prolonged service experience, he ascertained that the seized article was I.D. liquor.\n Thereafter, he collected sample, sent the same for chemical examination and after completion of his inquiry submitted final PR against the accused person U/s. 47(a)(i) of Bihar & Orissa Excise Act suggesting his trial.\n 3. The plea of the accused person is one of complete denial and false implication only for statistical purpose.\n 4. The points for determination of this case are as follows: i. Whether on 07.12.2011 at about 9.45 a.m., on the road of village Subdega (Bakupada), the SI of Excise seized five litres of ID liquor kept in a plastic jerry cane for the purpose of selling without any authority?\n ii. Whether on the same date, time and place the said five litres of ID liquor has been seized from your exclusive and conscious possession ?\n iii. Whether the seized article is I.D. liquor or not?\n 5. To prove its case, prosecution has examined only three witnesses. Out of whom P.W. 3 is the SI of Excise, EI & EB, Sambalpur and P.W. 1 is the accompanying Excise constable. Pw 2 is the cited independent seizure witness to the alleged occurrence. Prosecution proved certain documents marked as Ext. 1 & Ext. 2. On the other hand, no oral or documentary evidence adduced on behalf of accused person in his defence.\n 6. On analysis of the evidence on record P.W. 3 the SI of Excise deposed that on 07.12.2011, while he was performing patrolling duty at Subdega (Bakupada) area and found that the accused was coming on the road by holding a plastic jerry cane in her hand, so on suspicion he detained the accused Kalabati Sa and directed the lady constable for search and on search, she recovered five litres of ID liquor containing in the plastic jerry cane from the possession of the accused. According to this witness he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list. He further deposed that he collected the sample and sent the same for chemical examination. Another official witness PW 1 (Excise constable) like wise supported the version of P.W 3 in respect of patrolling and seizure of the liquor from the possession of the accused. Specific version of both the witnesses is that seizure was conducted by the SI of Excise in presence of the witnesses. Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration. P.W. 2, the independent seizure witness in evidence did not support the version of P.W.3 at all in respect of factum of seizure.\n According to him nothing was seized in his presence by any Excise staff and he has put his thumb impression on a paper. Hence there is discrepancy between the testimony of independent seizure witness and the official witnesses.\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused. But in this case the seizure witness did not support the factum of seizure at all. Further the SI of Excise PW 3 in cross-examination admitted that he had not known the accused prior to the incident. The spot is a village road and busy one.\n He further deposed that he has not produced the seized articles before the court. Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism. The plea of the defence is that a false case has been foisted against her only for statistical purpose. There is no material on record to show the exact place of seizure as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused. More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination.\n Further, independent seizure witness did not support the factum of seizure. In such premises I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration. Hence the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused.\n 8. With regard to nature of seized article whether it is liquor or not.\n P.W. 3 stated that the seized article is I.D. liquor. PW 3 has filed the xerox copy of distillery training certificate so also xerox copy of experience certificate. But the learned defence counsel vehemently argued that the SI of Excise has not produced his original certificate. Further this witness has admittedly stated in cross-examination that he has not produced the seized articles before the court. He has also not seized any document regarding identity of the accused. He has also not proved the chemical examination report and has also not cited the Scientific officer as a witness in this case. Hence, I hold that prosecution failed to establish that the seized article is I.D. Liquor.\n 9. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure is from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused person for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt. Hence, I acquit her therefrom under the provisions of Sec.248(1) Cr.P.C. She be set at liberty and discharged from her bail bond.\n Enter the case as mistake of fact.\n The seized liquor kept at Excise Malkhana, be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court.\n S.D.J.M.,Sundargarh.\n 08.09.2016.\n The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 08th day of September, 2016 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List of P.Ws. examined: P.W. 1 Gayatri Sa P.W. 2 Bhagirathi Sa P.W.3. Debasish Patel List of D.Ws examined: N i l.\n List of Exts.marked for the complnt.\n Ext.1 Seizure list .\n Ext.1/1 Signature of P.W 1.\n Ext.1/2 Signature of P.W 3.\n Ext.1/3 Tested blue litmus paper Ext.2. Hydrometer test.\n Ext.2/1 Signature of PW 3.\n Ext.3 Xerox copy of distillery training Ext.4 Xerox attested copy of experience certificate.\n List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "431351a098a3451a9dd607e4c702beec",
"to_name": null,
"type": null,
"value": {
"end": 129,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nMAHINDRA ENGINEERING AND CHEMICAL PRODUCTS LTD.\n\nVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT21/01/1992"
}
},
{
"from_name": null,
"id": "e2619fda63d04967b92cd9103395adfe",
"to_name": null,
"type": null,
"value": {
"end": 791,
"labels": [
"PREAMBLE"
],
"start": 131,
"text": "BENCH:\nSAHAI, R.M. (J)\nBENCH:\nSAHAI, R.M. (J)\nPANDIAN, S.R. (J)\n\nCITATION: 1992 SCC (1) 727\n 1992 SCR (1) 254 1992 SCALE (1)95\n JT 1992 (1) 276\n\nACT:\n Central Excise-Tariff-Item NO. 22 F(4)-Construction-\n\nLegislative intention-\"Following namely\", \"that is to say\",\n\"other manufacture\", \"manufacture therefrom\"-Meaning.\n\n Central Excise-Tariff-Item No.22F (4), Item No.68-Glass\nfabric manufactured out mineral fiber-Whether exigible to\nduty-Arc Chamber housing manufactured from glass fabric-\nDuty-Exigibility.\n\nHEADNOTE:\n The appellant was manufacturing the tubular shaped are\n\nchamber housings from glass fabrics."
}
},
{
"from_name": null,
"id": "ea281110fe7f492c8ad7e6eb0c1e04b9",
"to_name": null,
"type": null,
"value": {
"end": 903,
"labels": [
"PREAMBLE"
],
"start": 801,
"text": "The Assistant Collector levied duty under tariff Item\n\nNo.22F(4) of the Central Excise and Tariff Act."
}
},
{
"from_name": null,
"id": "ea6f29a2490b476682109a062205d34e",
"to_name": null,
"type": null,
"value": {
"end": 1054,
"labels": [
"PREAMBLE"
],
"start": 904,
"text": "It was held\nthat the goods were covered under tariff item 22F(4) as the\npercentage of the mineral fibre yarn was predominant in the\nweight.\n\n "
}
},
{
"from_name": null,
"id": "a41772b539414975aa3b27babbf3897d",
"to_name": null,
"type": null,
"value": {
"end": 1299,
"labels": [
"PREAMBLE"
],
"start": 1054,
"text": "The Collector in appeal held that the words\n\"manufactured therefrom\" in tariff Item No. 22F(4) would\ninclude not only first manufacture of mineral fibre and yarn\nbut also subsequent manufacture where in mineral fibre or\nyarn was used.\n\n "
}
},
{
"from_name": null,
"id": "03afbbf07af345999b372647c81e2b4e",
"to_name": null,
"type": null,
"value": {
"end": 1981,
"labels": [
"PREAMBLE"
],
"start": 1299,
"text": "The Tribunal affirmed the order of the Collector, on\nconstruction of the expression \"manufacture therefrom\", and\nheld that the goods should be manufactured from mineral\nfibre and yarn, that glass fabric was an intermediate stage\nbetween glass are housing and glass fibre or yarn, yet the\ngoods were exigible to duty under item 22F(4), as the arc\nhousing chamber did not cease to be manufactured of glass\nfibre/yarn, merely because the fibre/yarn was first woven\ninto glass fabric, and that if glass fibers/yarn were to be\nwoven into fabrics before they could be used in the\nmanufacture of the housing, the housing would not cease to\nbe a manufacture of glass fibres/yarn.\n\n "
}
},
{
"from_name": null,
"id": "b1e7c44f4281471c865a6adc07d5fcf3",
"to_name": null,
"type": null,
"value": {
"end": 2311,
"labels": [
"PREAMBLE"
],
"start": 1981,
"text": "A five-judge Bench of the CEGAT did not agree with the\ninterpretation\nput by the Tribunal and held that the entry applied to only\nthose products the manufacture or attendant function of\nwhich was to do something with mineral fibre and yarn and it\ndid not apply to a product in which only mineral fibre or\nyarn was used.\n\n "
}
},
{
"from_name": null,
"id": "682eeeeb88db413380d46e00fc07e4dc",
"to_name": null,
"type": null,
"value": {
"end": 2422,
"labels": [
"PREAMBLE"
],
"start": 2311,
"text": "Against the order of CEGAT, the appellant manufacturer\npreferred the appeal before this Court by special leave."
}
},
{
"from_name": null,
"id": "711a62c96189460fb760031f73dd41a3",
"to_name": null,
"type": null,
"value": {
"end": 2486,
"labels": [
"PREAMBLE"
],
"start": 2422,
"text": "\n\n Allowing the appeal, this Court,\n HELD: 1.01."
}
},
{
"from_name": null,
"id": "7ad7056f97644f51b2e9832c86f23a68",
"to_name": null,
"type": null,
"value": {
"end": 2557,
"labels": [
"PREAMBLE"
],
"start": 2487,
"text": "The entry is in two parts, one, descriptive\nand the other explanatory."
}
},
{
"from_name": null,
"id": "4f8a4b2fb61049e595b9c4550478c413",
"to_name": null,
"type": null,
"value": {
"end": 2648,
"labels": [
"PREAMBLE"
],
"start": 2558,
"text": "Both are to be read together to\nbring out the scope and extent of its applicability fully."
}
},
{
"from_name": null,
"id": "2e936ab58c09431bada313489119b19a",
"to_name": null,
"type": null,
"value": {
"end": 2955,
"labels": [
"PREAMBLE"
],
"start": 2649,
"text": "The first declares the items which are exigible to duty but\nrestricts it to only those in relation to the manufacture of\nwhich any process is ordinarily carried on with the aid of\npower. The words `following namely' used in the second part\nexplains the items that were intended to be covered in this\nentry."
}
},
{
"from_name": null,
"id": "fe0d38f871a24b31aaaf19b7269dfdb9",
"to_name": null,
"type": null,
"value": {
"end": 3111,
"labels": [
"PREAMBLE"
],
"start": 2956,
"text": "Use of expressions `namely' or `that is to say'\nfollowed by description of goods is usually exhaustive\nunless there are strong indications to the contrary."
}
},
{
"from_name": null,
"id": "ab162a81d7a3473bb969c41408bd3bf5",
"to_name": null,
"type": null,
"value": {
"end": 3140,
"labels": [
"PREAMBLE"
],
"start": 3112,
"text": "[257 G\n258 A]\n 1.02."
}
},
{
"from_name": null,
"id": "22180551c4f64545b010f04f31d7330d",
"to_name": null,
"type": null,
"value": {
"end": 3186,
"labels": [
"PREAMBLE"
],
"start": 3141,
"text": "Language of serial no. 4 is plain and simple."
}
},
{
"from_name": null,
"id": "37988bf298284e0386b47dd2eb46daf9",
"to_name": null,
"type": null,
"value": {
"end": 3358,
"labels": [
"PREAMBLE"
],
"start": 3187,
"text": "It\nintends to clarify the expression `manufacture therefrom' by\nexpanding it to include in its ambit even those manufactures\nin which fibre or yarn predominated in weight."
}
},
{
"from_name": null,
"id": "b39463795e574247851c39f3000dbf24",
"to_name": null,
"type": null,
"value": {
"end": 3503,
"labels": [
"PREAMBLE"
],
"start": 3359,
"text": "But it did\nnot go beyond it and purported to include manufactures out\nof manufacture of a commodity in which mineral fibre or yarn\npredominated."
}
},
{
"from_name": null,
"id": "c98aaedae68a4543a351de1f8016ed7c",
"to_name": null,
"type": null,
"value": {
"end": 3573,
"labels": [
"PREAMBLE"
],
"start": 3504,
"text": "Any other construction would result in\naltering the principal clause."
}
},
{
"from_name": null,
"id": "898f27efcb5e4c569d519fa72b9fc588",
"to_name": null,
"type": null,
"value": {
"end": 3654,
"labels": [
"PREAMBLE"
],
"start": 3574,
"text": "That would be contrary to\nthe scheme of the entry and principle of construction."
}
},
{
"from_name": null,
"id": "8afaa16d42d24553a378909ed47772c5",
"to_name": null,
"type": null,
"value": {
"end": 3761,
"labels": [
"PREAMBLE"
],
"start": 3655,
"text": "Its\nonly effect was to include even those manufactures in which\nmineral fibre or yarn or both predominate."
}
},
{
"from_name": null,
"id": "3ec8571f818f408db4dbbe6f85ef533e",
"to_name": null,
"type": null,
"value": {
"end": 3910,
"labels": [
"PREAMBLE"
],
"start": 3762,
"text": "It could not be\nextended to those goods which were manufactured out of\ncertain commodity in which mineral fibre or yarn had been\npredominately used."
}
},
{
"from_name": null,
"id": "d8ddf63c87cc423399bf85499f3ae637",
"to_name": null,
"type": null,
"value": {
"end": 3938,
"labels": [
"PREAMBLE"
],
"start": 3911,
"text": "[258 A-B, D]\n 1.03."
}
},
{
"from_name": null,
"id": "4991d3e30bc148dbaf1700c7898f3200",
"to_name": null,
"type": null,
"value": {
"end": 4050,
"labels": [
"PREAMBLE"
],
"start": 3939,
"text": "The word `other manufacture' has to be read in\nthe same sense as `manufacture therefrom' used in the main\npart."
}
},
{
"from_name": null,
"id": "43ad8f0c71f84594987231718a85ca9c",
"to_name": null,
"type": null,
"value": {
"end": 4227,
"labels": [
"PREAMBLE"
],
"start": 4051,
"text": "The only difference is that the scope has been\nwidened to include not only those goods which were\nmanufactured from mineral or yarn but even to those in which\nthey predominate."
}
},
{
"from_name": null,
"id": "13d0d53565594a08a54e6b2248b5e63e",
"to_name": null,
"type": null,
"value": {
"end": 4237,
"labels": [
"PREAMBLE"
],
"start": 4228,
"text": "[258 D-E]"
}
},
{
"from_name": null,
"id": "00252b7690b84b18bb793676eb547efb",
"to_name": null,
"type": null,
"value": {
"end": 4251,
"labels": [
"PREAMBLE"
],
"start": 4237,
"text": "\n 2.01"
}
},
{
"from_name": null,
"id": "1da885f798a74369a4e2d86c1df9d8d6",
"to_name": null,
"type": null,
"value": {
"end": 4505,
"labels": [
"PREAMBLE"
],
"start": 4251,
"text": ". Glass fabric manufactured out of mineral fibre\nis exigible to duty under Item no. 4 but arc chamber housing\nmanufactured\nfrom glass fabric cannot be placed at par with glass fabric\nand cannot be considered as `other manufacture' of glass\nfibre or yarn."
}
},
{
"from_name": null,
"id": "0a1769def2ec4667a778dba0284cfb00",
"to_name": null,
"type": null,
"value": {
"end": 4529,
"labels": [
"PREAMBLE"
],
"start": 4506,
"text": "[258 F]\n\n 2.02."
}
},
{
"from_name": null,
"id": "1bccbf3470a848eca92f6bc7336d7049",
"to_name": null,
"type": null,
"value": {
"end": 4586,
"labels": [
"PREAMBLE"
],
"start": 4530,
"text": "The arc chamber housing manufactured out of\nglass fabric"
}
},
{
"from_name": null,
"id": "bba0e38d19ba49f8a875669c4c91bef3",
"to_name": null,
"type": null,
"value": {
"end": 4663,
"labels": [
"PREAMBLE"
],
"start": 4587,
"text": "are held to be exigible to duty during the\nrelevant period under item no.68."
}
},
{
"from_name": null,
"id": "a527e103f6b840cfa57490807418ba34",
"to_name": null,
"type": null,
"value": {
"end": 4682,
"labels": [
"PREAMBLE"
],
"start": 4664,
"text": "[258 F]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "3fa5c01f604845f990cc16a6bf06d49c",
"to_name": null,
"type": null,
"value": {
"end": 4767,
"labels": [
"NONE"
],
"start": 4682,
"text": "\n Geep Flashlight Industries v. Union of India, 1986(6) ELR 430, referred to."
}
},
{
"from_name": null,
"id": "f8f30a79e6ed4668b4ca3db52f5b34bf",
"to_name": null,
"type": null,
"value": {
"end": 4984,
"labels": [
"NONE"
],
"start": 4767,
"text": "\n& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3251 of From the Judgment and Order dated 8.3.1984 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED(SB)(T) A.No 1132 of 1983-D."
}
},
{
"from_name": null,
"id": "f9648ff8e4fb43bcba92dcf1ce2f50be",
"to_name": null,
"type": null,
"value": {
"end": 5005,
"labels": [
"NONE"
],
"start": 4985,
"text": "[Order No.168/84-D)."
}
},
{
"from_name": null,
"id": "f552b0e23bc6499098961386895efaf3",
"to_name": null,
"type": null,
"value": {
"end": 5054,
"labels": [
"NONE"
],
"start": 5005,
"text": "\n S.Ganesh and Amitabh Marwah for the Appellants."
}
},
{
"from_name": null,
"id": "f84f43b890f64cf8924bc97130e41803",
"to_name": null,
"type": null,
"value": {
"end": 5099,
"labels": [
"NONE"
],
"start": 5054,
"text": "\n C.V. Subba Rao for the Respondents."
}
},
{
"from_name": null,
"id": "473962aaa46b4cf1bd533070d7f647ca",
"to_name": null,
"type": null,
"value": {
"end": 5165,
"labels": [
"NONE"
],
"start": 5099,
"text": "\n The Judgment of the Court was delivered by R.M.SAHAI, J."
}
},
{
"from_name": null,
"id": "15191d6f8dc34bbe8f521ff84635f76c",
"to_name": null,
"type": null,
"value": {
"end": 5606,
"labels": [
"ISSUE"
],
"start": 5166,
"text": "The question of law that arises for consideration in this appeal directed against Order of the Customs, Excise & Gold (Control) Tribunal (hereinafter referred to as `CEGAT'), New Delhi, is if the tubular shaped arc chamber housings manufactured by the appellants from glass fabrics which they purchased from manufacturers was exigible to duty under tariff Item No. 2 F(4) or under residuary Item No. 68 of the Central Excise and Tariff Act."
}
},
{
"from_name": null,
"id": "04b9af08ef884e149a38cde695223ecf",
"to_name": null,
"type": null,
"value": {
"end": 5802,
"labels": [
"FAC"
],
"start": 5606,
"text": "\n Manner of manufacture of arc chamber housing was not in dispute nor there was any dispute that it was manufactured from glass fabric purchased from open market in which glass fibre predominated."
}
},
{
"from_name": null,
"id": "2e5e643f7b91489c928c01b5214907ba",
"to_name": null,
"type": null,
"value": {
"end": 6499,
"labels": [
"ISSUE"
],
"start": 5803,
"text": "The issue was whether the arc chamber manufactured from glass fibre, a product of intermediate stage and not directly from mineral fibre or yarn was exigible to duty under Item 22F(4) which read as under: \"22.F. Mineral fibres and yarn and manufacturers therefrom, in or in relation to the manufacturer of which any process is ordinarily carried on with the aid of power, the following, namely; (1) Glass fibres and yarn including glass tissues and glass wool; (2) asbestos fibre and yarn; (3) any other mineral fibre or yarn, whether continuous or otherwise, such as, slag wool and rock wool; (4) Other manufacturers in which mineral fibres or yarn or both predominate or predominates in weight."
}
},
{
"from_name": null,
"id": "093b4822ac864ad3b204ebb9c8702155",
"to_name": null,
"type": null,
"value": {
"end": 6568,
"labels": [
"ANALYSIS"
],
"start": 6499,
"text": "\n Explanation:- This item does not include asbestos cement products.\""
}
},
{
"from_name": null,
"id": "8e52c82e88194be9a06544071a45aeb4",
"to_name": null,
"type": null,
"value": {
"end": 6726,
"labels": [
"FAC"
],
"start": 6569,
"text": "The Assistant Collector held that the goods were covered under tariff Item 22 F(4) as the percentage of the mineral fibre yarn was predominant in the weight."
}
},
{
"from_name": null,
"id": "b787a1edb6754afcaf543a63529fd20a",
"to_name": null,
"type": null,
"value": {
"end": 6954,
"labels": [
"FAC"
],
"start": 6727,
"text": "In appeal it was held that the words \"manufactured therefrom\" in tariff Item No. 22 F(4) would include not only first manufacture of mineral fibre and yarn but also subsequent manufacture wherein mineral fibre or yarn was used."
}
},
{
"from_name": null,
"id": "ea9ad6345a064ce49d1c7dfcf24f89fe",
"to_name": null,
"type": null,
"value": {
"end": 7175,
"labels": [
"FAC"
],
"start": 6955,
"text": "The order was affirmed by the Tribunal on construction of the expression \"manufacture therefrom\" which were capable of a simple and straight away meaning that the goods should be manufactured from mineral fibre and yarn."
}
},
{
"from_name": null,
"id": "0ea4648848ab41d18610313e6bdc0e9b",
"to_name": null,
"type": null,
"value": {
"end": 7488,
"labels": [
"RLC"
],
"start": 7176,
"text": "The CEGAT held that glass fabric was no doubt an intermediate stage between glass arc housing and glass fibre or yarn yet the goods were exigible to duty under 22 F(4), as the arc housing chamber did not cease to be manufacture of glass fibre/yarn merely because the fibre/yarn was first woven into glass fabric."
}
},
{
"from_name": null,
"id": "8ba09436fb6243d8b2680e38908eb3d4",
"to_name": null,
"type": null,
"value": {
"end": 7616,
"labels": [
"RLC"
],
"start": 7489,
"text": "It rejected the claim of appellant as the construction suggested would result in reading the word directly in item No. 22 F(4)."
}
},
{
"from_name": null,
"id": "118e1763ac154cd9a188e92d0f1e0395",
"to_name": null,
"type": null,
"value": {
"end": 7816,
"labels": [
"RLC"
],
"start": 7617,
"text": "It was found that if glass fibres/yarn were to be woven into fabrics before they could be used in the manufacture of the housing, the housing would not cease to be a manufacture of glass fibres/yarn."
}
},
{
"from_name": null,
"id": "f02ed5db0b0c44f58fcaa4201fd311e2",
"to_name": null,
"type": null,
"value": {
"end": 8085,
"labels": [
"RLC"
],
"start": 7817,
"text": "Subsequently a five- Judge Bench of the CEGAT did not agree with the interpretation put by the Tribunal in this case, and held that the entry applied to only those products the manufacture or attendant function of which was to do something with mineral fibre and yarn."
}
},
{
"from_name": null,
"id": "40fec62cf86045baab78e031efa26355",
"to_name": null,
"type": null,
"value": {
"end": 8161,
"labels": [
"RLC"
],
"start": 8086,
"text": "It did not apply to a product in which only mineral fibre or yarn was used."
}
},
{
"from_name": null,
"id": "b42fe248674d48a3b15dd4886f21669e",
"to_name": null,
"type": null,
"value": {
"end": 8240,
"labels": [
"ANALYSIS"
],
"start": 8161,
"text": "\n The entry is in two parts, one descriptive and the other explanatory."
}
},
{
"from_name": null,
"id": "82b9008ead594f5c95693fa4fd617425",
"to_name": null,
"type": null,
"value": {
"end": 8331,
"labels": [
"ANALYSIS"
],
"start": 8241,
"text": "Both are to be read together to bring out the scope and extent of its applicability fully."
}
},
{
"from_name": null,
"id": "0e5f6e8bcddb40a897a7febd6d570fa4",
"to_name": null,
"type": null,
"value": {
"end": 8388,
"labels": [
"ANALYSIS"
],
"start": 8332,
"text": "The first declares the items which are exigible to duty."
}
},
{
"from_name": null,
"id": "6ff08bed016242da854d3ccc7945581e",
"to_name": null,
"type": null,
"value": {
"end": 8519,
"labels": [
"ANALYSIS"
],
"start": 8389,
"text": "But restricts it to only those in relation to the manufacture of which any process is ordinarily carried on with the aid of power."
}
},
{
"from_name": null,
"id": "60fd550f209441f3a5ec13f49284028f",
"to_name": null,
"type": null,
"value": {
"end": 8768,
"labels": [
"ANALYSIS"
],
"start": 8520,
"text": "Having thus specified the items and the condition on which it would be covered in the entry it proceeds to amplify it in the second part by using the words `following namely' thus explaining the items that were intended to be covered in this entry."
}
},
{
"from_name": null,
"id": "980f1fec0ed240be99286d6e8938efe4",
"to_name": null,
"type": null,
"value": {
"end": 8925,
"labels": [
"ANALYSIS"
],
"start": 8769,
"text": "Use of expressions `namely', or `that is to say' followed by description of goods is usually exhaustive unless there are strong indications to the contrary."
}
},
{
"from_name": null,
"id": "fcae91a18e0649138c0b5e4f510ec2cd",
"to_name": null,
"type": null,
"value": {
"end": 8971,
"labels": [
"ANALYSIS"
],
"start": 8926,
"text": "Language of serial no. 4 is plain and simple."
}
},
{
"from_name": null,
"id": "3cfd6a068e984083b9571e28d45f21e9",
"to_name": null,
"type": null,
"value": {
"end": 9142,
"labels": [
"ANALYSIS"
],
"start": 8972,
"text": "It intends to clarify the expression `manufacture therefrom' by expanding it to include in its ambit even those manufacture in which fibre or yarn predominated in weight."
}
},
{
"from_name": null,
"id": "9a4d1b75230e4df2b2b19736dbe15170",
"to_name": null,
"type": null,
"value": {
"end": 9287,
"labels": [
"ANALYSIS"
],
"start": 9143,
"text": "But it did not go beyond it and purported to include manufactures out of manufacture of a commodity in which mineral fibre or yarn predominated."
}
},
{
"from_name": null,
"id": "24623af86de2434d9850c668800a0f6e",
"to_name": null,
"type": null,
"value": {
"end": 9316,
"labels": [
"ANALYSIS"
],
"start": 9288,
"text": "The entry was added in 1980."
}
},
{
"from_name": null,
"id": "16612c324aaa45539e2380956fcb2a49",
"to_name": null,
"type": null,
"value": {
"end": 9481,
"labels": [
"ANALYSIS"
],
"start": 9317,
"text": "That gave an occasion for the learned counsel for Union of India to urge that it was intended to evade payment of duty by widening and expanding the ambit of entry."
}
},
{
"from_name": null,
"id": "e14e23d217a84b1b826c17343788877e",
"to_name": null,
"type": null,
"value": {
"end": 9550,
"labels": [
"ANALYSIS"
],
"start": 9482,
"text": "In our opinion the item cannot be construed in the manner suggested."
}
},
{
"from_name": null,
"id": "a1fe2b8a6a7c4a9a96877d58574f802f",
"to_name": null,
"type": null,
"value": {
"end": 9607,
"labels": [
"ANALYSIS"
],
"start": 9551,
"text": "The entry was widened but to the extent indicated above."
}
},
{
"from_name": null,
"id": "e78c2abc670f407eadaf0d3ab836ad80",
"to_name": null,
"type": null,
"value": {
"end": 9677,
"labels": [
"ANALYSIS"
],
"start": 9608,
"text": "Any other construction would result in altering the principal clause."
}
},
{
"from_name": null,
"id": "1e505adffcf74d1382dd99e9afccc929",
"to_name": null,
"type": null,
"value": {
"end": 9759,
"labels": [
"ANALYSIS"
],
"start": 9677,
"text": "\n That would be contrary to the scheme of the entry and principle of construction."
}
},
{
"from_name": null,
"id": "61cf463960a6448b8cf0c76be4198e28",
"to_name": null,
"type": null,
"value": {
"end": 9866,
"labels": [
"ANALYSIS"
],
"start": 9760,
"text": "Its only effect was to include even those manufactures in which mineral fibre or yarn or both predominate."
}
},
{
"from_name": null,
"id": "b55e45cd4fb44e7784f50ebf219f5e71",
"to_name": null,
"type": null,
"value": {
"end": 10015,
"labels": [
"ANALYSIS"
],
"start": 9867,
"text": "It could not be extended to those goods which were manufactured out of certain commodity in which mineral fibre or yarn had been predominantly used."
}
},
{
"from_name": null,
"id": "ecac1e7b23044c7ba62a935a0a5e47c6",
"to_name": null,
"type": null,
"value": {
"end": 10127,
"labels": [
"ANALYSIS"
],
"start": 10016,
"text": "The word `other manufacture' has to be read in the same sense as `manufacture therefrom' used in the main part."
}
},
{
"from_name": null,
"id": "8402aa0367ec4bb3962502f56421c85f",
"to_name": null,
"type": null,
"value": {
"end": 10304,
"labels": [
"ANALYSIS"
],
"start": 10128,
"text": "The only difference is that the scope has been widened to include not only those goods which were manufactured from mineral or yarn but even to those in which they predominate."
}
},
{
"from_name": null,
"id": "3264ed067cf843c0834bac8dd67344e4",
"to_name": null,
"type": null,
"value": {
"end": 10481,
"labels": [
"ANALYSIS"
],
"start": 10305,
"text": "The construction as suggested by the learned counsel for Union of India shall not only change the nature of entry but it shall result in extending to manufactures at any stage."
}
},
{
"from_name": null,
"id": "82387ae437ba42aabfa18fbcd05fb498",
"to_name": null,
"type": null,
"value": {
"end": 10697,
"labels": [
"PRE_RELIED"
],
"start": 10482,
"text": "In Geep Flaslight Industries v. Union of India,[1986]6 ELR 430, the entry or `articles of plastic' was construed to mean as article made wholly of commodity commonly known as plastic to avoid any artificial reading."
}
},
{
"from_name": null,
"id": "4f68d729f17c4c6e8cb0f3fbf13c252a",
"to_name": null,
"type": null,
"value": {
"end": 10760,
"labels": [
"ANALYSIS"
],
"start": 10698,
"text": "The word `wholly' was read in the entry to render it workable."
}
},
{
"from_name": null,
"id": "5f587e523cfb40a890d27dd905f607f7",
"to_name": null,
"type": null,
"value": {
"end": 11018,
"labels": [
"RATIO"
],
"start": 10761,
"text": "Thus glass fabric manufactured out of mineral fibre is exigible to duty under item no. 4 but arc chamber housing manufactured from glass fabric cannot be placed at par with glass fabric and cannot be considered as `other manufacture' of glass fibre or yarn."
}
},
{
"from_name": null,
"id": "7289b61437394cc688a0c1483230ffa2",
"to_name": null,
"type": null,
"value": {
"end": 11081,
"labels": [
"RPC"
],
"start": 11018,
"text": "\n For reasons stated above this appeal succeeds and is allowed."
}
},
{
"from_name": null,
"id": "344243176aa946d4a4cb86e9861bf643",
"to_name": null,
"type": null,
"value": {
"end": 11154,
"labels": [
"RPC"
],
"start": 11082,
"text": "The orders of Tribunal, Collector and Assistant Collector are set aside."
}
},
{
"from_name": null,
"id": "7123dc968f3f48d09dd79f33478a4813",
"to_name": null,
"type": null,
"value": {
"end": 11288,
"labels": [
"RPC"
],
"start": 11155,
"text": "The arc chamber housing manufactured out of glass fabric are held to be exigible to duty during the relevant period under item no 68."
}
},
{
"from_name": null,
"id": "5be1c121965b45f5bec527a818a29832",
"to_name": null,
"type": null,
"value": {
"end": 11334,
"labels": [
"RPC"
],
"start": 11289,
"text": "The appellant shall be entitled to its costs."
}
},
{
"from_name": null,
"id": "440b2c2bc1d8405cac2b5b1c8d7ceddf",
"to_name": null,
"type": null,
"value": {
"end": 11342,
"labels": [
"RPC"
],
"start": 11334,
"text": "\n V.P.R."
}
},
{
"from_name": null,
"id": "0abc4c8cb6e5416e8868f53321837fc8",
"to_name": null,
"type": null,
"value": {
"end": 11394,
"labels": [
"RPC"
],
"start": 11343,
"text": " Appeal allowed."
}
}
]
}
] | 4,191 | {
"text": "PETITIONER:\nMAHINDRA ENGINEERING AND CHEMICAL PRODUCTS LTD.\n\nVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT21/01/1992\n\nBENCH:\nSAHAI, R.M. (J)\nBENCH:\nSAHAI, R.M. (J)\nPANDIAN, S.R. (J)\n\nCITATION: 1992 SCC (1) 727\n 1992 SCR (1) 254 1992 SCALE (1)95\n JT 1992 (1) 276\n\nACT:\n Central Excise-Tariff-Item NO. 22 F(4)-Construction-\n\nLegislative intention-\"Following namely\", \"that is to say\",\n\"other manufacture\", \"manufacture therefrom\"-Meaning.\n\n Central Excise-Tariff-Item No.22F (4), Item No.68-Glass\nfabric manufactured out mineral fiber-Whether exigible to\nduty-Arc Chamber housing manufactured from glass fabric-\nDuty-Exigibility.\n\nHEADNOTE:\n The appellant was manufacturing the tubular shaped are\n\nchamber housings from glass fabrics.\n The Assistant Collector levied duty under tariff Item\n\nNo.22F(4) of the Central Excise and Tariff Act. It was held\nthat the goods were covered under tariff item 22F(4) as the\npercentage of the mineral fibre yarn was predominant in the\nweight.\n\n The Collector in appeal held that the words\n\"manufactured therefrom\" in tariff Item No. 22F(4) would\ninclude not only first manufacture of mineral fibre and yarn\nbut also subsequent manufacture where in mineral fibre or\nyarn was used.\n\n The Tribunal affirmed the order of the Collector, on\nconstruction of the expression \"manufacture therefrom\", and\nheld that the goods should be manufactured from mineral\nfibre and yarn, that glass fabric was an intermediate stage\nbetween glass are housing and glass fibre or yarn, yet the\ngoods were exigible to duty under item 22F(4), as the arc\nhousing chamber did not cease to be manufactured of glass\nfibre/yarn, merely because the fibre/yarn was first woven\ninto glass fabric, and that if glass fibers/yarn were to be\nwoven into fabrics before they could be used in the\nmanufacture of the housing, the housing would not cease to\nbe a manufacture of glass fibres/yarn.\n\n A five-judge Bench of the CEGAT did not agree with the\ninterpretation\nput by the Tribunal and held that the entry applied to only\nthose products the manufacture or attendant function of\nwhich was to do something with mineral fibre and yarn and it\ndid not apply to a product in which only mineral fibre or\nyarn was used.\n\n Against the order of CEGAT, the appellant manufacturer\npreferred the appeal before this Court by special leave.\n\n Allowing the appeal, this Court,\n HELD: 1.01. The entry is in two parts, one, descriptive\nand the other explanatory. Both are to be read together to\nbring out the scope and extent of its applicability fully.\nThe first declares the items which are exigible to duty but\nrestricts it to only those in relation to the manufacture of\nwhich any process is ordinarily carried on with the aid of\npower. The words `following namely' used in the second part\nexplains the items that were intended to be covered in this\nentry. Use of expressions `namely' or `that is to say'\nfollowed by description of goods is usually exhaustive\nunless there are strong indications to the contrary. [257 G\n258 A]\n 1.02. Language of serial no. 4 is plain and simple. It\nintends to clarify the expression `manufacture therefrom' by\nexpanding it to include in its ambit even those manufactures\nin which fibre or yarn predominated in weight. But it did\nnot go beyond it and purported to include manufactures out\nof manufacture of a commodity in which mineral fibre or yarn\npredominated. Any other construction would result in\naltering the principal clause. That would be contrary to\nthe scheme of the entry and principle of construction. Its\nonly effect was to include even those manufactures in which\nmineral fibre or yarn or both predominate. It could not be\nextended to those goods which were manufactured out of\ncertain commodity in which mineral fibre or yarn had been\npredominately used. [258 A-B, D]\n 1.03. The word `other manufacture' has to be read in\nthe same sense as `manufacture therefrom' used in the main\npart. The only difference is that the scope has been\nwidened to include not only those goods which were\nmanufactured from mineral or yarn but even to those in which\nthey predominate. [258 D-E]\n 2.01. Glass fabric manufactured out of mineral fibre\nis exigible to duty under Item no. 4 but arc chamber housing\nmanufactured\nfrom glass fabric cannot be placed at par with glass fabric\nand cannot be considered as `other manufacture' of glass\nfibre or yarn. [258 F]\n\n 2.02. The arc chamber housing manufactured out of\nglass fabric are held to be exigible to duty during the\nrelevant period under item no.68. [258 F]\n\nJUDGMENT:\n Geep Flashlight Industries v. Union of India, 1986(6) ELR 430, referred to.\n& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3251 of From the Judgment and Order dated 8.3.1984 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED(SB)(T) A.No 1132 of 1983-D. [Order No.168/84-D).\n S.Ganesh and Amitabh Marwah for the Appellants.\n C.V. Subba Rao for the Respondents.\n The Judgment of the Court was delivered by R.M.SAHAI, J. The question of law that arises for consideration in this appeal directed against Order of the Customs, Excise & Gold (Control) Tribunal (hereinafter referred to as `CEGAT'), New Delhi, is if the tubular shaped arc chamber housings manufactured by the appellants from glass fabrics which they purchased from manufacturers was exigible to duty under tariff Item No. 2 F(4) or under residuary Item No. 68 of the Central Excise and Tariff Act.\n Manner of manufacture of arc chamber housing was not in dispute nor there was any dispute that it was manufactured from glass fabric purchased from open market in which glass fibre predominated. The issue was whether the arc chamber manufactured from glass fibre, a product of intermediate stage and not directly from mineral fibre or yarn was exigible to duty under Item 22F(4) which read as under: \"22.F. Mineral fibres and yarn and manufacturers therefrom, in or in relation to the manufacturer of which any process is ordinarily carried on with the aid of power, the following, namely; (1) Glass fibres and yarn including glass tissues and glass wool; (2) asbestos fibre and yarn; (3) any other mineral fibre or yarn, whether continuous or otherwise, such as, slag wool and rock wool; (4) Other manufacturers in which mineral fibres or yarn or both predominate or predominates in weight.\n Explanation:- This item does not include asbestos cement products.\"\nThe Assistant Collector held that the goods were covered under tariff Item 22 F(4) as the percentage of the mineral fibre yarn was predominant in the weight. In appeal it was held that the words \"manufactured therefrom\" in tariff Item No. 22 F(4) would include not only first manufacture of mineral fibre and yarn but also subsequent manufacture wherein mineral fibre or yarn was used. The order was affirmed by the Tribunal on construction of the expression \"manufacture therefrom\" which were capable of a simple and straight away meaning that the goods should be manufactured from mineral fibre and yarn. The CEGAT held that glass fabric was no doubt an intermediate stage between glass arc housing and glass fibre or yarn yet the goods were exigible to duty under 22 F(4), as the arc housing chamber did not cease to be manufacture of glass fibre/yarn merely because the fibre/yarn was first woven into glass fabric. It rejected the claim of appellant as the construction suggested would result in reading the word directly in item No. 22 F(4). It was found that if glass fibres/yarn were to be woven into fabrics before they could be used in the manufacture of the housing, the housing would not cease to be a manufacture of glass fibres/yarn. Subsequently a five- Judge Bench of the CEGAT did not agree with the interpretation put by the Tribunal in this case, and held that the entry applied to only those products the manufacture or attendant function of which was to do something with mineral fibre and yarn. It did not apply to a product in which only mineral fibre or yarn was used.\n The entry is in two parts, one descriptive and the other explanatory. Both are to be read together to bring out the scope and extent of its applicability fully. The first declares the items which are exigible to duty. But restricts it to only those in relation to the manufacture of which any process is ordinarily carried on with the aid of power. Having thus specified the items and the condition on which it would be covered in the entry it proceeds to amplify it in the second part by using the words `following namely' thus explaining the items that were intended to be covered in this entry. Use of expressions `namely', or `that is to say' followed by description of goods is usually exhaustive unless there are strong indications to the contrary. Language of serial no. 4 is plain and simple. It intends to clarify the expression `manufacture therefrom' by expanding it to include in its ambit even those manufacture in which fibre or yarn predominated in weight. But it did not go beyond it and purported to include manufactures out of manufacture of a commodity in which mineral fibre or yarn predominated. The entry was added in 1980. That gave an occasion for the learned counsel for Union of India to urge that it was intended to evade payment of duty by widening and expanding the ambit of entry. In our opinion the item cannot be construed in the manner suggested. The entry was widened but to the extent indicated above. Any other construction would result in altering the principal clause.\n That would be contrary to the scheme of the entry and principle of construction. Its only effect was to include even those manufactures in which mineral fibre or yarn or both predominate. It could not be extended to those goods which were manufactured out of certain commodity in which mineral fibre or yarn had been predominantly used. The word `other manufacture' has to be read in the same sense as `manufacture therefrom' used in the main part. The only difference is that the scope has been widened to include not only those goods which were manufactured from mineral or yarn but even to those in which they predominate. The construction as suggested by the learned counsel for Union of India shall not only change the nature of entry but it shall result in extending to manufactures at any stage. In Geep Flaslight Industries v. Union of India,[1986]6 ELR 430, the entry or `articles of plastic' was construed to mean as article made wholly of commodity commonly known as plastic to avoid any artificial reading. The word `wholly' was read in the entry to render it workable. Thus glass fabric manufactured out of mineral fibre is exigible to duty under item no. 4 but arc chamber housing manufactured from glass fabric cannot be placed at par with glass fabric and cannot be considered as `other manufacture' of glass fibre or yarn.\n For reasons stated above this appeal succeeds and is allowed. The orders of Tribunal, Collector and Assistant Collector are set aside. The arc chamber housing manufactured out of glass fabric are held to be exigible to duty during the relevant period under item no 68. The appellant shall be entitled to its costs.\n V.P.R. Appeal allowed.\n "
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"end": 70,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nL. B. SUGAR FACTORY & OIL MILLS (P) LTD. PILIBHIT\n\n Vs."
}
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{
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"id": "fdfebb14484a4600b8ad6614ab9c985e",
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"labels": [
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"start": 70,
"text": "\n\nRESPONDENT:\nC.I.T. U.P., LUCKNOW\n\nDATE OF JUDGMENT26/08/1980\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n\n1981 AIR 395 1981 SCR (1) 523\n (11)\n1981 SCC (1) 44\n\nCITATOR INFO :\n\nRF 1987 SC 798\n\nACT:\n Capital Expenditure and Revenue Expenditure, test of-\n\nContribution made by the assessee towards the construction\nof dam and later on contributing 1/3rd cost towards the\nlaying down of the road in the area around the factory under\na Sugarcane Development Scheme, whether capital expenditure\nand hence deductible expenditure under s. 10(2)(xv) of the\nIndian Income Tax Act, 1922.\n\nHEADNOTE:\n The appellant, assessee is a private limited company\n\ncarrying on business of manufacture and sale of crystal\nsugar in a factory situated in Pilibhit in the State of\nUttar Pradesh. During the accounting year ending 30th\nSeptember, 1955, the assessee contributed a sum of Rs.\n22,332 towards the construction of Deoni dam-Majhala Road at\nthe request of the Collector and a further sum of Rs.\n50,000, being 1/3rd share of the cost of construction of\nroads in the area around its factory under a Sugar Cane\nDevelopment Scheme, to the State of Uttar Pradesh."
}
},
{
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"value": {
"end": 1538,
"labels": [
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],
"start": 1326,
"text": "These two\nsums were claimed by the assessee as deductible expenditure\nunder s. 10(2)(xv) of the Indian Income Tax Act, 1922 in its\nreturn for the assessment year 1956-57, but disallowed by\nthe Income Tax Officer."
}
},
{
"from_name": "label",
"id": "18e35963df274290b9fdeb484e82626b",
"to_name": "text",
"type": "labels",
"value": {
"end": 1679,
"labels": [
"PREAMBLE"
],
"start": 1539,
"text": "Having lost in appeal before the\nRevenue Authorities and in reference before the High Court,\nthe appellant came up in appeal by certificate."
}
},
{
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"id": "cf2a517ad9e4410aa702994788b90d6d",
"to_name": "text",
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"value": {
"end": 2072,
"labels": [
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],
"start": 1690,
"text": "Allowing the appeal in part, the Court\n^\n\n HELD : (1) An expenditure incurred by an assessee can\nqualify for deduction under s. 10(2)(xv) of the Indian\nIncome-tax Act, 1922 only if it is incurred wholly and\nexclusively for purpose of his business, but even if it\nfulfils this requirement, it is not enough, it must further\nbe of revenue as distinct from capital expenditure."
}
},
{
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"to_name": "text",
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"end": 2094,
"labels": [
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],
"start": 2073,
"text": "[526 C]\n\n (2)"
}
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"to_name": "text",
"type": "labels",
"value": {
"end": 2313,
"labels": [
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],
"start": 2095,
"text": "The test laid down in Atherton's case for treating\nan item of expenditure as capital expenditure is not of\nuniversal application and it must yield where there are\nspecial circumstances leading to a contrary conclusion."
}
},
{
"from_name": "label",
"id": "1250cf5d214f41c8b283ba6644fdaade",
"to_name": "text",
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"value": {
"end": 2648,
"labels": [
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],
"start": 2314,
"text": "If\nthe advantage consists merely in facilitating the assessee's\n\nbusiness operations or enabling the management and conduct\nof the assessee's business to be carried on more profitably\nwhile leaving the fixed capital untouched, the expenditure\nwould be on revenue account, even though the advantage may\nendure for an indefinite future."
}
},
{
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"id": "99dbb1c03cb84693a24798bba6ff1b4e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2792,
"labels": [
"PREAMBLE"
],
"start": 2649,
"text": "Further, in cases of this\nkind, where the question is whether a particular expenditure\nincurred by an assessee is on capital account or revenue"
}
},
{
"from_name": "label",
"id": "8022c87378e84885ae9dbf37d3f22aca",
"to_name": "text",
"type": "labels",
"value": {
"end": 2864,
"labels": [
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],
"start": 2792,
"text": "\naccount, the decision must ultimately depend on the facts of\neach case."
}
},
{
"from_name": "label",
"id": "d27e58041d3d428dbea6e859e737659f",
"to_name": "text",
"type": "labels",
"value": {
"end": 3017,
"labels": [
"PREAMBLE"
],
"start": 2865,
"text": "No two cases are alike and quite often emphasis\non one aspect or the other may tilt the balance in favour of\ncapital expenditure or revenue expenditure."
}
},
{
"from_name": "label",
"id": "88cf9a86fe2244d8a1a29d3911ad94c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 3187,
"labels": [
"PREAMBLE"
],
"start": 3018,
"text": "[527 F, 528 C,\n530 C]\n\n Commissioner of Taxes v. Nohanga Consolidated Copper\nMines Ltd., [1965] 58 ITR 241; Empire Jute Co. Ltd. v.\nC.I.T. [1980] 3 SCR; applied."
}
},
{
"from_name": "label",
"id": "2c3cb3bce7b04c6aba5d8ee987b769a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 3436,
"labels": [
"PREAMBLE"
],
"start": 3187,
"text": "\n524\n\n British Insulated and Helsby Cables Ltd. v. Atherton;\n10 Tax Cases 155 p. 189; explained.\n\n (3) In the instant case : (i) The amount of Rs. 22,332\nwas rightly disallowed as deductible expenditure under s.\n10(2)(xv) of the Act."
}
},
{
"from_name": "label",
"id": "89c3ad3d35fb49b0a49ee153c30d91ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 3758,
"labels": [
"PREAMBLE"
],
"start": 3437,
"text": "The amount was apparently contributed\nby the assessee without any legal obligation to do so purely\nas an act of good citizenship and it could not be said to\nhave been laid down wholly and exclusively for the purpose\nof the business of the assessee; and (ii) So far as the\nexpenditure of the sum of Rs. 50,000 is concerned"
}
},
{
"from_name": "label",
"id": "c3cbe09fd0de428698650dec857ee63d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3953,
"labels": [
"PREAMBLE"
],
"start": 3759,
"text": "it was in\nthe nature of revenue expenditure laid out wholly and\nexclusively for the purpose of the assessee's business and\nwas, therefore, allowable as a deduction under s. 10(2)(xv)\nof the Act."
}
},
{
"from_name": "label",
"id": "dc9a8d904762497c900487b3d738cce8",
"to_name": "text",
"type": "labels",
"value": {
"end": 3979,
"labels": [
"PREAMBLE"
],
"start": 3954,
"text": "[526 F, 531 A]\n\n "
}
},
{
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"id": "077b403b3e2b4bce9376f7be847cd3da",
"to_name": "text",
"type": "labels",
"value": {
"end": 4053,
"labels": [
"PREAMBLE"
],
"start": 3979,
"text": "Lakshmiji Sugar Mills Co. P. Ltd. v. C.I.T.: 82 I.T.R.\n736; Distinguished."
}
},
{
"from_name": "label",
"id": "930417a416d248479ca5694a95b26868",
"to_name": "text",
"type": "labels",
"value": {
"end": 4133,
"labels": [
"NONE"
],
"start": 4053,
"text": "\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 298 of 1973."
}
},
{
"from_name": "label",
"id": "808a9e8d87ed4496bb165806983c5805",
"to_name": "text",
"type": "labels",
"value": {
"end": 4255,
"labels": [
"NONE"
],
"start": 4143,
"text": "From the Judgment and Order dated 28-7-1971 of the Allahabad High Court in Income Tax Ref. No. 335/66.\n "
}
},
{
"from_name": "label",
"id": "4bc999d1759e4a339e60df79acdcf60b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4300,
"labels": [
"NONE"
],
"start": 4255,
"text": "J. P. Goyal and S. K. Jain for the Appellant."
}
},
{
"from_name": "label",
"id": "665d95c24f1c43ad9e0c3198df4d3e96",
"to_name": "text",
"type": "labels",
"value": {
"end": 4379,
"labels": [
"NONE"
],
"start": 4300,
"text": "\n D. V. Patel, J. Ramamurthy and Miss A. Subhashini for the Respondent."
}
},
{
"from_name": "label",
"id": "7b8fdc8aeab54a9e82098690eff01cab",
"to_name": "text",
"type": "labels",
"value": {
"end": 4441,
"labels": [
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],
"start": 4389,
"text": "The Judgment of the Court was delivered by BHAGWATI,"
}
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{
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"id": "15d0ccac5ce045aca118c58f6a61fd7c",
"to_name": "text",
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"value": {
"end": 4666,
"labels": [
"FAC"
],
"start": 4442,
"text": "J.-The dispute in this appeal by certificate relates to two items of expenditure incurred by the assessee during the assessment year 1956-57 for which the relevant accounting year was the year ending on 30th September, 1955."
}
},
{
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"id": "4c3cf01b394345c89db31d0f1b207e57",
"to_name": "text",
"type": "labels",
"value": {
"end": 4835,
"labels": [
"FAC"
],
"start": 4666,
"text": "\nThe assessee is a private limited company carrying on business of manufacture and sale of crystal sugar in a factory situated in Pilibhit in the State of Uttar Pradesh."
}
},
{
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"id": "b8adce7f871d46288f067961c08f03e8",
"to_name": "text",
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"value": {
"end": 5017,
"labels": [
"FAC"
],
"start": 4835,
"text": "\nIn the year 1952-53, a dam was constructed by the State of Uttar Pradesh at a place called Deoni and a road Deoni Dam- Majhala was constructed connecting the Deoni Dam with Majhala."
}
},
{
"from_name": "label",
"id": "92e148e1d09248a3985e0bb2fcfbd585",
"to_name": "text",
"type": "labels",
"value": {
"end": 5315,
"labels": [
"FAC"
],
"start": 5018,
"text": "It seems that the Collector requested the assessee to make some contribution towards the construction of the Deoni Dam and the Deoni Dam-Majhala Road and pursuant to this request of the Collector, the assessee contributed a sum of Rs. 22,332 during the accounting year ending 30th September, 1955."
}
},
{
"from_name": "label",
"id": "f9068b85b28c492e9f84a112698693c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5624,
"labels": [
"FAC"
],
"start": 5316,
"text": "The assessee also contributed a sum of Rs.\n50,000 to the State of Uttar Pradesh during the same accounting year towards meeting the cost of construction of roads in the area around its factory under a Sugarcane Development Scheme promoted by the Uttar Pradesh Government as part of the Second Five Year Plan."
}
},
{
"from_name": "label",
"id": "628092e82561424da0cbc0f65999ec9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5967,
"labels": [
"FAC"
],
"start": 5625,
"text": "It was provided under the Sugarcane Development Scheme that one third of the cost of construction of roads would be met by the Central Government, one third 525 by the State Government and the remaining one third by Sugar factories and sugarcane growers and it was under this scheme that the sum of Rs. 50,000 was contributed by the assessee."
}
},
{
"from_name": "label",
"id": "f986b1b692284b79bed889ec473500ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 6210,
"labels": [
"FAC"
],
"start": 5967,
"text": "\nIn the course of its assessment to Income-tax for the assessment year 1956-57, the assessee claimed to deduct these two amounts of Rs. 22,332 and Rs. 50,000 as deductible expenditure under Section 10(2)(xv) of the Indian Income-tax Act, 1922."
}
},
{
"from_name": "label",
"id": "f2a88c321cb546a9a53b60d22077d89b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6396,
"labels": [
"FAC"
],
"start": 6211,
"text": "The Income-tax Officer disallowed the claim for deduction on the ground that the expenditure incurred was of capital nature and was not allowable as a deduction under Section 10(2)(xv)."
}
},
{
"from_name": "label",
"id": "794cfcee97e546ce9eb6c7c6ebb42fd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 6559,
"labels": [
"FAC"
],
"start": 6397,
"text": "The assessee preferred an appeal to the Appellate Assistant Commissioner but the appeal failed and this led to the filing of a further appeal before the Tribunal."
}
},
{
"from_name": "label",
"id": "785f9261450b4b55a42d11cc1a23999b",
"to_name": "text",
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"value": {
"end": 6674,
"labels": [
"FAC"
],
"start": 6560,
"text": "The appeal was heard by a Bench of two members of the Tribunal and there was a difference of opinion between them."
}
},
{
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"id": "85d83c53b21e4e18aa9847dab1886b38",
"to_name": "text",
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"value": {
"end": 6990,
"labels": [
"FAC"
],
"start": 6675,
"text": "The Judicial Member took the view that the expenditure of both the amounts of Rs. 22,332 and Rs. 50,000 was in the nature of revenue expenditure and was therefore allowable as a deduction, while the Accountant Member held that this expenditure was on capital account and could not be allowed as revenue expenditure."
}
},
{
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"id": "988273380bd141b3b54329b428712bcb",
"to_name": "text",
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"end": 7164,
"labels": [
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],
"start": 6991,
"text": "Since there was a difference of opinion between the two members, the question which formed the subject matter of difference was referred for consideration to a third member."
}
},
{
"from_name": "label",
"id": "b6847a1d8514445c8d9ca543a93ff7cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7583,
"labels": [
"FAC"
],
"start": 7165,
"text": "The third member did not go into the question whether the expenditure incurred by the assessee was in the nature of capital or revenue expenditure but took a totally different line and held that the contributions were made by the assessee as a good citizen just as any other person would and it could not be said that the expenditure was laid out wholly and exclusively for the purpose of the business of the assessee."
}
},
{
"from_name": "label",
"id": "13f0601214824d75bc26d6dc1d5ba523",
"to_name": "text",
"type": "labels",
"value": {
"end": 7803,
"labels": [
"FAC"
],
"start": 7584,
"text": "The third member in this view agreed with the conclusion reached by the Accountant Member and held that both the amounts of Rs.\n22,332 and Rs. 50,000 were not allowable as deductible expenditure under Section 10(2)(xv)."
}
},
{
"from_name": "label",
"id": "8799947e71e742a9aeffde713d062913",
"to_name": "text",
"type": "labels",
"value": {
"end": 7907,
"labels": [
"FAC"
],
"start": 7804,
"text": "The appeal of the assessee was accordingly rejected by the Tribunal so far as this point was concerned."
}
},
{
"from_name": "label",
"id": "b4360a090c754382b7271d35b81fc7f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 8273,
"labels": [
"FAC"
],
"start": 7908,
"text": "The assessee thereupon sought a reference to the High Court and on the application of the assessee, the following question of law was referred for the opinion of the High Court : \"Whether on the facts and circumstances of the case the sums of Rs. 22,332 and Rs. 50,000 were admissible deduction in computing the taxable profits and gains of the companies business.\""
}
},
{
"from_name": "label",
"id": "289bb89311e24b0cb104c8e0196bfcdb",
"to_name": "text",
"type": "labels",
"value": {
"end": 8416,
"labels": [
"RLC"
],
"start": 8273,
"text": "\nThe High Court observed \"that on the finding recorded by the third member of the Tribunal and on the view expressed by the Accountant Member\"."
}
},
{
"from_name": "label",
"id": "88d499607b3f463eb75716e8fa2b300a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8627,
"labels": [
"RLC"
],
"start": 8417,
"text": "the expenditure could not be said to have been incurred by the assessee in the ordinary course of its business and it could not be \"classified as revenue expenditure on the ground of commercial 526 expediency\"."
}
},
{
"from_name": "label",
"id": "0efc0956430e405599a8768f53bf6184",
"to_name": "text",
"type": "labels",
"value": {
"end": 8974,
"labels": [
"RLC"
],
"start": 8628,
"text": "The view taken by the High Court was that since \"the expenditure was not related to the business activity of the assessee as such, the Tribunal was justified in concluding that it was not wholly and exclusively laid out for the business and that the deduction claimed by the assessee therefore did not come within the ambit of Section 10(2)(xv)\"."
}
},
{
"from_name": "label",
"id": "20925b750f0e4cfc83aecb9e3c623d57",
"to_name": "text",
"type": "labels",
"value": {
"end": 9089,
"labels": [
"RLC"
],
"start": 8975,
"text": "The High Court accordingly answered the question referred to it in favour of the revenue and against the assessee."
}
},
{
"from_name": "label",
"id": "e00958a4228e4e9abad9e94cbe465d17",
"to_name": "text",
"type": "labels",
"value": {
"end": 9519,
"labels": [
"ANALYSIS"
],
"start": 9090,
"text": "The assessee thereupon preferred to present appeal in this Court after obtaining the necessary certificate from the High Court.\n Now an expenditure incurred by an assessee can qualify for deduction under Section 10(2)(xv) only if it is incurred wholly and exclusively for the purpose of his business, but even if it fulfils this requirement, it is not enough it must further be of revenue as distinct from capital nature."
}
},
{
"from_name": "label",
"id": "3a7265621bca436babd729ecb71a1655",
"to_name": "text",
"type": "labels",
"value": {
"end": 9872,
"labels": [
"ISSUE"
],
"start": 9519,
"text": "\nTwo questions therefore arise for consideration in the present appeal : one is whether the sums of Rs. 22,332 and Rs. 50,000 contributed by the assessee represented expenditure incurred wholly and exclusively for the purposes of the business of the assessee and the other is whether this expenditure was in the nature of capital or revenue expenditure."
}
},
{
"from_name": "label",
"id": "9c1e69ac4a8146b385cc5e9244cf8e2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10415,
"labels": [
"ANALYSIS"
],
"start": 9873,
"text": "So far the first item of expenditure of Rs.\n22,332 is concerned, the case does not present any difficulty at all, because it was common ground between the parties that this amount was contributed by the assessee long after the Deoni Dam and the Deoni Dam-Majhala Road were constructed and there is absolutely nothing to show that the contribution of this amount had anything to do with the business of the assessee or that the construction of the Deoni Dam or the Deoni Dam-Majhala Road was in any way advantageous to the assessee's business."
}
},
{
"from_name": "label",
"id": "bd6af1c7d1eb4a8ca579efa16ebdefb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10679,
"labels": [
"ANALYSIS"
],
"start": 10416,
"text": "The amount of Rs.\n22,332 was apparently contributed by the assessee without any legal obligation to do so, purely as an act of good citizenship, and it could not be said to have been laid out wholly and exclusively for the purpose of the business of the assessee."
}
},
{
"from_name": "label",
"id": "28ea6465c4d448fe97419a1aa345ad32",
"to_name": "text",
"type": "labels",
"value": {
"end": 10809,
"labels": [
"ANALYSIS"
],
"start": 10680,
"text": "The expenditure of the amount of Rs. 22,332 was therefore rightly disallowed as deductible expenditure under section 10(2)(xv).\n "
}
},
{
"from_name": "label",
"id": "7ad50e5082b246cea1a01847d0f7d643",
"to_name": "text",
"type": "labels",
"value": {
"end": 10900,
"labels": [
"ANALYSIS"
],
"start": 10809,
"text": "But the position is different when we come to the second item of expenditure of Rs. 50,000."
}
},
{
"from_name": "label",
"id": "95c84feefac94b29b9f391b479a88041",
"to_name": "text",
"type": "labels",
"value": {
"end": 10948,
"labels": [
"ANALYSIS"
],
"start": 10901,
"text": "There the assessee is clearly on firmer ground."
}
},
{
"from_name": "label",
"id": "8586454e3b0949f89c4a399ae5c0d305",
"to_name": "text",
"type": "labels",
"value": {
"end": 11127,
"labels": [
"ANALYSIS"
],
"start": 10949,
"text": "The amount of Rs. 50,000 was contributed by the assessee under the Sugar-cane Development Scheme towards meeting the cost of construction of roads in the area around the factory."
}
},
{
"from_name": "label",
"id": "08edd335902b4e47a1ad0c558b15d2b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11412,
"labels": [
"ANALYSIS"
],
"start": 11128,
"text": "Now there can be no doubt that the construction of roads in the area around the factory was considerably advantageous to the business of the assessee, because it facilitated the running of its motor vehicles for transportation of sugarcane so necessary for its manufacturing activity."
}
},
{
"from_name": "label",
"id": "9bc0d6c7c95949ccb2dd31386570237a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11878,
"labels": [
"ANALYSIS"
],
"start": 11413,
"text": "It is not as if the amount of Rs.\n50,000 was contributed by the assessee generally 527 for the purpose of construction of roads in the State of Uttar Pradesh, but it was for the construction of roads in the area around the factory that the contribution was made and it cannot be disputed that if the roads are constructed around the factory area, they would facilitate the transport of sugarcane to the factory and the flow of manufactured sugar out of the factory."
}
},
{
"from_name": "label",
"id": "5a96b20df5854008a055747d15eb1266",
"to_name": "text",
"type": "labels",
"value": {
"end": 12280,
"labels": [
"ANALYSIS"
],
"start": 11879,
"text": "The construction of the roads was therefore clearly and indubitably connected with the business activity of the assessee and it is difficult to resist the conclusion that the amount of Rs. 50,000 contributed by the assessee towards meeting the cost of construction of the roads under the Sugarcane Development Scheme was laid out wholly and exclusively for the purpose of the business of the assessee."
}
},
{
"from_name": "label",
"id": "9f9101d0a5894da09a9828f0db8058fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12655,
"labels": [
"ANALYSIS"
],
"start": 12281,
"text": "This conclusion was indeed not seriously disputed on behalf of the Revenue but the principal contention urged on its behalf was that the expenditure of the amount of Rs. 50,000 incurred by the assessee was in the nature of capital expenditure, since it was incurred for the purpose of bringing into existence an advantage for the enduring benefit of the assessee's business."
}
},
{
"from_name": "label",
"id": "da3a02cc364443daa2590f3e96442074",
"to_name": "text",
"type": "labels",
"value": {
"end": 12922,
"labels": [
"ARG_PETITIONER"
],
"start": 12656,
"text": "The argument of the Revenue was that the newly constructed roads though not belonging to the assessee brought to the assessee an enduring advantage for the benefit of its business and the expenditure incurred by it was therefore in the nature of capital expenditure."
}
},
{
"from_name": "label",
"id": "bc90dbd5bca44aa2bd498b37e6802cfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 13436,
"labels": [
"PRE_RELIED"
],
"start": 12923,
"text": "The Revenue relied on the celebrated test laid down by Lord Cave L.C. in British Insulated and Helsby Cables Ltd. v. Atherson where the learned Law Lord stated \"When an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital\"."
}
},
{
"from_name": "label",
"id": "8e8607643931438f8dbe9f5c2df1048d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13767,
"labels": [
"ANALYSIS"
],
"start": 13437,
"text": "This test enunciated by Lord Cave L.C. is undoubtedly a well known test for distinguishing between capital and revenue expenditure, but it must be remembered that this test is not of universal application and, as the parenthetical clause shows, it must yield where there are special circumstances leading to a contrary conclusion."
}
},
{
"from_name": "label",
"id": "22d3c3b1c09944f185c2a88ed260c83b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14182,
"labels": [
"ANALYSIS"
],
"start": 13768,
"text": "The non-universality of this test was emphasised by Lord Radcliffe in Commissioner of Taxes v. Nohanga Consolidated Copper Mines Ltd.(2) where the learned Law Lord said in his highly felicitous language that it would be misleading to suppose that in all cases securing a benefit for the business would be prima facie capital expenditure \"so long as the benefit is not so transitory as to have to endurance at all\"."
}
},
{
"from_name": "label",
"id": "eee70a0006db46f4842bb20a1c99c9e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14453,
"labels": [
"PRE_RELIED"
],
"start": 14183,
"text": "It was also pointed out by this Court in Empire Jute Co. Ltd. v.\n528 C.I.T. that \"there may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down."
}
},
{
"from_name": "label",
"id": "91ec874cb7c84f98b596a52a78338abc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14588,
"labels": [
"ANALYSIS"
],
"start": 14454,
"text": "It is not every advantage of enduring nature acquired by an assessee that brings the case within the principle laid down in this test."
}
},
{
"from_name": "label",
"id": "f2f783843f1d488998cadb38ed9116b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14805,
"labels": [
"ANALYSIS"
],
"start": 14589,
"text": "What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test.\""
}
},
{
"from_name": "label",
"id": "b573b0028d8e446983c805c38d8ef663",
"to_name": "text",
"type": "labels",
"value": {
"end": 15155,
"labels": [
"ANALYSIS"
],
"start": 14806,
"text": "If the advantage consists merely in facilitating the assessee's business operations or enabling management and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future."
}
},
{
"from_name": "label",
"id": "37bf603fff3144c290ccc38901c47a01",
"to_name": "text",
"type": "labels",
"value": {
"end": 15310,
"labels": [
"ANALYSIS"
],
"start": 15155,
"text": "\n Now it is clear on the facts of the present case that by spending the amount of Rs. 50,000, the assessee did not acquire any asset of an enduring nature."
}
},
{
"from_name": "label",
"id": "4ec63eac16e34c91973e61128340a859",
"to_name": "text",
"type": "labels",
"value": {
"end": 15501,
"labels": [
"ANALYSIS"
],
"start": 15311,
"text": "The roads which were constructed around the factory with the help of the amount of Rs. 50,000 contributed by the assessee belonged to the Government of Uttar Pradesh and not to the assessee."
}
},
{
"from_name": "label",
"id": "2e6b171294c247e6b7655672b5bf281e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15878,
"labels": [
"ANALYSIS"
],
"start": 15501,
"text": "\nMoreover, it was only a part of the cost of construction of these roads that was contributed by the assessee, since under the Sugarcane Development Scheme, one third of the cost of construction was to be borne by the Central Government, one third by the State Government and only the remaining one third was to be divided between the sugarcane factories and sugarcane growers."
}
},
{
"from_name": "label",
"id": "8dd167a105d846e6bc6c917ce061401d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16095,
"labels": [
"ANALYSIS"
],
"start": 15879,
"text": "These roads were undoubtedly advantageous to the business of the assessee as they facilitated the transport of sugarcane to the factory and the outflow of manufactured of sugar from the factory to the market centres."
}
},
{
"from_name": "label",
"id": "4a5728dff6d846c487a3748467a98dd3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16322,
"labels": [
"ANALYSIS"
],
"start": 16096,
"text": "There can be no doubt that the construction of these roads facilitated the business operations of the assessee and enabled the management and conduct of the assessee's business to be carried on more efficiently and profitably."
}
},
{
"from_name": "label",
"id": "e651590c800946069b1ef5f3d141ceef",
"to_name": "text",
"type": "labels",
"value": {
"end": 16724,
"labels": [
"ANALYSIS"
],
"start": 16323,
"text": "It is no doubt true that the advantage secured for the business of the assessee was of a long duration in as much as it would last so long as the roads continued to be in motorable condition, but it was not an advantage in the capital field, because no tangible or intangible asset was acquired by the assessee nor was there any addition to or expansion of the profit making apparatus of the assessee."
}
},
{
"from_name": "label",
"id": "e1752aff983c4958a694d36a815bd013",
"to_name": "text",
"type": "labels",
"value": {
"end": 16955,
"labels": [
"ANALYSIS"
],
"start": 16725,
"text": "The amount of Rs. 50,000 was contributed by the assessee for the purpose of facilitating the conduct of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue account."
}
},
{
"from_name": "label",
"id": "67da0009d3b04b63a5c93fa51d9f6927",
"to_name": "text",
"type": "labels",
"value": {
"end": 17209,
"labels": [
"PRE_RELIED"
],
"start": 16955,
"text": "\n529 It was pointed out by Lord Radcliffe in commissioner of Taxes v. Nothanga Consolidated Copper Mines Ltd. (supra) that \"in considering allocation of expenditure between the capital and income accounts, it is almost unavoidable to argue from analogy.\""
}
},
{
"from_name": "label",
"id": "3da0f6022fe646628f2c9f33b3e276b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17477,
"labels": [
"ANALYSIS"
],
"start": 17210,
"text": "There are always cases falling indisputably on one or the other side of the line and it is a familiar argument in tax courts that the case under review bears close analogy to a case falling on the right side of the line and must, therefore, decide in the same manner."
}
},
{
"from_name": "label",
"id": "91ddaa8b9ef741b0a3ee9e24c322713e",
"to_name": "text",
"type": "labels",
"value": {
"end": 17671,
"labels": [
"ANALYSIS"
],
"start": 17478,
"text": "If we apply this method, the case closest to the present one is that in Lakshmiji Sugar Mills Co. P. Ltd. v. C.I.T.(1) The facts of this case were very similar to the facts of the present case."
}
},
{
"from_name": "label",
"id": "21b492cd001c414a9a80218b087fc06b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18116,
"labels": [
"ANALYSIS"
],
"start": 17672,
"text": "The assessee in this case was also a limited company carrying on business of manufacture and sale of sugar in the State of Uttar Pradesh and it paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between sugarcane producing centres and the sugar factory of the assessee and the question arose whether this expenditure was allowable as revenue expenditure under S. 10(2)(xv)."
}
},
{
"from_name": "label",
"id": "fade29ac832743a0995bb9039c2ccebd",
"to_name": "text",
"type": "labels",
"value": {
"end": 18364,
"labels": [
"ANALYSIS"
],
"start": 18117,
"text": "No doubt, in this case, there was a statutory obligation under which the amount in question was contributed by the assessee, but this Court did not rest its decision on the circumstance that the expenditure was incurred under statutory obligation."
}
},
{
"from_name": "label",
"id": "206c2ab6b1184a16bd90ba2f9889f523",
"to_name": "text",
"type": "labels",
"value": {
"end": 18504,
"labels": [
"ANALYSIS"
],
"start": 18365,
"text": "This Court analysed the object and purpose of the expenditure and its true nature and held that it was of a revenue and not capital nature."
}
},
{
"from_name": "label",
"id": "fc909217dda74bd3bdb638965a8fb208",
"to_name": "text",
"type": "labels",
"value": {
"end": 18786,
"labels": [
"ANALYSIS"
],
"start": 18505,
"text": "This Court observed : \"In the present case, apart from the element of compulsion, the roads which were constructed and developed were not the property of the assessee nor is it the case of the revenue that the entire cost of development of those roads was defrayed by the assessee."
}
},
{
"from_name": "label",
"id": "a9687483cf1342289276e45d03264f65",
"to_name": "text",
"type": "labels",
"value": {
"end": 18899,
"labels": [
"ANALYSIS"
],
"start": 18787,
"text": "It only made certain contribution for road development between the various cane producing centres and the mills."
}
},
{
"from_name": "label",
"id": "126566d0d37d4fa79c00246dcdcb1fb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 19055,
"labels": [
"ANALYSIS"
],
"start": 18900,
"text": "The apparent object and purpose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory."
}
},
{
"from_name": "label",
"id": "49a5702187f94285b1d0c761efd4ea53",
"to_name": "text",
"type": "labels",
"value": {
"end": 19265,
"labels": [
"ANALYSIS"
],
"start": 19056,
"text": "From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the roads in question could greatly facilitate the transportation of sugarcane."
}
},
{
"from_name": "label",
"id": "587c256c150c49d4b24df298c19b97c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 19415,
"labels": [
"ANALYSIS"
],
"start": 19266,
"text": "This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane."
}
},
{
"from_name": "label",
"id": "9b7a8525979b4f6b8da3c8f3ab4ab381",
"to_name": "text",
"type": "labels",
"value": {
"end": 19693,
"labels": [
"ANALYSIS"
],
"start": 19416,
"text": "These facts would bring it within the second part of the principle mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself."
}
},
{
"from_name": "label",
"id": "2f22c0805d4a4219916daca85d59c622",
"to_name": "text",
"type": "labels",
"value": {
"end": 19713,
"labels": [
"ANALYSIS"
],
"start": 19694,
"text": "(Emphasis supplied)"
}
},
{
"from_name": "label",
"id": "735998dd20e54152b9fd3efd59f3925b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20044,
"labels": [
"ANALYSIS"
],
"start": 19714,
"text": "These observations are directly applicable in the present case and we must hold on the analogy of 530 this decision that the amount of Rs. 50,000 was contributed by the assessee \"for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself\"."
}
},
{
"from_name": "label",
"id": "286409d4422a40369e1604a7787966cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 20180,
"labels": [
"ANALYSIS"
],
"start": 20045,
"text": "This decision fully supports the view that the expenditure of the amount of Rs. 50,000 incurred by the assessee was on revenue account."
}
},
{
"from_name": "label",
"id": "b1c2f5e8b4f246ed9917d09bc69175c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 20346,
"labels": [
"PRE_RELIED"
],
"start": 20180,
"text": "\n We must also refer to the decision of this Court in Travancore-Cochin Chemicals Ltd. v. C.I.T. (Supra) on which strong reliance was placed on behalf of the Revenue."
}
},
{
"from_name": "label",
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"to_name": "text",
"type": "labels",
"value": {
"end": 20447,
"labels": [
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"start": 20347,
"text": "The facts of this case are undoubtedly to some extent comparable with the facts of the present case."
}
},
{
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"id": "ac66851dd8234b05ab4fc198e1b5886a",
"to_name": "text",
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"end": 20669,
"labels": [
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"start": 20448,
"text": "But ultimately in cases of this kind, where the question is whether a particular expenditure incurred by an assessee is on capital account or revenue account, the decision must ultimately depend on the facts of each case."
}
},
{
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"to_name": "text",
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"value": {
"end": 20822,
"labels": [
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],
"start": 20670,
"text": "No two cases are alike and quite often emphasis on one aspect or the other may tilt the balance in favour of capital expenditure or revenue expenditure."
}
},
{
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"id": "22a371e23f9f448899bf9a8f10f59ce5",
"to_name": "text",
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"value": {
"end": 21166,
"labels": [
"ANALYSIS"
],
"start": 20823,
"text": "This Court in fact in the course of its judgment in Travancore- Cochin Chemicals Ltd.'s case (supra) distinguished the decision in Lakshmiji Sugar Mills' case (supra) on the ground that \"on the facts of that case, this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee's business."
}
},
{
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"id": "363cdff3f4c74e8ca2dbbd22855b53e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 21304,
"labels": [
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"start": 21166,
"text": "\n Lakshmiji Sugar Mills' case is quite different on facts from the one before us and must be confined to the peculiar facts of that case.\""
}
},
{
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"to_name": "text",
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"end": 21884,
"labels": [
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],
"start": 21305,
"text": "We would make the same observation in regard to the decision in Travancore-Cochin Chemicals' case (supra) and say that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills' case (supra) admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals' case and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case (supra) must be regarded as affording us greater guidance in the decision in the present case then the decision in Travancore-Cochin Chemicals' case (supra)."
}
},
{
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"id": "e6b1c23f92b54946becc8e17f71f1a9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22339,
"labels": [
"ANALYSIS"
],
"start": 21885,
"text": "Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L.C. in Antherton's case (supra) was not brought to the attention of this Court in Travancore-Cochin Chemicals' case with the result that this Court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective whether the advantage secured for the business was in the capital field or not."
}
},
{
"from_name": "label",
"id": "48ee3473294d40e5a3d341054f84a441",
"to_name": "text",
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"value": {
"end": 22574,
"labels": [
"RATIO"
],
"start": 22340,
"text": "We would therefore prefer to follow the decision in Lakshmiji Sugar Mills' case (Supra) and hold on the analogy of that decision that the amount of Rs. 50,000 contributed by the assessee represented expenditure on the revenue account."
}
},
{
"from_name": "label",
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"to_name": "text",
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"end": 22681,
"labels": [
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"text": "\n 531 We accordingly dismiss the appeal in so far as the expenditure of the sum of Rs. 22,332 is concerned."
}
},
{
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"id": "f09dc8e90a7f4b59b93fda8b7591d2cf",
"to_name": "text",
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"value": {
"end": 23007,
"labels": [
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],
"start": 22682,
"text": "But, so far as the expenditure of the sum of Rs. 50,000 is concerned, we hold that it was in the nature of revenue expenditure laid out wholly and exclusively for the purpose of the assessee's business and was therefore, allowable as a deduction under Section 10(2)(xv) of the Act and allow the appeal to this limited extent."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 23167,
"labels": [
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],
"start": 23008,
"text": "Since the assessee has partly won and partly lost, we think that the fair order of costs would be that each party should bear and pay its own costs throughout."
}
},
{
"from_name": "label",
"id": "30f407b418144539b12bf96a74acea21",
"to_name": "text",
"type": "labels",
"value": {
"end": 23213,
"labels": [
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],
"start": 23167,
"text": "\n S.R. Appeal allowed in part."
}
}
]
}
] | 1,724 | {
"text": "PETITIONER:\nL. B. SUGAR FACTORY & OIL MILLS (P) LTD. PILIBHIT\n\n Vs.\n\nRESPONDENT:\nC.I.T. U.P., LUCKNOW\n\nDATE OF JUDGMENT26/08/1980\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n\n1981 AIR 395 1981 SCR (1) 523\n (11)\n1981 SCC (1) 44\n\nCITATOR INFO :\n\nRF 1987 SC 798\n\nACT:\n Capital Expenditure and Revenue Expenditure, test of-\n\nContribution made by the assessee towards the construction\nof dam and later on contributing 1/3rd cost towards the\nlaying down of the road in the area around the factory under\na Sugarcane Development Scheme, whether capital expenditure\nand hence deductible expenditure under s. 10(2)(xv) of the\nIndian Income Tax Act, 1922.\n\nHEADNOTE:\n The appellant, assessee is a private limited company\n\ncarrying on business of manufacture and sale of crystal\nsugar in a factory situated in Pilibhit in the State of\nUttar Pradesh. During the accounting year ending 30th\nSeptember, 1955, the assessee contributed a sum of Rs.\n22,332 towards the construction of Deoni dam-Majhala Road at\nthe request of the Collector and a further sum of Rs.\n50,000, being 1/3rd share of the cost of construction of\nroads in the area around its factory under a Sugar Cane\nDevelopment Scheme, to the State of Uttar Pradesh. These two\nsums were claimed by the assessee as deductible expenditure\nunder s. 10(2)(xv) of the Indian Income Tax Act, 1922 in its\nreturn for the assessment year 1956-57, but disallowed by\nthe Income Tax Officer. Having lost in appeal before the\nRevenue Authorities and in reference before the High Court,\nthe appellant came up in appeal by certificate.\n\n Allowing the appeal in part, the Court\n^\n\n HELD : (1) An expenditure incurred by an assessee can\nqualify for deduction under s. 10(2)(xv) of the Indian\nIncome-tax Act, 1922 only if it is incurred wholly and\nexclusively for purpose of his business, but even if it\nfulfils this requirement, it is not enough, it must further\nbe of revenue as distinct from capital expenditure. [526 C]\n\n (2) The test laid down in Atherton's case for treating\nan item of expenditure as capital expenditure is not of\nuniversal application and it must yield where there are\nspecial circumstances leading to a contrary conclusion. If\nthe advantage consists merely in facilitating the assessee's\n\nbusiness operations or enabling the management and conduct\nof the assessee's business to be carried on more profitably\nwhile leaving the fixed capital untouched, the expenditure\nwould be on revenue account, even though the advantage may\nendure for an indefinite future. Further, in cases of this\nkind, where the question is whether a particular expenditure\nincurred by an assessee is on capital account or revenue\naccount, the decision must ultimately depend on the facts of\neach case. No two cases are alike and quite often emphasis\non one aspect or the other may tilt the balance in favour of\ncapital expenditure or revenue expenditure. [527 F, 528 C,\n530 C]\n\n Commissioner of Taxes v. Nohanga Consolidated Copper\nMines Ltd., [1965] 58 ITR 241; Empire Jute Co. Ltd. v.\nC.I.T. [1980] 3 SCR; applied.\n524\n\n British Insulated and Helsby Cables Ltd. v. Atherton;\n10 Tax Cases 155 p. 189; explained.\n\n (3) In the instant case : (i) The amount of Rs. 22,332\nwas rightly disallowed as deductible expenditure under s.\n10(2)(xv) of the Act. The amount was apparently contributed\nby the assessee without any legal obligation to do so purely\nas an act of good citizenship and it could not be said to\nhave been laid down wholly and exclusively for the purpose\nof the business of the assessee; and (ii) So far as the\nexpenditure of the sum of Rs. 50,000 is concerned it was in\nthe nature of revenue expenditure laid out wholly and\nexclusively for the purpose of the assessee's business and\nwas, therefore, allowable as a deduction under s. 10(2)(xv)\nof the Act. [526 F, 531 A]\n\n Lakshmiji Sugar Mills Co. P. Ltd. v. C.I.T.: 82 I.T.R.\n736; Distinguished.\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 298 of 1973.\n From the Judgment and Order dated 28-7-1971 of the Allahabad High Court in Income Tax Ref. No. 335/66.\n J. P. Goyal and S. K. Jain for the Appellant.\n D. V. Patel, J. Ramamurthy and Miss A. Subhashini for the Respondent.\n The Judgment of the Court was delivered by BHAGWATI, J.-The dispute in this appeal by certificate relates to two items of expenditure incurred by the assessee during the assessment year 1956-57 for which the relevant accounting year was the year ending on 30th September, 1955.\nThe assessee is a private limited company carrying on business of manufacture and sale of crystal sugar in a factory situated in Pilibhit in the State of Uttar Pradesh.\nIn the year 1952-53, a dam was constructed by the State of Uttar Pradesh at a place called Deoni and a road Deoni Dam- Majhala was constructed connecting the Deoni Dam with Majhala. It seems that the Collector requested the assessee to make some contribution towards the construction of the Deoni Dam and the Deoni Dam-Majhala Road and pursuant to this request of the Collector, the assessee contributed a sum of Rs. 22,332 during the accounting year ending 30th September, 1955. The assessee also contributed a sum of Rs.\n50,000 to the State of Uttar Pradesh during the same accounting year towards meeting the cost of construction of roads in the area around its factory under a Sugarcane Development Scheme promoted by the Uttar Pradesh Government as part of the Second Five Year Plan. It was provided under the Sugarcane Development Scheme that one third of the cost of construction of roads would be met by the Central Government, one third 525 by the State Government and the remaining one third by Sugar factories and sugarcane growers and it was under this scheme that the sum of Rs. 50,000 was contributed by the assessee.\nIn the course of its assessment to Income-tax for the assessment year 1956-57, the assessee claimed to deduct these two amounts of Rs. 22,332 and Rs. 50,000 as deductible expenditure under Section 10(2)(xv) of the Indian Income-tax Act, 1922. The Income-tax Officer disallowed the claim for deduction on the ground that the expenditure incurred was of capital nature and was not allowable as a deduction under Section 10(2)(xv). The assessee preferred an appeal to the Appellate Assistant Commissioner but the appeal failed and this led to the filing of a further appeal before the Tribunal. The appeal was heard by a Bench of two members of the Tribunal and there was a difference of opinion between them. The Judicial Member took the view that the expenditure of both the amounts of Rs. 22,332 and Rs. 50,000 was in the nature of revenue expenditure and was therefore allowable as a deduction, while the Accountant Member held that this expenditure was on capital account and could not be allowed as revenue expenditure. Since there was a difference of opinion between the two members, the question which formed the subject matter of difference was referred for consideration to a third member. The third member did not go into the question whether the expenditure incurred by the assessee was in the nature of capital or revenue expenditure but took a totally different line and held that the contributions were made by the assessee as a good citizen just as any other person would and it could not be said that the expenditure was laid out wholly and exclusively for the purpose of the business of the assessee. The third member in this view agreed with the conclusion reached by the Accountant Member and held that both the amounts of Rs.\n22,332 and Rs. 50,000 were not allowable as deductible expenditure under Section 10(2)(xv). The appeal of the assessee was accordingly rejected by the Tribunal so far as this point was concerned. The assessee thereupon sought a reference to the High Court and on the application of the assessee, the following question of law was referred for the opinion of the High Court : \"Whether on the facts and circumstances of the case the sums of Rs. 22,332 and Rs. 50,000 were admissible deduction in computing the taxable profits and gains of the companies business.\"\nThe High Court observed \"that on the finding recorded by the third member of the Tribunal and on the view expressed by the Accountant Member\". the expenditure could not be said to have been incurred by the assessee in the ordinary course of its business and it could not be \"classified as revenue expenditure on the ground of commercial 526 expediency\". The view taken by the High Court was that since \"the expenditure was not related to the business activity of the assessee as such, the Tribunal was justified in concluding that it was not wholly and exclusively laid out for the business and that the deduction claimed by the assessee therefore did not come within the ambit of Section 10(2)(xv)\". The High Court accordingly answered the question referred to it in favour of the revenue and against the assessee. The assessee thereupon preferred to present appeal in this Court after obtaining the necessary certificate from the High Court.\n Now an expenditure incurred by an assessee can qualify for deduction under Section 10(2)(xv) only if it is incurred wholly and exclusively for the purpose of his business, but even if it fulfils this requirement, it is not enough it must further be of revenue as distinct from capital nature.\nTwo questions therefore arise for consideration in the present appeal : one is whether the sums of Rs. 22,332 and Rs. 50,000 contributed by the assessee represented expenditure incurred wholly and exclusively for the purposes of the business of the assessee and the other is whether this expenditure was in the nature of capital or revenue expenditure. So far the first item of expenditure of Rs.\n22,332 is concerned, the case does not present any difficulty at all, because it was common ground between the parties that this amount was contributed by the assessee long after the Deoni Dam and the Deoni Dam-Majhala Road were constructed and there is absolutely nothing to show that the contribution of this amount had anything to do with the business of the assessee or that the construction of the Deoni Dam or the Deoni Dam-Majhala Road was in any way advantageous to the assessee's business. The amount of Rs.\n22,332 was apparently contributed by the assessee without any legal obligation to do so, purely as an act of good citizenship, and it could not be said to have been laid out wholly and exclusively for the purpose of the business of the assessee. The expenditure of the amount of Rs. 22,332 was therefore rightly disallowed as deductible expenditure under section 10(2)(xv).\n But the position is different when we come to the second item of expenditure of Rs. 50,000. There the assessee is clearly on firmer ground. The amount of Rs. 50,000 was contributed by the assessee under the Sugar-cane Development Scheme towards meeting the cost of construction of roads in the area around the factory. Now there can be no doubt that the construction of roads in the area around the factory was considerably advantageous to the business of the assessee, because it facilitated the running of its motor vehicles for transportation of sugarcane so necessary for its manufacturing activity. It is not as if the amount of Rs.\n50,000 was contributed by the assessee generally 527 for the purpose of construction of roads in the State of Uttar Pradesh, but it was for the construction of roads in the area around the factory that the contribution was made and it cannot be disputed that if the roads are constructed around the factory area, they would facilitate the transport of sugarcane to the factory and the flow of manufactured sugar out of the factory. The construction of the roads was therefore clearly and indubitably connected with the business activity of the assessee and it is difficult to resist the conclusion that the amount of Rs. 50,000 contributed by the assessee towards meeting the cost of construction of the roads under the Sugarcane Development Scheme was laid out wholly and exclusively for the purpose of the business of the assessee. This conclusion was indeed not seriously disputed on behalf of the Revenue but the principal contention urged on its behalf was that the expenditure of the amount of Rs. 50,000 incurred by the assessee was in the nature of capital expenditure, since it was incurred for the purpose of bringing into existence an advantage for the enduring benefit of the assessee's business. The argument of the Revenue was that the newly constructed roads though not belonging to the assessee brought to the assessee an enduring advantage for the benefit of its business and the expenditure incurred by it was therefore in the nature of capital expenditure. The Revenue relied on the celebrated test laid down by Lord Cave L.C. in British Insulated and Helsby Cables Ltd. v. Atherson where the learned Law Lord stated \"When an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital\". This test enunciated by Lord Cave L.C. is undoubtedly a well known test for distinguishing between capital and revenue expenditure, but it must be remembered that this test is not of universal application and, as the parenthetical clause shows, it must yield where there are special circumstances leading to a contrary conclusion. The non-universality of this test was emphasised by Lord Radcliffe in Commissioner of Taxes v. Nohanga Consolidated Copper Mines Ltd.(2) where the learned Law Lord said in his highly felicitous language that it would be misleading to suppose that in all cases securing a benefit for the business would be prima facie capital expenditure \"so long as the benefit is not so transitory as to have to endurance at all\". It was also pointed out by this Court in Empire Jute Co. Ltd. v.\n528 C.I.T. that \"there may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test.\" If the advantage consists merely in facilitating the assessee's business operations or enabling management and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future.\n Now it is clear on the facts of the present case that by spending the amount of Rs. 50,000, the assessee did not acquire any asset of an enduring nature. The roads which were constructed around the factory with the help of the amount of Rs. 50,000 contributed by the assessee belonged to the Government of Uttar Pradesh and not to the assessee.\nMoreover, it was only a part of the cost of construction of these roads that was contributed by the assessee, since under the Sugarcane Development Scheme, one third of the cost of construction was to be borne by the Central Government, one third by the State Government and only the remaining one third was to be divided between the sugarcane factories and sugarcane growers. These roads were undoubtedly advantageous to the business of the assessee as they facilitated the transport of sugarcane to the factory and the outflow of manufactured of sugar from the factory to the market centres. There can be no doubt that the construction of these roads facilitated the business operations of the assessee and enabled the management and conduct of the assessee's business to be carried on more efficiently and profitably. It is no doubt true that the advantage secured for the business of the assessee was of a long duration in as much as it would last so long as the roads continued to be in motorable condition, but it was not an advantage in the capital field, because no tangible or intangible asset was acquired by the assessee nor was there any addition to or expansion of the profit making apparatus of the assessee. The amount of Rs. 50,000 was contributed by the assessee for the purpose of facilitating the conduct of the business of the assessee and making it more efficient and profitable and it was clearly an expenditure on revenue account.\n529 It was pointed out by Lord Radcliffe in commissioner of Taxes v. Nothanga Consolidated Copper Mines Ltd. (supra) that \"in considering allocation of expenditure between the capital and income accounts, it is almost unavoidable to argue from analogy.\" There are always cases falling indisputably on one or the other side of the line and it is a familiar argument in tax courts that the case under review bears close analogy to a case falling on the right side of the line and must, therefore, decide in the same manner. If we apply this method, the case closest to the present one is that in Lakshmiji Sugar Mills Co. P. Ltd. v. C.I.T.(1) The facts of this case were very similar to the facts of the present case. The assessee in this case was also a limited company carrying on business of manufacture and sale of sugar in the State of Uttar Pradesh and it paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between sugarcane producing centres and the sugar factory of the assessee and the question arose whether this expenditure was allowable as revenue expenditure under S. 10(2)(xv). No doubt, in this case, there was a statutory obligation under which the amount in question was contributed by the assessee, but this Court did not rest its decision on the circumstance that the expenditure was incurred under statutory obligation. This Court analysed the object and purpose of the expenditure and its true nature and held that it was of a revenue and not capital nature. This Court observed : \"In the present case, apart from the element of compulsion, the roads which were constructed and developed were not the property of the assessee nor is it the case of the revenue that the entire cost of development of those roads was defrayed by the assessee. It only made certain contribution for road development between the various cane producing centres and the mills. The apparent object and purpose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the roads in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principle mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself. (Emphasis supplied) These observations are directly applicable in the present case and we must hold on the analogy of 530 this decision that the amount of Rs. 50,000 was contributed by the assessee \"for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself\". This decision fully supports the view that the expenditure of the amount of Rs. 50,000 incurred by the assessee was on revenue account.\n We must also refer to the decision of this Court in Travancore-Cochin Chemicals Ltd. v. C.I.T. (Supra) on which strong reliance was placed on behalf of the Revenue. The facts of this case are undoubtedly to some extent comparable with the facts of the present case. But ultimately in cases of this kind, where the question is whether a particular expenditure incurred by an assessee is on capital account or revenue account, the decision must ultimately depend on the facts of each case. No two cases are alike and quite often emphasis on one aspect or the other may tilt the balance in favour of capital expenditure or revenue expenditure. This Court in fact in the course of its judgment in Travancore- Cochin Chemicals Ltd.'s case (supra) distinguished the decision in Lakshmiji Sugar Mills' case (supra) on the ground that \"on the facts of that case, this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee's business.\n Lakshmiji Sugar Mills' case is quite different on facts from the one before us and must be confined to the peculiar facts of that case.\" We would make the same observation in regard to the decision in Travancore-Cochin Chemicals' case (supra) and say that decision must be confined to the peculiar facts of that case, because Lakshmiji Sugar Mills' case (supra) admittedly bears a closer analogy to the present case than the Travancore-Cochin Chemicals' case and if at all we apply the method of arguing by analogy, the decision in Lakshmiji Sugar Mills case (supra) must be regarded as affording us greater guidance in the decision in the present case then the decision in Travancore-Cochin Chemicals' case (supra). Moreover, we find that the parenthetical clause in the test formulated by Lord Cave L.C. in Antherton's case (supra) was not brought to the attention of this Court in Travancore-Cochin Chemicals' case with the result that this Court was persuaded to apply that test as if it were an absolute and universal test regardless of the question applicable in all cases irrespective whether the advantage secured for the business was in the capital field or not. We would therefore prefer to follow the decision in Lakshmiji Sugar Mills' case (Supra) and hold on the analogy of that decision that the amount of Rs. 50,000 contributed by the assessee represented expenditure on the revenue account.\n 531 We accordingly dismiss the appeal in so far as the expenditure of the sum of Rs. 22,332 is concerned. But, so far as the expenditure of the sum of Rs. 50,000 is concerned, we hold that it was in the nature of revenue expenditure laid out wholly and exclusively for the purpose of the assessee's business and was therefore, allowable as a deduction under Section 10(2)(xv) of the Act and allow the appeal to this limited extent. Since the assessee has partly won and partly lost, we think that the fair order of costs would be that each party should bear and pay its own costs throughout.\n S.R. Appeal allowed in part.\n 532 "
} |
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{
"result": [
{
"from_name": null,
"id": "77bf6ea4149f43909c1e6d254d3cc908",
"to_name": null,
"type": null,
"value": {
"end": 111,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSTATE OF KARNATAKA AND ORS.\n\n Vs.\n\nRESPONDENT:\nV.S. NARAYANA SWAMY\n\nDATE OF JUDGMENT21/08/1991"
}
},
{
"from_name": null,
"id": "277355a55b8f4ff7ac3c76b617ade42f",
"to_name": null,
"type": null,
"value": {
"end": 680,
"labels": [
"PREAMBLE"
],
"start": 113,
"text": "BENCH:\nMISRA, RANGNATH (CJ)\nBENCH:\nMISRA, RANGNATH (CJ)\nKANIA, M.H.\nKULDIP SINGH (J)\n\nCITATION: 1991 SCR (3) 700\n 1992 AIR 151 JT 1991 (3) 523\n 1991 SCC (4) 268\n 1991 SCALE (2)383\n\nACT:\n\nMysore Excise Act, 1965/Karnataka Excise (Sale of Indian\n\n& Foreign Liquors) Rules, 1968: Section 23(d)/Rule 8(1):\n\nManufacture and sale of excisable articles-Imposition of\n\nlicence fee thereof under the Act--Licence fee for the\n\nauthorised shop--Imposition of under the Rules--The relevant\n\nrule--Whether supported by the Act and had the authority of\n\nlaw."
}
},
{
"from_name": null,
"id": "7e739827d07e44b6b0495e70b8106190",
"to_name": null,
"type": null,
"value": {
"end": 691,
"labels": [
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],
"start": 680,
"text": "\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "7123393e493248379385293c2b86fdc3",
"to_name": null,
"type": null,
"value": {
"end": 1050,
"labels": [
"PREAMBLE"
],
"start": 691,
"text": "\nThe Respondent, a licencee under floe Karnataka Excise Act\nfor selling liquor at an approved shop, flied a Writ Peti-\ntion before the High Court challenging the vires of Section\n23(d) of the Mysore Excise Act, 1965 and Rule 8(1) of the\nKarnataka Excise (Sale of Indian and Foreign Liquors) Rules,\n1968 as being beyond the legislative competence of the\nState."
}
},
{
"from_name": null,
"id": "09a20eccf8b549819775323c7fd3d810",
"to_name": null,
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],
"start": 1059,
"text": "The High Court negatived the contention of the Respond-\nent in respect of Section 23(d) of the Act but held that\nRule 8(1) authorising tihe levy of licence fee for retail\nshop was without authority of law and dircted refund of the\nlevy collected for three years prior to the filing of tiWrit\nPetition.\n\n "
}
},
{
"from_name": null,
"id": "b2dcb84461344445ae9f371010dec34e",
"to_name": null,
"type": null,
"value": {
"end": 1480,
"labels": [
"PREAMBLE"
],
"start": 1369,
"text": "Aggrieved by the High Court's decision, the appellant-\nState has preferred the present appeal by special leave."
}
},
{
"from_name": null,
"id": "e18631797dca46499688ac5558d2fa60",
"to_name": null,
"type": null,
"value": {
"end": 1529,
"labels": [
"PREAMBLE"
],
"start": 1480,
"text": "\nDismissing the appeal, this Court,\n\n HELD:"
}
},
{
"from_name": null,
"id": "b8d1b2c25eaa4adca945b29ed6574059",
"to_name": null,
"type": null,
"value": {
"end": 1632,
"labels": [
"PREAMBLE"
],
"start": 1530,
"text": "The High Court rightly did not accept the chal-\nlenge to Section 23(d) of the Mysore Excise Act, 1965."
}
},
{
"from_name": null,
"id": "e8c9f431386a4fb7b821f6fd989dc9eb",
"to_name": null,
"type": null,
"value": {
"end": 1766,
"labels": [
"PREAMBLE"
],
"start": 1633,
"text": "What\nis authorised under Section 23(d) is imposition of a fee of\nlicence in respect of manufacture or sale of any excisable\narticles."
}
},
{
"from_name": null,
"id": "27d76299143c47eabfd388d7714171d2",
"to_name": null,
"type": null,
"value": {
"end": 2002,
"labels": [
"PREAMBLE"
],
"start": 1767,
"text": "Rule 8(1) of the Karnataka Excise (Sale of Iadion\n& Foreign Liquors) Rules, 1968 has obviously gone beyond the\nenabling provision in the section by requiring a licence fee\nto be paid for the premises where the licensed shop is\nlocated."
}
},
{
"from_name": null,
"id": "626dcba3640a4995a96855e11909910c",
"to_name": null,
"type": null,
"value": {
"end": 2058,
"labels": [
"PREAMBLE"
],
"start": 2003,
"text": "Such a fee would not have the support of Section\n23(d)."
}
},
{
"from_name": null,
"id": "06fe5f0f24c041988c83a7308f6bfb61",
"to_name": null,
"type": null,
"value": {
"end": 2132,
"labels": [
"PREAMBLE"
],
"start": 2059,
"text": "It is unnecessary to refer to precedents for support\nfor this conclusion."
}
},
{
"from_name": null,
"id": "dbb10083aecb47b1b29b4db45b1371d8",
"to_name": null,
"type": null,
"value": {
"end": 2356,
"labels": [
"NONE"
],
"start": 2133,
"text": "It may be possible for the Legisla-ture to make a statutory provision for a liicence fee of the\ntype contemplated under the Rules but without authority of\nthe statute a rule of this type should not have been made.\n\n[702E-F]"
}
},
{
"from_name": null,
"id": "7202e84a06a2473581f75ba35c042a1b",
"to_name": null,
"type": null,
"value": {
"end": 2429,
"labels": [
"PREAMBLE"
],
"start": 2356,
"text": "\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1801 of 1974."
}
},
{
"from_name": null,
"id": "168a21655826494ba9da7dfbd34622e7",
"to_name": null,
"type": null,
"value": {
"end": 2529,
"labels": [
"NONE"
],
"start": 2429,
"text": "\n From the Judgment and Order ,dated 20.3.1974 of the Karnataka High Court in W.P. No. 1956 of 1971."
}
},
{
"from_name": null,
"id": "de28c4b678aa4877ad9b4fd702bc9c88",
"to_name": null,
"type": null,
"value": {
"end": 2599,
"labels": [
"NONE"
],
"start": 2529,
"text": "\n R.N. Narasimhmurthy, Novin Singh and M. Veerappa for the Appellants."
}
},
{
"from_name": null,
"id": "c641f42f52024e4391c15d09ca72c521",
"to_name": null,
"type": null,
"value": {
"end": 2659,
"labels": [
"NONE"
],
"start": 2599,
"text": "\nThe Judgment of the Court was delivered by RANGANATH MISRA."
}
},
{
"from_name": null,
"id": "285823068b3b4f0d83a317455d77acbe",
"to_name": null,
"type": null,
"value": {
"end": 2695,
"labels": [
"NONE"
],
"start": 2660,
"text": "CJ. The appeal is by special leave."
}
},
{
"from_name": null,
"id": "d94d62224db240d68d6bb151a980bf85",
"to_name": null,
"type": null,
"value": {
"end": 3065,
"labels": [
"FAC"
],
"start": 2695,
"text": "\nChallenge is to the Judgment.,of the Karnataka .High Court declaring Rule 8(1) of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy col- lected within three years prior 2.8.1971 when the Writ Petition was filed."
}
},
{
"from_name": null,
"id": "cc3e076937a8467dba1036313304d1a4",
"to_name": null,
"type": null,
"value": {
"end": 3203,
"labels": [
"FAC"
],
"start": 3065,
"text": "\n. .\nRespondent, an excise contractor, had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises."
}
},
{
"from_name": null,
"id": "20a9a161f7364226bfa4b1f75a4dcfd9",
"to_name": null,
"type": null,
"value": {
"end": 3356,
"labels": [
"FAC"
],
"start": 3204,
"text": "'He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 8(1) of the aforesaid Rules."
}
},
{
"from_name": null,
"id": "d8e121c2892044d688131a89aaca63a7",
"to_name": null,
"type": null,
"value": {
"end": 3600,
"labels": [
"FAC"
],
"start": 3357,
"text": "Respondent filed a writ petition before the Karnataka High Court chal- lenging the vires of s. 23(d) of the Mysore Excise Act, 1965 (hereafter 'Act' for short) and Rule 8(1.) as being beyond the legislative competence of,the State Legislature."
}
},
{
"from_name": null,
"id": "3953efe39bb340ee94d4de10b2fb8e42",
"to_name": null,
"type": null,
"value": {
"end": 3800,
"labels": [
"RLC"
],
"start": 3601,
"text": "The High Court did not accept the contention of the respondent in 'regard to s. 23 but held that Rule 8(1)-authorising the 'levy of a licence fee for the retail off shop was without authority of law."
}
},
{
"from_name": null,
"id": "67c2f230d5134feaa2eea5ecd3e84825",
"to_name": null,
"type": null,
"value": {
"end": 3881,
"labels": [
"STA"
],
"start": 3800,
"text": "\n Section 23(d), as far as relevant, provides: \"23. Ways of levying such duties--"
}
},
{
"from_name": null,
"id": "a174f58c434b423a8bcd919117b160da",
"to_name": null,
"type": null,
"value": {
"end": 4474,
"labels": [
"STA"
],
"start": 3882,
"text": "Subject to such Rules regulating the time, place and manner, as may be prescribed, excise duty and countervailing duty under section 22 shall be levied in one or more of the follow- ing ways, as may be prescribed, namely: (a) .............\n (aa) ......................\n (b) ..........................\n (c)............................\n (d)by fees on licences in respect of manufacture or sale of any excisable articles.\"\n Rule 8 made the rule making powers, under the Act, interalia, provides: \"8."
}
},
{
"from_name": null,
"id": "fa1253ada1f94ad4a0107ab86c7aaee0",
"to_name": null,
"type": null,
"value": {
"end": 4792,
"labels": [
"STA"
],
"start": 4475,
"text": "Fee to be paid-- (1) The licence fee for the several kinds of licences shall be as follows, namely: (1) ..............................\n (2)..........................\n (3) ......................\nThe High Court rightly did not accept the challenge to s.\n23(d) of the Act."
}
},
{
"from_name": null,
"id": "b432d034bd7648d4be74f9029fcb25f5",
"to_name": null,
"type": null,
"value": {
"end": 4921,
"labels": [
"ANALYSIS"
],
"start": 4793,
"text": "What is authorised under s. 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles."
}
},
{
"from_name": null,
"id": "d0c8e30f88f44b21a972005912678692",
"to_name": null,
"type": null,
"value": {
"end": 5087,
"labels": [
"ANALYSIS"
],
"start": 4922,
"text": "Rule 8(1) has obviously gone beyond the enabling provision in the section by requir- ing a licence fee to be paid for the premises where the licence shop is located."
}
},
{
"from_name": null,
"id": "f460a420064c4b12a9d02f073cc53c42",
"to_name": null,
"type": null,
"value": {
"end": 5138,
"labels": [
"ANALYSIS"
],
"start": 5088,
"text": "Such a fee would not have the support of s. 23(d)."
}
},
{
"from_name": null,
"id": "9d84f1218b704d7a9eceac82767ae526",
"to_name": null,
"type": null,
"value": {
"end": 5214,
"labels": [
"ANALYSIS"
],
"start": 5139,
"text": "It is unnecessary to refer to prece- dents for support for this conclusion."
}
},
{
"from_name": null,
"id": "5e720ec9a2b54c2b9c7fd9d172c9c63d",
"to_name": null,
"type": null,
"value": {
"end": 5434,
"labels": [
"RATIO"
],
"start": 5215,
"text": "It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made."
}
},
{
"from_name": null,
"id": "785a9218a67045df9d89c322bc3de06c",
"to_name": null,
"type": null,
"value": {
"end": 5500,
"labels": [
"RPC"
],
"start": 5435,
"text": "We find no merit in this appeal and it is, therefore, diismissed."
}
},
{
"from_name": null,
"id": "609c71cc51ab4c898934f5cc04d1eb9b",
"to_name": null,
"type": null,
"value": {
"end": 5517,
"labels": [
"RPC"
],
"start": 5501,
"text": "fore, dismissed."
}
},
{
"from_name": null,
"id": "8f3c9c3b0e224b80a0b5dde1ec67cb9a",
"to_name": null,
"type": null,
"value": {
"end": 5581,
"labels": [
"NONE"
],
"start": 5517,
"text": "\n Respondent did not appear inspite of service of appeal notice."
}
},
{
"from_name": null,
"id": "3ac3c0b838e54dc78d46bce269c89705",
"to_name": null,
"type": null,
"value": {
"end": 5606,
"labels": [
"NONE"
],
"start": 5582,
"text": "We make no of for costs."
}
},
{
"from_name": null,
"id": "0cb25b57748e438cbea67e1ddd26787e",
"to_name": null,
"type": null,
"value": {
"end": 5659,
"labels": [
"RPC"
],
"start": 5606,
"text": "\n G.N. Appeal dismissed."
}
}
]
}
] | 4,148 | {
"text": "PETITIONER:\nSTATE OF KARNATAKA AND ORS.\n\n Vs.\n\nRESPONDENT:\nV.S. NARAYANA SWAMY\n\nDATE OF JUDGMENT21/08/1991\n\nBENCH:\nMISRA, RANGNATH (CJ)\nBENCH:\nMISRA, RANGNATH (CJ)\nKANIA, M.H.\nKULDIP SINGH (J)\n\nCITATION: 1991 SCR (3) 700\n 1992 AIR 151 JT 1991 (3) 523\n 1991 SCC (4) 268\n 1991 SCALE (2)383\n\nACT:\n\nMysore Excise Act, 1965/Karnataka Excise (Sale of Indian\n\n& Foreign Liquors) Rules, 1968: Section 23(d)/Rule 8(1):\n\nManufacture and sale of excisable articles-Imposition of\n\nlicence fee thereof under the Act--Licence fee for the\n\nauthorised shop--Imposition of under the Rules--The relevant\n\nrule--Whether supported by the Act and had the authority of\n\nlaw.\n\nHEADNOTE:\nThe Respondent, a licencee under floe Karnataka Excise Act\nfor selling liquor at an approved shop, flied a Writ Peti-\ntion before the High Court challenging the vires of Section\n23(d) of the Mysore Excise Act, 1965 and Rule 8(1) of the\nKarnataka Excise (Sale of Indian and Foreign Liquors) Rules,\n1968 as being beyond the legislative competence of the\nState.\n\n The High Court negatived the contention of the Respond-\nent in respect of Section 23(d) of the Act but held that\nRule 8(1) authorising tihe levy of licence fee for retail\nshop was without authority of law and dircted refund of the\nlevy collected for three years prior to the filing of tiWrit\nPetition.\n\n Aggrieved by the High Court's decision, the appellant-\nState has preferred the present appeal by special leave.\nDismissing the appeal, this Court,\n\n HELD: The High Court rightly did not accept the chal-\nlenge to Section 23(d) of the Mysore Excise Act, 1965. What\nis authorised under Section 23(d) is imposition of a fee of\nlicence in respect of manufacture or sale of any excisable\narticles. Rule 8(1) of the Karnataka Excise (Sale of Iadion\n& Foreign Liquors) Rules, 1968 has obviously gone beyond the\nenabling provision in the section by requiring a licence fee\nto be paid for the premises where the licensed shop is\nlocated. Such a fee would not have the support of Section\n23(d). It is unnecessary to refer to precedents for support\nfor this conclusion. It may be possible for the Legisla-ture to make a statutory provision for a liicence fee of the\ntype contemplated under the Rules but without authority of\nthe statute a rule of this type should not have been made.\n\n[702E-F]\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1801 of 1974.\n From the Judgment and Order ,dated 20.3.1974 of the Karnataka High Court in W.P. No. 1956 of 1971.\n R.N. Narasimhmurthy, Novin Singh and M. Veerappa for the Appellants.\nThe Judgment of the Court was delivered by RANGANATH MISRA. CJ. The appeal is by special leave.\nChallenge is to the Judgment.,of the Karnataka .High Court declaring Rule 8(1) of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy col- lected within three years prior 2.8.1971 when the Writ Petition was filed.\n. .\nRespondent, an excise contractor, had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises. 'He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 8(1) of the aforesaid Rules. Respondent filed a writ petition before the Karnataka High Court chal- lenging the vires of s. 23(d) of the Mysore Excise Act, 1965 (hereafter 'Act' for short) and Rule 8(1.) as being beyond the legislative competence of,the State Legislature. The High Court did not accept the contention of the respondent in 'regard to s. 23 but held that Rule 8(1)-authorising the 'levy of a licence fee for the retail off shop was without authority of law.\n Section 23(d), as far as relevant, provides: \"23. Ways of levying such duties-- Subject to such Rules regulating the time, place and manner, as may be prescribed, excise duty and countervailing duty under section 22 shall be levied in one or more of the follow- ing ways, as may be prescribed, namely: (a) .............\n (aa) ......................\n (b) ..........................\n (c)............................\n (d)by fees on licences in respect of manufacture or sale of any excisable articles.\"\n Rule 8 made the rule making powers, under the Act, interalia, provides: \"8. Fee to be paid-- (1) The licence fee for the several kinds of licences shall be as follows, namely: (1) ..............................\n (2)..........................\n (3) ......................\nThe High Court rightly did not accept the challenge to s.\n23(d) of the Act. What is authorised under s. 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles. Rule 8(1) has obviously gone beyond the enabling provision in the section by requir- ing a licence fee to be paid for the premises where the licence shop is located. Such a fee would not have the support of s. 23(d). It is unnecessary to refer to prece- dents for support for this conclusion. It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made. We find no merit in this appeal and it is, therefore, diismissed. fore, dismissed.\n Respondent did not appear inspite of service of appeal notice. We make no of for costs.\n G.N. Appeal dismissed.\n "
} |
{
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"text": "IN THE GAUHATI HIGH COURT"
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],
"start": 57,
"text": "THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,\n TRIPURA, MIZORAM AND ARUNACHAL PRADESH."
}
},
{
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"text": "\n\n SHILLONG BENCH."
}
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"start": 211,
"text": "\n\n Criminal Appeal No. (SH) 07/2010\n1.Shri Dwik Lyngdoh,\nSon of (L) Easting Shanpru,\nR/o Village Umtholong, West Khasi Hills,\nMeghalaya.\n\n2.Shri Santibok Kharnaior,\nSon of Shri Dwik Lyngdoh,\nR/o Village Umtholong, West Khasi Hills,\nMeghalaya. : Appellants\n\n -vs-\n\n1.State of Meghalaya,\nthrough the Superintendent of Police,\nWest Khasi Hills District, Meghalaya.\n\n2.The Officer-in-Charge,\nMairang Police Station,\nWest Khasi Hills District, Meghalaya."
}
},
{
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],
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"text": ": Respondents\n\n BEFORE\n THE HON’BLE"
}
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"text": "MR JUSTICE AMITAVA ROY"
}
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"labels": [
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],
"start": 864,
"text": "THE HON’BLE MR JUSTICE K MERUNO\n\nFor the Appellants : Mr KC Gautam,\n Mr D Gangte,\n Ms DCM Sangma, Advs\n\nFor the Respondents : Mr K Khan,"
}
},
{
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"labels": [
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],
"start": 1128,
"text": "Addl.PP\n\nDate of hearing"
}
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"to_name": "text",
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],
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"text": " 28.09.2011"
}
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"to_name": "text",
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],
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"text": "Date of Judgment & Order : 30.09.2011\n\n\n JUDGMENT AND ORDER (Amitava Roy, J)"
}
},
{
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"id": "de9e2f49d4124923981e95af82e8d500",
"to_name": "text",
"type": "labels",
"value": {
"end": 1652,
"labels": [
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],
"start": 1313,
"text": "In challenge is the judgment and order dated 28.07.2010 passed by Smti B.\n Giri, the learned Additional District & Session Judge / Additional Deputy Commissioner, Fast Track Court, East Khasi Hills District in F.T.C. (S) 25/2006 convicting the appellants herein under Section 302/34 IPC and sentencing them to suffer imprisonment for life."
}
},
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],
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"text": "We have heard Mr KC Gautam, the learned counsel for the appellants and Mr K Khan, the learned Addl. PP, Govt. of Meghalaya."
}
},
{
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],
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"text": "3. "
}
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],
"start": 1795,
"text": "An FIR was lodged on 13.08.2001 by Mrs Makdalin Kharthangmaw with the Officer-in-Charge Mairang PS, West Khasi Hills, Meghalaya alleging that on 11.08.2001 at about 7:00 PM three miscreants with their faces covered had barged into their house and murdered her father i.e. Shri Skhin Basiawmoit in presence of her mother Smti Skhair Kharthangmaw."
}
},
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"start": 2141,
"text": "Mairang PS Case No. 13(8) 2001 was registered under Section 302/34 IPC and on the conclusion of the investigation, charge-sheet was submitted against the appellant and others."
}
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"text": "The learned trial court framed charge against the appellants under Section 302/34 IPC to which they pleaded “not guilty” and claimed to be tried."
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"start": 2463,
"text": "At the trial prosecution, examined, eleven witnesses including the Investigating Officer and the Doctor who had performed the postmortem on the dead body."
}
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"start": 2618,
"text": "The appellants were thereafter examined under Section 313 of the Code of Criminal Procedure (for short hereinafter referred to CrPC) in course of which they pleaded their innocence and denied the allegations brought against them."
}
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{
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"text": "They also examined one witness namely: Shri Khrim Pathaw."
}
},
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"text": "\n 4. The learned trial court on a consideration of all materials on record and after hearing the learned counsel appearing for the parties convicted and sentenced the appellants as indicated above."
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"text": "5. Before adverting to the rival arguments, it would be apt to outline a sketch of the evidence on record PW"
}
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"start": 3223,
"text": "1, Shri Roslang Kharthangmaw, son of the deceased stated on oath that on the date of occurrence while he was returning from the field, he met three persons running towards the same direction and on enquiry they told him that there was some commotion from the place where they were coming."
}
},
{
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"start": 3512,
"text": "The witness stated that it was dark by then and when he reached home he found his father lying on the floor in a pool of blood."
}
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"start": 3640,
"text": "The witness then recalled that out of the three persons whom he met one was Santibok (appellant No.2) whom he recognized by his voice."
}
},
{
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"start": 3775,
"text": "The witness also mentioned that his younger sister told him that some people had come to their house and assaulted their father."
}
},
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"text": "In cross examination by the defence this witness could not recollect as to whether these three persons were masked or nor as it was dark."
}
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"labels": [
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],
"start": 4042,
"text": "He conceded that he could not recognize the other two persons but could identify Santibok by his voice."
}
},
{
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"labels": [
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],
"start": 4146,
"text": "He further stated that his father was dead by the time he had reached home.\n 6"
}
},
{
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"value": {
"end": 4235,
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],
"start": 4224,
"text": ". PW-2"
}
},
{
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"end": 4532,
"labels": [
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],
"start": 4236,
"text": "Dr G.B.M. Mihsil who had performed the postmortem examination on the dead body on 12.08.2001 stated to have found the following injuries thereon: ” 1. An incised wound on the left side of the epicastric (Upper part of the Abdomen) region horizontal in nature size 1 ½ x 1x ¼ .\n 2."
}
},
{
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"id": "2ad9f9b5bb624415beab536674343031",
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"value": {
"end": 4751,
"labels": [
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],
"start": 4533,
"text": "An incised wound on the left side of the umbilical region extending from the lower side of the epicastric region to upper left llliac fossa region (above the groin) it is vertical in nature and the size is 8’ x 6” x 6”"
}
},
{
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"value": {
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"labels": [
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],
"start": 4752,
"text": "from this wound the stomach and small intestine protruded."
}
},
{
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"labels": [
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],
"start": 4828,
"text": "3. An incised wound in the left lnguinal region (below the groin) which is vertical in nature and the size is 3”x1x ¼ “."
}
},
{
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"end": 5054,
"labels": [
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],
"start": 4948,
"text": "\n The witness opined that death was due to shock as a result of severe hemorrhage caused by sharp weapons."
}
},
{
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"end": 5197,
"labels": [
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],
"start": 5055,
"text": "She also stated that considering the type of injuries chances of survival and recovery was not there especially when the wound No.2 was fatal."
}
},
{
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"value": {
"end": 5246,
"labels": [
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],
"start": 5198,
"text": "She proved the postmortem report with Exhibit 1."
}
},
{
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"id": "387f0413f0b949658ffc62cba9dcfbc0",
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],
"start": 5247,
"text": "In cross- examination though she reaffirmed that the injuries were caused by sharp weapon she could not state as to whether all had been caused by the same weapon."
}
},
{
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"labels": [
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],
"start": 5410,
"text": "\n 7. PW-3 Smti Naralian Mary Nampui stated on oath that at the relevant point of time she was Addl. District Magistrate, Mairang Sub-Division, Mairang and had recorded the statement on 12.09.2001 of Magdelin Kharthangmaw (PW-5) and Veronica Kharthangmaw (PW-6) and others."
}
},
{
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"value": {
"end": 5873,
"labels": [
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],
"start": 5688,
"text": "She also stated that on 17.09.2001, she had recorded the confessional statement of the accused/appellant Santibok Kharnaior after completing all the requirements under Section 164 CrPC."
}
},
{
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"end": 5932,
"labels": [
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],
"start": 5874,
"text": "She also proved the recorded statements as Exhibit 2 to 7."
}
},
{
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"labels": [
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],
"start": 5933,
"text": "In the cross-examination, the witness, however, conceded that the accused/appellant Santibok Kharnaior in his confessional statement referred to the incident as narrated to him by one U Sing.\n "
}
},
{
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"labels": [
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],
"start": 6126,
"text": "8. PW-4 Shri K.L. Nongbri was the EAC and posted initially at Williamnagar and thereafter at Mairang at the relevant point of time and had recorded the statement of Shri Donrang Ryntathiang (PW-8) which he proved as Exhibit 8."
}
},
{
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"end": 6543,
"labels": [
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],
"start": 6358,
"text": "He referred to the statement of Shri Donrang Ryntathinag, that on 11.08.2001 on his way back from the football ground he met three people two of whom he recognized as Santibok and Dwik."
}
},
{
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"value": {
"end": 6703,
"labels": [
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],
"start": 6544,
"text": "Shri Donrang Ryntathiang also stated that in the following morning when he heard that Mr Skin was dead, he had suspected that Santibok and Dwik had killed him."
}
},
{
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"end": 6955,
"labels": [
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],
"start": 6705,
"text": "9. PW-5 Smti Magdolin Khartnagmaw stated on oath that on 11.08.2001 at about 6:30 PM while she was at home along with her parents and children, three persons entered their house and caught hold of her father who was then repairing a torch light."
}
},
{
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"value": {
"end": 7056,
"labels": [
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],
"start": 6956,
"text": "At this, her father hit back one of them with a hammer and she also struck them with a wooden stool."
}
},
{
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"value": {
"end": 7122,
"labels": [
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],
"start": 7057,
"text": "At this, one of the miscreants instigated the others to kill her."
}
},
{
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"value": {
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"labels": [
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],
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"text": "The witness stated that by his voice she recognized the person to be Santibok."
}
},
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"end": 7322,
"labels": [
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],
"start": 7202,
"text": "She stated that the persons then stabbed her father with a knife on which he fell down and the assailants then ran away."
}
},
{
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"end": 7498,
"labels": [
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],
"start": 7323,
"text": "The witness stated that she could not see the face of these persons when they entered their house because their faces were covered and except Santibok she could identify none."
}
},
{
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"id": "01e26bee1e324c85a4ed8decd7b7a51e",
"to_name": "text",
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"value": {
"end": 7579,
"labels": [
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],
"start": 7499,
"text": "She stated that the accused/appellant Santibok had been residing near her house."
}
},
{
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"id": "a3a471b8cd164e188e1281a8fab6ee58",
"to_name": "text",
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"value": {
"end": 7778,
"labels": [
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],
"start": 7580,
"text": "The witness also referred to an incident on 01.05.2001 where the accused/appellant Santibok along with other four relatives had come to their house at the dead of night and wished to see her father."
}
},
{
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"id": "72ddab9bee73419d851a85f4484fe049",
"to_name": "text",
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"value": {
"end": 7891,
"labels": [
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],
"start": 7779,
"text": "Santibok and others returned the next morning as they could not meet the father of the witness as he was asleep."
}
},
{
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"id": "b39db930c74a4ce58cfc48dfb4d5df4b",
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"value": {
"end": 8109,
"labels": [
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],
"start": 7892,
"text": "The witness stated that after her father had fallen with the injury, he along with others had gone to search for a vehicle to take him to the hospital but eventually the injured expired within a short time thereafter."
}
},
{
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"id": "02c80f8030824b2cbfead0588d5ba1d5",
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"value": {
"end": 8165,
"labels": [
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],
"start": 8110,
"text": "She stated at that time her father had stopped talking."
}
},
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"id": "cd6b3e1a6754466a8c35ad5bf0210a06",
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"value": {
"end": 8419,
"labels": [
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],
"start": 8166,
"text": "In the cross-examination, this witness referred also to another incident of about 10 years back when the accused/appellant No.1 with his wife had come to their house alleging that the latter was ill due to black magic practiced by her father (deceased)."
}
},
{
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"id": "404623d8f028449d9ad38c06441facff",
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"value": {
"end": 8529,
"labels": [
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],
"start": 8420,
"text": "The witness stated that the assailants had taken away the Dao at the time of leaving the place of occurrence."
}
},
{
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"id": "3b4e85a215a84e84aaf69ddb8a3be10d",
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"value": {
"end": 8575,
"labels": [
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],
"start": 8530,
"text": "She proved the FIR filed by her as Exhibit 9."
}
},
{
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"id": "db1148b459f048c3b6736f17a8738be7",
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"end": 8678,
"labels": [
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],
"start": 8576,
"text": "She also proved her statement before the Magistrate under Section 164 CrPC as Exhibit 2.\n 10. PW-6"
}
},
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"id": "8d83a6c713034cb686ce7af1a041ad5a",
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"end": 8891,
"labels": [
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],
"start": 8679,
"text": "Smti Beronica Kharthangmaw stated that on 11.08.2001 at about 6:30 PM hearing a pandemonium from her father’s house she rushed thereto and on the way saw one man coming out therefrom and running towards the road."
}
},
{
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"value": {
"end": 8994,
"labels": [
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],
"start": 8891,
"text": "\n When she reached near her father’s house, she saw two other men coming out from the compound thereof."
}
},
{
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"end": 9185,
"labels": [
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],
"start": 8995,
"text": "The witness stated that she could not recognize the three persons as it was dark, but stated that from the manner of walking and outer appearance, the first person that she met was Santibok."
}
},
{
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"id": "61331e00a8c046be8ece45a296044202",
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"labels": [
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],
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"text": "By the same measure she identified one of the two persons whom she met on the way to be Dwik."
}
},
{
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"to_name": "text",
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"value": {
"end": 9421,
"labels": [
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],
"start": 9280,
"text": "The witness claimed that she could identify these two persons by their walk, height and appearance as she used to meet them almost every day."
}
},
{
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"id": "5aeecd0532bd4ab3906e8fabb7a8d420",
"to_name": "text",
"type": "labels",
"value": {
"end": 9482,
"labels": [
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],
"start": 9422,
"text": "She also deposed that Santibok and Dwik were her negihbours."
}
},
{
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"id": "f61f82916e4b4763b7fae9ccf90380da",
"to_name": "text",
"type": "labels",
"value": {
"end": 9566,
"labels": [
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],
"start": 9483,
"text": "She proved her statement before the Magistrate under Section 164 CrPC as Exhibit 3."
}
},
{
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"id": "af0e6be276f6415abe6796fb8a1d123d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9726,
"labels": [
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],
"start": 9567,
"text": "She emphasized that the accused/appellants were responsible for the murder of her father as for long past they had been charging him of practicing black magic."
}
},
{
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"id": "da779472516b4f539e036158c6fd1ed8",
"to_name": "text",
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"value": {
"end": 9920,
"labels": [
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],
"start": 9727,
"text": "In the cross-examination, this witness could not ascertain as to whether the faces of the three persons, whom she had met on her way to her father house, had been covered or not as it was dark."
}
},
{
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"id": "1fc7cc62fffa4bc49a2871bbf4520cd8",
"to_name": "text",
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"end": 10063,
"labels": [
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],
"start": 9921,
"text": "She, however, reiterated that though it was a dark night, she could recognize the two accused/appellants by their height, appearance and gait."
}
},
{
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"id": "3c8a2523aa724edd961d34205ac6c606",
"to_name": "text",
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"value": {
"end": 10183,
"labels": [
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],
"start": 10063,
"text": "\n 11. PW-7 Transfer Kurbah, the son-in-law of the deceased proved his statement under Section 164 CrPC as Exhibit 4."
}
},
{
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"id": "dbbc5d303a0c41c28b6f443b83044b22",
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"value": {
"end": 10259,
"labels": [
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],
"start": 10184,
"text": "He identified the two accused/appellants to be the residents of Nongthliew."
}
},
{
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"labels": [
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],
"start": 10259,
"text": "\n 12. PW-8 Shri Donrang Ryntathiang testified that on 11.08.2001 while he was returning home after watching a football match, he met three persons including Dwik and Santibok."
}
},
{
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"text": "He stated that at that point of time, they were coming out of the compound of the house of the deceased."
}
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"text": "He also proved his statement under Section 164 CrPC as Exhibit 7."
}
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"text": "In the cross-examination, he claimed to have recognized the two accused/appellants on 11.08.2001."
}
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"text": "He further stated that when he met them their faces were not covered, but it was dark then."
}
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"text": "He mentioned that at the time when he saw and recognized these two accused/appellants the distance between them was only one feet."
}
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"text": "\n 13. PW-9 Shri Kran Kharthangmaw, brother of the deceased stated that on 11.08.2001, he (deceased) was killed by three persons out of whom he knew one Dwik, the accused appellant No.1."
}
},
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"text": "In the cross-examination he admitted that he did not see the incident."
}
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"text": "He also expressed his ignorance about enmity between the accused appellant No.1 and the deceased."
}
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"text": "\n 14. PW-10 Shri Shakespeare Kharjana, deposed that having coming to learn that on 11.08.2001 about the incident, he as the Village Public Announcer took necessary steps amongst others to inform the Police."
}
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"text": "He proved the inquest report Exhibit 10.\n 15. PW-11"
}
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"text": "Shri H.S. Mawlieh the Investigating Officer, stated that on 12.08.2011, on receiving the information that Skin was murdered, he made an entry in the General Diary and proceeded for investigation."
}
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"text": "He conducted the inquest on the dead body as per Exhibit 10."
}
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"text": "The witness stated that in the course of the investigation, he arrested the accused/appellants and one Roland Lyngdoh on 10.09.2001."
}
},
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"text": "He stated to have received the FIR on 15.08.2001."
}
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"text": "He admitted that no weapon was seized."
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"text": "He, however, exhibited the wearing apparels of the deceased as Material Exhibit I, II & III."
}
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"text": "In the cross-examination, he mentioned that the accused/appellant Santibok had given a confessional statement before the Magistrate."
}
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{
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"text": "\n 16. DW -1"
}
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"text": "Khrim Pathaw stated on oath that on 11.08.2001 there was a football match in the village."
}
},
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"start": 12365,
"text": "After the football match, he had returned home along with the accused/appellant Santibok in the evening."
}
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"text": "He stated that the accused/appellant Dwik then had gone to the market at Shillong and had returned later in the evening at about 8:30 PM."
}
},
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"start": 12608,
"text": "He expressed that he did not know if there was any hostility between the accused/appellant and the deceased."
}
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"start": 12716,
"text": "\n 17. Mr KC Gautam has emphatically argued that the FIR having been lodged after 48 hours of the incident and that too without any explanation, the prosecution case on this ground alone ought to have been rejected as unreliable."
}
},
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"text": "This is coupled with the fact that though the wife of the deceased at the time of filing of the FIR was present, she was not examined by the prosecution."
}
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],
"start": 13103,
"text": "The learned counsel urged that if PW-5 had really identified the accused/appellant No.2, there was no conceivable reason to omit his name in the FIR."
}
},
{
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"labels": [
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"start": 13253,
"text": "PW-5 and PW-6 having failed to identify the accused/appellants their evidence besides being partisan ought to be rejected."
}
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"text": "\n 18. He argued further that as the witnesses contradicted each other qua their statements under Section 164 CrPC, the prosecution had miserably failed to prove the charge against the accused/appellants."
}
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"text": "Mr KC Gautam urged that the statement of the accused/appellant No.2 under Section 164 CrPC being apparently non-culpatory, the same cannot be taken note of in support of the charge."
}
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"start": 13765,
"text": "He argued further that as no weapon of assault had been seized, the prosecution case is wholly untrustworthy and the impugned judgment and order if allowed to stand will result in gross in-justice."
}
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"text": "18.A The learned Addl. PP as against this has contended that a conjoint reading of the PW-1, PW-2, PW-5, PW-6 & PW-8 proved the charge against the accused/appellant to the hilt and no interference with the conviction and sentence is called for."
}
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"start": 14209,
"text": "Drawing the attention of this Court to Section 9 and 156 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act), Mr Khan has sought to impress upon this Court that the evidence of the prosecution witnesses having knit a set of unimpeachable circumstances unerringly pointing to the guilt of the accused/appellants, the impugned judgment and order cannot be faulted with."
}
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"start": 14595,
"text": "To reinforce his submission he relied on the decisions of the Apex Court in Ravi Kumar-Vs.-State of Punjab in 2005 9 SCC 315 and Dalbir Singh –Vs.- State of Haryana in 2008 11 SCC 425."
}
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"text": "We have carefully considered the materials on record and the arguments advanced."
}
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"labels": [
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],
"start": 14870,
"text": "It is patent from the testimony of the Investigating Officer that even before the FIR had been received by the Police, probe into the incident had been initiated after making a GD entry of the information received."
}
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"text": "In that view of the matter, the FIR lodged 48 hours after the incident is not the first in point of time."
}
},
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"text": "As it is an FIR is not substantive piece."
}
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],
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"text": "Thus the omission to mention the name(s) of the accused/appellants in the FIR, in the opinion of this Court does not per se strike at the root of the prosecution case."
}
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"text": "\n 20. The evidence of PW-1, PW-5, PW-6 and PW-8 when considered as a whole leave no manner of doubt about the identification of the accused/appellants as members of the group of three who had trespassed into the house of the deceased and had assaulted him with a knife."
}
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"text": "Whereas PW-5 was an eyewitness of the incident identified the accused/appellant No.2, PW-6 has assertively stated to have recognized the accused/appellants to be amongst the three persons coming out from the compound of her father’s house immediately after the incident."
}
},
{
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"labels": [
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"text": "These three persons in a group were encountered by PW-1 and PW-8 at or about the time of incident and were found hurrying away from the place of occurrence."
}
},
{
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"labels": [
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],
"start": 16102,
"text": "Though the weapon of assault i.e. the knife as referred to by PW-5 could not be retrieved, the evidence of the Doctor as well as the postmortem report not only prove that the dead body bore three incised wounds caused by a sharp cutting weapon, the ocular version of PW-5 about the assault by a knife stood corroborated thereby."
}
},
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"labels": [
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],
"start": 16431,
"text": "The statements made by the PW-5 and PW-6 in particular under Section 164 CrPC are also substantially in harmony with their evidence at the trial."
}
},
{
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"labels": [
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],
"start": 16577,
"text": "The minor contradictions in the evidence of the prosecution witnesses, in our opinion do not materially affect its case on merit."
}
},
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"labels": [
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],
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"text": "Non- examination of the wife of the deceased is also not fatal, the charge having been proved otherwise."
}
},
{
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"labels": [
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],
"start": 16812,
"text": "A bare reading of the statement of the accused/appellants under Section 164 CrPC does not show any evidence to conclude that his conviction on the basis thereof is permissible in law."
}
},
{
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"labels": [
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],
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"text": "The evidence of the prosecution witnesses however read in conjunction build a chain of circumstances in identifying the accused/appellants to be assailant without any matter of doubt."
}
},
{
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"end": 17290,
"labels": [
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],
"start": 17179,
"text": "\n 21. The decision of Ravi Kumar (Supra) deals with unusual and unexplained delay in the filing of the FIR."
}
},
{
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"labels": [
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],
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"text": "The learned Lordship’s had observed further that in the event where ocular evidence is cogent and credible, medical evidence to the contrary cannot corrode the evidentiary value of the former."
}
},
{
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"id": "50ab94bf9c994543a430c38be9c50174",
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"value": {
"end": 17686,
"labels": [
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],
"start": 17483,
"text": "\n 22. In Dalbir Singh (Supra), the Hon’ble Apex Court propounded that the prosecution witnesses can identify a person with whom he may be fairly acquainted with or from his voice, gait, features etc."
}
},
{
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"end": 17811,
"labels": [
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],
"start": 17687,
"text": "The propositions enunciated in these decisions provide ample support to the prosecution case in the present factual setting."
}
},
{
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"to_name": "text",
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"labels": [
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],
"start": 17813,
"text": "23. "
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 17978,
"labels": [
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],
"start": 17821,
"text": "We have perused the impugned judgment and order and for the reasons recorded herein above, we are in agreement with the ultimate conclusion recorded therein."
}
},
{
"from_name": "label",
"id": "1f5330dd59b24ea99f2adc7df96a6948",
"to_name": "text",
"type": "labels",
"value": {
"end": 18028,
"labels": [
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],
"start": 17979,
"text": "In the result, the appeal fails and is dismissed."
}
},
{
"from_name": "label",
"id": "613abbdace7340a7b43e06a7ca676a5d",
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"end": 18086,
"labels": [
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],
"start": 18028,
"text": "\n JUDGE JUDGE Lam"
}
}
]
}
] | 1,788 | {
"text": " IN THE GAUHATI HIGH COURT\n THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,\n TRIPURA, MIZORAM AND ARUNACHAL PRADESH.\n\n SHILLONG BENCH.\n\n Criminal Appeal No. (SH) 07/2010\n1.Shri Dwik Lyngdoh,\nSon of (L) Easting Shanpru,\nR/o Village Umtholong, West Khasi Hills,\nMeghalaya.\n\n2.Shri Santibok Kharnaior,\nSon of Shri Dwik Lyngdoh,\nR/o Village Umtholong, West Khasi Hills,\nMeghalaya. : Appellants\n\n -vs-\n\n1.State of Meghalaya,\nthrough the Superintendent of Police,\nWest Khasi Hills District, Meghalaya.\n\n2.The Officer-in-Charge,\nMairang Police Station,\nWest Khasi Hills District, Meghalaya. : Respondents\n\n BEFORE\n THE HON’BLE MR JUSTICE AMITAVA ROY\n THE HON’BLE MR JUSTICE K MERUNO\n\nFor the Appellants : Mr KC Gautam,\n Mr D Gangte,\n Ms DCM Sangma, Advs\n\nFor the Respondents : Mr K Khan, Addl.PP\n\nDate of hearing : 28.09.2011\n\nDate of Judgment & Order : 30.09.2011\n\n\n JUDGMENT AND ORDER (Amitava Roy, J) In challenge is the judgment and order dated 28.07.2010 passed by Smti B.\n Giri, the learned Additional District & Session Judge / Additional Deputy Commissioner, Fast Track Court, East Khasi Hills District in F.T.C. (S) 25/2006 convicting the appellants herein under Section 302/34 IPC and sentencing them to suffer imprisonment for life.\n 2. We have heard Mr KC Gautam, the learned counsel for the appellants and Mr K Khan, the learned Addl. PP, Govt. of Meghalaya.\n 3. An FIR was lodged on 13.08.2001 by Mrs Makdalin Kharthangmaw with the Officer-in-Charge Mairang PS, West Khasi Hills, Meghalaya alleging that on 11.08.2001 at about 7:00 PM three miscreants with their faces covered had barged into their house and murdered her father i.e. Shri Skhin Basiawmoit in presence of her mother Smti Skhair Kharthangmaw. Mairang PS Case No. 13(8) 2001 was registered under Section 302/34 IPC and on the conclusion of the investigation, charge-sheet was submitted against the appellant and others. The learned trial court framed charge against the appellants under Section 302/34 IPC to which they pleaded “not guilty” and claimed to be tried. At the trial prosecution, examined, eleven witnesses including the Investigating Officer and the Doctor who had performed the postmortem on the dead body. The appellants were thereafter examined under Section 313 of the Code of Criminal Procedure (for short hereinafter referred to CrPC) in course of which they pleaded their innocence and denied the allegations brought against them. They also examined one witness namely: Shri Khrim Pathaw.\n 4. The learned trial court on a consideration of all materials on record and after hearing the learned counsel appearing for the parties convicted and sentenced the appellants as indicated above.\n 5. Before adverting to the rival arguments, it would be apt to outline a sketch of the evidence on record PW 1, Shri Roslang Kharthangmaw, son of the deceased stated on oath that on the date of occurrence while he was returning from the field, he met three persons running towards the same direction and on enquiry they told him that there was some commotion from the place where they were coming. The witness stated that it was dark by then and when he reached home he found his father lying on the floor in a pool of blood. The witness then recalled that out of the three persons whom he met one was Santibok (appellant No.2) whom he recognized by his voice. The witness also mentioned that his younger sister told him that some people had come to their house and assaulted their father. In cross examination by the defence this witness could not recollect as to whether these three persons were masked or nor as it was dark. He conceded that he could not recognize the other two persons but could identify Santibok by his voice. He further stated that his father was dead by the time he had reached home.\n 6. PW-2 Dr G.B.M. Mihsil who had performed the postmortem examination on the dead body on 12.08.2001 stated to have found the following injuries thereon: ” 1. An incised wound on the left side of the epicastric (Upper part of the Abdomen) region horizontal in nature size 1 ½ x 1x ¼ .\n 2. An incised wound on the left side of the umbilical region extending from the lower side of the epicastric region to upper left llliac fossa region (above the groin) it is vertical in nature and the size is 8’ x 6” x 6” from this wound the stomach and small intestine protruded.\n 3. An incised wound in the left lnguinal region (below the groin) which is vertical in nature and the size is 3”x1x ¼ “.\n The witness opined that death was due to shock as a result of severe hemorrhage caused by sharp weapons. She also stated that considering the type of injuries chances of survival and recovery was not there especially when the wound No.2 was fatal. She proved the postmortem report with Exhibit 1. In cross- examination though she reaffirmed that the injuries were caused by sharp weapon she could not state as to whether all had been caused by the same weapon.\n 7. PW-3 Smti Naralian Mary Nampui stated on oath that at the relevant point of time she was Addl. District Magistrate, Mairang Sub-Division, Mairang and had recorded the statement on 12.09.2001 of Magdelin Kharthangmaw (PW-5) and Veronica Kharthangmaw (PW-6) and others. She also stated that on 17.09.2001, she had recorded the confessional statement of the accused/appellant Santibok Kharnaior after completing all the requirements under Section 164 CrPC. She also proved the recorded statements as Exhibit 2 to 7. In the cross-examination, the witness, however, conceded that the accused/appellant Santibok Kharnaior in his confessional statement referred to the incident as narrated to him by one U Sing.\n 8. PW-4 Shri K.L. Nongbri was the EAC and posted initially at Williamnagar and thereafter at Mairang at the relevant point of time and had recorded the statement of Shri Donrang Ryntathiang (PW-8) which he proved as Exhibit 8. He referred to the statement of Shri Donrang Ryntathinag, that on 11.08.2001 on his way back from the football ground he met three people two of whom he recognized as Santibok and Dwik. Shri Donrang Ryntathiang also stated that in the following morning when he heard that Mr Skin was dead, he had suspected that Santibok and Dwik had killed him.\n 9. PW-5 Smti Magdolin Khartnagmaw stated on oath that on 11.08.2001 at about 6:30 PM while she was at home along with her parents and children, three persons entered their house and caught hold of her father who was then repairing a torch light. At this, her father hit back one of them with a hammer and she also struck them with a wooden stool. At this, one of the miscreants instigated the others to kill her. The witness stated that by his voice she recognized the person to be Santibok. She stated that the persons then stabbed her father with a knife on which he fell down and the assailants then ran away. The witness stated that she could not see the face of these persons when they entered their house because their faces were covered and except Santibok she could identify none. She stated that the accused/appellant Santibok had been residing near her house. The witness also referred to an incident on 01.05.2001 where the accused/appellant Santibok along with other four relatives had come to their house at the dead of night and wished to see her father. Santibok and others returned the next morning as they could not meet the father of the witness as he was asleep. The witness stated that after her father had fallen with the injury, he along with others had gone to search for a vehicle to take him to the hospital but eventually the injured expired within a short time thereafter. She stated at that time her father had stopped talking. In the cross-examination, this witness referred also to another incident of about 10 years back when the accused/appellant No.1 with his wife had come to their house alleging that the latter was ill due to black magic practiced by her father (deceased). The witness stated that the assailants had taken away the Dao at the time of leaving the place of occurrence. She proved the FIR filed by her as Exhibit 9. She also proved her statement before the Magistrate under Section 164 CrPC as Exhibit 2.\n 10. PW-6 Smti Beronica Kharthangmaw stated that on 11.08.2001 at about 6:30 PM hearing a pandemonium from her father’s house she rushed thereto and on the way saw one man coming out therefrom and running towards the road.\n When she reached near her father’s house, she saw two other men coming out from the compound thereof. The witness stated that she could not recognize the three persons as it was dark, but stated that from the manner of walking and outer appearance, the first person that she met was Santibok. By the same measure she identified one of the two persons whom she met on the way to be Dwik. The witness claimed that she could identify these two persons by their walk, height and appearance as she used to meet them almost every day. She also deposed that Santibok and Dwik were her negihbours. She proved her statement before the Magistrate under Section 164 CrPC as Exhibit 3. She emphasized that the accused/appellants were responsible for the murder of her father as for long past they had been charging him of practicing black magic. In the cross-examination, this witness could not ascertain as to whether the faces of the three persons, whom she had met on her way to her father house, had been covered or not as it was dark. She, however, reiterated that though it was a dark night, she could recognize the two accused/appellants by their height, appearance and gait.\n 11. PW-7 Transfer Kurbah, the son-in-law of the deceased proved his statement under Section 164 CrPC as Exhibit 4. He identified the two accused/appellants to be the residents of Nongthliew.\n 12. PW-8 Shri Donrang Ryntathiang testified that on 11.08.2001 while he was returning home after watching a football match, he met three persons including Dwik and Santibok. He stated that at that point of time, they were coming out of the compound of the house of the deceased. He also proved his statement under Section 164 CrPC as Exhibit 7. In the cross-examination, he claimed to have recognized the two accused/appellants on 11.08.2001. He further stated that when he met them their faces were not covered, but it was dark then. He mentioned that at the time when he saw and recognized these two accused/appellants the distance between them was only one feet.\n 13. PW-9 Shri Kran Kharthangmaw, brother of the deceased stated that on 11.08.2001, he (deceased) was killed by three persons out of whom he knew one Dwik, the accused appellant No.1. In the cross-examination he admitted that he did not see the incident. He also expressed his ignorance about enmity between the accused appellant No.1 and the deceased.\n 14. PW-10 Shri Shakespeare Kharjana, deposed that having coming to learn that on 11.08.2001 about the incident, he as the Village Public Announcer took necessary steps amongst others to inform the Police. He proved the inquest report Exhibit 10.\n 15. PW-11 Shri H.S. Mawlieh the Investigating Officer, stated that on 12.08.2011, on receiving the information that Skin was murdered, he made an entry in the General Diary and proceeded for investigation. He conducted the inquest on the dead body as per Exhibit 10. The witness stated that in the course of the investigation, he arrested the accused/appellants and one Roland Lyngdoh on 10.09.2001. He stated to have received the FIR on 15.08.2001. He admitted that no weapon was seized. He, however, exhibited the wearing apparels of the deceased as Material Exhibit I, II & III. In the cross-examination, he mentioned that the accused/appellant Santibok had given a confessional statement before the Magistrate.\n 16. DW -1 Khrim Pathaw stated on oath that on 11.08.2001 there was a football match in the village. After the football match, he had returned home along with the accused/appellant Santibok in the evening. He stated that the accused/appellant Dwik then had gone to the market at Shillong and had returned later in the evening at about 8:30 PM. He expressed that he did not know if there was any hostility between the accused/appellant and the deceased.\n 17. Mr KC Gautam has emphatically argued that the FIR having been lodged after 48 hours of the incident and that too without any explanation, the prosecution case on this ground alone ought to have been rejected as unreliable. This is coupled with the fact that though the wife of the deceased at the time of filing of the FIR was present, she was not examined by the prosecution. The learned counsel urged that if PW-5 had really identified the accused/appellant No.2, there was no conceivable reason to omit his name in the FIR. PW-5 and PW-6 having failed to identify the accused/appellants their evidence besides being partisan ought to be rejected.\n 18. He argued further that as the witnesses contradicted each other qua their statements under Section 164 CrPC, the prosecution had miserably failed to prove the charge against the accused/appellants. Mr KC Gautam urged that the statement of the accused/appellant No.2 under Section 164 CrPC being apparently non-culpatory, the same cannot be taken note of in support of the charge. He argued further that as no weapon of assault had been seized, the prosecution case is wholly untrustworthy and the impugned judgment and order if allowed to stand will result in gross in-justice.\n 18.A The learned Addl. PP as against this has contended that a conjoint reading of the PW-1, PW-2, PW-5, PW-6 & PW-8 proved the charge against the accused/appellant to the hilt and no interference with the conviction and sentence is called for. Drawing the attention of this Court to Section 9 and 156 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act), Mr Khan has sought to impress upon this Court that the evidence of the prosecution witnesses having knit a set of unimpeachable circumstances unerringly pointing to the guilt of the accused/appellants, the impugned judgment and order cannot be faulted with. To reinforce his submission he relied on the decisions of the Apex Court in Ravi Kumar-Vs.-State of Punjab in 2005 9 SCC 315 and Dalbir Singh –Vs.- State of Haryana in 2008 11 SCC 425.\n 19. We have carefully considered the materials on record and the arguments advanced. It is patent from the testimony of the Investigating Officer that even before the FIR had been received by the Police, probe into the incident had been initiated after making a GD entry of the information received. In that view of the matter, the FIR lodged 48 hours after the incident is not the first in point of time. As it is an FIR is not substantive piece. Thus the omission to mention the name(s) of the accused/appellants in the FIR, in the opinion of this Court does not per se strike at the root of the prosecution case.\n 20. The evidence of PW-1, PW-5, PW-6 and PW-8 when considered as a whole leave no manner of doubt about the identification of the accused/appellants as members of the group of three who had trespassed into the house of the deceased and had assaulted him with a knife. Whereas PW-5 was an eyewitness of the incident identified the accused/appellant No.2, PW-6 has assertively stated to have recognized the accused/appellants to be amongst the three persons coming out from the compound of her father’s house immediately after the incident. These three persons in a group were encountered by PW-1 and PW-8 at or about the time of incident and were found hurrying away from the place of occurrence. Though the weapon of assault i.e. the knife as referred to by PW-5 could not be retrieved, the evidence of the Doctor as well as the postmortem report not only prove that the dead body bore three incised wounds caused by a sharp cutting weapon, the ocular version of PW-5 about the assault by a knife stood corroborated thereby. The statements made by the PW-5 and PW-6 in particular under Section 164 CrPC are also substantially in harmony with their evidence at the trial. The minor contradictions in the evidence of the prosecution witnesses, in our opinion do not materially affect its case on merit. Non- examination of the wife of the deceased is also not fatal, the charge having been proved otherwise. A bare reading of the statement of the accused/appellants under Section 164 CrPC does not show any evidence to conclude that his conviction on the basis thereof is permissible in law. The evidence of the prosecution witnesses however read in conjunction build a chain of circumstances in identifying the accused/appellants to be assailant without any matter of doubt.\n 21. The decision of Ravi Kumar (Supra) deals with unusual and unexplained delay in the filing of the FIR. The learned Lordship’s had observed further that in the event where ocular evidence is cogent and credible, medical evidence to the contrary cannot corrode the evidentiary value of the former.\n 22. In Dalbir Singh (Supra), the Hon’ble Apex Court propounded that the prosecution witnesses can identify a person with whom he may be fairly acquainted with or from his voice, gait, features etc. The propositions enunciated in these decisions provide ample support to the prosecution case in the present factual setting.\n 23. We have perused the impugned judgment and order and for the reasons recorded herein above, we are in agreement with the ultimate conclusion recorded therein. In the result, the appeal fails and is dismissed.\n JUDGE JUDGE Lam "
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"text": "CRIMINAL APPEAL NO.415 OF 2011\n\n1) Subhash Govinda Ambhore, .... APPELLANTS\n Aged about 37 years,\n\n2) Gajanan Pandhari Chibhade,\n Aged about 19 years,\n Both R/o Koldara, Tq. Malegaon,\n District Washim.\n\n VERSUS\n\nState of Maharashtra, .... RESPONDENT\nThrough Police Station Officer,\nMalegaon, District Washim.\n\n___________________________________________________________________\n Shri N. Samundre, Advocate for the appellants,\n Shri T.A. Mirza, Addl.P.P. for the respondent.\n\n_____________________________________________________________"
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"text": "\n CORAM : M.L. TAHALIYANI, J.\n DATED : 4th MARCH, 2014.\n\nORAL JUDGMENT :"
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"text": " 1. The appellants have been convicted of the offence punishable under Section 376(2)(g) of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.500/ each."
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"text": "Appellant No.1 Subhash Ambhore has also been convicted for the offence punishable under Section 506 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.100/."
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"text": "It is alleged that the juveniles in conflict with law and the appellants had forcible sexual intercourse with P.W.1 one after another in the cattle pond."
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"text": "It is also alleged that appellant No.1 Subhash was holding a knife and he had threatened P.W.1 that if she shouted, she would be killed."
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"text": "The incident lasted from midnight of 1292008 till 200 a.m. of 1392008."
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"text": "During the said period of two hours, P.W.1 was continuously weeping."
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"labels": [
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],
"start": 3352,
"text": "She did not disclose the incident to anybody."
}
},
{
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"end": 3590,
"labels": [
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],
"start": 3398,
"text": "It is the case of prosecution that she did not disclose the incident to anybody because she was threatened by appellant No.1 that if she disclosed the incident to anybody, she would be killed."
}
},
{
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"value": {
"end": 3663,
"labels": [
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],
"start": 3591,
"text": "She felt pain in her abdomen on next day and therefore, started weeping."
}
},
{
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"value": {
"end": 3716,
"labels": [
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],
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"text": "Thereafter she disclosed the incident to her mother."
}
},
{
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"value": {
"end": 3820,
"labels": [
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],
"start": 3717,
"text": "The parents and P.W.1 visited Police Patil and thereafter report was lodged at Malegaon Police Station."
}
},
{
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"value": {
"end": 3871,
"labels": [
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],
"start": 3821,
"text": "The First Information Report is at Exhibit 17.\n 3."
}
},
{
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"id": "011b317d24014ee8892d1da9edbd3861",
"to_name": "text",
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"value": {
"end": 3948,
"labels": [
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],
"start": 3872,
"text": " During the course of investigation, P.W.1 was sent for medical examination."
}
},
{
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"value": {
"end": 3982,
"labels": [
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],
"start": 3949,
"text": "Panchanama of the spot was drawn."
}
},
{
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"id": "e24b42c1152f4670a3f533a5d4158f50",
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"value": {
"end": 4129,
"labels": [
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],
"start": 3983,
"text": "Statements of the witnesses including P.W.2 were recorded and after completion of investigation, chargesheet was filed in the Court of Magistrate."
}
},
{
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"value": {
"end": 4172,
"labels": [
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],
"start": 4130,
"text": "It was committed to the Court of Sessions."
}
},
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"value": {
"end": 4232,
"labels": [
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],
"start": 4173,
"text": "Charge was framed at Exhibit 4 against both the appellants."
}
},
{
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"id": "73d87975de024d239619522209f2f97d",
"to_name": "text",
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"value": {
"end": 4395,
"labels": [
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],
"start": 4233,
"text": "At this stage, it may be mentioned here that the juveniles in conflict with law must have been produced before the competent authority under Juvenile Justice Act."
}
},
{
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"id": "d56581d066c84902a04584cc4f02706a",
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"value": {
"end": 4476,
"labels": [
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],
"start": 4395,
"text": "\n 4. The prosecution had examined in all seven witnesses in support of its case."
}
},
{
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"id": "9aaf6430c5694c818cb92c49cb728bc8",
"to_name": "text",
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"value": {
"end": 4517,
"labels": [
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],
"start": 4477,
"text": "P.W.1Usha was the victim of the offence."
}
},
{
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"id": "675151c71ffa409aa6e9b6817f4a1315",
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"value": {
"end": 4548,
"labels": [
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],
"start": 4518,
"text": "P.W.2Rekha was friend of Usha."
}
},
{
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"id": "0e48ab8153714d37803a054b3ad6c858",
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"value": {
"end": 4647,
"labels": [
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],
"start": 4549,
"text": "P.W.3Mohd. Yusuf had reduced the First Information Report into writing at Malegaon Police Station."
}
},
{
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"id": "4f72d7c1d56945d393874439acc6d280",
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"type": "labels",
"value": {
"end": 4719,
"labels": [
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],
"start": 4648,
"text": "P.W.4Bhagwan was present when the spot panchanama Exhibit 34 was drawn."
}
},
{
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"id": "3e89922edc2849cea40829501ffc7046",
"to_name": "text",
"type": "labels",
"value": {
"end": 4870,
"labels": [
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],
"start": 4720,
"text": "P.W.5Baliram was present when a knife was recovered by the police allegedly on the information given by appellant No.1 while he was in police custody."
}
},
{
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"id": "dba8fed418674a5292e43ca9efa4b825",
"to_name": "text",
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"value": {
"end": 4924,
"labels": [
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],
"start": 4871,
"text": "P.W.6 Dr. Deepa Kumawat had medically examined P.W.1."
}
},
{
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"id": "529fb1ebf4774d5880a04f4fe5b8ab04",
"to_name": "text",
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"value": {
"end": 5007,
"labels": [
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],
"start": 4925,
"text": "P.W.7Vishnukant is the Police Officer who had conducted investigation of the case."
}
},
{
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"id": "724fe1a42f414bcda6102f6a2d23a752",
"to_name": "text",
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"value": {
"end": 5208,
"labels": [
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],
"start": 5007,
"text": "\n 5. According to P.W.7, he had visited the spot immediately after registration of the First Information Report and spot panchanama of cattle pond of GramPanchayat Koldara was drawn as per Exhibit 34."
}
},
{
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"id": "cb813139271c40259250a0e65baad990",
"to_name": "text",
"type": "labels",
"value": {
"end": 5335,
"labels": [
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],
"start": 5209,
"text": "During the course of spot panchanama, he found bangle pieces, one empty packet of condom, one used condom and one blouse hook."
}
},
{
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"id": "4e454474191f44b383698991d110ef7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5400,
"labels": [
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],
"start": 5336,
"text": "The articles found on the spot were seized under the panchanama."
}
},
{
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"id": "a3c7a57ee478478fb728c76e9304e585",
"to_name": "text",
"type": "labels",
"value": {
"end": 5476,
"labels": [
"FAC"
],
"start": 5401,
"text": "On the same day he had seized clothes of P.W.1 under panchanama Exhibit 19."
}
},
{
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"id": "c5f1c1f89fb0425b800312d9d25d56b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 5544,
"labels": [
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],
"start": 5477,
"text": "He had recorded statements of the prosecutrix and her friend P.W.2."
}
},
{
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"id": "75bcede2212c4162b7c87118b4e1bc9b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5633,
"labels": [
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],
"start": 5545,
"text": "The appellants were arrested on the same day under arrest panchanama Exhibits 57 and 58."
}
},
{
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"id": "df617e6988c64040844d6c626b7faa8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5672,
"labels": [
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],
"start": 5634,
"text": "They were referred to Medical Officer."
}
},
{
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"id": "04beae44f64348a8bbdde1265f991334",
"to_name": "text",
"type": "labels",
"value": {
"end": 5787,
"labels": [
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],
"start": 5673,
"text": "The medical examination reports of both the appellants were produced before the trial Court at Exhibits 59 and 60."
}
},
{
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"id": "b2a124265cba4e16bd7e73974b592b61",
"to_name": "text",
"type": "labels",
"value": {
"end": 5892,
"labels": [
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],
"start": 5788,
"text": "Both the medical reports were admitted by the learned counsel for the appellants before the trial Court."
}
},
{
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"id": "c84bc8468ba342938a42cf2b9071d7d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 6115,
"labels": [
"FAC"
],
"start": 5893,
"text": "It is stated in examinationinchief of P.W. 7 that a statement was made by accused No.1 Subhash under Exhibit 42 and that he had produced a knife pursuant to the said statement, which was seized under panchanama Exhibit 43."
}
},
{
"from_name": "label",
"id": "c3fcaeefb68a4e1b8bd035dc1af9428e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6256,
"labels": [
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],
"start": 6116,
"text": "This witness in his crossexamination has admitted that there was school near the cattle pond and there were lot of houses around the school."
}
},
{
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"id": "2b553b671bb04bccb59973127a4a3625",
"to_name": "text",
"type": "labels",
"value": {
"end": 6437,
"labels": [
"FAC"
],
"start": 6257,
"text": "However, he did not make any enquiry from the residents of the said locality nor had he recorded any statement of the residents to verify whether they had heard the cries of P.W.1."
}
},
{
"from_name": "label",
"id": "390e932e581e424f849b6352a6e69a60",
"to_name": "text",
"type": "labels",
"value": {
"end": 6564,
"labels": [
"FAC"
],
"start": 6438,
"text": "The explanation was given by this witness that he did not find it necessary to record statements of residents of the locality."
}
},
{
"from_name": "label",
"id": "d60ccf76f6c44c7dbaaa6add668241f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 6630,
"labels": [
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],
"start": 6564,
"text": "\n 6. P.W.1 has more or less stuck to her statement to the police."
}
},
{
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"id": "21a26fcb5355455986ce05146bca78ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 6810,
"labels": [
"FAC"
],
"start": 6631,
"text": "She has described in detail as to how she and her friend P.W.2 were lifted by the appellants and the juveniles in conflict with law and as to how she was taken to the cattle pond."
}
},
{
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"id": "e70a3d27e0684834b3358d64d4bb524c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6911,
"labels": [
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],
"start": 6811,
"text": "She has also described in detail as to how one by one, four of them had sexual intercourse with her."
}
},
{
"from_name": "label",
"id": "8b1733e518474d32b7e34a59c966f50c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7123,
"labels": [
"FAC"
],
"start": 6912,
"text": "As far as P.W.2 is concerned, she had gone to the house of one Shivram Shende after getting herself released from the clutches of the appellants and had described the incident to daughterinlaw of Shivram Shende."
}
},
{
"from_name": "label",
"id": "de69330d27b5496a9f0ba0f3c7d8896c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7241,
"labels": [
"FAC"
],
"start": 7124,
"text": "P.W.1 had met her on the next day and had informed her that she was subjected to sexual intercourse by the four boys."
}
},
{
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"id": "3bdc989c64af4b998f7b6595ff385f5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7340,
"labels": [
"FAC"
],
"start": 7241,
"text": "\n 7. P.W.3 ASI attached to Malegaon Police Station recorded the First Information Report of P.W.1."
}
},
{
"from_name": "label",
"id": "02ede93f73bc477eb75e2b9841a6751c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7406,
"labels": [
"FAC"
],
"start": 7341,
"text": "P.W.4 has identified his signature on spot panchanama Exhibit 34."
}
},
{
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"id": "2a8c4ea0f7f74e4f9933cec256a10b82",
"to_name": "text",
"type": "labels",
"value": {
"end": 7545,
"labels": [
"FAC"
],
"start": 7407,
"text": "He has also identified his signature on the seizure panchanama but he has clarified that nothing was seized by the police in his presence."
}
},
{
"from_name": "label",
"id": "cab5faa80fc2437c97e3ace8743a02e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7621,
"labels": [
"FAC"
],
"start": 7546,
"text": "This witness was declared hostile by the prosecution and was crossexamined."
}
},
{
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"id": "90481bd7197a45e199acc794829565ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 7814,
"labels": [
"FAC"
],
"start": 7622,
"text": "P.W.5 has supported the prosecution case that one knife was recovered at the instance of appellant No.1.\n 8. P.W.6Dr. Deepa had examined P.W.1 and had issued a Medical Certificate Exhibit 51."
}
},
{
"from_name": "label",
"id": "2973f868f76d4115911c4f5476d7cec8",
"to_name": "text",
"type": "labels",
"value": {
"end": 7878,
"labels": [
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],
"start": 7815,
"text": "P.W.6 has not given the details of examination in her evidence."
}
},
{
"from_name": "label",
"id": "0e7a5afdf40042de81e7eda88af1e40d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7944,
"labels": [
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],
"start": 7879,
"text": "However, same have been recorded in the Certificate Exhibit 51.\n "
}
},
{
"from_name": "label",
"id": "bfca9cd1764a4163b9b1a25d38ebfb4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8036,
"labels": [
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],
"start": 7944,
"text": "It appears that the defence had not raised any objection for reading Exhibit 51 in evidence."
}
},
{
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"id": "3f056f4760f845c68385db11dcb8e711",
"to_name": "text",
"type": "labels",
"value": {
"end": 8120,
"labels": [
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],
"start": 8037,
"text": "No external injuries were found during the course of physical examination of P.W.1."
}
},
{
"from_name": "label",
"id": "e8981a0be2da4ac1bc0d0e0a7c586308",
"to_name": "text",
"type": "labels",
"value": {
"end": 8205,
"labels": [
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],
"start": 8121,
"text": "In her examinationinchief, this witness has stated that vagina admitted two fingers."
}
},
{
"from_name": "label",
"id": "3ca20a780acb435bb5ca21e92783badd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8264,
"labels": [
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],
"start": 8206,
"text": "Though hymen edges were found torn, there was no bleeding."
}
},
{
"from_name": "label",
"id": "62c289ae8a744c1e9aa6d873ce6d33cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 8303,
"labels": [
"ANALYSIS"
],
"start": 8265,
"text": "There was no swelling on labia minora."
}
},
{
"from_name": "label",
"id": "b98ab739f9ec4c38af3eef22afd2c839",
"to_name": "text",
"type": "labels",
"value": {
"end": 8417,
"labels": [
"ANALYSIS"
],
"start": 8304,
"text": "During the course of crossexamination, this witness has admitted that P.W.1 was habituated to sexual intercourse."
}
},
{
"from_name": "label",
"id": "8e8cef34b9d841c59096e0aaa55d1ce3",
"to_name": "text",
"type": "labels",
"value": {
"end": 8480,
"labels": [
"ANALYSIS"
],
"start": 8418,
"text": "It was further admitted that the torn edges of hymen were old."
}
},
{
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"id": "b4ae9f041cdf4019914dfd4048a55d52",
"to_name": "text",
"type": "labels",
"value": {
"end": 8606,
"labels": [
"ANALYSIS"
],
"start": 8480,
"text": "\n 9. It is thus clear that the whole prosecution case is, in fact, mainly depended on the evidence of P.W1, P.W.6 and P.W.7."
}
},
{
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"id": "83fba16e7c254ba6bea6b4c6700c0d18",
"to_name": "text",
"type": "labels",
"value": {
"end": 8812,
"labels": [
"ANALYSIS"
],
"start": 8607,
"text": "In the first place, it may be noted here that the cattle pond is a very rough and dirty area and therefore, the evidence of P.W.1 will have to be examined keeping in view the place of the alleged incident."
}
},
{
"from_name": "label",
"id": "7b6d12810c964f6fbe9cf9c367b64f5c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9042,
"labels": [
"ANALYSIS"
],
"start": 8813,
"text": "Secondly, it is also to be noted here that the statements of neighbours were not recorded though P.W.1 has categorically stated in her evidence that she was continuously crying during the period between 1200 midnight and 200 a.m."
}
},
{
"from_name": "label",
"id": "665ba897effd4fe3a228360be80a1dbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 9270,
"labels": [
"ANALYSIS"
],
"start": 9043,
"text": "Thirdly, if the electricity supply was discontinued and if P.W.1 and P.W.2 both decided to go home, the other villagers also must have taken the same decision and must have not waited at Samaj Mandir without there being lights."
}
},
{
"from_name": "label",
"id": "4fac6b1f5d3c4a2497757cd25060ce33",
"to_name": "text",
"type": "labels",
"value": {
"end": 9343,
"labels": [
"ANALYSIS"
],
"start": 9271,
"text": "Fourthly, there is no mention of use of condom by P.W.1 in her evidence."
}
},
{
"from_name": "label",
"id": "335c716873664611ae16c04eab7ec258",
"to_name": "text",
"type": "labels",
"value": {
"end": 9434,
"labels": [
"ANALYSIS"
],
"start": 9344,
"text": "It is also to be taken into consideration that P.W.1 was habituated to sexual intercourse."
}
},
{
"from_name": "label",
"id": "c920172bd70946909ff9a43801b544ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 9522,
"labels": [
"ANALYSIS"
],
"start": 9435,
"text": "Thus she had been indulging into sexual intercourse prior to the date of incident also."
}
},
{
"from_name": "label",
"id": "efbb15a93def427e971ceda3972b2e1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9694,
"labels": [
"ANALYSIS"
],
"start": 9524,
"text": "10. At the outset, I find it necessary to mention here that if the incident in question had taken place without consent of P.W.1, it could not have lasted for two hours."
}
},
{
"from_name": "label",
"id": "8a3e0b7a926c400081e455d3a560b244",
"to_name": "text",
"type": "labels",
"value": {
"end": 9874,
"labels": [
"ANALYSIS"
],
"start": 9695,
"text": "If the incident lasted for two hours, it is indicative of the fact that the sexual intercourse with the appellants and juveniles in conflict with law was most probably by consent."
}
},
{
"from_name": "label",
"id": "96d8fa8ca414410b9c9daaa8fb82743d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9940,
"labels": [
"ANALYSIS"
],
"start": 9875,
"text": "As already stated by me, the cattle pond is dirty and rough area."
}
},
{
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"id": "b928fefb25cf456a9bc929f6051c4e94",
"to_name": "text",
"type": "labels",
"value": {
"end": 10114,
"labels": [
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],
"start": 9941,
"text": "If there was force on the part of four persons indulging into gang rape, P.W.1 would have definitely received injuries in the nature of abrasions and contusions on her back."
}
},
{
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"text": "The medical report indicates that there were no injuries."
}
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"text": "P.W.1 herself has also not stated that she had sustained external injuries on any part of her body."
}
},
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"labels": [
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],
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"text": "As such the conduct of P.W.1 gives a strong impression that the sex between P.W.1 and four boys was by consent."
}
},
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"text": "\n 11. In addition to this, the Court has taken note of the fact that the incident in question was not disclosed by P.W.1 to her parents after returning home."
}
},
{
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],
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"text": "She had disclosed the incident to her mother on next day."
}
},
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"labels": [
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],
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"text": "The possibility of her mother getting information of the incident in question prior to narration of incident by P.W.1 could not be ruled out."
}
},
{
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],
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"text": "It is, therefore, possible that on questioning by her mother, P.W.1 might have admitted the incident in question."
}
},
{
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"id": "5ceff8c998d24dc68ca3cb319efab527",
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],
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"text": "The incident was reported to police only with a view to create an impression that P.W.1 was not a consenting party."
}
},
{
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"id": "18284bad5cff453980c9a71ecd0db318",
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"labels": [
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],
"start": 10973,
"text": "In this regard, one may take note of the observations made by the Hon'ble Supreme Court in the case of Jagannivasan .vs. State of Kerala, reported at 1995 Cri.L.J.\n 3229, with regard to conduct of the prosecutrix."
}
},
{
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"end": 11252,
"labels": [
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"start": 11187,
"text": "Paragraph 5 of the said judgment can be reproduced as under : \"5."
}
},
{
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"labels": [
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],
"start": 11253,
"text": "We may proceed with the assumption that the sexual act did take place in the way suggested by the prosecution and that the appellant was involved in it."
}
},
{
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"id": "d4b607d158e94ef7a8edd4d03d0d3d8b",
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"end": 11437,
"labels": [
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],
"start": 11406,
"text": "But, was it a case of consent ?"
}
},
{
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"id": "75f11c8c21fa4009a5e1cbd4acd9f0c1",
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"labels": [
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],
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"text": "\n In order to determine that, we have to see the conduct of the prosecutrix."
}
},
{
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"id": "edf31bd0580c4257a6661bb53fe58f6d",
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"end": 11663,
"labels": [
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],
"start": 11518,
"text": "The peculiarity in that regard which creates doubt is that the prosecutrix kept quiet for six days and did not whisper a word about it to anyone."
}
},
{
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"value": {
"end": 11817,
"labels": [
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],
"start": 11664,
"text": "Her getting pain in her private parts six days later is unbelievable when no tenderness was found by the Doctor and no complaint of pain was made to her."
}
},
{
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"id": "38ed6796ad6845dd83a9faf0e821d14d",
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"end": 11993,
"labels": [
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],
"start": 11818,
"text": "There is evidence on the record that the appellant had been employed in Dubai and presumably had mastered a handsome income when compared to persons working in his home state."
}
},
{
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"id": "54ef89e44b634e07829fceb0851a7954",
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"value": {
"end": 12101,
"labels": [
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],
"start": 11994,
"text": "He was a bachelor and obviously an attractive catch for girls in his brotherhood to be bonded in matrimony."
}
},
{
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"id": "1a39e6d2cae64d928bf49bd0be6490c1",
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"end": 12376,
"labels": [
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],
"start": 12102,
"text": "The fact that P.W.5, the woman who lived in the neighbourhood, was absent at the crucial time, whose room was used for the sex act, leads to the doubts that the meeting between the prosecutrix and the appellant was arranged by P.W.5 with the implicit consent of the parties."
}
},
{
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"id": "78730e931152499e868aed015ed2ae6a",
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"value": {
"end": 12429,
"labels": [
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],
"start": 12377,
"text": "This P.W.5, was declared hostile by the prosecution."
}
},
{
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"id": "2ed8301c2f2e47708485df580037cf51",
"to_name": "text",
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"value": {
"end": 12622,
"labels": [
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],
"start": 12429,
"text": "\n Another factor of significance is that on that day there were dances organized in the village to celebrate the Onam Festival and most of the populace had gone to witness such performance."
}
},
{
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"id": "1d5d1d3078e147a688ab799c782a36a4",
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"end": 12719,
"labels": [
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],
"start": 12622,
"text": "\n There was thus less likelihood of their meeting being interfered with by curious onlookers."
}
},
{
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"id": "10088a17c6ee4e42ac27f64febf4bff3",
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"end": 12936,
"labels": [
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],
"start": 12720,
"text": "Thus, it cannot be ruled out that a suitable time for the meeting was chosen by the two when P.W.5, would conveniently be away and the visit of the prosecutrix and the appellant in her house would raise no suspicion."
}
},
{
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"end": 13129,
"labels": [
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],
"start": 12937,
"text": "It is the case of the prosecution that after the sex act, the prosecutrix went to the dancing performance rather than go to her parents and inform them of the suggested crime committed on her."
}
},
{
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"id": "dbc396ed54ce4d09b7a433a24344848f",
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"end": 13372,
"labels": [
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],
"start": 13130,
"text": "In these circumstances, we are of the view that it would be unsafe to rely on the word of the prosecutrix, given vent to after six days to the effect that she was subjected to rape or that sexual intercourse was committed without her consent."
}
},
{
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"value": {
"end": 13469,
"labels": [
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],
"start": 13373,
"text": "It would rather be safe to lean in favour of the appellant and accord him the benefit of doubt.\""
}
},
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"end": 13578,
"labels": [
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],
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"text": "\n 12. I have already observed that there are strong indications in the evidence that the sex was by consent."
}
},
{
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"id": "8917bae666e04a73835924a7c61136a6",
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"value": {
"end": 13710,
"labels": [
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],
"start": 13579,
"text": "After having gone through the judgment of the Hon'ble Supreme Court cited supra, I am fortified in my view already expressed by me."
}
},
{
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"end": 13866,
"labels": [
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],
"start": 13711,
"text": "In this regard, it is also equally important to be noted that it is not necessary for the accused to take a defence of consent at the initial stage itself."
}
},
{
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"end": 13998,
"labels": [
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],
"start": 13867,
"text": "If he probabalise his case on basis of evidence on record that the sex was by consent, he is relieved of the burden imposed on him."
}
},
{
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"id": "d679fe9cbe4b42b0b28148567db1aef6",
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"end": 14116,
"labels": [
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],
"start": 13999,
"text": "The law on the point is very well settled that the defence is not supposed to prove its case beyond reasonable doubt."
}
},
{
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"id": "5819745475504b9e94801d3420d78018",
"to_name": "text",
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"value": {
"end": 14195,
"labels": [
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],
"start": 14117,
"text": "The defence gets relieved of its duty once it is able to probabalise its case."
}
},
{
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"id": "c27aeab9e68d4fb89f1cb50f041f7663",
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"value": {
"end": 14290,
"labels": [
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],
"start": 14196,
"text": "Even if the defence of the accused is weak, that by itself may not be a ground for conviction."
}
},
{
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"end": 14460,
"labels": [
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],
"start": 14291,
"text": "In the present case, the examinationinchief itself of P.W.1 itself, without reading the crossexamination, gives a strong impression that it was an act of sex by consent."
}
},
{
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"id": "dcac33cfa2fb499b920076ccbc65dc80",
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"end": 14708,
"labels": [
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],
"start": 14460,
"text": "\n 13. Apart from this, the Court has also taken note of the fact that the Investigating Officer had not recorded statement of daughterinlaw of Shivram Shende to whom P.W.2 had met after getting relieved herself from the clutches of the appellants."
}
},
{
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"id": "3cd3fc92fb7242028e23d66075419ecc",
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"value": {
"end": 14806,
"labels": [
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],
"start": 14709,
"text": "In the normal course, the daughterinlaw of Shivram Shende would have informed her family members."
}
},
{
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"id": "6c452e2c4e9249ff98804fbf9b5d91c3",
"to_name": "text",
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"value": {
"end": 15131,
"labels": [
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],
"start": 14807,
"text": "Without going into the reasons as to why did she not disclose this incident to other family members, the Court cannot ignore the fact that the Police Officer investigating the case did not bother to record the statement of daughterin law of Shivram Shende to verify that P.W.2 had really gone to the house of Shivram Shende."
}
},
{
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"id": "fb0577b9c604416b9e95a1bf2a588263",
"to_name": "text",
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"value": {
"end": 15256,
"labels": [
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],
"start": 15132,
"text": "The Police Officer did not bother to record statement of residents who were staying in the houses adjoining the cattle pond."
}
},
{
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"id": "0e85a78dd2394fc09362d4582cbb882a",
"to_name": "text",
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"value": {
"end": 15381,
"labels": [
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],
"start": 15257,
"text": "The Court has taken judicial notice of the fact that the cattle pond in the villages are normally within the village itself."
}
},
{
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"id": "9ba89dfea8dc4b479e953d19a5e28897",
"to_name": "text",
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"value": {
"end": 15411,
"labels": [
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],
"start": 15382,
"text": "They are not deserted places."
}
},
{
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"id": "f6f605349872466cb54b38fa56281d47",
"to_name": "text",
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"value": {
"end": 15462,
"labels": [
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],
"start": 15411,
"text": "\nPopulation of village Koldara was about 2000 only."
}
},
{
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"id": "b63a1f9ab8aa45c09643aae5b66b14eb",
"to_name": "text",
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"value": {
"end": 15526,
"labels": [
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],
"start": 15463,
"text": "As such cattle pond must be within the vicinity of many houses."
}
},
{
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"id": "e485486c466c4555a3b91a4d6b28204d",
"to_name": "text",
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"value": {
"end": 15699,
"labels": [
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],
"start": 15527,
"text": "If P.W.1 was crying for a period of two hours, the residents of the locality could have thrown light on this issue, had the Investigating Officer recorded their statements."
}
},
{
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"id": "89a8594bdbce45dc8475be7960305a09",
"to_name": "text",
"type": "labels",
"value": {
"end": 15877,
"labels": [
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],
"start": 15700,
"text": "The Investigating Officer had audacity to tell the trial Court that he did not find it necessary to record statements of the residents of the locality adjoining the cattle pond."
}
},
{
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"id": "dc12694b3d0844d4a66c1ac5c919b6a8",
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"value": {
"end": 15972,
"labels": [
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],
"start": 15877,
"text": "\n 14. As such, in the present case, in fact the whole case was based on the evidence of P.W.1."
}
},
{
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"id": "a958bf6a296840f1adba7127d16f3aea",
"to_name": "text",
"type": "labels",
"value": {
"end": 16033,
"labels": [
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],
"start": 15973,
"text": "The medical evidence did not support the testimony of P.W.1."
}
},
{
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"id": "8a0ae910a4d64781a95cb54c8ad3c1b3",
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"value": {
"end": 16222,
"labels": [
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],
"start": 16034,
"text": "The Police Officer even did not bother to find out as to whether other villagers had occasion to pass from near the cattle pond after discontinuation of electricity supply at Samaj Mandir."
}
},
{
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"id": "5d41c1241bce4d708468f005b5935cf3",
"to_name": "text",
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"value": {
"end": 16310,
"labels": [
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],
"start": 16223,
"text": "In view of this, I find it highly risky to put implicit trust on the evidence of P.W.1."
}
},
{
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"id": "e46b86003c4e42c9bc2a58163c753aee",
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"value": {
"end": 16409,
"labels": [
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],
"start": 16311,
"text": "In my considered opinion, the learned trial Judge should have rejected the evidence of P.W.1.\n 15."
}
},
{
"from_name": "label",
"id": "0561eb929e5747719d4267c39541b112",
"to_name": "text",
"type": "labels",
"value": {
"end": 16553,
"labels": [
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],
"start": 16410,
"text": " There is no explanation as to why P.W.1 was silent on the aspect of use of condom if a packet of condom and used condom was found on the spot."
}
},
{
"from_name": "label",
"id": "319395f109a74ecdb687668fb8101e70",
"to_name": "text",
"type": "labels",
"value": {
"end": 16694,
"labels": [
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],
"start": 16554,
"text": "This is an additional fact which gives support to the arguments of the learned Counsel Mr. N. Samundre that the sex, if any, was by consent."
}
},
{
"from_name": "label",
"id": "94190314d7aa4f52ab0e1f2abbb09bd6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16941,
"labels": [
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],
"start": 16695,
"text": "As such it is abundantly clear that on the basis of evidence of such doubtful character, it was not safe on the part of the learned trial Judge to convict the appellants for the offence punishable under Section 376(2)(g) of the Indian Penal Code."
}
},
{
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"id": "a5a8bfd6240445b599508352518d6f58",
"to_name": "text",
"type": "labels",
"value": {
"end": 17125,
"labels": [
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],
"start": 16942,
"text": "Since the evidence of P.W.2 is also found doubtful, the conviction for the offence punishable under Section 354 read with Section 34 of the Indian Penal Code also cannot be sustained."
}
},
{
"from_name": "label",
"id": "310b90d906dc4464a3a9410bb40c0b4d",
"to_name": "text",
"type": "labels",
"value": {
"end": 17291,
"labels": [
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],
"start": 17126,
"text": "Further, as the Court has come to the conclusion that the sex was by consent, the question of criminal intimidation on the part of appellant No.1 also did not arise."
}
},
{
"from_name": "label",
"id": "532207cfed764fd7a604bd36b08990f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 17457,
"labels": [
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],
"start": 17291,
"text": "\n 16. The judgment and order of the learned trial Court needs to be set aside and the appellants need to be acquitted of all the charges of which they are convicted."
}
},
{
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"id": "fa0e96260c80432a8592658b201e0a1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17492,
"labels": [
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],
"start": 17458,
"text": "Hence, I pass the following order."
}
},
{
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"id": "4b810ecd6c1d4c92a8e11039da5b7f3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17516,
"labels": [
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],
"start": 17492,
"text": "\n The appeal is allowed."
}
},
{
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"id": "7f5ed112aaed4f61b53fa86b747fe80b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17646,
"labels": [
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],
"start": 17516,
"text": "\n The judgment and order of the learned Additional Sessions Judge, Washim dated 2552011 in Sessions Trial No.91/2008 is set aside."
}
},
{
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"id": "4b499e850e7648e596bacfe2766e5977",
"to_name": "text",
"type": "labels",
"value": {
"end": 17788,
"labels": [
"RPC"
],
"start": 17646,
"text": "\n Both the appellants are acquitted of the offences punishable under Sections 376(2)(g) and 354 read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "ec5b49ec5cc2483b9eaed38fdba35b10",
"to_name": "text",
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"value": {
"end": 17895,
"labels": [
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],
"start": 17788,
"text": "\n Appellant No.1 is further acquitted of the offence punishable under Section 506 of the Indian Penal Code."
}
},
{
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"id": "4813fbf8ee874fbf9a19deb3a7352984",
"to_name": "text",
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"value": {
"end": 17990,
"labels": [
"RPC"
],
"start": 17895,
"text": "\n Both the appellants be released from the prison forthwith, if not required in any other case."
}
},
{
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"id": "1dfa2d977df3423386b2d02d691b6ce5",
"to_name": "text",
"type": "labels",
"value": {
"end": 18034,
"labels": [
"RPC"
],
"start": 17990,
"text": "\n The appeal accordingly stands disposed of."
}
},
{
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"id": "ad412ec173b548ef9e5f2910c2a11f84",
"to_name": "text",
"type": "labels",
"value": {
"end": 18042,
"labels": [
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],
"start": 18034,
"text": "\n JUDGE."
}
}
]
}
] | 1,753 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n NAGPUR BENCH, NAGPUR.\n\n CRIMINAL APPEAL NO.415 OF 2011\n\n1) Subhash Govinda Ambhore, .... APPELLANTS\n Aged about 37 years,\n\n2) Gajanan Pandhari Chibhade,\n Aged about 19 years,\n Both R/o Koldara, Tq. Malegaon,\n District Washim.\n\n VERSUS\n\nState of Maharashtra, .... RESPONDENT\nThrough Police Station Officer,\nMalegaon, District Washim.\n\n___________________________________________________________________\n Shri N. Samundre, Advocate for the appellants,\n Shri T.A. Mirza, Addl.P.P. for the respondent.\n\n___________________________________________________________________\n\n CORAM : M.L. TAHALIYANI, J.\n DATED : 4th MARCH, 2014.\n\nORAL JUDGMENT : 1. The appellants have been convicted of the offence punishable under Section 376(2)(g) of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.500/ each. They are also convicted of the offence punishable under Section 354 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for one year each and to pay a fine of Rs.500/ each. Appellant No.1 Subhash Ambhore has also been convicted for the offence punishable under Section 506 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.100/. The victim of the offence of gang rape was P.W.1Usha Lokhande and victim of the offence punishable under Section 354 of the Indian Penal Code was her friend P.W.2Rekha Thakare. P.W.1 and P.W.2 both are residents of village Koldara, TahsilMalegaon, DistrictWashim. Both the appellants are also residents of the same village. As such the victims and the appellants were known to each other.\n 2. The incident in question had occurred during Ganpati Festival.\n There was a big festival in front of Samaj Mandir situated at village Koldara.\n On the date of incident i.e. on 1292008 a Hindi movie was being screened on a big television screen. P.W.1 and P.W.2 both had gone to see the movie.\n They were enjoying festival at Samaj Mandir upto midnight. Suddenly there was discontinuation of electricity supply. P.W.1 and P.W.2, therefore, decided to return home. It is alleged that while P.W.1 and P.W.2 were returning home and were passing in front of house of one Shivram Shende, two juveniles in conflict with law namely Satish and Vinod gagged mouth of P.W.1 by means of handkerchief and lifted her. The appellants lifted P.W.2. Both the girls were taken to nearby cattle pond. P.W.2 anyhow could relieve herself from the clutches of the appellants and the juveniles in conflict with law and ran away. The appellants joined the juveniles in conflict with law Satish and Vinod. It is alleged that the juveniles in conflict with law and the appellants had forcible sexual intercourse with P.W.1 one after another in the cattle pond. It is also alleged that appellant No.1 Subhash was holding a knife and he had threatened P.W.1 that if she shouted, she would be killed. The incident lasted from midnight of 1292008 till 200 a.m. of 1392008. During the said period of two hours, P.W.1 was continuously weeping. She put on her clothes after the incident and went home. She did not disclose the incident to anybody. It is the case of prosecution that she did not disclose the incident to anybody because she was threatened by appellant No.1 that if she disclosed the incident to anybody, she would be killed. She felt pain in her abdomen on next day and therefore, started weeping. Thereafter she disclosed the incident to her mother. The parents and P.W.1 visited Police Patil and thereafter report was lodged at Malegaon Police Station. The First Information Report is at Exhibit 17.\n 3. During the course of investigation, P.W.1 was sent for medical examination. Panchanama of the spot was drawn. Statements of the witnesses including P.W.2 were recorded and after completion of investigation, chargesheet was filed in the Court of Magistrate. It was committed to the Court of Sessions. Charge was framed at Exhibit 4 against both the appellants. At this stage, it may be mentioned here that the juveniles in conflict with law must have been produced before the competent authority under Juvenile Justice Act.\n 4. The prosecution had examined in all seven witnesses in support of its case. P.W.1Usha was the victim of the offence. P.W.2Rekha was friend of Usha. P.W.3Mohd. Yusuf had reduced the First Information Report into writing at Malegaon Police Station. P.W.4Bhagwan was present when the spot panchanama Exhibit 34 was drawn. P.W.5Baliram was present when a knife was recovered by the police allegedly on the information given by appellant No.1 while he was in police custody. P.W.6 Dr. Deepa Kumawat had medically examined P.W.1. P.W.7Vishnukant is the Police Officer who had conducted investigation of the case.\n 5. According to P.W.7, he had visited the spot immediately after registration of the First Information Report and spot panchanama of cattle pond of GramPanchayat Koldara was drawn as per Exhibit 34. During the course of spot panchanama, he found bangle pieces, one empty packet of condom, one used condom and one blouse hook. The articles found on the spot were seized under the panchanama. On the same day he had seized clothes of P.W.1 under panchanama Exhibit 19. He had recorded statements of the prosecutrix and her friend P.W.2. The appellants were arrested on the same day under arrest panchanama Exhibits 57 and 58. They were referred to Medical Officer. The medical examination reports of both the appellants were produced before the trial Court at Exhibits 59 and 60. Both the medical reports were admitted by the learned counsel for the appellants before the trial Court. It is stated in examinationinchief of P.W. 7 that a statement was made by accused No.1 Subhash under Exhibit 42 and that he had produced a knife pursuant to the said statement, which was seized under panchanama Exhibit 43. This witness in his crossexamination has admitted that there was school near the cattle pond and there were lot of houses around the school. However, he did not make any enquiry from the residents of the said locality nor had he recorded any statement of the residents to verify whether they had heard the cries of P.W.1. The explanation was given by this witness that he did not find it necessary to record statements of residents of the locality.\n 6. P.W.1 has more or less stuck to her statement to the police. She has described in detail as to how she and her friend P.W.2 were lifted by the appellants and the juveniles in conflict with law and as to how she was taken to the cattle pond. She has also described in detail as to how one by one, four of them had sexual intercourse with her. As far as P.W.2 is concerned, she had gone to the house of one Shivram Shende after getting herself released from the clutches of the appellants and had described the incident to daughterinlaw of Shivram Shende. P.W.1 had met her on the next day and had informed her that she was subjected to sexual intercourse by the four boys.\n 7. P.W.3 ASI attached to Malegaon Police Station recorded the First Information Report of P.W.1. P.W.4 has identified his signature on spot panchanama Exhibit 34. He has also identified his signature on the seizure panchanama but he has clarified that nothing was seized by the police in his presence. This witness was declared hostile by the prosecution and was crossexamined. P.W.5 has supported the prosecution case that one knife was recovered at the instance of appellant No.1.\n 8. P.W.6Dr. Deepa had examined P.W.1 and had issued a Medical Certificate Exhibit 51. P.W.6 has not given the details of examination in her evidence. However, same have been recorded in the Certificate Exhibit 51.\n It appears that the defence had not raised any objection for reading Exhibit 51 in evidence. No external injuries were found during the course of physical examination of P.W.1. In her examinationinchief, this witness has stated that vagina admitted two fingers. Though hymen edges were found torn, there was no bleeding. There was no swelling on labia minora. During the course of crossexamination, this witness has admitted that P.W.1 was habituated to sexual intercourse. It was further admitted that the torn edges of hymen were old.\n 9. It is thus clear that the whole prosecution case is, in fact, mainly depended on the evidence of P.W1, P.W.6 and P.W.7. In the first place, it may be noted here that the cattle pond is a very rough and dirty area and therefore, the evidence of P.W.1 will have to be examined keeping in view the place of the alleged incident. Secondly, it is also to be noted here that the statements of neighbours were not recorded though P.W.1 has categorically stated in her evidence that she was continuously crying during the period between 1200 midnight and 200 a.m. Thirdly, if the electricity supply was discontinued and if P.W.1 and P.W.2 both decided to go home, the other villagers also must have taken the same decision and must have not waited at Samaj Mandir without there being lights. Fourthly, there is no mention of use of condom by P.W.1 in her evidence. It is also to be taken into consideration that P.W.1 was habituated to sexual intercourse. Thus she had been indulging into sexual intercourse prior to the date of incident also.\n 10. At the outset, I find it necessary to mention here that if the incident in question had taken place without consent of P.W.1, it could not have lasted for two hours. If the incident lasted for two hours, it is indicative of the fact that the sexual intercourse with the appellants and juveniles in conflict with law was most probably by consent. As already stated by me, the cattle pond is dirty and rough area. If there was force on the part of four persons indulging into gang rape, P.W.1 would have definitely received injuries in the nature of abrasions and contusions on her back. The medical report indicates that there were no injuries. P.W.1 herself has also not stated that she had sustained external injuries on any part of her body. As such the conduct of P.W.1 gives a strong impression that the sex between P.W.1 and four boys was by consent.\n 11. In addition to this, the Court has taken note of the fact that the incident in question was not disclosed by P.W.1 to her parents after returning home. She had disclosed the incident to her mother on next day. The possibility of her mother getting information of the incident in question prior to narration of incident by P.W.1 could not be ruled out. It is, therefore, possible that on questioning by her mother, P.W.1 might have admitted the incident in question. The incident was reported to police only with a view to create an impression that P.W.1 was not a consenting party. In this regard, one may take note of the observations made by the Hon'ble Supreme Court in the case of Jagannivasan .vs. State of Kerala, reported at 1995 Cri.L.J.\n 3229, with regard to conduct of the prosecutrix. Paragraph 5 of the said judgment can be reproduced as under : \"5. We may proceed with the assumption that the sexual act did take place in the way suggested by the prosecution and that the appellant was involved in it. But, was it a case of consent ?\n In order to determine that, we have to see the conduct of the prosecutrix. The peculiarity in that regard which creates doubt is that the prosecutrix kept quiet for six days and did not whisper a word about it to anyone. Her getting pain in her private parts six days later is unbelievable when no tenderness was found by the Doctor and no complaint of pain was made to her. There is evidence on the record that the appellant had been employed in Dubai and presumably had mastered a handsome income when compared to persons working in his home state. He was a bachelor and obviously an attractive catch for girls in his brotherhood to be bonded in matrimony. The fact that P.W.5, the woman who lived in the neighbourhood, was absent at the crucial time, whose room was used for the sex act, leads to the doubts that the meeting between the prosecutrix and the appellant was arranged by P.W.5 with the implicit consent of the parties. This P.W.5, was declared hostile by the prosecution.\n Another factor of significance is that on that day there were dances organized in the village to celebrate the Onam Festival and most of the populace had gone to witness such performance.\n There was thus less likelihood of their meeting being interfered with by curious onlookers. Thus, it cannot be ruled out that a suitable time for the meeting was chosen by the two when P.W.5, would conveniently be away and the visit of the prosecutrix and the appellant in her house would raise no suspicion. It is the case of the prosecution that after the sex act, the prosecutrix went to the dancing performance rather than go to her parents and inform them of the suggested crime committed on her. In these circumstances, we are of the view that it would be unsafe to rely on the word of the prosecutrix, given vent to after six days to the effect that she was subjected to rape or that sexual intercourse was committed without her consent. It would rather be safe to lean in favour of the appellant and accord him the benefit of doubt.\"\n 12. I have already observed that there are strong indications in the evidence that the sex was by consent. After having gone through the judgment of the Hon'ble Supreme Court cited supra, I am fortified in my view already expressed by me. In this regard, it is also equally important to be noted that it is not necessary for the accused to take a defence of consent at the initial stage itself. If he probabalise his case on basis of evidence on record that the sex was by consent, he is relieved of the burden imposed on him. The law on the point is very well settled that the defence is not supposed to prove its case beyond reasonable doubt. The defence gets relieved of its duty once it is able to probabalise its case. Even if the defence of the accused is weak, that by itself may not be a ground for conviction. In the present case, the examinationinchief itself of P.W.1 itself, without reading the crossexamination, gives a strong impression that it was an act of sex by consent.\n 13. Apart from this, the Court has also taken note of the fact that the Investigating Officer had not recorded statement of daughterinlaw of Shivram Shende to whom P.W.2 had met after getting relieved herself from the clutches of the appellants. In the normal course, the daughterinlaw of Shivram Shende would have informed her family members. Without going into the reasons as to why did she not disclose this incident to other family members, the Court cannot ignore the fact that the Police Officer investigating the case did not bother to record the statement of daughterin law of Shivram Shende to verify that P.W.2 had really gone to the house of Shivram Shende. The Police Officer did not bother to record statement of residents who were staying in the houses adjoining the cattle pond. The Court has taken judicial notice of the fact that the cattle pond in the villages are normally within the village itself. They are not deserted places.\nPopulation of village Koldara was about 2000 only. As such cattle pond must be within the vicinity of many houses. If P.W.1 was crying for a period of two hours, the residents of the locality could have thrown light on this issue, had the Investigating Officer recorded their statements. The Investigating Officer had audacity to tell the trial Court that he did not find it necessary to record statements of the residents of the locality adjoining the cattle pond.\n 14. As such, in the present case, in fact the whole case was based on the evidence of P.W.1. The medical evidence did not support the testimony of P.W.1. The Police Officer even did not bother to find out as to whether other villagers had occasion to pass from near the cattle pond after discontinuation of electricity supply at Samaj Mandir. In view of this, I find it highly risky to put implicit trust on the evidence of P.W.1. In my considered opinion, the learned trial Judge should have rejected the evidence of P.W.1.\n 15. There is no explanation as to why P.W.1 was silent on the aspect of use of condom if a packet of condom and used condom was found on the spot. This is an additional fact which gives support to the arguments of the learned Counsel Mr. N. Samundre that the sex, if any, was by consent. As such it is abundantly clear that on the basis of evidence of such doubtful character, it was not safe on the part of the learned trial Judge to convict the appellants for the offence punishable under Section 376(2)(g) of the Indian Penal Code. Since the evidence of P.W.2 is also found doubtful, the conviction for the offence punishable under Section 354 read with Section 34 of the Indian Penal Code also cannot be sustained. Further, as the Court has come to the conclusion that the sex was by consent, the question of criminal intimidation on the part of appellant No.1 also did not arise.\n 16. The judgment and order of the learned trial Court needs to be set aside and the appellants need to be acquitted of all the charges of which they are convicted. Hence, I pass the following order.\n The appeal is allowed.\n The judgment and order of the learned Additional Sessions Judge, Washim dated 2552011 in Sessions Trial No.91/2008 is set aside.\n Both the appellants are acquitted of the offences punishable under Sections 376(2)(g) and 354 read with Section 34 of the Indian Penal Code.\n Appellant No.1 is further acquitted of the offence punishable under Section 506 of the Indian Penal Code.\n Both the appellants be released from the prison forthwith, if not required in any other case.\n The appeal accordingly stands disposed of.\n JUDGE.\n pma "
} |
{
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} | [
{
"result": [
{
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"value": {
"end": 35,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nKALUA\n\nVs.\n\nRESPONDENT:"
}
},
{
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"id": "223b2672855b43cdbc9524302d6b1d26",
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"type": null,
"value": {
"end": 81,
"labels": [
"PREAMBLE"
],
"start": 35,
"text": "\nTHE STATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:"
}
},
{
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"id": "992f3c64633f42febca3a430074e2d84",
"to_name": null,
"type": null,
"value": {
"end": 92,
"labels": [
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],
"start": 81,
"text": "\n21/11/1956"
}
},
{
"from_name": null,
"id": "90c2470871e4419e8f03cbe5ff51054e",
"to_name": null,
"type": null,
"value": {
"end": 410,
"labels": [
"PREAMBLE"
],
"start": 94,
"text": "BENCH:\nIMAM, SYED JAFFER\nBENCH:\nIMAM, SYED JAFFER\nJAGANNADHADAS, B.\nMENON, P. GOVINDA\n\nCITATION: 1957 SCR 187\n 1958 AIR 180\n\nACT:\nCriminal Trial-Murdey-Circumstantial evidence-Opinion of\nfire-arms expert-Whether conclusive.\n\nHEADNOTE:\nOne Daya Ram had been murdered by shooting with a country\nmade pistol."
}
},
{
"from_name": null,
"id": "38fea7fdb7604a28817548c4758efaeb",
"to_name": null,
"type": null,
"value": {
"end": 856,
"labels": [
"PREAMBLE"
],
"start": 411,
"text": "The circumstantial evidence established\nagainst the appellant was (1) that he had a motive for the\nmurder, (2) that three days before the murder the appellant\nhad held out a threat to murder the deceased, (3) that a\ncartridge Ex. I was found near the cot of the deceased, and\n(4) that the appellant produced a country made pistol Ex.\nIII from his house in circumstances which clearly showed\nthat he alone could have known of its existence there."
}
},
{
"from_name": null,
"id": "fa5e68ac2f034aa2921c40aed2b165db",
"to_name": null,
"type": null,
"value": {
"end": 1170,
"labels": [
"PREAMBLE"
],
"start": 857,
"text": "The\nfire-arms expert examined the recovered pistol and the\ncartridge and after making scientific tests was of the\ndefinite opinion that the cartridge Ex. I had been fired\nfrom the pistol Ex. III :\nHeld, that the opinion of the fire-arms expert conclusively\nproved that the cartridge Ex. I had been fired from the\n"
}
},
{
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"id": "1440599f1ee7483883c078ac71446621",
"to_name": null,
"type": null,
"value": {
"end": 1176,
"labels": [
"PREAMBLE"
],
"start": 1170,
"text": "pistol"
}
},
{
"from_name": null,
"id": "17fb22550fe34443871c2376c50eae85",
"to_name": null,
"type": null,
"value": {
"end": 1184,
"labels": [
"PREAMBLE"
],
"start": 1177,
"text": "Ex. III"
}
},
{
"from_name": null,
"id": "49bbb2fdbebd4d39b2b58c077bd905cf",
"to_name": null,
"type": null,
"value": {
"end": 1269,
"labels": [
"PREAMBLE"
],
"start": 1184,
"text": ".\nThe circumstantial evidence was sufficient to establish the\nguilt of the appellant."
}
},
{
"from_name": null,
"id": "f7c88633181a4a40a172c051ee8fd613",
"to_name": null,
"type": null,
"value": {
"end": 1280,
"labels": [
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],
"start": 1269,
"text": "\n\nJUDGMENT:"
}
},
{
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"id": "d8e13dddf9314a5b94e705d6b799f54e",
"to_name": null,
"type": null,
"value": {
"end": 1639,
"labels": [
"NONE"
],
"start": 1280,
"text": "\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 135 of 1956.Appeal by special leave from the judgment and order dated November 25, 1955, of the Allahabad High Court, in Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment and order dated May 17, 1955, of the Court of Sessions Judge, at Moradavad in Sessions Trial No."
}
},
{
"from_name": null,
"id": "bc7dfe7c0f544c8ca1ba8b4246d6571f",
"to_name": null,
"type": null,
"value": {
"end": 1651,
"labels": [
"NONE"
],
"start": 1639,
"text": "\n29 of 1955."
}
},
{
"from_name": null,
"id": "132d9fccb13f4ad9aa9db76bc5c23517",
"to_name": null,
"type": null,
"value": {
"end": 1684,
"labels": [
"NONE"
],
"start": 1651,
"text": "\nP. S. Safeer, for the appellant."
}
},
{
"from_name": null,
"id": "1803f30f84bc402ea808b306c6b225a6",
"to_name": null,
"type": null,
"value": {
"end": 1732,
"labels": [
"NONE"
],
"start": 1684,
"text": "\nG. C. Mathur and C. P. Lal, for the respondent."
}
},
{
"from_name": null,
"id": "d8f8feeca6054b0c8722f4714dd47369",
"to_name": null,
"type": null,
"value": {
"end": 1738,
"labels": [
"NONE"
],
"start": 1732,
"text": "\n1956."
}
},
{
"from_name": null,
"id": "857cf326bff94bff8daaac30ffbfd512",
"to_name": null,
"type": null,
"value": {
"end": 1751,
"labels": [
"NONE"
],
"start": 1739,
"text": "November 21."
}
},
{
"from_name": null,
"id": "6dee12fab61a47ad83a84b584a301c63",
"to_name": null,
"type": null,
"value": {
"end": 1799,
"labels": [
"NONE"
],
"start": 1752,
"text": "The Judgment of the Court was delivered by IMAM"
}
},
{
"from_name": null,
"id": "e22679c032ad48fbbc1c0816aca87912",
"to_name": null,
"type": null,
"value": {
"end": 1806,
"labels": [
"RLC"
],
"start": 1800,
"text": "J.-The"
}
},
{
"from_name": null,
"id": "17c2d85e36cf4d49b3d6f6a8177aaecf",
"to_name": null,
"type": null,
"value": {
"end": 1910,
"labels": [
"RLC"
],
"start": 1807,
"text": "appellant was sentenced to death for the marder of Daya Ram by shooting him with a country made pistol."
}
},
{
"from_name": null,
"id": "cc9ab9cf724e4e4abe5b2dad5eb1ad46",
"to_name": null,
"type": null,
"value": {
"end": 2071,
"labels": [
"RLC"
],
"start": 1911,
"text": "He was also convicted for being in possession of an unlicensed firearm under the Arms Act for which offence he was sentenced to two years rigorous imprisonment."
}
},
{
"from_name": null,
"id": "cf884f3d03364a31871c706e21baad0e",
"to_name": null,
"type": null,
"value": {
"end": 2190,
"labels": [
"RLC"
],
"start": 2072,
"text": "He appealed to the High Court of Allahabad, but his appeal was dismissed and the conviction and sentence was affirmed."
}
},
{
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"id": "0b0b86ef0d294930981e0087fe189869",
"to_name": null,
"type": null,
"value": {
"end": 2301,
"labels": [
"FAC"
],
"start": 2191,
"text": "Against the decision of the Allahabad High Court the appellant obtained special leave to appeal to this Court."
}
},
{
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"id": "5d38ed1aadbe474397b2bf82b17348df",
"to_name": null,
"type": null,
"value": {
"end": 2443,
"labels": [
"FAC"
],
"start": 2301,
"text": "\nAccording to the prosecution, the occurrence took place at about midnight of July 4, 1954, when Daya Ram was sleeping on a cot on a platform."
}
},
{
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"id": "cb1238959ab0487e80d499d30423e39b",
"to_name": null,
"type": null,
"value": {
"end": 2591,
"labels": [
"FAC"
],
"start": 2444,
"text": "Near him were sleeping Gokul, Doongar and Jai Singh, while two women Ratto and Bhuri slept in a room to the north of the platform and adjoining it."
}
},
{
"from_name": null,
"id": "39032d25322f4ebb8c24015b24c4f784",
"to_name": null,
"type": null,
"value": {
"end": 2642,
"labels": [
"FAC"
],
"start": 2591,
"text": "\nThe report of the shot fired woke up these people."
}
},
{
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"id": "d9c6bf35bda64ce196357ef5761ea971",
"to_name": null,
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"value": {
"end": 2710,
"labels": [
"FAC"
],
"start": 2642,
"text": "\nAccording to them, they saw the appellant running towards the east."
}
},
{
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"id": "c09a440e3c074b9ca4944b545c2e613c",
"to_name": null,
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"value": {
"end": 2773,
"labels": [
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],
"start": 2711,
"text": "He was accompanied by three others who were armed with lathis."
}
},
{
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],
"start": 2774,
"text": "Daya Ram died almost instantaneously as the result of the injuries on his chest and stomach from where pellets were recovered at the time of the post mortem examination."
}
},
{
"from_name": null,
"id": "ab1a705e9f294f38a3ffcb0bc10eda57",
"to_name": null,
"type": null,
"value": {
"end": 3052,
"labels": [
"FAC"
],
"start": 2944,
"text": "Daya Ram had been shot from a close distance because the skin was charred over the entire area of the wound."
}
},
{
"from_name": null,
"id": "7bd2870af37449e89f6a94c6bf5eb68a",
"to_name": null,
"type": null,
"value": {
"end": 3193,
"labels": [
"FAC"
],
"start": 3053,
"text": "Near the cot, on which he slept, a cartridge Ex. I.\nwas found which was handed over to the Police Officer when he arrived for investigation."
}
},
{
"from_name": null,
"id": "30893edcf79441d7adf27a130236ab07",
"to_name": null,
"type": null,
"value": {
"end": 3300,
"labels": [
"FAC"
],
"start": 3194,
"text": "A first information report was lodged at the police station five miles away at 8-10 a.\nm. on July 5, 1954."
}
},
{
"from_name": null,
"id": "f9cb11bedb9d4f6189f1d7273dfc38d5",
"to_name": null,
"type": null,
"value": {
"end": 3513,
"labels": [
"FAC"
],
"start": 3300,
"text": "\nThe motive for the murder, as alleged by the prosecution, was that on the death of one Bhai Singh the appellant hoped to become guardian of Ratto's property, who, however, appointed Daya Ram to take charge of it."
}
},
{
"from_name": null,
"id": "110d9f47e58249b197071f7f81d82e7b",
"to_name": null,
"type": null,
"value": {
"end": 3552,
"labels": [
"FAC"
],
"start": 3514,
"text": "The appellant resented this very much."
}
},
{
"from_name": null,
"id": "d7ba234d6df74445950a0b703e36def2",
"to_name": null,
"type": null,
"value": {
"end": 3703,
"labels": [
"FAC"
],
"start": 3553,
"text": "Three days before the murder of Daya Ram there had been a quarrel between the appellant and his wife on the one side and Ratto and Bhuri on the other."
}
},
{
"from_name": null,
"id": "18736af666a54a5eb6f5c374a460b0e0",
"to_name": null,
"type": null,
"value": {
"end": 3794,
"labels": [
"FAC"
],
"start": 3703,
"text": "\nThe quarrel arose over an attempt by the appellant to construct a wall over Ratto's land.'"
}
},
{
"from_name": null,
"id": "349436c5c2484331ac081f83cc8a3e92",
"to_name": null,
"type": null,
"value": {
"end": 3935,
"labels": [
"FAC"
],
"start": 3795,
"text": "The appellant uttered a threat that he would soon settle with the person on whom Ratto was depending, that is to say, the deceased Daya Ram."
}
},
{
"from_name": null,
"id": "3527dbcce2c94bc9921f67266189ec82",
"to_name": null,
"type": null,
"value": {
"end": 4110,
"labels": [
"FAC"
],
"start": 3935,
"text": "\nAccording to the High Court, the defence did not seriously challenge these allegations and the appellant himself admitted that Ratto wanted him to be turned out of his house."
}
},
{
"from_name": null,
"id": "175bbceb35414ecdae53d3287c1dd0a5",
"to_name": null,
"type": null,
"value": {
"end": 4257,
"labels": [
"FAC"
],
"start": 4111,
"text": "The appellant was arrested on the night between July 5 and July 6, 1954, at a village fourteen miles away from the village of \"occurrence Dhakeri."
}
},
{
"from_name": null,
"id": "371fe6dfa983488691b322d13e7cb29f",
"to_name": null,
"type": null,
"value": {
"end": 4350,
"labels": [
"FAC"
],
"start": 4258,
"text": "On July 7, he informed the Sub-Inspector that he was prepared to produce the pistol Ex.\nIII."
}
},
{
"from_name": null,
"id": "0ba2408a5ebc4b76b58b83815d0e04bc",
"to_name": null,
"type": null,
"value": {
"end": 4506,
"labels": [
"FAC"
],
"start": 4351,
"text": "The SubInspector and the appellant went to village Dhakeri and Kartar Singh, Mahtab Singh and Khamani were invited to witness the events that might follow."
}
},
{
"from_name": null,
"id": "b027e8054c3b49b9996e7675d5e869af",
"to_name": null,
"type": null,
"value": {
"end": 4675,
"labels": [
"FAC"
],
"start": 4507,
"text": "On reaching the appellant's house, which adjoins the resid- ential house of Ratto, the appellant stated that the pistol Ex. III had been concealed by him in a corn-bin."
}
},
{
"from_name": null,
"id": "8c9140b38a554a8a97167b74d7de58ed",
"to_name": null,
"type": null,
"value": {
"end": 4755,
"labels": [
"FAC"
],
"start": 4676,
"text": "From a secret place he took out a key and opened the lock of his house with it."
}
},
{
"from_name": null,
"id": "76491d07b4e4409eaaffc4547e26fe06",
"to_name": null,
"type": null,
"value": {
"end": 4892,
"labels": [
"FAC"
],
"start": 4756,
"text": "He then took the SubInspector and the witnesses to a mud corn-bin inside his house, which appeared to be freshly plastered at one place."
}
},
{
"from_name": null,
"id": "6ac476665b2e4b74a030f9c763d149a1",
"to_name": null,
"type": null,
"value": {
"end": 5040,
"labels": [
"FAC"
],
"start": 4893,
"text": "The appellant removed the plaster at this place and from inside took out the country made 12bore pistol Ex. III, and three live 12-bore cartridges."
}
},
{
"from_name": null,
"id": "614791c4c9c64a14bb8507901ac71305",
"to_name": null,
"type": null,
"value": {
"end": 5261,
"labels": [
"FAC"
],
"start": 5041,
"text": "The cartridge Ex. I, which was found near the cot of Daya Ram, and the pistol Ex. III were sent to Shyam Narain, a Deputy Superintendent of Police, who is ,a fire- arms expert of the C. I. D. of Uttar Pradesh Government."
}
},
{
"from_name": null,
"id": "df65f15060e747e1ac3ed056387f90a5",
"to_name": null,
"type": null,
"value": {
"end": 5287,
"labels": [
"FAC"
],
"start": 5262,
"text": "He made scientific tests."
}
},
{
"from_name": null,
"id": "61986c5141ed474795d5f474d07174a7",
"to_name": null,
"type": null,
"value": {
"end": 5443,
"labels": [
"FAC"
],
"start": 5288,
"text": "He came to the conclusion as the result of the various tests made by him that the cartridge Ex, I was fired from the pistol Ex. III and no other fire- arm."
}
},
{
"from_name": null,
"id": "64cf12467bc04b7480264a2d62c4e92e",
"to_name": null,
"type": null,
"value": {
"end": 5721,
"labels": [
"FAC"
],
"start": 5443,
"text": "While the Sessions Judge believed the testimony of the eye- witnesses, the learned Judges of the. High Court were of the opinion that they were unable to accept the assertion of the eye-witnesses that they actually saw the appellant with a pistol by the bedside of the deceased."
}
},
{
"from_name": null,
"id": "a7902d261173434b8b3c7d1f64d4364f",
"to_name": null,
"type": null,
"value": {
"end": 5844,
"labels": [
"FAC"
],
"start": 5722,
"text": "The High Court, however, relied upon the circumstantial evidence in the case in upholding the conviction of the appellant."
}
},
{
"from_name": null,
"id": "8b336422db8f4abbaa55e0c35b7270ea",
"to_name": null,
"type": null,
"value": {
"end": 5913,
"labels": [
"FAC"
],
"start": 5845,
"text": "There was motive for the crime and a few days before the killing of."
}
},
{
"from_name": null,
"id": "3ab00bbe26124cfc835f0788aa102e24",
"to_name": null,
"type": null,
"value": {
"end": 5971,
"labels": [
"FAC"
],
"start": 5913,
"text": "\nDaya Ram the appellant had held out a threat against him."
}
},
{
"from_name": null,
"id": "7954d78b577f4619903b98e7bdd126a3",
"to_name": null,
"type": null,
"value": {
"end": 6069,
"labels": [
"FAC"
],
"start": 5972,
"text": "The appellant was arrested fourteen miles away from his village which is the place of occurrence."
}
},
{
"from_name": null,
"id": "5c225b650a2b47eb931cc4ee2184b8f5",
"to_name": null,
"type": null,
"value": {
"end": 6204,
"labels": [
"FAC"
],
"start": 6070,
"text": "He produced a pistol Ex.III from his house in circumstances which clearly showed that he only could have known of its existence there."
}
},
{
"from_name": null,
"id": "c3ba47c1dc484603b082cdf51556d85a",
"to_name": null,
"type": null,
"value": {
"end": 6380,
"labels": [
"FAC"
],
"start": 6204,
"text": "\nThe opinion of the fire-arms expert clearly established that the cartridge Ex. 1, found near the cot of Daya Ram, was fired with the pistol Ex. III produced -by the appellant."
}
},
{
"from_name": null,
"id": "21379b858254445494c94e9de8049714",
"to_name": null,
"type": null,
"value": {
"end": 6572,
"labels": [
"FAC"
],
"start": 6380,
"text": "\nAll these circumstances, in the opinion of the High Court, left no doubt in the minds of the learned Judges of that Court that the appellant murdered Daya Ram by shooting him with his pistol."
}
},
{
"from_name": null,
"id": "957e28c735814dbe8f923cb403e889bb",
"to_name": null,
"type": null,
"value": {
"end": 6896,
"labels": [
"ARG_PETITIONER"
],
"start": 6572,
"text": "\nThe learned Advocate for the appellant urged that the appellant could not have placed the pistol in his house and it must have been planted there by someone because none of the witnesses stated that they had seen him going to his house after the murder and the appellant was certainly not found in his house in the morning."
}
},
{
"from_name": null,
"id": "c439172d7aba48f4865aa8d9e3782ae2",
"to_name": null,
"type": null,
"value": {
"end": 7098,
"labels": [
"ARG_PETITIONER"
],
"start": 6897,
"text": "According to the situation of the house of the appellant and where the witnesses were immediately after the occurrence, it was impossible for the appellant to have entered his house without being seen."
}
},
{
"from_name": null,
"id": "468a99c4dbf346d0818801912bce67bc",
"to_name": null,
"type": null,
"value": {
"end": 7227,
"labels": [
"ARG_PETITIONER"
],
"start": 7099,
"text": "It was further unlikely that after having committed the murder, the appellant, after having run away, would return to his house."
}
},
{
"from_name": null,
"id": "f6efae791ee04924932cb79ab69e879f",
"to_name": null,
"type": null,
"value": {
"end": 7412,
"labels": [
"ANALYSIS"
],
"start": 7228,
"text": "Both the Courts below, however, found no reason to disbelieve the Sub-Inspector and the witnesses that the appellant had produced the pistol Ex.\nIII from the corn-bin inside his house."
}
},
{
"from_name": null,
"id": "486e7841d7dc425cbdca76fce6393cda",
"to_name": null,
"type": null,
"value": {
"end": 7545,
"labels": [
"ANALYSIS"
],
"start": 7413,
"text": "The appellant had the key of the house which was hidden in a secret place and the com-bin was itself freshly plastered at one place."
}
},
{
"from_name": null,
"id": "b2068e8cbd3648ee84c7f47fdc94909a",
"to_name": null,
"type": null,
"value": {
"end": 7687,
"labels": [
"ANALYSIS"
],
"start": 7545,
"text": "\nThese circumstances clearly showed that no one but the appellant could haveknown of the existence of the pistol in the corn-bin in his house."
}
},
{
"from_name": null,
"id": "3a882657008f419bb9f239a71238146b",
"to_name": null,
"type": null,
"value": {
"end": 7816,
"labels": [
"ANALYSIS"
],
"start": 7688,
"text": "As to whether the appellant could or.could not have gone to his house after the occurrence that is a matter of pure speculation."
}
},
{
"from_name": null,
"id": "389147d697654c65992ba1d271548e2e",
"to_name": null,
"type": null,
"value": {
"end": 7881,
"labels": [
"ANALYSIS"
],
"start": 7817,
"text": "It does not appear that any witness was asked anything about it."
}
},
{
"from_name": null,
"id": "1e3b1fef96c74b52a24a0a1cb100a5ac",
"to_name": null,
"type": null,
"value": {
"end": 8070,
"labels": [
"ANALYSIS"
],
"start": 7882,
"text": "The High Court found that the witnesses might have caught a glimpse of the people who were fast disappearing from the scene but who had no reasonable opportunity of marking their features."
}
},
{
"from_name": null,
"id": "30746bc6825b48458b4ec0d0be9febbd",
"to_name": null,
"type": null,
"value": {
"end": 8230,
"labels": [
"ANALYSIS"
],
"start": 8071,
"text": "In the confusion of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards the east."
}
},
{
"from_name": null,
"id": "e831f15e24ec4f00aba924b4f284a255",
"to_name": null,
"type": null,
"value": {
"end": 8414,
"labels": [
"ANALYSIS"
],
"start": 8231,
"text": "On the record, there is nothing to show that to enter the appellant's house, after the occurrence, the appellant had necessarily to go into his house within the view of the witnesses."
}
},
{
"from_name": null,
"id": "a88c6cf2a64c44d49ea518aa461e1ea0",
"to_name": null,
"type": null,
"value": {
"end": 8717,
"labels": [
"ANALYSIS"
],
"start": 8415,
"text": "It is quite unnecessary to examine this matter any further because the evidence concerning the production of the pistol Ex. III by the appellant from his house is' clear and reliable and, therefore, it is certain that the appellant did enter his house after the occurrence without being seen by anyone."
}
},
{
"from_name": null,
"id": "46398dd240a64c9180c5504d3d4d461c",
"to_name": null,
"type": null,
"value": {
"end": 8942,
"labels": [
"ARG_PETITIONER"
],
"start": 8717,
"text": "\nIt was next urged on behalf of the appellant, that,it was impossible for a cartridge to have been near the cot of Daya Ram, because after the shot had been fired the cartridge would still remain in the barrel of the firearm."
}
},
{
"from_name": null,
"id": "d75150ba0278423da5ac09426aa26982",
"to_name": null,
"type": null,
"value": {
"end": 8974,
"labels": [
"ANALYSIS"
],
"start": 8943,
"text": "This again is pure speculation."
}
},
{
"from_name": null,
"id": "67ca9b280acc4947be376d2a80488464",
"to_name": null,
"type": null,
"value": {
"end": 9035,
"labels": [
"ANALYSIS"
],
"start": 8975,
"text": "That the cartridge was ejected from the fire-arm is certain."
}
},
{
"from_name": null,
"id": "b8f0251921aa43b9a8150655710b9017",
"to_name": null,
"type": null,
"value": {
"end": 9068,
"labels": [
"ANALYSIS"
],
"start": 9036,
"text": "Why it was ejected none can say."
}
},
{
"from_name": null,
"id": "2e5fdc1eb90c4094a3ed603ab3428578",
"to_name": null,
"type": null,
"value": {
"end": 9141,
"labels": [
"ANALYSIS"
],
"start": 9068,
"text": "\n It may be that the miscreant reloaded his weapon to meet any emergency."
}
},
{
"from_name": null,
"id": "78cd148afd9e4ddc895e342dac74a58b",
"to_name": null,
"type": null,
"value": {
"end": 9353,
"labels": [
"ANALYSIS"
],
"start": 9142,
"text": "The evidence of the Sub-Inspector is clear that on his arrival at the place of occurrence the cartridge Ex.\n I was handed over to him by the witness Khamani who cannot be said to be unfavorable to the appellant."
}
},
{
"from_name": null,
"id": "608515d696b44f18bb77bd95e557fdb2",
"to_name": null,
"type": null,
"value": {
"end": 9612,
"labels": [
"ANALYSIS"
],
"start": 9354,
"text": "The Courts below had no reason to disbelieve the evidence in the case that the cartridge Ex. I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify us saying that the Courts below took an erroneous view of the evidence."
}
},
{
"from_name": null,
"id": "9bddc4d3de294ec5be390d76597f2e8b",
"to_name": null,
"type": null,
"value": {
"end": 9667,
"labels": [
"ANALYSIS"
],
"start": 9612,
"text": "\n On the facts found there was a motive for the murder."
}
},
{
"from_name": null,
"id": "be9b750fd0a5458a8bb109cf8e21b6bc",
"to_name": null,
"type": null,
"value": {
"end": 9836,
"labels": [
"ANALYSIS"
],
"start": 9667,
"text": "\n Apparently, for no good reason the appellant was not found at his house on the morning of July 5, but was in a village fourteen miles away at the time of his arrest.\n "
}
},
{
"from_name": null,
"id": "53e3be972cd84596aa9cf2374fe60155",
"to_name": null,
"type": null,
"value": {
"end": 9954,
"labels": [
"ANALYSIS"
],
"start": 9836,
"text": "The appellant produced the pistol Ex. III in circumstances clearly showing that he had deliberately kept it concealed."
}
},
{
"from_name": null,
"id": "f9f376afb5d04481ba37cc01ba02557d",
"to_name": null,
"type": null,
"value": {
"end": 10012,
"labels": [
"ANALYSIS"
],
"start": 9954,
"text": "\n We have no reason to doubt the evidence in this respect."
}
},
{
"from_name": null,
"id": "63c83f78afee4051a9bd46611dd0f030",
"to_name": null,
"type": null,
"value": {
"end": 10344,
"labels": [
"ANALYSIS"
],
"start": 10012,
"text": "\n The real question is, whether it is safe to act upon the opinion of the fire-arms expert that the cartridge Ex. I was fired from the pistol Ex. III produced by the appellant and none other, because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder."
}
},
{
"from_name": null,
"id": "40718ebd803642faa25a4fb13aebc6e6",
"to_name": null,
"type": null,
"value": {
"end": 10502,
"labels": [
"ANALYSIS"
],
"start": 10345,
"text": "The opinion of 'the fire-arms expert, based on the result of his tests, does -not seem to have been challenged in cross-examination or before the High Court."
}
},
{
"from_name": null,
"id": "011a2920092045e0a76c6a5a8c2d00c4",
"to_name": null,
"type": null,
"value": {
"end": 10792,
"labels": [
"ANALYSIS"
],
"start": 10503,
"text": "If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge Ex. I, found near the cot of Daya Ram, was fired from the pistol Ex. III produced by the appellant."
}
},
{
"from_name": null,
"id": "6ae06a358932416087aff40b374f795a",
"to_name": null,
"type": null,
"value": {
"end": 11036,
"labels": [
"ANALYSIS"
],
"start": 10793,
"text": "To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell cases by fire-arms in order to ascertain that there is no error in the opinion of the fire- arms expert in the present case."
}
},
{
"from_name": null,
"id": "85f1839d17284c3c9832568d0519c7be",
"to_name": null,
"type": null,
"value": {
"end": 11429,
"labels": [
"ANALYSIS"
],
"start": 11037,
"text": "Kirk in his book \"Crime Investigation\" at page 346 states: \"Fired cases are less often encountered in criminal investigation than are bullets, but when found they are usually of greater significance because they receive at least as clear markings as do bullets, have a greater variety of such markings, and are not ordinarily damaged in firing...............................................\n "
}
},
{
"from_name": null,
"id": "2bd64a66ec44435caff9ae26875b4e63",
"to_name": null,
"type": null,
"value": {
"end": 11572,
"labels": [
"ANALYSIS"
],
"start": 11429,
"text": "The questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located."
}
},
{
"from_name": null,
"id": "347c0b6d115c45a0adb75b36bb9d189b",
"to_name": null,
"type": null,
"value": {
"end": 11631,
"labels": [
"ANALYSIS"
],
"start": 11573,
"text": "In the ordinary case, quite definite answers can be given."
}
},
{
"from_name": null,
"id": "476bea104c324237bcbb584bf31356fd",
"to_name": null,
"type": null,
"value": {
"end": 11756,
"labels": [
"ANALYSIS"
],
"start": 11632,
"text": "This is true both of shotgun shells and of cartridge cases from pistols, revolvers, and rifles........................... .."
}
},
{
"from_name": null,
"id": "521f6c01bae54c14bb3ebec61d9ddc37",
"to_name": null,
"type": null,
"value": {
"end": 11862,
"labels": [
"ANALYSIS"
],
"start": 11757,
"text": "In general, it is possible to identify a certain firearm as having fired a particular shell or cartridge."
}
},
{
"from_name": null,
"id": "0461aa8bebd649498145b96b19a59672",
"to_name": null,
"type": null,
"value": {
"end": 12018,
"labels": [
"ANALYSIS"
],
"start": 11863,
"text": "It is often possible to identify the type or make of gun' which fired it, though in many instances this must be tentative or probable identification only.\""
}
},
{
"from_name": null,
"id": "e0d1f65bed5c46efb13f94a6c2e75271",
"to_name": null,
"type": null,
"value": {
"end": 12046,
"labels": [
"ANALYSIS"
],
"start": 12020,
"text": "` 193"
}
},
{
"from_name": null,
"id": "ec33f7ca38b14122a53143b11d46a1d8",
"to_name": null,
"type": null,
"value": {
"end": 12432,
"labels": [
"ANALYSIS"
],
"start": 12047,
"text": "After :dealing with the marks left by breech-block, firing pin impressions, marks from extractors and ejectors, marks due to expansion, magazine marks and loading mechanism marks,he states, \"Summarizing, the cartridge or shell case us. ally carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter."
}
},
{
"from_name": null,
"id": "4658903e011042e3824c10e00d4431b3",
"to_name": null,
"type": null,
"value": {
"end": 12635,
"labels": [
"ANALYSIS"
],
"start": 12433,
"text": "Those marks arise from a variety of contacts with various parts of the gun, an analysis of which is useful in, determining the type of weapon in case no suspected gun is available ......................"
}
},
{
"from_name": null,
"id": "9da7b58d7aec44348a65b9bf8e5f4a11",
"to_name": null,
"type": null,
"value": {
"end": 12771,
"labels": [
"ANALYSIS"
],
"start": 12636,
"text": "Thus, the recovered shell or cartridge case is one of the most useful types of physical evidence which can be found in shooting cases.\""
}
},
{
"from_name": null,
"id": "ff19e3f96b0c400e9cc133158702263c",
"to_name": null,
"type": null,
"value": {
"end": 12963,
"labels": [
"ANALYSIS"
],
"start": 12771,
"text": "\nSoderman and O'Connel in their book \"Modern Criminal Investigation\" also deal with the subject and they refer to the marks from the fire pin, the extractor, the. ejector and the breech-block."
}
},
{
"from_name": null,
"id": "c463d1b2051446b3a9fd5e9e689ec2b7",
"to_name": null,
"type": null,
"value": {
"end": 13278,
"labels": [
"ANALYSIS"
],
"start": 12964,
"text": "After referring to comparison being made of the cartridge or shell fired from a fire-arm for the purpose of test, they state at page 200, If they are in the same position in relation to one another and their general appearance is the same, one may conclude that they have been fired from a pistol of the same make."
}
},
{
"from_name": null,
"id": "830f8eeebdab4d35b73ec9db5b9c8b08",
"to_name": null,
"type": null,
"value": {
"end": 13569,
"labels": [
"ANALYSIS"
],
"start": 13278,
"text": "\nAn absolute conclusion about the origin of the shells, however, can be reached only after a photomicrographic examination of the markings from the breech-block on the rear of the shell.............................\nIdentification, with the aid of the enlargement, should not prove difficult."
}
},
{
"from_name": null,
"id": "6a98ecc1df5443fa87740d9e9b4a8287",
"to_name": null,
"type": null,
"value": {
"end": 13618,
"labels": [
"ANALYSIS"
],
"start": 13570,
"text": "The characteristic scratches can be easily seen."
}
},
{
"from_name": null,
"id": "a673cdea607a49c495c1b79996f68f84",
"to_name": null,
"type": null,
"value": {
"end": 13962,
"labels": [
"ANALYSIS"
],
"start": 13619,
"text": "A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used in the' identification of fingerprints.\"\nIn Taylor's book on Medical Jurisprudence, Tenth Edition, Vol. 1, at page 459"
}
},
{
"from_name": null,
"id": "cc4c49fa67b945f5bb1dc4674d9a4536",
"to_name": null,
"type": null,
"value": {
"end": 14231,
"labels": [
"ANALYSIS"
],
"start": 13962,
"text": ", it is stated, \" It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite194 different, and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well-defined marks."
}
},
{
"from_name": null,
"id": "322365dc5a4f4d02bd4de7a30654e794",
"to_name": null,
"type": null,
"value": {
"end": 14503,
"labels": [
"ANALYSIS"
],
"start": 14232,
"text": "In general, however, though it is unlikely that -all marks will be equally good, it is usually possible to obtain definite information from the marks of the firing-pin, extractor, ejector, or breech- block. on the base or rim, or from grooves or scratches on the surface."
}
},
{
"from_name": null,
"id": "0af5131efafc455097a17201f15197c3",
"to_name": null,
"type": null,
"value": {
"end": 14687,
"labels": [
"ANALYSIS"
],
"start": 14504,
"text": "In weapons of the same manufacture, the marks are of the same general nature, but in each weapon there are individual differences which usually enable it to be definitely identified.\""
}
},
{
"from_name": null,
"id": "18668b41db2f47ec8714abc27a8ac29f",
"to_name": null,
"type": null,
"value": {
"end": 14791,
"labels": [
"ANALYSIS"
],
"start": 14687,
"text": "\nThe expert's evidence in this case shows that he had fired four test cartridges from the pistol Ex. III"
}
},
{
"from_name": null,
"id": "42b5948d792946f9a344714907c4766b",
"to_name": null,
"type": null,
"value": {
"end": 14999,
"labels": [
"ANALYSIS"
],
"start": 14792,
"text": "He found the individual characteristics of the chamber to have been impressed upon the test cartridges Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge Ex. 1."
}
},
{
"from_name": null,
"id": "06ee8e3047fe4cf6af5d985140c1b28e",
"to_name": null,
"type": null,
"value": {
"end": 15076,
"labels": [
"ANALYSIS"
],
"start": 15000,
"text": "He made microphotographs of some of these individual marks on Exs. 1 and 10."
}
},
{
"from_name": null,
"id": "ec576aaacdb248d49546aa719d67e180",
"to_name": null,
"type": null,
"value": {
"end": 15239,
"labels": [
"ANALYSIS"
],
"start": 15077,
"text": "In giving his reasons for his opinion, the fire-arms expert stated that every fire-arm has individual characteristics on its breach face striking pin and chamber."
}
},
{
"from_name": null,
"id": "3e3d649b0ef84ac7a1b4c7acf7bf14bc",
"to_name": null,
"type": null,
"value": {
"end": 15372,
"labels": [
"ANALYSIS"
],
"start": 15240,
"text": "When a cartridge is fired gases. are generated by the combustion of the powder, creating a pressure of 2 to 20 tons per square inch."
}
},
{
"from_name": null,
"id": "9149ee4d4e28454391b9d38ef0fae0ce",
"to_name": null,
"type": null,
"value": {
"end": 15538,
"labels": [
"ANALYSIS"
],
"start": 15373,
"text": "Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter"
}
},
{
"from_name": null,
"id": "9d57016298024273bf5adf0932eb1800",
"to_name": null,
"type": null,
"value": {
"end": 15598,
"labels": [
"ANALYSIS"
],
"start": 15539,
"text": "the individualities of these parts are impressed upon them."
}
},
{
"from_name": null,
"id": "3576f179bafd44b78695b4421fe32fbc",
"to_name": null,
"type": null,
"value": {
"end": 15853,
"labels": [
"ANALYSIS"
],
"start": 15599,
"text": "By firing a number of test cartridges from a given fire-arm and comparing them under a microscope with the evidence cartridge, it can definitely be stated, if the marks are clear, whether the evidence cartridges had been fired or not from that fire- arm."
}
},
{
"from_name": null,
"id": "18d94392a51346c28f93946827749be7",
"to_name": null,
"type": null,
"value": {
"end": 15952,
"labels": [
"RATIO"
],
"start": 15854,
"text": "It seems to us that the fire-arms expert made the necessary tests and was careful -in what he did."
}
},
{
"from_name": null,
"id": "d77f439797094453ac17660ee36bc183",
"to_name": null,
"type": null,
"value": {
"end": 16005,
"labels": [
"RATIO"
],
"start": 15953,
"text": "There is no good reason for distrusting his opinion."
}
},
{
"from_name": null,
"id": "b49724f246334b9a981021fce51dd153",
"to_name": null,
"type": null,
"value": {
"end": 16173,
"labels": [
"RATIO"
],
"start": 16006,
"text": "The learned Judges of the High Court examined the micro-photographs in question and were satisfied that there was no ground for distrusting the evidence of the expert."
}
},
{
"from_name": null,
"id": "d5b187882402474e86587e6c44bc434b",
"to_name": null,
"type": null,
"value": {
"end": 16365,
"labels": [
"RATIO"
],
"start": 16174,
"text": "They were accordingly justified in coming to the conclusion that the cartridge Ex. 1, found nor the cot of Dava Ram,was fired from the pistol Ex. III produced by the appellant from his house."
}
},
{
"from_name": null,
"id": "bb8050e4bacd4f419d856a425cda718d",
"to_name": null,
"type": null,
"value": {
"end": 16528,
"labels": [
"RATIO"
],
"start": 16366,
"text": "There can, therefore, be no room for thinking, in the circumstances established in this case, that any one else other than the appellant might have shot Daya Ram."
}
},
{
"from_name": null,
"id": "b9a2e434501b4b0584ab17ac46deebbf",
"to_name": null,
"type": null,
"value": {
"end": 16592,
"labels": [
"RPC"
],
"start": 16529,
"text": "He was, therefore, rightly convicted for the offence of murder."
}
},
{
"from_name": null,
"id": "81a5bb6c2a3c47e581d4d116101f8c54",
"to_name": null,
"type": null,
"value": {
"end": 16629,
"labels": [
"RPC"
],
"start": 16592,
"text": "\nThe appeal is accordingly dismissed."
}
}
]
}
] | 4,240 | {
"text": "PETITIONER:\nKALUA\n\nVs.\n\nRESPONDENT:\nTHE STATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:\n21/11/1956\n\nBENCH:\nIMAM, SYED JAFFER\nBENCH:\nIMAM, SYED JAFFER\nJAGANNADHADAS, B.\nMENON, P. GOVINDA\n\nCITATION: 1957 SCR 187\n 1958 AIR 180\n\nACT:\nCriminal Trial-Murdey-Circumstantial evidence-Opinion of\nfire-arms expert-Whether conclusive.\n\nHEADNOTE:\nOne Daya Ram had been murdered by shooting with a country\nmade pistol. The circumstantial evidence established\nagainst the appellant was (1) that he had a motive for the\nmurder, (2) that three days before the murder the appellant\nhad held out a threat to murder the deceased, (3) that a\ncartridge Ex. I was found near the cot of the deceased, and\n(4) that the appellant produced a country made pistol Ex.\nIII from his house in circumstances which clearly showed\nthat he alone could have known of its existence there. The\nfire-arms expert examined the recovered pistol and the\ncartridge and after making scientific tests was of the\ndefinite opinion that the cartridge Ex. I had been fired\nfrom the pistol Ex. III :\nHeld, that the opinion of the fire-arms expert conclusively\nproved that the cartridge Ex. I had been fired from the\npistol Ex. III.\nThe circumstantial evidence was sufficient to establish the\nguilt of the appellant.\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 135 of 1956.Appeal by special leave from the judgment and order dated November 25, 1955, of the Allahabad High Court, in Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment and order dated May 17, 1955, of the Court of Sessions Judge, at Moradavad in Sessions Trial No.\n29 of 1955.\nP. S. Safeer, for the appellant.\nG. C. Mathur and C. P. Lal, for the respondent.\n1956. November 21. The Judgment of the Court was delivered by IMAM J.-The appellant was sentenced to death for the marder of Daya Ram by shooting him with a country made pistol. He was also convicted for being in possession of an unlicensed firearm under the Arms Act for which offence he was sentenced to two years rigorous imprisonment. He appealed to the High Court of Allahabad, but his appeal was dismissed and the conviction and sentence was affirmed. Against the decision of the Allahabad High Court the appellant obtained special leave to appeal to this Court.\nAccording to the prosecution, the occurrence took place at about midnight of July 4, 1954, when Daya Ram was sleeping on a cot on a platform. Near him were sleeping Gokul, Doongar and Jai Singh, while two women Ratto and Bhuri slept in a room to the north of the platform and adjoining it.\nThe report of the shot fired woke up these people.\nAccording to them, they saw the appellant running towards the east. He was accompanied by three others who were armed with lathis. Daya Ram died almost instantaneously as the result of the injuries on his chest and stomach from where pellets were recovered at the time of the post mortem examination. Daya Ram had been shot from a close distance because the skin was charred over the entire area of the wound. Near the cot, on which he slept, a cartridge Ex. I.\nwas found which was handed over to the Police Officer when he arrived for investigation. A first information report was lodged at the police station five miles away at 8-10 a.\nm. on July 5, 1954.\nThe motive for the murder, as alleged by the prosecution, was that on the death of one Bhai Singh the appellant hoped to become guardian of Ratto's property, who, however, appointed Daya Ram to take charge of it. The appellant resented this very much. Three days before the murder of Daya Ram there had been a quarrel between the appellant and his wife on the one side and Ratto and Bhuri on the other.\nThe quarrel arose over an attempt by the appellant to construct a wall over Ratto's land.' The appellant uttered a threat that he would soon settle with the person on whom Ratto was depending, that is to say, the deceased Daya Ram.\nAccording to the High Court, the defence did not seriously challenge these allegations and the appellant himself admitted that Ratto wanted him to be turned out of his house.\nThe appellant was arrested on the night between July 5 and July 6, 1954, at a village fourteen miles away from the village of \"occurrence Dhakeri. On July 7, he informed the Sub-Inspector that he was prepared to produce the pistol Ex.\nIII. The SubInspector and the appellant went to village Dhakeri and Kartar Singh, Mahtab Singh and Khamani were invited to witness the events that might follow. On reaching the appellant's house, which adjoins the resid- ential house of Ratto, the appellant stated that the pistol Ex. III had been concealed by him in a corn-bin. From a secret place he took out a key and opened the lock of his house with it. He then took the SubInspector and the witnesses to a mud corn-bin inside his house, which appeared to be freshly plastered at one place. The appellant removed the plaster at this place and from inside took out the country made 12bore pistol Ex. III, and three live 12-bore cartridges. The cartridge Ex. I, which was found near the cot of Daya Ram, and the pistol Ex. III were sent to Shyam Narain, a Deputy Superintendent of Police, who is ,a fire- arms expert of the C. I. D. of Uttar Pradesh Government. He made scientific tests. He came to the conclusion as the result of the various tests made by him that the cartridge Ex, I was fired from the pistol Ex. III and no other fire- arm.While the Sessions Judge believed the testimony of the eye- witnesses, the learned Judges of the. High Court were of the opinion that they were unable to accept the assertion of the eye-witnesses that they actually saw the appellant with a pistol by the bedside of the deceased. The High Court, however, relied upon the circumstantial evidence in the case in upholding the conviction of the appellant. There was motive for the crime and a few days before the killing of.\nDaya Ram the appellant had held out a threat against him.\nThe appellant was arrested fourteen miles away from his village which is the place of occurrence. He produced a pistol Ex.III from his house in circumstances which clearly showed that he only could have known of its existence there.\nThe opinion of the fire-arms expert clearly established that the cartridge Ex. 1, found near the cot of Daya Ram, was fired with the pistol Ex. III produced -by the appellant.\nAll these circumstances, in the opinion of the High Court, left no doubt in the minds of the learned Judges of that Court that the appellant murdered Daya Ram by shooting him with his pistol.\nThe learned Advocate for the appellant urged that the appellant could not have placed the pistol in his house and it must have been planted there by someone because none of the witnesses stated that they had seen him going to his house after the murder and the appellant was certainly not found in his house in the morning. According to the situation of the house of the appellant and where the witnesses were immediately after the occurrence, it was impossible for the appellant to have entered his house without being seen. It was further unlikely that after having committed the murder, the appellant, after having run away, would return to his house. Both the Courts below, however, found no reason to disbelieve the Sub-Inspector and the witnesses that the appellant had produced the pistol Ex.\nIII from the corn-bin inside his house. The appellant had the key of the house which was hidden in a secret place and the com-bin was itself freshly plastered at one place.\nThese circumstances clearly showed that no one but the appellant could haveknown of the existence of the pistol in the corn-bin in his house. As to whether the appellant could or.could not have gone to his house after the occurrence that is a matter of pure speculation. It does not appear that any witness was asked anything about it. The High Court found that the witnesses might have caught a glimpse of the people who were fast disappearing from the scene but who had no reasonable opportunity of marking their features. In the confusion of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards the east. On the record, there is nothing to show that to enter the appellant's house, after the occurrence, the appellant had necessarily to go into his house within the view of the witnesses. It is quite unnecessary to examine this matter any further because the evidence concerning the production of the pistol Ex. III by the appellant from his house is' clear and reliable and, therefore, it is certain that the appellant did enter his house after the occurrence without being seen by anyone.\nIt was next urged on behalf of the appellant, that,it was impossible for a cartridge to have been near the cot of Daya Ram, because after the shot had been fired the cartridge would still remain in the barrel of the firearm. This again is pure speculation. That the cartridge was ejected from the fire-arm is certain. Why it was ejected none can say.\n It may be that the miscreant reloaded his weapon to meet any emergency. The evidence of the Sub-Inspector is clear that on his arrival at the place of occurrence the cartridge Ex.\n I was handed over to him by the witness Khamani who cannot be said to be unfavorable to the appellant. The Courts below had no reason to disbelieve the evidence in the case that the cartridge Ex. I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify us saying that the Courts below took an erroneous view of the evidence.\n On the facts found there was a motive for the murder.\n Apparently, for no good reason the appellant was not found at his house on the morning of July 5, but was in a village fourteen miles away at the time of his arrest.\n The appellant produced the pistol Ex. III in circumstances clearly showing that he had deliberately kept it concealed.\n We have no reason to doubt the evidence in this respect.\n The real question is, whether it is safe to act upon the opinion of the fire-arms expert that the cartridge Ex. I was fired from the pistol Ex. III produced by the appellant and none other, because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder. The opinion of 'the fire-arms expert, based on the result of his tests, does -not seem to have been challenged in cross-examination or before the High Court. If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge Ex. I, found near the cot of Daya Ram, was fired from the pistol Ex. III produced by the appellant. To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell cases by fire-arms in order to ascertain that there is no error in the opinion of the fire- arms expert in the present case. Kirk in his book \"Crime Investigation\" at page 346 states: \"Fired cases are less often encountered in criminal investigation than are bullets, but when found they are usually of greater significance because they receive at least as clear markings as do bullets, have a greater variety of such markings, and are not ordinarily damaged in firing...............................................\n The questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located. In the ordinary case, quite definite answers can be given. This is true both of shotgun shells and of cartridge cases from pistols, revolvers, and rifles........................... .. In general, it is possible to identify a certain firearm as having fired a particular shell or cartridge. It is often possible to identify the type or make of gun' which fired it, though in many instances this must be tentative or probable identification only.\"\n ` 193 After :dealing with the marks left by breech-block, firing pin impressions, marks from extractors and ejectors, marks due to expansion, magazine marks and loading mechanism marks,he states, \"Summarizing, the cartridge or shell case us. ally carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter. Those marks arise from a variety of contacts with various parts of the gun, an analysis of which is useful in, determining the type of weapon in case no suspected gun is available ...................... Thus, the recovered shell or cartridge case is one of the most useful types of physical evidence which can be found in shooting cases.\"\nSoderman and O'Connel in their book \"Modern Criminal Investigation\" also deal with the subject and they refer to the marks from the fire pin, the extractor, the. ejector and the breech-block. After referring to comparison being made of the cartridge or shell fired from a fire-arm for the purpose of test, they state at page 200, If they are in the same position in relation to one another and their general appearance is the same, one may conclude that they have been fired from a pistol of the same make.\nAn absolute conclusion about the origin of the shells, however, can be reached only after a photomicrographic examination of the markings from the breech-block on the rear of the shell.............................\nIdentification, with the aid of the enlargement, should not prove difficult. The characteristic scratches can be easily seen. A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used in the' identification of fingerprints.\"\nIn Taylor's book on Medical Jurisprudence, Tenth Edition, Vol. 1, at page 459, it is stated, \" It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite194 different, and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well-defined marks. In general, however, though it is unlikely that -all marks will be equally good, it is usually possible to obtain definite information from the marks of the firing-pin, extractor, ejector, or breech- block. on the base or rim, or from grooves or scratches on the surface. In weapons of the same manufacture, the marks are of the same general nature, but in each weapon there are individual differences which usually enable it to be definitely identified.\"\nThe expert's evidence in this case shows that he had fired four test cartridges from the pistol Ex. III He found the individual characteristics of the chamber to have been impressed upon the test cartridges Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge Ex. 1. He made microphotographs of some of these individual marks on Exs. 1 and 10. In giving his reasons for his opinion, the fire-arms expert stated that every fire-arm has individual characteristics on its breach face striking pin and chamber. When a cartridge is fired gases. are generated by the combustion of the powder, creating a pressure of 2 to 20 tons per square inch. Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them. By firing a number of test cartridges from a given fire-arm and comparing them under a microscope with the evidence cartridge, it can definitely be stated, if the marks are clear, whether the evidence cartridges had been fired or not from that fire- arm. It seems to us that the fire-arms expert made the necessary tests and was careful -in what he did. There is no good reason for distrusting his opinion. The learned Judges of the High Court examined the micro-photographs in question and were satisfied that there was no ground for distrusting the evidence of the expert. They were accordingly justified in coming to the conclusion that the cartridge Ex. 1, found nor the cot of Dava Ram,was fired from the pistol Ex. III produced by the appellant from his house. There can, therefore, be no room for thinking, in the circumstances established in this case, that any one else other than the appellant might have shot Daya Ram. He was, therefore, rightly convicted for the offence of murder.\nThe appeal is accordingly dismissed.\n"
} |
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{
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"start": 0,
"text": " 1/11"
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"start": 58,
"text": "IN THE HIGH COURT OF KARNATAKA, BENGALURU\n DATED THIS THE 4TH DAY OF JULY 2018\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n I.T.A.No190/2016\n\nBETWEEN:\n\n1. PR. COMMISSIONER OF INCOME TAX-6\n C.R. BUILDINGS, QUEENS ROAD\n BANGALORE."
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{
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"end": 534,
"labels": [
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],
"start": 468,
"text": "2. DEPUTY DIRECTOR OF INCOME TAX\n CIRCLE 12(3), BANGALORE."
}
},
{
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"start": 534,
"text": "\n ...APPELLANTS\n\n(By Mr. SANMATHI E.I. ADV.)\n\nAND:"
}
},
{
"from_name": null,
"id": "749b2e12daf04c53955c58cefcd2cf6d",
"to_name": null,
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"value": {
"end": 681,
"labels": [
"PREAMBLE"
],
"start": 654,
"text": "M/S. SOFTWARE AG BANGALORE\n"
}
},
{
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"id": "2d24006a4f124c219d7d4b6964d81164",
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"value": {
"end": 693,
"labels": [
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],
"start": 681,
"text": "TECHNOLOGIES"
}
},
{
"from_name": null,
"id": "f93022f5bc474b18b94454fdf8eeb465",
"to_name": null,
"type": null,
"value": {
"end": 703,
"labels": [
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],
"start": 694,
"text": "PVT LTD.,"
}
},
{
"from_name": null,
"id": "a9ad7f59d2504dc59ea2f6405fd99aed",
"to_name": null,
"type": null,
"value": {
"end": 742,
"labels": [
"PREAMBLE"
],
"start": 703,
"text": "\nEXORA BUSINESS PARK\nWING B, 1ST FLOOR,"
}
},
{
"from_name": null,
"id": "888905888bd9406bb10b0ea12d466f4e",
"to_name": null,
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"value": {
"end": 752,
"labels": [
"PREAMBLE"
],
"start": 742,
"text": "\nELECTRA ,"
}
},
{
"from_name": null,
"id": "97493ceb3466454fa4a6cb15d5c027cf",
"to_name": null,
"type": null,
"value": {
"end": 801,
"labels": [
"PREAMBLE"
],
"start": 752,
"text": "\nMARATHAHALLI SARJAPUR\n\n M/s."
}
},
{
"from_name": null,
"id": "87bcd7d0158e459c8029e4f058eedd9a",
"to_name": null,
"type": null,
"value": {
"end": 846,
"labels": [
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],
"start": 802,
"text": "Software AG Bangalore Technologies Pvt Ltd.,"
}
},
{
"from_name": null,
"id": "0fbeeaebe7354b1388521ddb9f02f029",
"to_name": null,
"type": null,
"value": {
"end": 878,
"labels": [
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],
"start": 846,
"text": "\n\n 2/11"
}
},
{
"from_name": null,
"id": "8117c98c625c49fcbe424c0935967d52",
"to_name": null,
"type": null,
"value": {
"end": 963,
"labels": [
"PREAMBLE"
],
"start": 878,
"text": "\n\nOUTER RING ROAD\nBANGALORE-560 103.\n\n ... RESPONDENT"
}
},
{
"from_name": null,
"id": "da70b20e9e08445ebb96290a3b56e883",
"to_name": null,
"type": null,
"value": {
"end": 1036,
"labels": [
"PREAMBLE"
],
"start": 965,
"text": "(By Ms. SUJATHA D, ADV., FOR\n Mr. MALLAHA RAO K, ADV.,)\n\n "
}
},
{
"from_name": null,
"id": "8bb28563825e45cf9f6ded34fd6d1069",
"to_name": null,
"type": null,
"value": {
"end": 1529,
"labels": [
"PREAMBLE"
],
"start": 1036,
"text": "THIS I.T.A. IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE THE FOREGOING\nQUESTIONS OF LAW AND/OR SUCH OTHER QUESTIONS OF\nLAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n04/09/2015 PASSED BY THE ITAT, `B' BENCH, BENGALURU, AS\nSOUGHT FOR, IN THE RESPONDENT-ASSESSEE'S CASE, IN\nAPPEL PROCEEDINGS IN IT(TP)A No.1291/Bang/2014 FOR A.Y.\n2009-10 ANNEXURE-A & GRANT SUCH OTHER RELIEF AS\nDEEMED FIT, IN THE INTERST OF JUSTICE."
}
},
{
"from_name": null,
"id": "3df1c4c489e748cc9f34da4116e162dd",
"to_name": null,
"type": null,
"value": {
"end": 1645,
"labels": [
"PREAMBLE"
],
"start": 1529,
"text": "\n\n THIS I.T.A. COMING ON FOR HEARING, THIS DAY\nDR. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-\n\n M/s."
}
},
{
"from_name": null,
"id": "acb6308b37474b74984f0127b771aed2",
"to_name": null,
"type": null,
"value": {
"end": 1690,
"labels": [
"PREAMBLE"
],
"start": 1646,
"text": "Software AG Bangalore Technologies Pvt Ltd.,"
}
},
{
"from_name": null,
"id": "d3d644a29c9a42b798d1cb8efc50b2c3",
"to_name": null,
"type": null,
"value": {
"end": 1711,
"labels": [
"PREAMBLE"
],
"start": 1690,
"text": "\n\n 3/11"
}
},
{
"from_name": null,
"id": "c03636d02a0b49b7a0f50d5007339b8e",
"to_name": null,
"type": null,
"value": {
"end": 1728,
"labels": [
"PREAMBLE"
],
"start": 1711,
"text": "\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "501dd2690889499795d096abcf4d6ab1",
"to_name": null,
"type": null,
"value": {
"end": 1849,
"labels": [
"NONE"
],
"start": 1728,
"text": "\n Mr. Sanmathi E.I. Adv. for Appellants-Assessee Ms. Sujatha D, Adv. for Mr. Mallaha Rao K, Adv. for Respondent - Revenue"
}
},
{
"from_name": null,
"id": "b7eff35845384e029070d9c163b63013",
"to_name": null,
"type": null,
"value": {
"end": 2054,
"labels": [
"FAC"
],
"start": 1850,
"text": "The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, `B' Bench, Bangalore, dated"
}
},
{
"from_name": null,
"id": "78e4aa0c34c747bf8c0cd25c85e63d49",
"to_name": null,
"type": null,
"value": {
"end": 2066,
"labels": [
"FAC"
],
"start": 2055,
"text": " 04.09.2015"
}
},
{
"from_name": null,
"id": "e19b0a51358b44ab860fa2149edd21d8",
"to_name": null,
"type": null,
"value": {
"end": 2241,
"labels": [
"FAC"
],
"start": 2067,
"text": " passed in IT(TP)A No.1291/Bang/2014 (M/s. Software AG Bangalore Technologies Pvt. Ltd., vs. The Deputy Commissioner of Income Tax) for A.Y.2009-10."
}
},
{
"from_name": null,
"id": "8f38e4167b424a37b4fd4057cc8f33e1",
"to_name": null,
"type": null,
"value": {
"end": 2749,
"labels": [
"FAC"
],
"start": 2241,
"text": "\n 2. The proposed substantial questions of law framed in the Memorandum of appeal by the Appellants-Revenue are quoted below for ready reference:- \"(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law as well as facts in directing the M/s. Software AG Bangalore Technologies Pvt Ltd., 4/11 TPO to apply the same principles as emerging from the orders of the Delhi & Bangalore Benches of Tribunal in the case of SAP Labs India Pvt. Ltd., & Haworth India Pvt. Ltd.,?"
}
},
{
"from_name": null,
"id": "da7f204cfa994638a06ca24a7256910d",
"to_name": null,
"type": null,
"value": {
"end": 3316,
"labels": [
"FAC"
],
"start": 2749,
"text": "\n (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the size and turnover of the company are deciding factors for treating a company as a comparable and consequently erred in excluding 02 companies, out of 11 companies as comparables in the case of the assessee?\n (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that few companies are functionally different from the assessee when it satisfies all the qualitative and quantitative filters applied by the TPO."
}
},
{
"from_name": null,
"id": "32d63c824dea4b828fdd4f5c25b58621",
"to_name": null,
"type": null,
"value": {
"end": 3666,
"labels": [
"FAC"
],
"start": 3317,
"text": "The tribunal had used a narrower functionality filter than the TPO, but had not tested other comparables against the narrower functionality filter applied by it.?\"\n (4) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in directing the Assessing Officer to exclude reimbursement of certain expenditure M/s."
}
},
{
"from_name": null,
"id": "62df1ef18ea64fd191695d659a02b7cd",
"to_name": null,
"type": null,
"value": {
"end": 4109,
"labels": [
"FAC"
],
"start": 3667,
"text": "Software AG Bangalore Technologies Pvt Ltd., 5/11 incurred in foreign currency, both from the Export Turnover and Total Turnover, without appreciating the fact that the statue allows exclusion of such expenditure expressly only from the Export Turnover by way of specific definition of export turnover defined in the Act, while there is no specific provision is Section 10A warranting exclusion of the above expenses from the Total Turnover?\""
}
},
{
"from_name": null,
"id": "bcca7d6fdecf4f8ab0ecc073a5a0bf29",
"to_name": null,
"type": null,
"value": {
"end": 4735,
"labels": [
"ISSUE"
],
"start": 4109,
"text": "\n 3. The appeal was ADMITTED by the cognate bench of this Court on 31.10.2017 on the following substantial question of law Nos.1 to 3: \"(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law as well as facts in directing the TPO to apply the same principles as emerging from the orders of the Delhi & Bangalore Benches of Tribunal in the case of SAP Labs India Pvt. Ltd., & Haworth India Pvt. Ltd.,?\n (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the size and turnover of the company are deciding factors for treating a M/s."
}
},
{
"from_name": null,
"id": "4dbb62372d0d4ed6a4bd0578cfcfb626",
"to_name": null,
"type": null,
"value": {
"end": 4923,
"labels": [
"ISSUE"
],
"start": 4736,
"text": "Software AG Bangalore Technologies Pvt Ltd., 6/11 company as a comparable and consequently erred in excluding 02 companies, out of 11 companies as comparables in the case of the assessee?"
}
},
{
"from_name": null,
"id": "e58ba30435a646f582fdf1c6cb3152fa",
"to_name": null,
"type": null,
"value": {
"end": 5172,
"labels": [
"ISSUE"
],
"start": 4923,
"text": "\n (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that few companies are functionally different from the assessee when it satisfies all the qualitative and quantitative filters applied by the TPO."
}
},
{
"from_name": null,
"id": "d5ff6d55f671439db1cddcd5a0ddb445",
"to_name": null,
"type": null,
"value": {
"end": 5336,
"labels": [
"ISSUE"
],
"start": 5173,
"text": "The tribunal had used a narrower functionality filter than the TPO, but had not tested other comparables against the narrower functionality filter applied by it.?\""
}
},
{
"from_name": null,
"id": "7f06638eaedf410bbe44923afc47f23e",
"to_name": null,
"type": null,
"value": {
"end": 5667,
"labels": [
"ANALYSIS"
],
"start": 5336,
"text": "\n 4. The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Respondent-assessee, has given the following findings against Revenue with regard to various issues raised before it with regard to `Transfer Pricing' and `Transfer Pricing Adjustments' made by the concerned authorities below."
}
},
{
"from_name": null,
"id": "f27d4d5bca8f4b72a23970eb80fd0a94",
"to_name": null,
"type": null,
"value": {
"end": 5796,
"labels": [
"ANALYSIS"
],
"start": 5668,
"text": "We consider it appropriate to quote the relevant portions hereunder: M/s. Software AG Bangalore Technologies Pvt Ltd., 7/11 \"21."
}
},
{
"from_name": null,
"id": "161dcd84f90d463a9989a5bd132d4c80",
"to_name": null,
"type": null,
"value": {
"end": 6025,
"labels": [
"ANALYSIS"
],
"start": 5797,
"text": "We have considered the submissions of the ld. counsel for the assessee and are of the view that in the light of judicial precedent cited by the ld. counsel for the assessee, turnover filter has to be applied in the present case."
}
},
{
"from_name": null,
"id": "50854d27a1994d04a6b804e279e94ae4",
"to_name": null,
"type": null,
"value": {
"end": 6206,
"labels": [
"ANALYSIS"
],
"start": 6026,
"text": "The assessee's turnover is Rs.32.84 crores and the assessee cannot be compared with a company whose turnover is more than 200 crores as laid down in the decision referred to above."
}
},
{
"from_name": null,
"id": "a5de0210940a4c429c4a2831534bb4f4",
"to_name": null,
"type": null,
"value": {
"end": 6330,
"labels": [
"ANALYSIS"
],
"start": 6207,
"text": "Following the aforesaid decision, we hold that the aforesaid 5 companies be excluded from the list of comparable companies."
}
},
{
"from_name": null,
"id": "ce64a1cb6d9d49aaa10008e85a650950",
"to_name": null,
"type": null,
"value": {
"end": 6582,
"labels": [
"ANALYSIS"
],
"start": 6330,
"text": "\n 22. The ld. counsel then brought to our notice that Bodhtree Consulting Ltd. and KALS Information Systems Ltd. have been held to be functionally not comparable with a company like the assessee, which is purely a software development service provider."
}
},
{
"from_name": null,
"id": "1398e3d5429f4ea2933e81cb27ba56da",
"to_name": null,
"type": null,
"value": {
"end": 6782,
"labels": [
"ANALYSIS"
],
"start": 6583,
"text": "In this regard, the ld. counsel for the assessee drew our attention to the ITAT Bangalore Bench decision in the case of CISCO Systems India Pvt. Ltd., IT(TP)A No.271/Bang/2014, order dated 14.8.2014."
}
},
{
"from_name": null,
"id": "fa72823d149349bf95d964238a745300",
"to_name": null,
"type": null,
"value": {
"end": 7054,
"labels": [
"ANALYSIS"
],
"start": 6783,
"text": "In this case for the AY 2009-10, the Tribunal M/s. Software AG Bangalore Technologies Pvt Ltd., 8/11 considered the comparability of Bodhtree Consulting Ltd. as well as KALS Information Systems Ltd, with a company engaged in the business of software development services."
}
},
{
"from_name": null,
"id": "0786fb4d6fb647f0b06794072b9f1594",
"to_name": null,
"type": null,
"value": {
"end": 7123,
"labels": [
"ANALYSIS"
],
"start": 7054,
"text": "\nFollowing were the relevant observations of the Tribunal:- xxxxx 23."
}
},
{
"from_name": null,
"id": "4da1264b92e440a8b7388438ef4c08d5",
"to_name": null,
"type": null,
"value": {
"end": 7443,
"labels": [
"ANALYSIS"
],
"start": 7124,
"text": "Following the aforesaid decision of the Tribunal in the case of an assessee similarly placed with that of the assessee in the present case, we are of the view that Bodhtree Consulting Ltd. and KALS Information Systems Ltd. should be excluded from the list of comparable companies for the purpose of determining the ALP."
}
},
{
"from_name": null,
"id": "02053916f9db422295871150d80138e8",
"to_name": null,
"type": null,
"value": {
"end": 7734,
"labels": [
"ANALYSIS"
],
"start": 7444,
"text": "It is also relevant to point out that in the case of CISCO Systems India Pvt. Ltd. (supra), the very same 11 companies had been chosen by the TPO as comparables, thereby making it clear that the assessee in the present case and CISCO Systems India Pvt. Ltd. have the same business profile.\""
}
},
{
"from_name": null,
"id": "7e3bf9281c564ffdb352078e289b3c75",
"to_name": null,
"type": null,
"value": {
"end": 7820,
"labels": [
"PRE_RELIED"
],
"start": 7734,
"text": "\n 5. This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 M/s."
}
},
{
"from_name": null,
"id": "fdf56375c8d64c118c5c547377b67038",
"to_name": null,
"type": null,
"value": {
"end": 7920,
"labels": [
"PRE_RELIED"
],
"start": 7821,
"text": "Software AG Bangalore Technologies Pvt Ltd., 9/11 (Prl. Commissioner of Income Tax & Anr. Vs.\n M/s."
}
},
{
"from_name": null,
"id": "6bd650165d8140fba60329f7d025b62a",
"to_name": null,
"type": null,
"value": {
"end": 7931,
"labels": [
"PRE_RELIED"
],
"start": 7921,
"text": "Softbrands"
}
},
{
"from_name": null,
"id": "fb11e855607c424f82b371237e2b807c",
"to_name": null,
"type": null,
"value": {
"end": 7941,
"labels": [
"PRE_RELIED"
],
"start": 7932,
"text": "India Pvt"
}
},
{
"from_name": null,
"id": "3ec73dd4861648aaa92e7e06f92140a7",
"to_name": null,
"type": null,
"value": {
"end": 7949,
"labels": [
"PRE_RELIED"
],
"start": 7941,
"text": ". Ltd.,)"
}
},
{
"from_name": null,
"id": "315cffca92484fc5a0f61b88cbbe39b2",
"to_name": null,
"type": null,
"value": {
"end": 8302,
"labels": [
"PRE_RELIED"
],
"start": 7950,
"text": "has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable and the relevant portion of the said judgment is quoted below for ready reference:"
}
},
{
"from_name": null,
"id": "aea18ed441074125b4a23545dee7e14b",
"to_name": null,
"type": null,
"value": {
"end": 8451,
"labels": [
"PRE_RELIED"
],
"start": 8303,
"text": "\" Conclusion: 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases."
}
},
{
"from_name": null,
"id": "460c42006aca49178e5f6ad5e8c70183",
"to_name": null,
"type": null,
"value": {
"end": 8960,
"labels": [
"PRE_RELIED"
],
"start": 8452,
"text": "Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section M/s."
}
},
{
"from_name": null,
"id": "eefb93301c374e358d672ae5beb2e4f2",
"to_name": null,
"type": null,
"value": {
"end": 9138,
"labels": [
"PRE_RELIED"
],
"start": 8961,
"text": "Software AG Bangalore Technologies Pvt Ltd., 10/11 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law."
}
},
{
"from_name": null,
"id": "ce31fad8e0bd458c9fe2efb4bb17ae24",
"to_name": null,
"type": null,
"value": {
"end": 9426,
"labels": [
"PRE_RELIED"
],
"start": 9139,
"text": "On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law."
}
},
{
"from_name": null,
"id": "897c82ddb1a6491cb0d0ffe41592c82e",
"to_name": null,
"type": null,
"value": {
"end": 9796,
"labels": [
"PRE_RELIED"
],
"start": 9426,
"text": "\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed.\n 57."
}
},
{
"from_name": null,
"id": "3aedc7b91fee4cf48676f44ba4436c3f",
"to_name": null,
"type": null,
"value": {
"end": 10195,
"labels": [
"PRE_RELIED"
],
"start": 9797,
"text": "We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed M/s."
}
},
{
"from_name": null,
"id": "4732ed6f109641c9af24b0cd49ab516f",
"to_name": null,
"type": null,
"value": {
"end": 10278,
"labels": [
"PRE_RELIED"
],
"start": 10196,
"text": "Software AG Bangalore Technologies Pvt Ltd., 11/11 such appeals before this Court."
}
},
{
"from_name": null,
"id": "97ee9e128ffb439281e552bb64bfbb36",
"to_name": null,
"type": null,
"value": {
"end": 10475,
"labels": [
"PRE_RELIED"
],
"start": 10279,
"text": "Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court."
}
},
{
"from_name": null,
"id": "9a9f7f99e6ea43e39236145d641f7769",
"to_name": null,
"type": null,
"value": {
"end": 10565,
"labels": [
"PRE_RELIED"
],
"start": 10475,
"text": "\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\""
}
},
{
"from_name": null,
"id": "20163c2abcfd492ab6bb5ce7d776b431",
"to_name": null,
"type": null,
"value": {
"end": 10726,
"labels": [
"RATIO"
],
"start": 10565,
"text": "\n 6. Having heard the learned counsel for the appellants-Revenue, we are therefore of the opinion that no substantial question of law arises in the present case."
}
},
{
"from_name": null,
"id": "db1c942221b24061a6ad8eb76bbc379e",
"to_name": null,
"type": null,
"value": {
"end": 10828,
"labels": [
"RPC"
],
"start": 10727,
"text": "The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly."
}
},
{
"from_name": null,
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"text": "\nNo costs."
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"text": "\n Sd/- JUDGE Sd/- JUDGE TL"
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"text": " 1/11\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n DATED THIS THE 4TH DAY OF JULY 2018\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n I.T.A.No190/2016\n\nBETWEEN:\n\n1. PR. COMMISSIONER OF INCOME TAX-6\n C.R. BUILDINGS, QUEENS ROAD\n BANGALORE.\n\n2. DEPUTY DIRECTOR OF INCOME TAX\n CIRCLE 12(3), BANGALORE.\n ...APPELLANTS\n\n(By Mr. SANMATHI E.I. ADV.)\n\nAND:\n\nM/S. SOFTWARE AG BANGALORE\nTECHNOLOGIES PVT LTD.,\nEXORA BUSINESS PARK\nWING B, 1ST FLOOR,\nELECTRA ,\nMARATHAHALLI SARJAPUR\n\n M/s. Software AG Bangalore Technologies Pvt Ltd.,\n\n 2/11\n\nOUTER RING ROAD\nBANGALORE-560 103.\n\n ... RESPONDENT\n\n(By Ms. SUJATHA D, ADV., FOR\n Mr. MALLAHA RAO K, ADV.,)\n\n THIS I.T.A. IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE THE FOREGOING\nQUESTIONS OF LAW AND/OR SUCH OTHER QUESTIONS OF\nLAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n04/09/2015 PASSED BY THE ITAT, `B' BENCH, BENGALURU, AS\nSOUGHT FOR, IN THE RESPONDENT-ASSESSEE'S CASE, IN\nAPPEL PROCEEDINGS IN IT(TP)A No.1291/Bang/2014 FOR A.Y.\n2009-10 ANNEXURE-A & GRANT SUCH OTHER RELIEF AS\nDEEMED FIT, IN THE INTERST OF JUSTICE.\n\n THIS I.T.A. COMING ON FOR HEARING, THIS DAY\nDR. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-\n\n M/s. Software AG Bangalore Technologies Pvt Ltd.,\n\n 3/11\n\n JUDGMENT\n Mr. Sanmathi E.I. Adv. for Appellants-Assessee Ms. Sujatha D, Adv. for Mr. Mallaha Rao K, Adv. for Respondent - Revenue The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, `B' Bench, Bangalore, dated 04.09.2015 passed in IT(TP)A No.1291/Bang/2014 (M/s. Software AG Bangalore Technologies Pvt. Ltd., vs. The Deputy Commissioner of Income Tax) for A.Y.2009-10.\n 2. The proposed substantial questions of law framed in the Memorandum of appeal by the Appellants-Revenue are quoted below for ready reference:- \"(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law as well as facts in directing the M/s. Software AG Bangalore Technologies Pvt Ltd., 4/11 TPO to apply the same principles as emerging from the orders of the Delhi & Bangalore Benches of Tribunal in the case of SAP Labs India Pvt. Ltd., & Haworth India Pvt. Ltd.,?\n (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the size and turnover of the company are deciding factors for treating a company as a comparable and consequently erred in excluding 02 companies, out of 11 companies as comparables in the case of the assessee?\n (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that few companies are functionally different from the assessee when it satisfies all the qualitative and quantitative filters applied by the TPO. The tribunal had used a narrower functionality filter than the TPO, but had not tested other comparables against the narrower functionality filter applied by it.?\"\n (4) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in directing the Assessing Officer to exclude reimbursement of certain expenditure M/s. Software AG Bangalore Technologies Pvt Ltd., 5/11 incurred in foreign currency, both from the Export Turnover and Total Turnover, without appreciating the fact that the statue allows exclusion of such expenditure expressly only from the Export Turnover by way of specific definition of export turnover defined in the Act, while there is no specific provision is Section 10A warranting exclusion of the above expenses from the Total Turnover?\"\n 3. The appeal was ADMITTED by the cognate bench of this Court on 31.10.2017 on the following substantial question of law Nos.1 to 3: \"(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in law as well as facts in directing the TPO to apply the same principles as emerging from the orders of the Delhi & Bangalore Benches of Tribunal in the case of SAP Labs India Pvt. Ltd., & Haworth India Pvt. Ltd.,?\n (2) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the size and turnover of the company are deciding factors for treating a M/s. Software AG Bangalore Technologies Pvt Ltd., 6/11 company as a comparable and consequently erred in excluding 02 companies, out of 11 companies as comparables in the case of the assessee?\n (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that few companies are functionally different from the assessee when it satisfies all the qualitative and quantitative filters applied by the TPO. The tribunal had used a narrower functionality filter than the TPO, but had not tested other comparables against the narrower functionality filter applied by it.?\"\n 4. The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Respondent-assessee, has given the following findings against Revenue with regard to various issues raised before it with regard to `Transfer Pricing' and `Transfer Pricing Adjustments' made by the concerned authorities below. We consider it appropriate to quote the relevant portions hereunder: M/s. Software AG Bangalore Technologies Pvt Ltd., 7/11 \"21. We have considered the submissions of the ld. counsel for the assessee and are of the view that in the light of judicial precedent cited by the ld. counsel for the assessee, turnover filter has to be applied in the present case. The assessee's turnover is Rs.32.84 crores and the assessee cannot be compared with a company whose turnover is more than 200 crores as laid down in the decision referred to above. Following the aforesaid decision, we hold that the aforesaid 5 companies be excluded from the list of comparable companies.\n 22. The ld. counsel then brought to our notice that Bodhtree Consulting Ltd. and KALS Information Systems Ltd. have been held to be functionally not comparable with a company like the assessee, which is purely a software development service provider. In this regard, the ld. counsel for the assessee drew our attention to the ITAT Bangalore Bench decision in the case of CISCO Systems India Pvt. Ltd., IT(TP)A No.271/Bang/2014, order dated 14.8.2014. In this case for the AY 2009-10, the Tribunal M/s. Software AG Bangalore Technologies Pvt Ltd., 8/11 considered the comparability of Bodhtree Consulting Ltd. as well as KALS Information Systems Ltd, with a company engaged in the business of software development services.\nFollowing were the relevant observations of the Tribunal:- xxxxx 23. Following the aforesaid decision of the Tribunal in the case of an assessee similarly placed with that of the assessee in the present case, we are of the view that Bodhtree Consulting Ltd. and KALS Information Systems Ltd. should be excluded from the list of comparable companies for the purpose of determining the ALP. It is also relevant to point out that in the case of CISCO Systems India Pvt. Ltd. (supra), the very same 11 companies had been chosen by the TPO as comparables, thereby making it clear that the assessee in the present case and CISCO Systems India Pvt. Ltd. have the same business profile.\"\n 5. This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 M/s. Software AG Bangalore Technologies Pvt Ltd., 9/11 (Prl. Commissioner of Income Tax & Anr. Vs.\n M/s. Softbrands India Pvt. Ltd.,) has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable and the relevant portion of the said judgment is quoted below for ready reference: \" Conclusion: 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section M/s. Software AG Bangalore Technologies Pvt Ltd., 10/11 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law. On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law.\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed.\n 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed M/s. Software AG Bangalore Technologies Pvt Ltd., 11/11 such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court.\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\"\n 6. Having heard the learned counsel for the appellants-Revenue, we are therefore of the opinion that no substantial question of law arises in the present case. The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly.\nNo costs.\n Sd/- JUDGE Sd/- JUDGE TL "
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"text": "(By Sri.H.A.Shankar Rao, Advocate for D.1to 3)\n\n\nDate of the institution of the suit : 06-02-2006\n\nNature of the suit : For partition and\n "
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"text": "1. The plaintiff filed this suit against the defendants for partition and separate possession of her 1/4th share in the suit schedule properties by metes and bounds and cost of the suit."
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"text": "The plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and the defendants."
}
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"text": "The plaintiff and defendants have got equal right over the suit schedule properties for their specific share."
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"text": "\n 3. It is further contended that the plaintiff is a poor helpless and an illiterate lady having no knowledge of worldly affairs."
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"text": "The 1st defendant taking undue advantage of the facts, is trying to alienate the suit schedule properties on the basis of the Revenue entries got transferred to his name."
}
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"text": "This fact of transferring the Revenue entries of the suit properties to the name of 1st defendant has come to the knowledge of the plaintiff very recently."
}
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"text": "The 1st defendant in collusion with the other defendants is now trying to dispose off the suit schedule properties for their wrongful gain and to defraud the legitimate share of the plaintiff."
}
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"text": "The advice of the elders and relatives to effect partition also went in vain."
}
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"text": "Hence in order to protect the legitimate right of the plaintiff over the suit schedule properties, the plaintiff has come up with this suit."
}
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"text": "Hence this suit."
}
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"text": "4. In response to suit summons issued by the Court, Defendants have appeared through their counsel and filed Written Statement and additional Written Statement."
}
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"text": "5. In brief, the Written Statement filed by defendant Nos.1 to 3 are as under:-"
}
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"text": "The suit filed by the plaintiff is not maintainable either in law or on facts."
}
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"text": "The facts stated in para No.1 proof the plaint regarding the address of the defendants No.1 to 3 is partly correct, but the father's name of defendant No.1 and 3 is not correct."
}
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"text": "Regarding the age of the parties, plaintiff has not correctly mentioned the same."
}
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"value": {
"end": 4006,
"labels": [
"ARG_RESPONDENT"
],
"start": 3873,
"text": "The plaintiffs age is 73 years, 1st defendant's age is 65 years, 2nd defendant's age is 76 years and 3rd defendant's age is 60 years."
}
},
{
"from_name": "label",
"id": "d696a5e70f1c41c3b71c7f98953bb60b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4152,
"labels": [
"FAC"
],
"start": 4008,
"text": "6. The averments made in para No.2 of the plaint that the plaintiff and defendants No.1 to 3 are children of late Sri.Bundaiah is totally false."
}
},
{
"from_name": "label",
"id": "4efc87f6af3d49fc8cd34f0cd401c0c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4213,
"labels": [
"ANALYSIS"
],
"start": 4153,
"text": "In fact, they are all children of late Sri. Chikkandu Gowda."
}
},
{
"from_name": "label",
"id": "13144a512f424fecbc22e1ac8ac1e03c",
"to_name": "text",
"type": "labels",
"value": {
"end": 4395,
"labels": [
"FAC"
],
"start": 4214,
"text": "The say of the plaintiff that the suit schedule properties are ancestral properties and joint family properties are in joint possession of plaintiff and defendants is totally false."
}
},
{
"from_name": "label",
"id": "e9eaf6e4b8754981b2790c6b201c2c24",
"to_name": "text",
"type": "labels",
"value": {
"end": 4510,
"labels": [
"ANALYSIS"
],
"start": 4396,
"text": "In fact, the plaintiff is married long back and she is ceased to become the joint family member of defendant No.1."
}
},
{
"from_name": "label",
"id": "cefc5483c85548929e22eec42b6c31bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 4652,
"labels": [
"ANALYSIS"
],
"start": 4511,
"text": "In fact, according to Hindu Law, the married wife became the joint family member of her husband's family and not in the family of her father."
}
},
{
"from_name": "label",
"id": "b2170a7648474dbea012f946e6f405c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 4906,
"labels": [
"FAC"
],
"start": 4653,
"text": "The defendant No.2 and 3 are also not the joint family members of the defendant No.1 family because they are all married women, and their marriage was performed by their father late Sri Chikkandu Gowda during his life time, i.e, about 30 years and more."
}
},
{
"from_name": "label",
"id": "69925efd3c5a4c89931d254fe40eabab",
"to_name": "text",
"type": "labels",
"value": {
"end": 4997,
"labels": [
"FAC"
],
"start": 4907,
"text": "The said Chikkandu Gowda died about 15 years back, i.e, in the year 1990 of October month."
}
},
{
"from_name": "label",
"id": "733275aff2554f1cb06124d3dbb452e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 5118,
"labels": [
"FAC"
],
"start": 4998,
"text": "The say of the plaintiff that she is having equal right over the suit schedule properties is wholly untenable under law."
}
},
{
"from_name": "label",
"id": "fc1cbfdf9618477492dbc4ce46612c45",
"to_name": "text",
"type": "labels",
"value": {
"end": 5236,
"labels": [
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],
"start": 5120,
"text": "7. The defendant No.1 submits that his late father Sri. Chikkunde Gowda and himself were the co-parceners of family."
}
},
{
"from_name": "label",
"id": "b6a8153c199046b29e28a02c2543ae9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5420,
"labels": [
"FAC"
],
"start": 5237,
"text": "His father had executed a registered settlement deed in favour of this defendant No.1 on 02/12/1969 by settling all the properties in favour of this defendant, including his interest."
}
},
{
"from_name": "label",
"id": "5a5d1cb3e2dd49b894e9d960fcb7c32f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5556,
"labels": [
"FAC"
],
"start": 5421,
"text": "So by virtue of this settlement, the settlee, i.e, the defendant no.1 has became the absolute rightful owner of the property sine then."
}
},
{
"from_name": "label",
"id": "378594bd92f544b78ef32165cf661fec",
"to_name": "text",
"type": "labels",
"value": {
"end": 5659,
"labels": [
"ARG_RESPONDENT"
],
"start": 5556,
"text": "\n Therefore, the plaintiff cannot allege that the suit schedule property is a joint family property."
}
},
{
"from_name": "label",
"id": "ccefb0604b704deb90b3c1070db0b55a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5904,
"labels": [
"ARG_RESPONDENT"
],
"start": 5660,
"text": "Further, this defendant submits that the father of defendant No.1 after execution of settlement deed he has no right, title or interest over the properties mentioned in the settlement deed including the suit schedule properties item No.2 and 3."
}
},
{
"from_name": "label",
"id": "40a1aba9ff2745b4b9b5e1ea6501d234",
"to_name": "text",
"type": "labels",
"value": {
"end": 5986,
"labels": [
"ARG_RESPONDENT"
],
"start": 5905,
"text": "Therefore, except the defendant No.1 no body has got right over these properties."
}
},
{
"from_name": "label",
"id": "5b36c18e82e44d8a892b48e805854000",
"to_name": "text",
"type": "labels",
"value": {
"end": 6108,
"labels": [
"ANALYSIS"
],
"start": 5986,
"text": "\n Even though this fact is very much within the knowledge of plaintiff by suppressing, she has come up with false suit."
}
},
{
"from_name": "label",
"id": "b261abd28e8f4a458df3dd923fbd3d5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6232,
"labels": [
"ANALYSIS"
],
"start": 6109,
"text": "The item No.1 absolutely belonged to defendant No.3, who is purchaser of the same on 19/10/1992 under registered sale deed."
}
},
{
"from_name": "label",
"id": "983cf25cc781487db6b468ce44fa7b31",
"to_name": "text",
"type": "labels",
"value": {
"end": 6436,
"labels": [
"ANALYSIS"
],
"start": 6234,
"text": "8. The averments made in para No.3 prove the plaint that the plaintiff is an illiterate and not having worldly knowledge affairs are all created for the purpose of case and also for sympathetic purpose."
}
},
{
"from_name": "label",
"id": "7ea3d077c0ea42f3931aaed329178c56",
"to_name": "text",
"type": "labels",
"value": {
"end": 6539,
"labels": [
"ANALYSIS"
],
"start": 6437,
"text": "The say of the plaintiff that the 1st defendant is taking the advantage of the same is far from truth."
}
},
{
"from_name": "label",
"id": "5891233c95a64cf0ada18f3d11466ba7",
"to_name": "text",
"type": "labels",
"value": {
"end": 6634,
"labels": [
"ANALYSIS"
],
"start": 6540,
"text": "In fact, the defendant No.1 is also an illiterate person, likewise, the defendant Nos.2 and 3."
}
},
{
"from_name": "label",
"id": "343e302852aa4cba94ae67f21769bdca",
"to_name": "text",
"type": "labels",
"value": {
"end": 6767,
"labels": [
"ANALYSIS"
],
"start": 6635,
"text": "The say of the plaintiff that the 1st defendant's name mentioned in revenue records came to her knowledge recently is totally false."
}
},
{
"from_name": "label",
"id": "064b072135cb4628839c5084b45c6c41",
"to_name": "text",
"type": "labels",
"value": {
"end": 6885,
"labels": [
"ANALYSIS"
],
"start": 6768,
"text": "The Khatha has been changed in the name of the 1st defendant in the year 1997 itself on the basis of legal documents."
}
},
{
"from_name": "label",
"id": "11a0630688a84d87a9639c3385f920ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 7003,
"labels": [
"ANALYSIS"
],
"start": 6886,
"text": "Therefore, he is the absolute owner of gthe properties as stated supra by virtue of settlement deed dated:02/12/1969."
}
},
{
"from_name": "label",
"id": "062b794aee3349d18f865a13a161991f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7234,
"labels": [
"ANALYSIS"
],
"start": 7004,
"text": "So the say of the plaintiff that in collusion of defendant Nos.2 and 3 the defendant No.1 is trying to alienate the suit schedule properties is also false and created by the plaintiff for the purpose of case only and nothing else."
}
},
{
"from_name": "label",
"id": "fc1dc6791a81455e907633659bf2c930",
"to_name": "text",
"type": "labels",
"value": {
"end": 7396,
"labels": [
"ANALYSIS"
],
"start": 7235,
"text": "The say of the plaintiff that she is having legitimate share and to defraud the same the 1st defendant is trying to alienate are all concoction of the plaintiff."
}
},
{
"from_name": "label",
"id": "e49f0e24cb5e41c48420b3262cf4d39c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7496,
"labels": [
"ANALYSIS"
],
"start": 7397,
"text": "Further, the say of the plaintiff that elders and relatives advised for partition is totally false."
}
},
{
"from_name": "label",
"id": "12bb0b8a688648e5959c382bb55deea6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7719,
"labels": [
"ANALYSIS"
],
"start": 7497,
"text": "In fact according to law the plaintiff has no right at all over the suit schedule properties to demand for partition, because the father of the plaintiff and defendants No.1 to 3 had no properties at the time of his death."
}
},
{
"from_name": "label",
"id": "e4a45bab321847549e3e357bb8408bbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7869,
"labels": [
"ANALYSIS"
],
"start": 7720,
"text": "He has settled all his interest in co- parcenary properties in favour of defendant No.1, who is only the son for his father late Sri Chikkunde Gowda."
}
},
{
"from_name": "label",
"id": "4a6e6d6e8fc44748abad7c6b1a57a1d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 8119,
"labels": [
"ANALYSIS"
],
"start": 7871,
"text": "9. It is further submitted that the say of the plaintiff in para No.4 of the plaint that the cause of action arose to plaintiff since one month is deliberately invented by the plaintiff for the purpose of case only and not based on any legal right."
}
},
{
"from_name": "label",
"id": "4f192ba451084bc9bbd1963320f8b9d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 8199,
"labels": [
"ANALYSIS"
],
"start": 8119,
"text": "\n Therefore, the suit of the plaintiff does not survive on this score itself."
}
},
{
"from_name": "label",
"id": "c82a65b8ba4d49b5880ea6f34cc3a29a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8272,
"labels": [
"ANALYSIS"
],
"start": 8200,
"text": "The valuation slip filed by the plaintiff is not in accordance with law."
}
},
{
"from_name": "label",
"id": "5056b37de6714cc8b417e747105f0740",
"to_name": "text",
"type": "labels",
"value": {
"end": 8478,
"labels": [
"ARG_RESPONDENT"
],
"start": 8274,
"text": "10. The defendants further submits that at the instance of all advise by the persons who have no cordiality with these defendants, the plaintiff has brought this suit in order to give unnecessary trouble."
}
},
{
"from_name": "label",
"id": "9f565457d5fc415d9f61ce475981d7ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 8566,
"labels": [
"ARG_RESPONDENT"
],
"start": 8479,
"text": "Hence the suit of the plaintiff is not maintainable either in law or facts of the case."
}
},
{
"from_name": "label",
"id": "1d3ff8e500084ca1bf55b48b37cf7229",
"to_name": "text",
"type": "labels",
"value": {
"end": 8642,
"labels": [
"ANALYSIS"
],
"start": 8567,
"text": "Hence on these grounds defendant Nos.1 to 3 pray for dismissal of the suit."
}
},
{
"from_name": "label",
"id": "7ee1d94e422c42e78a37daf2bc90e680",
"to_name": "text",
"type": "labels",
"value": {
"end": 8734,
"labels": [
"FAC"
],
"start": 8642,
"text": "\n 11.In brief, the additional Written Statement filed by defendant Nos.1 to 3 are as under:-"
}
},
{
"from_name": "label",
"id": "b94c6fb3cab8467d8034daf0a37f8fbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9749,
"labels": [
"FAC"
],
"start": 8735,
"text": "It is submitted that the plaintiff under the amendment made to the schedule to the plaint has included item No.4 and 5 i.e Sy.No.27/2P, measuring 1 acre 18 guntas (one acre eighteen guntas), Sy.No.119/1, measuring 2 acres 02 guntas (Two acres Two guntas), Sy.No.119/2, measuring 2 acres 11 guntas, (Two acres eleven guntas) and Sy.No.120/1, measuring 2 acres 27 guntas (Two acres Twenty seven guntas), all the lands situated at Dadadahalli village, claiming that, the said lands are the ancestral property and hence she is entitled for 1/4th share in the same and the claim made by her is also totally false and wrong for the reasons that the item No.4 of the suit property is purchased by the 1st defendant from one Smt.Kempalingamma for valuable consideration under the registered sale deed dated:4/5/1974 and item No.5 is owned, possessed and enjoyed by the 1st defendant by virtue of the registered settlement deed dated:2/12/1969, executed and registered by his father Chikkandugowda @ Javanegowda @ Gundaiah."
}
},
{
"from_name": "label",
"id": "91a08cec90b64710954d44c1b54060f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10086,
"labels": [
"ANALYSIS"
],
"start": 9750,
"text": "It is submitted that as the aforesaid property is the absolute property of the 1st defendant and as item No.4 of the suit property is purchased by him independently, absolutely and from his own earnings, neither the plaintiff nor the defendants 2 and 3 have got any manner of right, title and interest whatsoever in respect of the same."
}
},
{
"from_name": "label",
"id": "522d798873254a2c8fd712a4ba9a1f93",
"to_name": "text",
"type": "labels",
"value": {
"end": 10265,
"labels": [
"ANALYSIS"
],
"start": 10087,
"text": "The plaintiff inspite of the knowledge of the aforesaid facts has made the false claim before this Hon'ble Court and the claim made by her is also false, frivolous and vexatious."
}
},
{
"from_name": "label",
"id": "140b97fb73554700893c774460b8b3a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10314,
"labels": [
"FAC"
],
"start": 10266,
"text": "On these grounds pray for dismissal of the suit."
}
},
{
"from_name": "label",
"id": "a95cb9639ffd49fcb3fca8a4be2c7bfb",
"to_name": "text",
"type": "labels",
"value": {
"end": 10459,
"labels": [
"ISSUE"
],
"start": 10314,
"text": "\n 12. On the basis of the pleadings of both the parties, my learned predecessor in the office, has framed following issues and additional issues."
}
},
{
"from_name": "label",
"id": "61ffbf94d765486e84d3fd1628624f59",
"to_name": "text",
"type": "labels",
"value": {
"end": 10604,
"labels": [
"ISSUE"
],
"start": 10459,
"text": "\n ISSUES 1) Whether plaintiff proves that the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants?"
}
},
{
"from_name": "label",
"id": "51a2aab41fdc499199cc0ecaff9f86e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 10747,
"labels": [
"ISSUE"
],
"start": 10604,
"text": "\n 2) Whether the plaintiff further proves that she is entitled for partition and separate possession of her 1/4th share in the suit properties?"
}
},
{
"from_name": "label",
"id": "ca5ba91de4f443978b97a62783fbafc9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10899,
"labels": [
"ISSUE"
],
"start": 10747,
"text": "\n 3) Whether the 1st defendant prove that by virtue of the settlement on 2/12/1969 he has become the absolute rightful owner of the property since then?"
}
},
{
"from_name": "label",
"id": "220b600f3e634836bc912e31829fbda4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11098,
"labels": [
"ISSUE"
],
"start": 10899,
"text": "\n 4) Whether the defendants prove that the item No.1 of the Schedule Property absolutely belonging to the defendant No.3 who is the purchaser of the same on 19/10/1992 under the registered sale deed?"
}
},
{
"from_name": "label",
"id": "8d0d9f6bb58b49b58ba48100830951a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11162,
"labels": [
"ISSUE"
],
"start": 11098,
"text": "\n 5) Whether the plaintiff is entitled for the relief as prayed?"
}
},
{
"from_name": "label",
"id": "6c68e1c67bf84e30b35f5725640c0cf4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11188,
"labels": [
"ISSUE"
],
"start": 11162,
"text": "\n 6) What Order or Decree?"
}
},
{
"from_name": "label",
"id": "e54c418ee9424635879aae9f1490b7d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11350,
"labels": [
"ISSUE"
],
"start": 11188,
"text": "\n Additional Issues framed on 18/09/2010 1) Whether defendants prove that the item No.4 of the suit schedule property is self acquired property of defendant No.1?"
}
},
{
"from_name": "label",
"id": "cf55e11a9e9f48f9b82b7cd6419d7841",
"to_name": "text",
"type": "labels",
"value": {
"end": 11573,
"labels": [
"ANALYSIS"
],
"start": 11350,
"text": "\n 13. In this case, the plaintiff in order to prove her case, she got examined GPA holder, who is also her son as PW1 and produced in all 6 documents, which are marked as Exhibits P.1 to P.6 and closed her side of evidence."
}
},
{
"from_name": "label",
"id": "332086b85afc480bb9c268a5ac5bd93b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11859,
"labels": [
"FAC"
],
"start": 11574,
"text": "On the other hand, the defendants in order to prove their case, defendant No.1 got examined his GPA holder, who is also his son as DW1 and defendant No.3 examined himself as DW2 and got examined one witness as DW3 and produced in all 14 documents, which are marked as Exts.D.1 to D.14."
}
},
{
"from_name": "label",
"id": "1d108cd94ac348578c5229ed524424e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11919,
"labels": [
"ANALYSIS"
],
"start": 11860,
"text": "In this case, the DW2 did not appear for cross-examination."
}
},
{
"from_name": "label",
"id": "eff2b5266647475ebdb38edd5f1ab2fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 12015,
"labels": [
"ANALYSIS"
],
"start": 11920,
"text": "Hence part of the evidence of DW2 was expunged by this court as per order dated:18/2/2012.\n 14."
}
},
{
"from_name": "label",
"id": "165576b2f20b4a1c8f83d9c5ff3f3606",
"to_name": "text",
"type": "labels",
"value": {
"end": 12100,
"labels": [
"NONE"
],
"start": 12016,
"text": "I have heard the arguments on both sides and perused the entire records of the case."
}
},
{
"from_name": "label",
"id": "6b428c4a7cc54e4d99620c493cff9693",
"to_name": "text",
"type": "labels",
"value": {
"end": 12296,
"labels": [
"ANALYSIS"
],
"start": 12100,
"text": "\n 15. On appreciation of the pleadings, oral and documentary evidence of both the parties, my answer to the above said issues and additional issues are as follows:- Issue No.1 :- In the Negative."
}
},
{
"from_name": "label",
"id": "9ff24fae52064766a2c10214cf713b6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12329,
"labels": [
"ANALYSIS"
],
"start": 12296,
"text": "\n Issue No.2 :- In the Negative."
}
},
{
"from_name": "label",
"id": "2d4c827ae37f4680ad5677fae806ebcd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12365,
"labels": [
"ANALYSIS"
],
"start": 12329,
"text": "\n Issue No.3 :- In the Affirmative."
}
},
{
"from_name": "label",
"id": "72ee38d97c5147d5991eea4a40b4b679",
"to_name": "text",
"type": "labels",
"value": {
"end": 12401,
"labels": [
"ANALYSIS"
],
"start": 12365,
"text": "\n Issue No.4 :- In the Affirmative."
}
},
{
"from_name": "label",
"id": "91de140244d54a8d9d5fcd380b0fffc6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12434,
"labels": [
"ANALYSIS"
],
"start": 12401,
"text": "\n Issue No.5 :- In the Negative."
}
},
{
"from_name": "label",
"id": "bc512c920546401181719d26e4cd8ace",
"to_name": "text",
"type": "labels",
"value": {
"end": 12480,
"labels": [
"ANALYSIS"
],
"start": 12434,
"text": "\n Additional Issue No.1 :- In the Affirmative."
}
},
{
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"end": 12554,
"labels": [
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],
"start": 12480,
"text": "\n Issue No.6 :- As per final order for the following :- R E A S O N S 16."
}
},
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"text": "Issue Nos.1, 3, 4 and additional issue No.1:- Now I will consider these issues together, as they are inter-connected with each other and evidence is also common and also to avoid repetition."
}
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"start": 12745,
"text": "\n The plaintiff contended that herself and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and the defendants and the plaintiff and defendants have got equal right over the suit schedule properties."
}
},
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],
"start": 13065,
"text": "She further contended that she is a poor, helpless and an illiterate lady having no knowledge of worldly affairs and the 1st defendant taking undue advantage of the facts, is trying to alienate the suit schedule properties on the basis of the Revenue entries got transferred to his name."
}
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],
"start": 13353,
"text": "She further contended that she is having 1/4th share in the suit schedule properties."
}
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"text": "\n 17. In this case, the defendants have appeared through his counsel and filed Written Statement, denying the case of the plaintiff."
}
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"labels": [
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"start": 13571,
"text": "The defendants admitted their relationship with the plaintiff."
}
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"start": 13634,
"text": "They admitted that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah, but they denied that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants."
}
},
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"start": 13855,
"text": "Defendant No.1 contended that his late father Chikkandugowda @ Buddaiah and himself were the co-parceners of family and his father had executed registered settlement deed in his favour on 2/12/1969 by settling all the properties in his favour, including his interest and hence by virtue of the settlement deed, he became the absolute owner and lawful possession and enjoyment of the suit schedule properties."
}
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],
"start": 14264,
"text": "He further contended that except himself nobody has got right interest over the item Nos.2, 3 and 5 of the suit schedule properties."
}
},
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"start": 14396,
"text": "\n Further defendants contended that item No.1 of the suit schedule property belonged to defendant No.3, who is the purchaser of the same on 19/10/1992 under registered sale deed."
}
},
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"labels": [
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],
"start": 14578,
"text": "Further defendants contended that item No.4 of the suit schedule property is the self acquired property of defendant No.1 and hence suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants and the plaintiff is not entitled any share in the suit schedule properties."
}
},
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"start": 14889,
"text": "\n 18. In this case the plaintiff got examined her GPA holder, who is also her son as PW1."
}
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"end": 15043,
"labels": [
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],
"start": 14979,
"text": "He filed affidavit evidence in lieu of his examination-in-chief."
}
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"end": 15108,
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"text": "In his examination-in-chief, he reiterated the plaint averments."
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"end": 15411,
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"start": 15109,
"text": "He deposed that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and defendants and the plaintiff and defendants have equal right over the suit schedule properties."
}
},
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"start": 15412,
"text": "He further deposed that his mother is entitled 1/4th share in the suit schedule properties."
}
},
{
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"text": "\n He produced in all 6 documents, which are marked as Exts.P.1 to P6."
}
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"end": 15678,
"labels": [
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"start": 15576,
"text": "In the cross-examination he stated that the marriage of his mother has taken place about 50 years ago."
}
},
{
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"end": 15777,
"labels": [
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],
"start": 15679,
"text": "He admitted that since from the date of marriage, his mother is residing with her husband's house."
}
},
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"value": {
"end": 15904,
"labels": [
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],
"start": 15778,
"text": "He denied that defendant No.1 has purchased item No.4 of the suit schedule property under registered sale deed dated:4/5/1974."
}
},
{
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"end": 16099,
"labels": [
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],
"start": 15905,
"text": "He further denied that the father of defendant No.1 has executed settlement deed dated:2/12/1969 in favour of defendant No.1 in respect of the item No.2, 3 and 5 of the suit schedule properties."
}
},
{
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"end": 16220,
"labels": [
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],
"start": 16100,
"text": "He further denied that the item No.1 of the suit schedule property is the self acquired property of defendant No.3.\n 19."
}
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"end": 16301,
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],
"start": 16221,
"text": "In this case defendant No.1 got examined GPA holder, who is also his son as DW1."
}
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"start": 16302,
"text": "He filed affidavit evidence in lieu of his examination-in-chief."
}
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"end": 16456,
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"text": "In his examination-in-chief, he reiterated the contention taken in the Written Statement."
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"labels": [
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"start": 16457,
"text": "He deposed that the father of defendant No.1 and defendant No.1 were the coparceners of family and father of defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties in favour of defendant No.1 including his interest and hence by virtue of the settlement deed, the defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties."
}
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"start": 16893,
"text": "He further deposed that item No.1 of the suit schedule property is the self acquired property of defendant No.3 and item No.4 of the suit schedule property is the self acquired property of his father, who has purchased the same under registered sale deed dated:4/5/1974."
}
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"end": 17362,
"labels": [
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],
"start": 17164,
"text": "He further deposed that suit schedule properties are not at all joint family properties of plaintiff and defendants and hence the plaintiff is not entitled any share in the suit schedule properties."
}
},
{
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"end": 17433,
"labels": [
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],
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"text": "He produced in all 14 documents, which are marked as Exts.D.1 to D.14."
}
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"labels": [
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"start": 17434,
"text": "In the cross-examination he denied that the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants."
}
},
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"end": 17666,
"labels": [
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],
"start": 17578,
"text": "He denied that the plaintiff is also having 1/4th share in the suit schedule properties."
}
},
{
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"id": "cc669a1c51a64b9d9880d4c55cb7abfc",
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"end": 17728,
"labels": [
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],
"start": 17667,
"text": "In this case, defendant No.3, partly examined herself as DW2."
}
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{
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"end": 17883,
"labels": [
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],
"start": 17729,
"text": "But in this case, DW2 did not appear for cross-examination and she was not subjected to cross- examination and hence part of evidence of DW2 was expunged."
}
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],
"start": 17885,
"text": "20. In this case defendants got examined one witness as DW3."
}
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"text": "\n He filed affidavit evidence in lieu of his examination-in-chief."
}
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"end": 18091,
"labels": [
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],
"start": 18014,
"text": "\n In his examination-in-chief, he supported the version of the defendants."
}
},
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"id": "a07b672c1c794bdc99f3c450ccaabcbd",
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"end": 18294,
"labels": [
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],
"start": 18092,
"text": "He deposed that item No.1 of the suit schedule property is the self acquired property of 3rd defendant, who was purchased the same under registered sale deed dated:19/10/1992 for valuable consideration."
}
},
{
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"id": "054b518e7d024896876006774f7ca9d6",
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"end": 18504,
"labels": [
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],
"start": 18295,
"text": "He further deposed that item No.4 of the suit schedule property is the self acquired property of defendant No.1, who was purchased the same under registered sale deed dated:4/5/1974 for valuable consideration."
}
},
{
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"end": 19035,
"labels": [
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],
"start": 18505,
"text": "He further deposed that during the life time of Chikkandugowda @ Buddaiah had executed registered settlement deed in favour of the 1st defendant on 2/12/1969 by settling all the properties in favour of 1st defendant including his interest in favour of 1st defendant and the husband of the plaintiff by name one Madegowda is one of the attesting witness to the said settlement deed and by virtue of the said settlement deed, the 1st defendant has became the absolute owner of the item No.2, 3 and 5 of the suit schedule properties."
}
},
{
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"id": "504c6fd112c7404186f90df9438844c2",
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"value": {
"end": 19175,
"labels": [
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],
"start": 19036,
"text": "In the cross-examination he denied that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants."
}
},
{
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"id": "448c94dce9ea4960b976b56f6354efe1",
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"end": 19265,
"labels": [
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],
"start": 19175,
"text": "\n 21. I have perused the entire oral and documentary evidence adduced by both the parties."
}
},
{
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"end": 19347,
"labels": [
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],
"start": 19266,
"text": "In this case, there is no dispute with regard to the relationship of the parties."
}
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"end": 19456,
"labels": [
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],
"start": 19348,
"text": "It is an admitted fact that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah."
}
},
{
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"id": "dbb2e8140f6e41eb9ee14eed616852bb",
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"end": 19620,
"labels": [
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],
"start": 19457,
"text": "It is also an admitted fact that the marriage of the plaintiff took place about 50 years ago and she is residing with her husband's house, since from the marriage."
}
},
{
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"id": "d17846f699dc4690bc837607d753dc5c",
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"value": {
"end": 19891,
"labels": [
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],
"start": 19621,
"text": "It is the case of the plaintiff that suit schedule properties are the ancestral and joint family properties of herself and defendants and there was no partition between the herself and defendants and hence she is entitled for 1/4th share in the suit schedule properties."
}
},
{
"from_name": "label",
"id": "c0e9df783a174a47bc9996ce6a3c040f",
"to_name": "text",
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"value": {
"end": 19940,
"labels": [
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],
"start": 19892,
"text": "The defendants denied the case of the plaintiff."
}
},
{
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"id": "b6bcec866a8b40028bbf9bf40eb81737",
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"value": {
"end": 20741,
"labels": [
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],
"start": 19941,
"text": "According to the defendants, item No.1 of the suit schedule property is the self acquired property of defendant No.1 and so far as item No.2, 3 and 5 of the suit schedule properties are concerned, the father of defendant No.1 has executed settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties including his interest, since the father of the defendant No.1 and defendant No.1 were the coparceners in the family and by virtue of the settlement deed, the 1st defendant has became the absolute owner and in possession and enjoyment of item Nos.2, 3 and 5 of the suit schedule properties and suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants and the plaintiff is not entitled any share in the suit schedule properties."
}
},
{
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"id": "cf21bc6cbc91429c96245701b502091c",
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"value": {
"end": 20875,
"labels": [
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],
"start": 20741,
"text": "\n 22. In this case, the PW1, who is GPA Holder of the plaintiff, has produced in all 6 documents, which are marked as Exts.P.1 to P.6."
}
},
{
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"id": "776305c73299422b911ded981b5015a7",
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"type": "labels",
"value": {
"end": 20894,
"labels": [
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],
"start": 20876,
"text": "Ex.P.1 is the GPA."
}
},
{
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"id": "39097ccc8d7947769969f47973ffbb18",
"to_name": "text",
"type": "labels",
"value": {
"end": 20969,
"labels": [
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],
"start": 20895,
"text": "Ex.P.2 to P.6 are the RTC extracts pertaining to suit schedule properties."
}
},
{
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"id": "61370d00f93d4645990ae5999422aa79",
"to_name": "text",
"type": "labels",
"value": {
"end": 21096,
"labels": [
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],
"start": 20970,
"text": "DW1, who is GPA holder of the defendant No.1 and also his son has produced 14 documents, which are marked as Exts.D.1 to D.14."
}
},
{
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"id": "0a2c687f08f24c5ab33f3e769c3fa35b",
"to_name": "text",
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"value": {
"end": 21103,
"labels": [
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],
"start": 21097,
"text": "Ex.D.1"
}
},
{
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"id": "fc3b260607d0442eb156a82c99859ab6",
"to_name": "text",
"type": "labels",
"value": {
"end": 21115,
"labels": [
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],
"start": 21104,
"text": "is the GPA."
}
},
{
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"id": "8e2235bceb174d4d99854f8fd5972676",
"to_name": "text",
"type": "labels",
"value": {
"end": 21122,
"labels": [
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],
"start": 21116,
"text": "Ex.D.2"
}
},
{
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"id": "c266734adfd34d96a36970f840c31994",
"to_name": "text",
"type": "labels",
"value": {
"end": 21140,
"labels": [
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],
"start": 21123,
"text": "is the sale deed."
}
},
{
"from_name": "label",
"id": "29dd0f3c49734e73bda3ba1d4789cec1",
"to_name": "text",
"type": "labels",
"value": {
"end": 21147,
"labels": [
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],
"start": 21141,
"text": "Ex.D.3"
}
},
{
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"id": "13174f127d3848dfb87c59d2c1bdf337",
"to_name": "text",
"type": "labels",
"value": {
"end": 21167,
"labels": [
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],
"start": 21148,
"text": "is the RTC extract."
}
},
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"end": 21207,
"labels": [
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"start": 21167,
"text": "\n Ex.D.4 is the registered sale deed."
}
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"id": "abd5258536b640cbaf818b185f23cd6f",
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"labels": [
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],
"start": 21208,
"text": "Ex.D.5"
}
},
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"id": "e807d6d1dc87481f9a8ca5a720ad7f47",
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"end": 21246,
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],
"start": 21215,
"text": "is the encumbrance certificate."
}
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"id": "3e57807c113d445593c286ab569d3ef6",
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"labels": [
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],
"start": 21247,
"text": "Ex.D.6"
}
},
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"id": "3ec49752b729465d9f3e9cf643f3371e",
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"end": 21277,
"labels": [
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],
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"text": "is the settlement deed."
}
},
{
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"end": 21309,
"labels": [
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"start": 21278,
"text": "Ex.D.7 is the tax paid receipt."
}
},
{
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"id": "c1c6105ced774e63b1881ef1f64e1985",
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"labels": [
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],
"start": 21310,
"text": "Ex.D.8 to D.13 are the RTC extracts and Ex.D.14 is the ration card."
}
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{
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"id": "9892421bd0d84a79ac71c535b1c23acd",
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"labels": [
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"start": 21378,
"text": "It is an admitted fact that the marriage of the plaintiff taken place about 50 years ago and since from the date of the marriage, she is residing with her husband's house."
}
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{
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"id": "83eeec28c57e4020a7004ff236faa30b",
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"end": 21631,
"labels": [
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],
"start": 21550,
"text": "In this case, DW1 produced registered settlement deed, which is marked as Ex.D.6."
}
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{
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"id": "01d62131222c44ecbdd280fd6ae82996",
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"end": 21972,
"labels": [
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],
"start": 21632,
"text": "On perusal of the same, it clearly shows that defendant No.1 and his father were the co- parceners of the family and father of the defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/69 by settling all the properties i.e, item No.2, 3 and 5 of the suit schedule properties in favour of defendant No.1."
}
},
{
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"id": "69e95c55e46141e1836779803cc3ad8a",
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"end": 22158,
"labels": [
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],
"start": 21973,
"text": "Hence by virtue of the said settlement deed, the defendant No.1 has became the absolute owner and in possession and enjoyment of the item Nos.2, 3 and 5 of the suit schedule properties."
}
},
{
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"id": "41cb5d90a477439d9c2e9a1dd1562aee",
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"end": 22480,
"labels": [
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],
"start": 22159,
"text": "Further the documents produced by defendants clearly shows that on the basis of the settlement deed, katha of the item No.2, 3 and 5 of the suit schedule properties were changed in the name of 1st defendant and defendant No.1 is in possession and enjoyment of the said properties by paying tax to the concerned authority."
}
},
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"end": 22587,
"labels": [
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],
"start": 22481,
"text": "It is pertinent to note that, Ex.D.6 is the registered document and it is more than 30 years old document."
}
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"id": "5674ef53321d4d1ba733d20373047f1d",
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"end": 22722,
"labels": [
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],
"start": 22588,
"text": "Hence this Ex.D.6 has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation."
}
},
{
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"id": "2e5937dd93c040fba75817d2bb501f0c",
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"labels": [
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],
"start": 22723,
"text": "In this case, or any other suit the plaintiff has not challenged this Ex.D.6."
}
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{
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"id": "84fa3c0993e340e29bd7a66606641cf8",
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"labels": [
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],
"start": 22800,
"text": "\nEven the plaintiff in her plaint nowhere alleged that the settlement deed dated:2/12/1969 is a concocted and created by defendant No.1."
}
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"labels": [
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"start": 22937,
"text": "Further there is no whisper about the settlement deed dated:2/12/1969 in the plaint."
}
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{
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"labels": [
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],
"start": 23022,
"text": "It is also important to note that the husband of the plaintiff is also one of the attesting witness to this Ex.D.6."
}
},
{
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"id": "760897b82f5d43f291239e2be2349d0b",
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"end": 23516,
"labels": [
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],
"start": 23138,
"text": "Further evidence on record, clearly shows that, this Ex.D.6 was acted upon and on the basis of the Ex.D.6, katha of the item no. 2, 3 and 5 of the suit schedule properties, are changed in the name of defendant No.1 and defendant No.1 is in possession and enjoyment of the suit schedule properties as an absolute owner and also he is paying tax in respect of the said properties."
}
},
{
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"id": "7ca4d031ce384e20942c17f0e0076899",
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"end": 23693,
"labels": [
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],
"start": 23517,
"text": "Hence I do not find any reasons to doubt the genuineness of this Ex.D.6/settlement deed dated:2/12/1969 executed by the father of the 1st defendant in favour of defendant No.1."
}
},
{
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"id": "05d5e6bd363e4c52a8acfc9619cb3787",
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"end": 23945,
"labels": [
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],
"start": 23694,
"text": "As already stated, the settlement deed dated:2/12/1969 is a registered document and it is more than 30 years old document and hence it has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation."
}
},
{
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"id": "41ce0d6818624af3bf28764cf1675ae2",
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"end": 24226,
"labels": [
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],
"start": 23946,
"text": "Hence from the evidence on record it is much clear that father of defendant no.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties namely item Nos.2, 3 and 5 of the suit schedule properties in favour of defendant No.1."
}
},
{
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"id": "77032f8949dc4fa19a18de96f82465ea",
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"end": 24416,
"labels": [
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],
"start": 24227,
"text": "It is pertinent to note that, evidence on record, clearly shows that, as on the date of execution of the settlement deed, defendant No.1 and his father were only co-parceners of the family."
}
},
{
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"id": "8eaac4da4c664378a908be0278be1d4a",
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"value": {
"end": 24535,
"labels": [
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],
"start": 24417,
"text": "The evidence on record, clearly shows that, the plaintiff and defendant Nos.2 and 3 are the sisters of defendant No.1."
}
},
{
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"id": "c9b27fe7bba3425e81aa7bd877f2367f",
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"labels": [
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],
"start": 24536,
"text": "But the evidence on record, clearly shows that, as on the date of execution of the registered settlement deed dated:2/12/1969, the marriage of the plaintiff and defendant Nos.2 and 3 had already taken place and they were not the co-parceners of the defendant No.1's family."
}
},
{
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"id": "52fd9e305afd4d6291e9b5af50528e13",
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"end": 25168,
"labels": [
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],
"start": 24810,
"text": "The evidence on record, clearly shows that, as on the date of execution of the settlement deed, defendant No.1 and his father were the only co-parceners of the family and accordingly the father of defendant No.1 had executed settlement deed in favour of defendant No.1 in respect of item Nos.2, 3 and 5 of the suit schedule properties including his interest."
}
},
{
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"id": "8317b30fd17c4fadb8fd96360c3352c4",
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"value": {
"end": 25309,
"labels": [
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],
"start": 25169,
"text": "Hence by virtue of the settlement deed, defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties."
}
},
{
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"id": "9d1f1bb1242d4f008ecb5802afd262e4",
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"value": {
"end": 25457,
"labels": [
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],
"start": 25310,
"text": "Therefore item Nos.2, 3 and 5 of the suit schedule properties are not at all the ancestral and joint family properties of plaintiff and defendants."
}
},
{
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"id": "ae8354b63a404cccac4c7ec0ea36d5c2",
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"end": 25678,
"labels": [
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],
"start": 25458,
"text": "It is also important to note that, as on the date of execution of the settlement deed, the plaintiff and defendants Nos.2 and 3 were not the coparceners of the family and they have no right in the coparcenery properties."
}
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{
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"id": "cd81076e51824939aa8af29a2a81f472",
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"end": 25884,
"labels": [
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],
"start": 25679,
"text": "In this case, the evidence on record, clearly shows that, father of defendant No.1 had executed registered settlement deed by settling all the properties in favour of defendant No.1 including his interest."
}
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{
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"id": "618ba75e55d04db68066dcb5f35a1dbb",
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"end": 26091,
"labels": [
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"start": 25884,
"text": "\nHence the item Nos.2, 3 and 5 of the suit schedule properties are the absolute properties of defendant No.1 and they are not the ancestral and joint family properties of plaintiff and defendants Nos.1 to 3."
}
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{
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"end": 26164,
"labels": [
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],
"start": 26092,
"text": "In this case, defendants produced registered sale deed dated:19/10/1992."
}
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{
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"id": "c2a558fec57b4789b2ab47ab5a8896fe",
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"value": {
"end": 26311,
"labels": [
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],
"start": 26165,
"text": "On perusal of the same, it clearly shows that defendant No.3 has purchased the item No.1 of the suit schedule property for valuable consideration."
}
},
{
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"id": "0bf3eb0f97414792aee2dd9ab17ebd20",
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"value": {
"end": 26537,
"labels": [
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],
"start": 26312,
"text": "Further RTC extract produced by the defendants also clearly shows that on the basis of the sale deed dated:19/10/1992, katha was changed in the name of defendant No.3 in respect of the item No.1 of the suit schedule property."
}
},
{
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"id": "ca56d0a189364c5083f4a5dc75134aae",
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"end": 26770,
"labels": [
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],
"start": 26538,
"text": "Hence from the evidence on record, it is much clear that, item No.1 of the suit schedule property is the self acquired property of defendant No.3 and it is not the ancestral and joint family property of the plaintiff and defendants."
}
},
{
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"id": "d47fe5fe372d40cbab42162eaad92cc8",
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"end": 26966,
"labels": [
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],
"start": 26771,
"text": "In this case, the plaintiff ahs not adduced any cogent evidence on record to show that the defendant No.3 has purchased the item No.1 of the suit schedule property out of the joint family income."
}
},
{
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"id": "15bf16a3665447e1a5813e252109e0eb",
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"value": {
"end": 27144,
"labels": [
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],
"start": 26967,
"text": "Hence in the absence of cogent evidence it cannot be said that the item No.1 of the suit schedule property was purchased in the name of defendant No.3 out of joint family funds."
}
},
{
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"id": "77387ac35aca4ffa84a5e3af9e2ac3dc",
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"type": "labels",
"value": {
"end": 27273,
"labels": [
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],
"start": 27145,
"text": "DW1 in his evidence clearly stated that item No.1 of the suit schedule property is the self acquired property of defendant No.3."
}
},
{
"from_name": "label",
"id": "fb72d16f1d3a46ef970b1d6eff3d6f4f",
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"value": {
"end": 27518,
"labels": [
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],
"start": 27274,
"text": "Further, DW3, who is the independent witness in his evidence clearly stated that, item No.1 of the suit schedule property is the self acquired property of 3rd defendant and she has purchased the same under registered sale deed dated:19/10/1992."
}
},
{
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"id": "ac5fdf85187e43ed84571a04bdc0692a",
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"value": {
"end": 27730,
"labels": [
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],
"start": 27519,
"text": "Nothing has been elicited from the mouth of DW1 and 3, during the course of their cross- examination to show that item No.1 of the suit schedule property is the joint family property of plaintiff and defendants."
}
},
{
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"id": "0d121a18d2a74bd0849bd7355b14b322",
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"value": {
"end": 27982,
"labels": [
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],
"start": 27731,
"text": "Hence in the absence of cogent evidence it cannot be said that item No.1 of the suit schedule property has been purchased in the name of defendant No.3, who has purchased the same under registered sale deed dated:19/10/1992 for valuable consideration."
}
},
{
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"id": "301b8efb80ad420984fe78c842a4f5a7",
"to_name": "text",
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"value": {
"end": 28060,
"labels": [
"ANALYSIS"
],
"start": 27983,
"text": "In this case, DW1 produced sale deed dated:4/5/74, which is marked as Ex.D.4."
}
},
{
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"id": "aff0d7c00f4d4d9caf03a0fdcf3d94f7",
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"end": 28271,
"labels": [
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],
"start": 28061,
"text": "On perusal of the same, it clearly shows that defendant No.1 has purchased the item No.4 of the suit schedule property from one Smt.Kempamma for valuable consideration under registered sale deed dated:4/5/1974."
}
},
{
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"id": "c1e0f4c11f554b84afde3895017a70ef",
"to_name": "text",
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"value": {
"end": 28527,
"labels": [
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],
"start": 28272,
"text": "Further evidence on record, clearly shows that, on the basis of the said sale deed, Katha was changed in the name of defendant No.1 and now defendant No.1 is in possession and enjoyment of the item No.4 of the suit schedule property as the absolute owner."
}
},
{
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"id": "8e0602da522c4e6ab73b3fd1ed36940c",
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"type": "labels",
"value": {
"end": 28719,
"labels": [
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],
"start": 28528,
"text": "In this case, the plaintiff has not adduced any cogent evidence on record to show that defendant No.1 has purchased the item No.4 of the suit schedule property, out of the joint family funds."
}
},
{
"from_name": "label",
"id": "733725fed49b45b2a6d50e061b4c0ca0",
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"value": {
"end": 28882,
"labels": [
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],
"start": 28720,
"text": "Hence in the absence of cogent evidence it cannot be said that defendant No.1 has purchased item No.4 of the suit schedule property out of the joint family funds."
}
},
{
"from_name": "label",
"id": "3afcd59c38a34aa78fbc3eedd3f55e10",
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"end": 29027,
"labels": [
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],
"start": 28883,
"text": "Hence from the evidence on record it is much clear that item No.4 of the suit schedule property is the self acquired property of defendant No.1."
}
},
{
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"id": "5e8b429c6d3540f8bf8ac9b5ae380ed9",
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"value": {
"end": 29285,
"labels": [
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],
"start": 29028,
"text": "On perusal of the entire oral and documentary evidence it is much clear that item No.1 of the suit schedule property is the self acquired property of defendant No.3 and item No.4 of the suit schedule property is the self acquired property of defendant No.1."
}
},
{
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"id": "95bcb0050daa4d9fa92827d70ac50c7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 29579,
"labels": [
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],
"start": 29286,
"text": "Further evidence on record, clearly shows that, father of defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties i.e, item Nos.2, 3 and 5 of the suit schedule properties in favour of defendant No.1 including his interest."
}
},
{
"from_name": "label",
"id": "73bd1a6243b74108b696ca99456cf5a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 29722,
"labels": [
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],
"start": 29580,
"text": "So by virtue of the said settlement deed, defendant No.1 has became the absolute owner of item nos.2, 3 and 5 of the suit schedule properties."
}
},
{
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"id": "b21c7dc62e6d4c2f8bbf75762a84d7b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 30131,
"labels": [
"ANALYSIS"
],
"start": 29723,
"text": "Further evidence on record, clearly shows that, the said settlement deed was acted upon and on the basis of the said settlement deed, katha of the item No.2, 3 and 5 of the suit schedule properties are changed in the name of defendant No.1 and now defendant No.1 is in possession and enjoyment of the said properties and he is paying tax to the concerned authority in respect of the suit schedule properties."
}
},
{
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"id": "6b52bbcfddcf4d9ca7f6b017449c5e22",
"to_name": "text",
"type": "labels",
"value": {
"end": 30367,
"labels": [
"ANALYSIS"
],
"start": 30132,
"text": "As already stated, the settlement deed dated:2/12/1969 is a registered document and it is 30 years old document and it has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation."
}
},
{
"from_name": "label",
"id": "dfc8ff53d0cb431f93a71b230437633f",
"to_name": "text",
"type": "labels",
"value": {
"end": 30575,
"labels": [
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],
"start": 30368,
"text": "Hence from the evidence on record it is much clear that defendant No.1 has acquired item No.2, 3 and 5 of the suit schedule properties, by virtue of the settlement deed, executed by his father in his favour."
}
},
{
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"id": "b5cdf1abfc6a42c2ba0756047006a874",
"to_name": "text",
"type": "labels",
"value": {
"end": 30712,
"labels": [
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],
"start": 30576,
"text": "Further evidence on record, clearly shows that, item No.1 of the suit schedule property is the self acquired property of defendant No.3."
}
},
{
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"id": "3ec398f8c3a94deeb244db005f481141",
"to_name": "text",
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"value": {
"end": 30849,
"labels": [
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],
"start": 30712,
"text": "\nFurther evidence on record, clearly shows that, item No.4 of the suit schedule property is the self acquired property of defendant No.1."
}
},
{
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"id": "2fe3b4d78e5e4ad2bda8e4571b7be426",
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"end": 31020,
"labels": [
"ANALYSIS"
],
"start": 30850,
"text": "Hence from the evidence on record it is much clear that the suit schedule properties are not at all the ancestral and joint family properties of plaintiff and defendants."
}
},
{
"from_name": "label",
"id": "201208200fd64b7da856a8d8aede666e",
"to_name": "text",
"type": "labels",
"value": {
"end": 31130,
"labels": [
"ANALYSIS"
],
"start": 31021,
"text": "The plaintiff failed to prove issue No.1 whereas, defendants proved issue Nos.3, 4 and additional issue No.1."
}
},
{
"from_name": "label",
"id": "dbcfcfe719d44de1915785cf9d7f20a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 31249,
"labels": [
"ANALYSIS"
],
"start": 31130,
"text": "\n Accordingly I answered Issue No.1 in the negative and issue Nos.3, 4 and additional issue No.1 in the affirmative."
}
},
{
"from_name": "label",
"id": "559c2e1e8ffa480aa3f7e84664143345",
"to_name": "text",
"type": "labels",
"value": {
"end": 31274,
"labels": [
"ANALYSIS"
],
"start": 31249,
"text": "\n 23. Issue Nos.2 and 5:-"
}
},
{
"from_name": "label",
"id": "3a1c36aa6bd04b3b90186871c3b48118",
"to_name": "text",
"type": "labels",
"value": {
"end": 31394,
"labels": [
"ANALYSIS"
],
"start": 31275,
"text": "The plaintiff filed this suit for partition and separate possession of her 1/4th share in the suit schedule properties."
}
},
{
"from_name": "label",
"id": "7cd78681984341549d26e49552f603cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 31545,
"labels": [
"ANALYSIS"
],
"start": 31395,
"text": "While answering issue No.1 it is held that the suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants."
}
},
{
"from_name": "label",
"id": "36b320e850c548a3a96a488c9febdbe3",
"to_name": "text",
"type": "labels",
"value": {
"end": 31741,
"labels": [
"ANALYSIS"
],
"start": 31546,
"text": "While answering issue No.3, it is held that by virtue of the settlement deed, dated:2/12/1969, defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties."
}
},
{
"from_name": "label",
"id": "f682725c63b344149a26df4f919f5af9",
"to_name": "text",
"type": "labels",
"value": {
"end": 31974,
"labels": [
"ANALYSIS"
],
"start": 31746,
"text": "While answering issue No.4, it is held that item No.1 of the suit schedule property is the self acquired property of defendant No.1, who has purchased the same on 19/10/1992 under registered sale deed for valuable consideration."
}
},
{
"from_name": "label",
"id": "145f99bd7ee7439aaa13d7eb3678c9fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 32126,
"labels": [
"ANALYSIS"
],
"start": 31975,
"text": "Further while answering additional issue No.1, it is held that item No.4 of the suit schedule property is the self acquired property of defendant No.1."
}
},
{
"from_name": "label",
"id": "b3a9b11671eb4e999a4a25a67f70b6f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 32569,
"labels": [
"ANALYSIS"
],
"start": 32127,
"text": "Hence from the evidence on record it is much clear that during the lifetime of father of the 1st defendant, he had executed registered sale deed in favour of defendant No.1 on 2/12/1969 by settling all his properties in favour of 1st defendant, including his interest and by virtue of the said settlement deed, defendant No.1 became the absolute owner and in possession and enjoyment of the item No.2, 3 and 5 of the suit schedule properties."
}
},
{
"from_name": "label",
"id": "20c87fdcf8a54f59be7815df4d1351c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 32706,
"labels": [
"ANALYSIS"
],
"start": 32570,
"text": "Further evidence on record, clearly shows that, item No.4 of the suit schedule property is the self acquired property of defendant No.1."
}
},
{
"from_name": "label",
"id": "87286a6ce12f41fcbe2b690f343f8942",
"to_name": "text",
"type": "labels",
"value": {
"end": 33096,
"labels": [
"ANALYSIS"
],
"start": 32707,
"text": "Further evidence on record, clearly shows that, item No.1 of the suit schedule property is the self acquired property of defendant No.3.\n Hence from the evidence on record it is much clear that item No.2, 3, 4 and 5 of the suit schedule properties are the absolute properties of defendant No.1, whereas item No.1 of the suit schedule property is the absolute property of defendant No.3."
}
},
{
"from_name": "label",
"id": "9620089a3238467f8dc2345a15396ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 33260,
"labels": [
"RATIO"
],
"start": 33097,
"text": "Hence from the evidence on record it is much clear that the suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants."
}
},
{
"from_name": "label",
"id": "ff2499efbdc74353a6236b3756a3a8b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 33348,
"labels": [
"RATIO"
],
"start": 33260,
"text": "\n Therefore, the plaintiff is not entitled any share in the suit schedule properties."
}
},
{
"from_name": "label",
"id": "75a1d9d4772c4c63a1235447140f41dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 33421,
"labels": [
"RATIO"
],
"start": 33349,
"text": "Further the plaintiff is not entitled any relief as sought in this suit."
}
},
{
"from_name": "label",
"id": "2d21fe06dbf64744a4847e4848737706",
"to_name": "text",
"type": "labels",
"value": {
"end": 33464,
"labels": [
"NONE"
],
"start": 33422,
"text": "Accordingly, I answered issue Nos.2 and 5."
}
},
{
"from_name": "label",
"id": "7f594dbd3b7b413c9981ad7795b86683",
"to_name": "text",
"type": "labels",
"value": {
"end": 33482,
"labels": [
"RPC"
],
"start": 33464,
"text": "\n 24. Issue No.6:-"
}
},
{
"from_name": "label",
"id": "65b951d1f71548519e2ee140d76d2fae",
"to_name": "text",
"type": "labels",
"value": {
"end": 33612,
"labels": [
"RPC"
],
"start": 33483,
"text": "From my above discussion and findings on issues and additional issues, the suit filed by the plaintiff is liable to be dismissed."
}
},
{
"from_name": "label",
"id": "ceb928c4afb74bb5bb89fe279f26c9af",
"to_name": "text",
"type": "labels",
"value": {
"end": 33720,
"labels": [
"RPC"
],
"start": 33613,
"text": "Hence in the result, I proceed to pass the following:- O R D E R Suit of the plaintiff is hereby dismissed."
}
},
{
"from_name": "label",
"id": "e7d65ae0ed204266b24e9e1794443347",
"to_name": "text",
"type": "labels",
"value": {
"end": 33799,
"labels": [
"RPC"
],
"start": 33720,
"text": "\n Under the facts and circumstances of the case, there is no order as to costs."
}
},
{
"from_name": "label",
"id": "314b79cf1a9e437c81d2a505452dae0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 33990,
"labels": [
"NONE"
],
"start": 33799,
"text": "\n Draw decree accordingly.\n (Typed to my dictation on computer by the Stenographer and after making necessary corrections, pronounced by me in the open court this the 16th day of August 2012)"
}
},
{
"from_name": "label",
"id": "8d71f44c672e417db5650294a99ece77",
"to_name": "text",
"type": "labels",
"value": {
"end": 34007,
"labels": [
"NONE"
],
"start": 33991,
"text": "(S.H.Hosagoudar)"
}
},
{
"from_name": "label",
"id": "1553e201c07346779636c17b4d726fcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 34047,
"labels": [
"NONE"
],
"start": 34008,
"text": "Judge, Court of Small causes & Sr. C.J."
}
},
{
"from_name": "label",
"id": "4daae1adf80540e7aaebc1aa316165de",
"to_name": "text",
"type": "labels",
"value": {
"end": 34122,
"labels": [
"NONE"
],
"start": 34047,
"text": "\n Mysore."
}
},
{
"from_name": "label",
"id": "05e7e36dc6454d468c97cc2d7728fcc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 34133,
"labels": [
"NONE"
],
"start": 34124,
"text": "ANNEXURES"
}
},
{
"from_name": "label",
"id": "0545092abc864c69ab81a769fcf5e9cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 34302,
"labels": [
"NONE"
],
"start": 34134,
"text": "Witnesses examined on behalf of the Plaintiff: - PW.1 : Puttaraju Documents marked on behalf of the plaintiff : - Ex.P.1 : GPA Ex.P.2 to 6 : RTC extracts"
}
},
{
"from_name": "label",
"id": "777f00ddc4e04b04940a672703dfe048",
"to_name": "text",
"type": "labels",
"value": {
"end": 34504,
"labels": [
"NONE"
],
"start": 34303,
"text": "Witnesses examined on behalf of the defendants : DW.1 : J. Shivanna DW.2 : Nanjamma DW.3 : Ramegowda Documents exhibited on behalf of the defendants :- Ex.D.1 : GPA Ex.D.2"
}
},
{
"from_name": "label",
"id": "cfb3cc687d07407aa844607bc6b1cae5",
"to_name": "text",
"type": "labels",
"value": {
"end": 34549,
"labels": [
"NONE"
],
"start": 34505,
"text": " : Original registered sale deed Ex.D.3"
}
},
{
"from_name": "label",
"id": "dce85ae0253740b2b7220afda4344471",
"to_name": "text",
"type": "labels",
"value": {
"end": 34582,
"labels": [
"NONE"
],
"start": 34550,
"text": " Dt:19/10/92 Ex.D.4"
}
},
{
"from_name": "label",
"id": "433bec7804bc4a43b5738eb85db95be4",
"to_name": "text",
"type": "labels",
"value": {
"end": 34641,
"labels": [
"NONE"
],
"start": 34589,
"text": ": RTC extract : Original Registered Sale deed Ex.D.5"
}
},
{
"from_name": "label",
"id": "a0dc0ad823ab42afa3f987dc7bfa2a3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 34684,
"labels": [
"NONE"
],
"start": 34642,
"text": " : Dt.04/05/1974 Endorsement Ex.D.6"
}
},
{
"from_name": "label",
"id": "ec221c28edb44ef49c6f5a2735e24f10",
"to_name": "text",
"type": "labels",
"value": {
"end": 34737,
"labels": [
"NONE"
],
"start": 34685,
"text": " : Settlement deed Tax paid receipt Ex.D.7 :"
}
},
{
"from_name": "label",
"id": "5ae23ab8bb7a430ab89567062ab29d13",
"to_name": "text",
"type": "labels",
"value": {
"end": 34810,
"labels": [
"NONE"
],
"start": 34745,
"text": "RTC extract RTC extracts Ex.D.8 : Ex.D.9 to 13 : Date:16/08/2012"
}
},
{
"from_name": "label",
"id": "45efbc09a23848129a4a1399f7e544ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 34894,
"labels": [
"NONE"
],
"start": 34829,
"text": "Judge, Place:Mysore. Court of Small causes & Sr. C.J.\n Mysore."
}
}
]
}
] | 1,738 | {
"text": "TITLE SHEET FOR JUDGMENTS IN SUITS\n\nIN THE COURT OF THE PRINCIPAL JUDGE, SMALL CAUSES\n AND SENIOR CIVIL JUDGE, MYSORE.\n\nPresent: Sri. S.H.Hosagoudar, B.Sc., LL.B.,(Spl.)\n Judge, Court of small causes, Mysore.\n\n Date of Judgment: 16th day of August 2012\n\n O.S.No.182/2006\n\nPlaintiff :- Smt.Chikkannamma,\n Aged about 52 years,\n W/o Late Sri Madegowda,\n Dadadahalli Village,\n Jayapura Hobli,\n Mysore Taluk.\n\n (By Sri S.T.Somashekhara, Advocate)\n\n -Vs.-\n\nDefendants:- 1. Sri Javanaiah,\n S/o Late Chikkandugowda @ Buddaiah,\n\n 2. Smt. Doddannamma,\n W/o Late Sri Nanjegowda,\n Aged about 55 years,\n\n 3. Maramma @ Nanjamma,\n D/o Late Chikkandugowda @ Buddaiah,\n\n All are residing at Dadadahalli village,\n Jayapura Hobli, Mysore Taluk.\n\n (By Sri.H.A.Shankar Rao, Advocate for D.1to 3)\n\n\nDate of the institution of the suit : 06-02-2006\n\nNature of the suit : For partition and\n Separate possession\n\nDate of commencement of Recording\n\nof evidence : 22-06-2010\n 16-08-2012\nDate of Pronouncement of Judgement :\n\n Years Months Days\n\nTotal Duration : 06 06 10\n\n Judge,\n Court of Small Causes, Mysore.\n\n -:J U D G M E N T:- 1. The plaintiff filed this suit against the defendants for partition and separate possession of her 1/4th share in the suit schedule properties by metes and bounds and cost of the suit.\n 2. In brief, the facts of the plaintiff's case are as under:- The plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and the defendants. The plaintiff and defendants have got equal right over the suit schedule properties for their specific share.\n 3. It is further contended that the plaintiff is a poor helpless and an illiterate lady having no knowledge of worldly affairs. The 1st defendant taking undue advantage of the facts, is trying to alienate the suit schedule properties on the basis of the Revenue entries got transferred to his name. This fact of transferring the Revenue entries of the suit properties to the name of 1st defendant has come to the knowledge of the plaintiff very recently. The 1st defendant in collusion with the other defendants is now trying to dispose off the suit schedule properties for their wrongful gain and to defraud the legitimate share of the plaintiff. The advice of the elders and relatives to effect partition also went in vain. Hence in order to protect the legitimate right of the plaintiff over the suit schedule properties, the plaintiff has come up with this suit. Hence this suit.\n 4. In response to suit summons issued by the Court, Defendants have appeared through their counsel and filed Written Statement and additional Written Statement.\n 5. In brief, the Written Statement filed by defendant Nos.1 to 3 are as under:- The suit filed by the plaintiff is not maintainable either in law or on facts. The facts stated in para No.1 proof the plaint regarding the address of the defendants No.1 to 3 is partly correct, but the father's name of defendant No.1 and 3 is not correct. Regarding the age of the parties, plaintiff has not correctly mentioned the same. The plaintiffs age is 73 years, 1st defendant's age is 65 years, 2nd defendant's age is 76 years and 3rd defendant's age is 60 years.\n 6. The averments made in para No.2 of the plaint that the plaintiff and defendants No.1 to 3 are children of late Sri.Bundaiah is totally false. In fact, they are all children of late Sri. Chikkandu Gowda. The say of the plaintiff that the suit schedule properties are ancestral properties and joint family properties are in joint possession of plaintiff and defendants is totally false. In fact, the plaintiff is married long back and she is ceased to become the joint family member of defendant No.1. In fact, according to Hindu Law, the married wife became the joint family member of her husband's family and not in the family of her father. The defendant No.2 and 3 are also not the joint family members of the defendant No.1 family because they are all married women, and their marriage was performed by their father late Sri Chikkandu Gowda during his life time, i.e, about 30 years and more. The said Chikkandu Gowda died about 15 years back, i.e, in the year 1990 of October month. The say of the plaintiff that she is having equal right over the suit schedule properties is wholly untenable under law.\n 7. The defendant No.1 submits that his late father Sri. Chikkunde Gowda and himself were the co-parceners of family. His father had executed a registered settlement deed in favour of this defendant No.1 on 02/12/1969 by settling all the properties in favour of this defendant, including his interest. So by virtue of this settlement, the settlee, i.e, the defendant no.1 has became the absolute rightful owner of the property sine then.\n Therefore, the plaintiff cannot allege that the suit schedule property is a joint family property. Further, this defendant submits that the father of defendant No.1 after execution of settlement deed he has no right, title or interest over the properties mentioned in the settlement deed including the suit schedule properties item No.2 and 3. Therefore, except the defendant No.1 no body has got right over these properties.\n Even though this fact is very much within the knowledge of plaintiff by suppressing, she has come up with false suit. The item No.1 absolutely belonged to defendant No.3, who is purchaser of the same on 19/10/1992 under registered sale deed.\n 8. The averments made in para No.3 prove the plaint that the plaintiff is an illiterate and not having worldly knowledge affairs are all created for the purpose of case and also for sympathetic purpose. The say of the plaintiff that the 1st defendant is taking the advantage of the same is far from truth. In fact, the defendant No.1 is also an illiterate person, likewise, the defendant Nos.2 and 3. The say of the plaintiff that the 1st defendant's name mentioned in revenue records came to her knowledge recently is totally false. The Khatha has been changed in the name of the 1st defendant in the year 1997 itself on the basis of legal documents. Therefore, he is the absolute owner of gthe properties as stated supra by virtue of settlement deed dated:02/12/1969. So the say of the plaintiff that in collusion of defendant Nos.2 and 3 the defendant No.1 is trying to alienate the suit schedule properties is also false and created by the plaintiff for the purpose of case only and nothing else. The say of the plaintiff that she is having legitimate share and to defraud the same the 1st defendant is trying to alienate are all concoction of the plaintiff. Further, the say of the plaintiff that elders and relatives advised for partition is totally false. In fact according to law the plaintiff has no right at all over the suit schedule properties to demand for partition, because the father of the plaintiff and defendants No.1 to 3 had no properties at the time of his death. He has settled all his interest in co- parcenary properties in favour of defendant No.1, who is only the son for his father late Sri Chikkunde Gowda.\n 9. It is further submitted that the say of the plaintiff in para No.4 of the plaint that the cause of action arose to plaintiff since one month is deliberately invented by the plaintiff for the purpose of case only and not based on any legal right.\n Therefore, the suit of the plaintiff does not survive on this score itself. The valuation slip filed by the plaintiff is not in accordance with law.\n 10. The defendants further submits that at the instance of all advise by the persons who have no cordiality with these defendants, the plaintiff has brought this suit in order to give unnecessary trouble. Hence the suit of the plaintiff is not maintainable either in law or facts of the case. Hence on these grounds defendant Nos.1 to 3 pray for dismissal of the suit.\n 11.In brief, the additional Written Statement filed by defendant Nos.1 to 3 are as under:- It is submitted that the plaintiff under the amendment made to the schedule to the plaint has included item No.4 and 5 i.e Sy.No.27/2P, measuring 1 acre 18 guntas (one acre eighteen guntas), Sy.No.119/1, measuring 2 acres 02 guntas (Two acres Two guntas), Sy.No.119/2, measuring 2 acres 11 guntas, (Two acres eleven guntas) and Sy.No.120/1, measuring 2 acres 27 guntas (Two acres Twenty seven guntas), all the lands situated at Dadadahalli village, claiming that, the said lands are the ancestral property and hence she is entitled for 1/4th share in the same and the claim made by her is also totally false and wrong for the reasons that the item No.4 of the suit property is purchased by the 1st defendant from one Smt.Kempalingamma for valuable consideration under the registered sale deed dated:4/5/1974 and item No.5 is owned, possessed and enjoyed by the 1st defendant by virtue of the registered settlement deed dated:2/12/1969, executed and registered by his father Chikkandugowda @ Javanegowda @ Gundaiah. It is submitted that as the aforesaid property is the absolute property of the 1st defendant and as item No.4 of the suit property is purchased by him independently, absolutely and from his own earnings, neither the plaintiff nor the defendants 2 and 3 have got any manner of right, title and interest whatsoever in respect of the same. The plaintiff inspite of the knowledge of the aforesaid facts has made the false claim before this Hon'ble Court and the claim made by her is also false, frivolous and vexatious. On these grounds pray for dismissal of the suit.\n 12. On the basis of the pleadings of both the parties, my learned predecessor in the office, has framed following issues and additional issues.\n ISSUES 1) Whether plaintiff proves that the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants?\n 2) Whether the plaintiff further proves that she is entitled for partition and separate possession of her 1/4th share in the suit properties?\n 3) Whether the 1st defendant prove that by virtue of the settlement on 2/12/1969 he has become the absolute rightful owner of the property since then?\n 4) Whether the defendants prove that the item No.1 of the Schedule Property absolutely belonging to the defendant No.3 who is the purchaser of the same on 19/10/1992 under the registered sale deed?\n 5) Whether the plaintiff is entitled for the relief as prayed?\n 6) What Order or Decree?\n Additional Issues framed on 18/09/2010 1) Whether defendants prove that the item No.4 of the suit schedule property is self acquired property of defendant No.1?\n 13. In this case, the plaintiff in order to prove her case, she got examined GPA holder, who is also her son as PW1 and produced in all 6 documents, which are marked as Exhibits P.1 to P.6 and closed her side of evidence. On the other hand, the defendants in order to prove their case, defendant No.1 got examined his GPA holder, who is also his son as DW1 and defendant No.3 examined himself as DW2 and got examined one witness as DW3 and produced in all 14 documents, which are marked as Exts.D.1 to D.14. In this case, the DW2 did not appear for cross-examination. Hence part of the evidence of DW2 was expunged by this court as per order dated:18/2/2012.\n 14. I have heard the arguments on both sides and perused the entire records of the case.\n 15. On appreciation of the pleadings, oral and documentary evidence of both the parties, my answer to the above said issues and additional issues are as follows:- Issue No.1 :- In the Negative.\n Issue No.2 :- In the Negative.\n Issue No.3 :- In the Affirmative.\n Issue No.4 :- In the Affirmative.\n Issue No.5 :- In the Negative.\n Additional Issue No.1 :- In the Affirmative.\n Issue No.6 :- As per final order for the following :- R E A S O N S 16. Issue Nos.1, 3, 4 and additional issue No.1:- Now I will consider these issues together, as they are inter-connected with each other and evidence is also common and also to avoid repetition.\n The plaintiff contended that herself and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and the defendants and the plaintiff and defendants have got equal right over the suit schedule properties. She further contended that she is a poor, helpless and an illiterate lady having no knowledge of worldly affairs and the 1st defendant taking undue advantage of the facts, is trying to alienate the suit schedule properties on the basis of the Revenue entries got transferred to his name. She further contended that she is having 1/4th share in the suit schedule properties.\n 17. In this case, the defendants have appeared through his counsel and filed Written Statement, denying the case of the plaintiff. The defendants admitted their relationship with the plaintiff. They admitted that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah, but they denied that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. Defendant No.1 contended that his late father Chikkandugowda @ Buddaiah and himself were the co-parceners of family and his father had executed registered settlement deed in his favour on 2/12/1969 by settling all the properties in his favour, including his interest and hence by virtue of the settlement deed, he became the absolute owner and lawful possession and enjoyment of the suit schedule properties. He further contended that except himself nobody has got right interest over the item Nos.2, 3 and 5 of the suit schedule properties.\n Further defendants contended that item No.1 of the suit schedule property belonged to defendant No.3, who is the purchaser of the same on 19/10/1992 under registered sale deed. Further defendants contended that item No.4 of the suit schedule property is the self acquired property of defendant No.1 and hence suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants and the plaintiff is not entitled any share in the suit schedule properties.\n 18. In this case the plaintiff got examined her GPA holder, who is also her son as PW1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief, he reiterated the plaint averments. He deposed that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah and all the suit schedule properties are the ancestral properties and joint family properties of plaintiff and defendants and the plaintiff and defendants have equal right over the suit schedule properties. He further deposed that his mother is entitled 1/4th share in the suit schedule properties.\n He produced in all 6 documents, which are marked as Exts.P.1 to P6. In the cross-examination he stated that the marriage of his mother has taken place about 50 years ago. He admitted that since from the date of marriage, his mother is residing with her husband's house. He denied that defendant No.1 has purchased item No.4 of the suit schedule property under registered sale deed dated:4/5/1974. He further denied that the father of defendant No.1 has executed settlement deed dated:2/12/1969 in favour of defendant No.1 in respect of the item No.2, 3 and 5 of the suit schedule properties. He further denied that the item No.1 of the suit schedule property is the self acquired property of defendant No.3.\n 19. In this case defendant No.1 got examined GPA holder, who is also his son as DW1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief, he reiterated the contention taken in the Written Statement. He deposed that the father of defendant No.1 and defendant No.1 were the coparceners of family and father of defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties in favour of defendant No.1 including his interest and hence by virtue of the settlement deed, the defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties. He further deposed that item No.1 of the suit schedule property is the self acquired property of defendant No.3 and item No.4 of the suit schedule property is the self acquired property of his father, who has purchased the same under registered sale deed dated:4/5/1974. He further deposed that suit schedule properties are not at all joint family properties of plaintiff and defendants and hence the plaintiff is not entitled any share in the suit schedule properties. He produced in all 14 documents, which are marked as Exts.D.1 to D.14. In the cross-examination he denied that the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. He denied that the plaintiff is also having 1/4th share in the suit schedule properties. In this case, defendant No.3, partly examined herself as DW2. But in this case, DW2 did not appear for cross-examination and she was not subjected to cross- examination and hence part of evidence of DW2 was expunged.\n 20. In this case defendants got examined one witness as DW3.\n He filed affidavit evidence in lieu of his examination-in-chief.\n In his examination-in-chief, he supported the version of the defendants. He deposed that item No.1 of the suit schedule property is the self acquired property of 3rd defendant, who was purchased the same under registered sale deed dated:19/10/1992 for valuable consideration. He further deposed that item No.4 of the suit schedule property is the self acquired property of defendant No.1, who was purchased the same under registered sale deed dated:4/5/1974 for valuable consideration. He further deposed that during the life time of Chikkandugowda @ Buddaiah had executed registered settlement deed in favour of the 1st defendant on 2/12/1969 by settling all the properties in favour of 1st defendant including his interest in favour of 1st defendant and the husband of the plaintiff by name one Madegowda is one of the attesting witness to the said settlement deed and by virtue of the said settlement deed, the 1st defendant has became the absolute owner of the item No.2, 3 and 5 of the suit schedule properties. In the cross-examination he denied that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants.\n 21. I have perused the entire oral and documentary evidence adduced by both the parties. In this case, there is no dispute with regard to the relationship of the parties. It is an admitted fact that the plaintiff and defendants are the children of late Chikkandugowda @ Buddaiah. It is also an admitted fact that the marriage of the plaintiff took place about 50 years ago and she is residing with her husband's house, since from the marriage. It is the case of the plaintiff that suit schedule properties are the ancestral and joint family properties of herself and defendants and there was no partition between the herself and defendants and hence she is entitled for 1/4th share in the suit schedule properties. The defendants denied the case of the plaintiff. According to the defendants, item No.1 of the suit schedule property is the self acquired property of defendant No.1 and so far as item No.2, 3 and 5 of the suit schedule properties are concerned, the father of defendant No.1 has executed settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties including his interest, since the father of the defendant No.1 and defendant No.1 were the coparceners in the family and by virtue of the settlement deed, the 1st defendant has became the absolute owner and in possession and enjoyment of item Nos.2, 3 and 5 of the suit schedule properties and suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants and the plaintiff is not entitled any share in the suit schedule properties.\n 22. In this case, the PW1, who is GPA Holder of the plaintiff, has produced in all 6 documents, which are marked as Exts.P.1 to P.6. Ex.P.1 is the GPA. Ex.P.2 to P.6 are the RTC extracts pertaining to suit schedule properties. DW1, who is GPA holder of the defendant No.1 and also his son has produced 14 documents, which are marked as Exts.D.1 to D.14. Ex.D.1 is the GPA. Ex.D.2 is the sale deed. Ex.D.3 is the RTC extract.\n Ex.D.4 is the registered sale deed. Ex.D.5 is the encumbrance certificate. Ex.D.6 is the settlement deed. Ex.D.7 is the tax paid receipt. Ex.D.8 to D.13 are the RTC extracts and Ex.D.14 is the ration card. It is an admitted fact that the marriage of the plaintiff taken place about 50 years ago and since from the date of the marriage, she is residing with her husband's house. In this case, DW1 produced registered settlement deed, which is marked as Ex.D.6. On perusal of the same, it clearly shows that defendant No.1 and his father were the co- parceners of the family and father of the defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/69 by settling all the properties i.e, item No.2, 3 and 5 of the suit schedule properties in favour of defendant No.1. Hence by virtue of the said settlement deed, the defendant No.1 has became the absolute owner and in possession and enjoyment of the item Nos.2, 3 and 5 of the suit schedule properties. Further the documents produced by defendants clearly shows that on the basis of the settlement deed, katha of the item No.2, 3 and 5 of the suit schedule properties were changed in the name of 1st defendant and defendant No.1 is in possession and enjoyment of the said properties by paying tax to the concerned authority. It is pertinent to note that, Ex.D.6 is the registered document and it is more than 30 years old document. Hence this Ex.D.6 has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation. In this case, or any other suit the plaintiff has not challenged this Ex.D.6.\nEven the plaintiff in her plaint nowhere alleged that the settlement deed dated:2/12/1969 is a concocted and created by defendant No.1. Further there is no whisper about the settlement deed dated:2/12/1969 in the plaint. It is also important to note that the husband of the plaintiff is also one of the attesting witness to this Ex.D.6. Further evidence on record, clearly shows that, this Ex.D.6 was acted upon and on the basis of the Ex.D.6, katha of the item no. 2, 3 and 5 of the suit schedule properties, are changed in the name of defendant No.1 and defendant No.1 is in possession and enjoyment of the suit schedule properties as an absolute owner and also he is paying tax in respect of the said properties. Hence I do not find any reasons to doubt the genuineness of this Ex.D.6/settlement deed dated:2/12/1969 executed by the father of the 1st defendant in favour of defendant No.1. As already stated, the settlement deed dated:2/12/1969 is a registered document and it is more than 30 years old document and hence it has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation. Hence from the evidence on record it is much clear that father of defendant no.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties namely item Nos.2, 3 and 5 of the suit schedule properties in favour of defendant No.1. It is pertinent to note that, evidence on record, clearly shows that, as on the date of execution of the settlement deed, defendant No.1 and his father were only co-parceners of the family. The evidence on record, clearly shows that, the plaintiff and defendant Nos.2 and 3 are the sisters of defendant No.1. But the evidence on record, clearly shows that, as on the date of execution of the registered settlement deed dated:2/12/1969, the marriage of the plaintiff and defendant Nos.2 and 3 had already taken place and they were not the co-parceners of the defendant No.1's family. The evidence on record, clearly shows that, as on the date of execution of the settlement deed, defendant No.1 and his father were the only co-parceners of the family and accordingly the father of defendant No.1 had executed settlement deed in favour of defendant No.1 in respect of item Nos.2, 3 and 5 of the suit schedule properties including his interest. Hence by virtue of the settlement deed, defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties. Therefore item Nos.2, 3 and 5 of the suit schedule properties are not at all the ancestral and joint family properties of plaintiff and defendants. It is also important to note that, as on the date of execution of the settlement deed, the plaintiff and defendants Nos.2 and 3 were not the coparceners of the family and they have no right in the coparcenery properties. In this case, the evidence on record, clearly shows that, father of defendant No.1 had executed registered settlement deed by settling all the properties in favour of defendant No.1 including his interest.\nHence the item Nos.2, 3 and 5 of the suit schedule properties are the absolute properties of defendant No.1 and they are not the ancestral and joint family properties of plaintiff and defendants Nos.1 to 3. In this case, defendants produced registered sale deed dated:19/10/1992. On perusal of the same, it clearly shows that defendant No.3 has purchased the item No.1 of the suit schedule property for valuable consideration. Further RTC extract produced by the defendants also clearly shows that on the basis of the sale deed dated:19/10/1992, katha was changed in the name of defendant No.3 in respect of the item No.1 of the suit schedule property. Hence from the evidence on record, it is much clear that, item No.1 of the suit schedule property is the self acquired property of defendant No.3 and it is not the ancestral and joint family property of the plaintiff and defendants. In this case, the plaintiff ahs not adduced any cogent evidence on record to show that the defendant No.3 has purchased the item No.1 of the suit schedule property out of the joint family income. Hence in the absence of cogent evidence it cannot be said that the item No.1 of the suit schedule property was purchased in the name of defendant No.3 out of joint family funds. DW1 in his evidence clearly stated that item No.1 of the suit schedule property is the self acquired property of defendant No.3. Further, DW3, who is the independent witness in his evidence clearly stated that, item No.1 of the suit schedule property is the self acquired property of 3rd defendant and she has purchased the same under registered sale deed dated:19/10/1992. Nothing has been elicited from the mouth of DW1 and 3, during the course of their cross- examination to show that item No.1 of the suit schedule property is the joint family property of plaintiff and defendants. Hence in the absence of cogent evidence it cannot be said that item No.1 of the suit schedule property has been purchased in the name of defendant No.3, who has purchased the same under registered sale deed dated:19/10/1992 for valuable consideration. In this case, DW1 produced sale deed dated:4/5/74, which is marked as Ex.D.4. On perusal of the same, it clearly shows that defendant No.1 has purchased the item No.4 of the suit schedule property from one Smt.Kempamma for valuable consideration under registered sale deed dated:4/5/1974. Further evidence on record, clearly shows that, on the basis of the said sale deed, Katha was changed in the name of defendant No.1 and now defendant No.1 is in possession and enjoyment of the item No.4 of the suit schedule property as the absolute owner. In this case, the plaintiff has not adduced any cogent evidence on record to show that defendant No.1 has purchased the item No.4 of the suit schedule property, out of the joint family funds. Hence in the absence of cogent evidence it cannot be said that defendant No.1 has purchased item No.4 of the suit schedule property out of the joint family funds. Hence from the evidence on record it is much clear that item No.4 of the suit schedule property is the self acquired property of defendant No.1. On perusal of the entire oral and documentary evidence it is much clear that item No.1 of the suit schedule property is the self acquired property of defendant No.3 and item No.4 of the suit schedule property is the self acquired property of defendant No.1. Further evidence on record, clearly shows that, father of defendant No.1 had executed registered settlement deed in favour of defendant No.1 on 2/12/1969 by settling all the properties i.e, item Nos.2, 3 and 5 of the suit schedule properties in favour of defendant No.1 including his interest. So by virtue of the said settlement deed, defendant No.1 has became the absolute owner of item nos.2, 3 and 5 of the suit schedule properties. Further evidence on record, clearly shows that, the said settlement deed was acted upon and on the basis of the said settlement deed, katha of the item No.2, 3 and 5 of the suit schedule properties are changed in the name of defendant No.1 and now defendant No.1 is in possession and enjoyment of the said properties and he is paying tax to the concerned authority in respect of the suit schedule properties. As already stated, the settlement deed dated:2/12/1969 is a registered document and it is 30 years old document and it has got presumptive value under section 90 of the Indian Evidence Act, with regard to its execution and attestation. Hence from the evidence on record it is much clear that defendant No.1 has acquired item No.2, 3 and 5 of the suit schedule properties, by virtue of the settlement deed, executed by his father in his favour. Further evidence on record, clearly shows that, item No.1 of the suit schedule property is the self acquired property of defendant No.3.\nFurther evidence on record, clearly shows that, item No.4 of the suit schedule property is the self acquired property of defendant No.1. Hence from the evidence on record it is much clear that the suit schedule properties are not at all the ancestral and joint family properties of plaintiff and defendants. The plaintiff failed to prove issue No.1 whereas, defendants proved issue Nos.3, 4 and additional issue No.1.\n Accordingly I answered Issue No.1 in the negative and issue Nos.3, 4 and additional issue No.1 in the affirmative.\n 23. Issue Nos.2 and 5:- The plaintiff filed this suit for partition and separate possession of her 1/4th share in the suit schedule properties. While answering issue No.1 it is held that the suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants. While answering issue No.3, it is held that by virtue of the settlement deed, dated:2/12/1969, defendant No.1 has became the absolute owner of item Nos.2, 3 and 5 of the suit schedule properties.\n While answering issue No.4, it is held that item No.1 of the suit schedule property is the self acquired property of defendant No.1, who has purchased the same on 19/10/1992 under registered sale deed for valuable consideration. Further while answering additional issue No.1, it is held that item No.4 of the suit schedule property is the self acquired property of defendant No.1. Hence from the evidence on record it is much clear that during the lifetime of father of the 1st defendant, he had executed registered sale deed in favour of defendant No.1 on 2/12/1969 by settling all his properties in favour of 1st defendant, including his interest and by virtue of the said settlement deed, defendant No.1 became the absolute owner and in possession and enjoyment of the item No.2, 3 and 5 of the suit schedule properties. Further evidence on record, clearly shows that, item No.4 of the suit schedule property is the self acquired property of defendant No.1. Further evidence on record, clearly shows that, item No.1 of the suit schedule property is the self acquired property of defendant No.3.\n Hence from the evidence on record it is much clear that item No.2, 3, 4 and 5 of the suit schedule properties are the absolute properties of defendant No.1, whereas item No.1 of the suit schedule property is the absolute property of defendant No.3. Hence from the evidence on record it is much clear that the suit schedule properties are not the ancestral and joint family properties of plaintiff and defendants.\n Therefore, the plaintiff is not entitled any share in the suit schedule properties. Further the plaintiff is not entitled any relief as sought in this suit. Accordingly, I answered issue Nos.2 and 5.\n 24. Issue No.6:- From my above discussion and findings on issues and additional issues, the suit filed by the plaintiff is liable to be dismissed. Hence in the result, I proceed to pass the following:- O R D E R Suit of the plaintiff is hereby dismissed.\n Under the facts and circumstances of the case, there is no order as to costs.\n Draw decree accordingly.\n (Typed to my dictation on computer by the Stenographer and after making necessary corrections, pronounced by me in the open court this the 16th day of August 2012) (S.H.Hosagoudar) Judge, Court of Small causes & Sr. C.J.\n Mysore.\n ANNEXURES Witnesses examined on behalf of the Plaintiff: - PW.1 : Puttaraju Documents marked on behalf of the plaintiff : - Ex.P.1 : GPA Ex.P.2 to 6 : RTC extracts Witnesses examined on behalf of the defendants : DW.1 : J. Shivanna DW.2 : Nanjamma DW.3 : Ramegowda Documents exhibited on behalf of the defendants :- Ex.D.1 : GPA Ex.D.2 : Original registered sale deed Ex.D.3 Dt:19/10/92 Ex.D.4 : RTC extract : Original Registered Sale deed Ex.D.5 : Dt.04/05/1974 Endorsement Ex.D.6 : Settlement deed Tax paid receipt Ex.D.7 : RTC extract RTC extracts Ex.D.8 : Ex.D.9 to 13 : Date:16/08/2012 Judge, Place:Mysore. Court of Small causes & Sr. C.J.\n Mysore.\n "
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"text": "\n CRIMINAL APPELLATE JURISDICTION\n CRIMINAL APPEAL NO.335 OF 2020\n\nTHE STATE OF PUNJAB VERSUS"
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"text": " ...APPELLANT\nJASBIR SINGH"
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"text": "...RESPONDENT\n\n J U D G M E N T\n MOHAN M. SHANTANAGOUDAR, J.\n 1. "
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"text": "The judgment dated 22.01.2019 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No.\n 24691/2009 (O&M), which quashed FIR No. 74 dated 13.4.2008 registered against the Respondent herein for the offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (\"IPC\"), has been called into question in this appeal."
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"text": "\n 2. The First Information Report (\"FIR\") against the Respondent was registered under Sections 420, 467, 468 and 471 of the IPC on the allegation that he had forged and fabricated documents submitted in the course of legal proceedings before the Revenue Courts."
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"text": "The relevant facts for the purpose of the present appeal are as follows: 2.1 "
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"text": "The Respondent's mother, Karamjit Kaur, had filed an application in Tehsil Patti, District Tarn Taran seeking transfer of the subject property in her name on the basis of possession."
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"text": "\n Vide order dated 28.06.2002, the Tehsildar (Sales) allowed this application, directing conveyance in favour of Karamjit Kaur.\n "
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"labels": [
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"text": "Meanwhile, in the year 2005, the Respondent filed a suit for declaration that the subject property was owned by him, which is still pending."
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"labels": [
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"text": "\n 2.2 Later, in the year 2006, the Respondent filed an appeal against the order of the Tehsildar (Sales), claiming that such order was based on an incorrect finding that the application was filed only by his mother, while it had actually been made jointly."
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"text": "\n 2.3 Furthermore, in parallel mutation proceedings, the Respondent got the subject land mutated in his favour along with his two cousins."
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"text": "In appeal, the Sub-Divisional Magistrate- cum-Collector, Patti declared the mutation as contested, and vide order dated 11.12.2006, mutation was sanctioned in favour of Tarjit Kaur, the elder sister-in-law of the Respondent."
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"labels": [
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"text": "\nThe appeal filed by the Respondent against such order was dismissed vide order dated 06.06.2007.\n 2.4 "
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"end": 2440,
"labels": [
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],
"start": 2223,
"text": "On 29.08.2007, the SDM-cum-Sales Commissioner, Patti set aside the order of the Tehsildar (Sales) dated 28.06.2002, directing that the transfer of land be entered jointly in the names of the Respondent and his mother."
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"labels": [
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"text": "This was done on the basis of a report submitted by the Tehsildar, Patti stating that the initial application for transfer of land had been made jointly by these two persons."
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"labels": [
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"start": 2616,
"text": "In appeal, the Deputy Commissioner-cum-Chief Sales Commissioner, Tarn Taran restored the initial order dated 28.06.2002 passed by the Tehsildar (Sales), noting that the Respondent had submitted forged and fabricated documents in connivance with the Tehsil staff in the appeal before the SDM-cum-Sales Commissioner."
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"labels": [
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"text": "Thus, the order dated 29.08.2007 was set aside and a direction was issued to the Sub-Divisional Magistrate, Patti to immediately get an FIR registered against the Respondent.\n 2.5 "
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"labels": [
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"text": "In pursuance of the said order, the Sub-Divisional Magistrate, Patti addressed a communication dated 11.04.2008 to the SHO, Police Station, Patti on the basis of which the FIR in question was registered against the Respondent."
}
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"labels": [
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"text": "The trial commenced after the filing of the chargesheet."
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"labels": [
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"text": "During the trial, a petition was filed by the Respondent under Section 482 of the Code of Criminal Procedure, 1973 (\"CrPC\") seeking quashing of the proceedings, which has been allowed vide the impugned order."
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"labels": [
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"text": "\n 3. The High Court, while passing the impugned order, principally accepted the ground raised by the Respondent that the Deputy Commissioner-cum-Chief Sales Commissioner hearing the appeal had neither held an inquiry, nor had he directed the subordinate authority to hold any such inquiry against the accused, in terms of Section 340 read with Section 195 of the CrPC."
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"text": "Thus, it was held that the FIR was hit by these provisions, since it had been filed without any inquiry and without giving any opportunity to the Respondent to be heard, and was therefore liable to be quashed."
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"value": {
"end": 4228,
"labels": [
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],
"start": 4186,
"text": "4. Heard learned Counsel for the parties."
}
},
{
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"end": 4853,
"labels": [
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],
"start": 4228,
"text": "\n 5. Ms. Uttara Babbar, learned counsel appearing for the State has taken us through the material on record, and referred us to the provisions of Section 195 and Section 340 of the CrPC to contend that it is not mandatory on the part of the Court to make a preliminary inquiry under Section 340 before filing a complaint under Section 195; the Court is not required to afford an opportunity of hearing to the person against whom a complaint is filed before the Magistrate for initiating prosecution proceedings; and that Section 340 does not indicate that such person has any right to participate in the preliminary inquiry."
}
},
{
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"id": "636547967c4e46e9b0de28aabd879c9b",
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"type": "labels",
"value": {
"end": 5108,
"labels": [
"ARG_RESPONDENT"
],
"start": 4854,
"text": "In support of these contentions, she relied upon the judgments in Pritish v. State of Maharashtra, (2002) 1 SCC 253, decided by a three-Judge Bench of this Court, and of a two-Judge Bench in Amarsang Nathaji v.\nHardik Harshadbhai Patel, (2017) 1 SCC 113."
}
},
{
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"id": "2ac976b1b6ba43d48dd6a6f4c0ae64e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 5534,
"labels": [
"ARG_RESPONDENT"
],
"start": 5109,
"text": "Also drawing our attention to the another judgment decided by a three-Judge Bench of this Court in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, she submitted that no dictum can be said to be have been laid down in the said judgment as it was passed sub silentio, having assigned no reasons to come to the conclusion that a preliminary inquiry is mandatory under Section 340, contrary to the dictum of Pritish (supra)."
}
},
{
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"id": "e56bd579ed7b465db2b99c7caecb442f",
"to_name": "text",
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"value": {
"end": 5639,
"labels": [
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],
"start": 5534,
"text": "\n 6. Per contra, learned counsel for the Respondent argued in support of the judgment of the High Court."
}
},
{
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"id": "47c7654c08154eedb6ba5d1db6e19acf",
"to_name": "text",
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"value": {
"end": 5943,
"labels": [
"ISSUE"
],
"start": 5639,
"text": "\n 7. In view of the arguments advanced and the material on record, the only question to be considered in this matter is as under: Whether the Court should have heard the Respondent and given him an opportunity to have a say in the matter before ordering prosecution under Section 195 of the CrPC?"
}
},
{
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"id": "d9034bbbce11481abc28d60c13140c9d",
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"end": 5956,
"labels": [
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],
"start": 5945,
"text": "8. "
}
},
{
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"end": 6379,
"labels": [
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],
"start": 5956,
"text": "In this regard, it is pertinent to note Section 195(1)(b) (ii) of the CrPC, which provides that no Court shall take cognizance of any offence mentioned therein, if committed in respect of a document produced or given in evidence in a proceeding in any Court: \"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence."
}
},
{
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"id": "58d35a0ec65f4b2495f5922df834431b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6994,
"labels": [
"STA"
],
"start": 6379,
"text": "\n (1) No Court shall take cognizance- ...\n (b) ...(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court...\"\n 9. We may also note that Section 195(3) of the CrPC clarifies that the term \"Court\" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of the said section."
}
},
{
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"id": "541b3599da6b400d936fe3c7db117471",
"to_name": "text",
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"value": {
"end": 7191,
"labels": [
"ANALYSIS"
],
"start": 6994,
"text": "\n 10. In the instant case, it is not in dispute that the Deputy Commissioner-cum-Chief Sales Commissioner, as well as the Sales Commissioner, Patti were discharging their duties as Revenue Courts."
}
},
{
"from_name": "label",
"id": "1503283d326d4114a4faec0042e47046",
"to_name": "text",
"type": "labels",
"value": {
"end": 7411,
"labels": [
"ANALYSIS"
],
"start": 7192,
"text": "It is further not in dispute that the criminal proceedings instituted against the Respondent fell within the scope of Section 195(1)(b)(ii), as they pertained to offences under Sections 420, 467, 468 and 471 of the IPC."
}
},
{
"from_name": "label",
"id": "d6d31e5740ca4c27a3f09d973184f52d",
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"type": "labels",
"value": {
"end": 7624,
"labels": [
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],
"start": 7412,
"text": "Essentially then, the controversy pertains to compliance with Section 340 of the CrPC, which lays down the procedure to be followed while making a complaint with respect to an offence as mentioned in Section 195."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 8680,
"labels": [
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],
"start": 7625,
"text": "In this regard, it may be useful to note the wording of Section 340(1): \"(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate.\"\n (emphasis supplied) 11."
}
},
{
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"type": "labels",
"value": {
"end": 9222,
"labels": [
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],
"start": 8682,
"text": "A bare reading of Section 340 reveals that if the Court is of the opinion that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in, or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and thereafter make a complaint thereof in writing."
}
},
{
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"value": {
"end": 9457,
"labels": [
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],
"start": 9223,
"text": "Upon a plain reading of this provision, it is clear that it is open for the Court to conduct (or not to conduct) a preliminary inquiry into the matter before lodging a complaint in respect of an offence mentioned in Section 195(1)(b)."
}
},
{
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"to_name": "text",
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"end": 9739,
"labels": [
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],
"start": 9459,
"text": "Indeed, a three-Judge Bench of this Court in Pritish (supra) dealing with the question in consideration here, held that an opportunity to the would-be accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory."
}
},
{
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"id": "431f44944d4f4e048d84eaec69c0c5ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 10057,
"labels": [
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],
"start": 9740,
"text": "The Court observed thus: \"9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed."
}
},
{
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"id": "83e083966e1d4b969bfc01d193374e8b",
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"type": "labels",
"value": {
"end": 10141,
"labels": [
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],
"start": 10058,
"text": "In order to form such opinion the court is empowered to hold a preliminary inquiry."
}
},
{
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"id": "19f61fdf02b840b69834abc8ab9bb013",
"to_name": "text",
"type": "labels",
"value": {
"end": 10208,
"labels": [
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],
"start": 10142,
"text": "It is not peremptory that such preliminary inquiry should be held."
}
},
{
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"id": "7a1ee6b4a7694793a36b52fdd401a56b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10388,
"labels": [
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],
"start": 10209,
"text": "Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court."
}
},
{
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"id": "54ab16c87e8e42589f85a665e21e26fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 10521,
"labels": [
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],
"start": 10389,
"text": "It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint."
}
},
{
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"id": "d3435c679dff488dbc7ef4ebbf3db268",
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"type": "labels",
"value": {
"end": 10584,
"labels": [
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],
"start": 10522,
"text": "This sub- section has conferred a power on the court to do so."
}
},
{
"from_name": "label",
"id": "dc81faf791ec41a38940cde72885d865",
"to_name": "text",
"type": "labels",
"value": {
"end": 10672,
"labels": [
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],
"start": 10584,
"text": "\n It does not mean that the court should, as a matter of course, make a complaint."
}
},
{
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"id": "718e053fc1a344f4abcff4ea34f80790",
"to_name": "text",
"type": "labels",
"value": {
"end": 10878,
"labels": [
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],
"start": 10673,
"text": "But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into."
}
},
{
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"id": "b3c6592c07434bd6b91b68d8432623e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11127,
"labels": [
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],
"start": 10879,
"text": "If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion."
}
},
{
"from_name": "label",
"id": "291d01d26b5e48ea8dd38239794ab7d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11286,
"labels": [
"ANALYSIS"
],
"start": 11128,
"text": "It should again be remembered that the preliminary inquiry contemplated in the sub- section is not for finding whether any particular person is guilty or not."
}
},
{
"from_name": "label",
"id": "e904b3cf74bb43798d6801c29b502e3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11510,
"labels": [
"ANALYSIS"
],
"start": 11287,
"text": "Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed."
}
},
{
"from_name": "label",
"id": "b487758d0215464eaa0a5e3159d4839a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11656,
"labels": [
"STA"
],
"start": 11510,
"text": "\n 10. \"Inquiry\" is defined in Section 2(g) of the Code as \"every inquiry, other than a trial, conducted under this Code by a Magistrate or court\"."
}
},
{
"from_name": "label",
"id": "a98ff49eb2064285b21f98813f40c41e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11775,
"labels": [
"ANALYSIS"
],
"start": 11657,
"text": "It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate."
}
},
{
"from_name": "label",
"id": "644840ffe40d4f50a947b4fbff3c9df8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12071,
"labels": [
"ANALYSIS"
],
"start": 11776,
"text": "Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned."
}
},
{
"from_name": "label",
"id": "a35e7fc47f95447cb00441be206771e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12289,
"labels": [
"ANALYSIS"
],
"start": 12072,
"text": "As the offences involved are all falling within the purview of \"warrant case\"\n [as defined in Section 2(x)] of the Code the Magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code."
}
},
{
"from_name": "label",
"id": "915afd2d21a94c33bd8bae2b988a49b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12510,
"labels": [
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],
"start": 12290,
"text": "In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report."
}
},
{
"from_name": "label",
"id": "5c87ccb5b52d45619bb344a363af241f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12644,
"labels": [
"ANALYSIS"
],
"start": 12510,
"text": "\n That being the position, the Magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code."
}
},
{
"from_name": "label",
"id": "80fe54812a5a44d6a66c40e239f58095",
"to_name": "text",
"type": "labels",
"value": {
"end": 12811,
"labels": [
"STA"
],
"start": 12644,
"text": "\n 11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused."
}
},
{
"from_name": "label",
"id": "3aecd40545284b48a30d894790de6283",
"to_name": "text",
"type": "labels",
"value": {
"end": 12907,
"labels": [
"ANALYSIS"
],
"start": 12812,
"text": "Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it."
}
},
{
"from_name": "label",
"id": "c1c41a45d7b349958ca3cb3b4df5b564",
"to_name": "text",
"type": "labels",
"value": {
"end": 12981,
"labels": [
"ANALYSIS"
],
"start": 12908,
"text": "He may also make such examination of the accused, as he thinks necessary."
}
},
{
"from_name": "label",
"id": "09d22799c66b4f1e8b4c43e4c94407b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13122,
"labels": [
"ANALYSIS"
],
"start": 12982,
"text": "Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless."
}
},
{
"from_name": "label",
"id": "e939b9a886ac4255a6fffe0202db5e06",
"to_name": "text",
"type": "labels",
"value": {
"end": 13247,
"labels": [
"ANALYSIS"
],
"start": 13123,
"text": "If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof."
}
},
{
"from_name": "label",
"id": "25b322d40b3946b78b4a418c4f20016a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13475,
"labels": [
"STA"
],
"start": 13248,
"text": "Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused."
}
},
{
"from_name": "label",
"id": "2b0382a65ce84343b90610083a79bab0",
"to_name": "text",
"type": "labels",
"value": {
"end": 13613,
"labels": [
"STA"
],
"start": 13476,
"text": "Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not."
}
},
{
"from_name": "label",
"id": "891cbdfff1e54c04893747e35cd4c88b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13694,
"labels": [
"STA"
],
"start": 13614,
"text": "If he pleads not guilty then the Magistrate has to proceed to conduct the trial."
}
},
{
"from_name": "label",
"id": "00cd8e82eef74adaa078066b257027da",
"to_name": "text",
"type": "labels",
"value": {
"end": 13750,
"labels": [
"STA"
],
"start": 13695,
"text": "Until then the inquiry continues before the Magistrate."
}
},
{
"from_name": "label",
"id": "0fb33c643dc04b1e9be2ee56570c32c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13989,
"labels": [
"ANALYSIS"
],
"start": 13750,
"text": "\n 12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him."
}
},
{
"from_name": "label",
"id": "0e87ae78340b4d13a244f1eaf03a46fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14107,
"labels": [
"ANALYSIS"
],
"start": 13990,
"text": "The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code."
}
},
{
"from_name": "label",
"id": "1e79b9803ab047cd8d61f1699ec7a099",
"to_name": "text",
"type": "labels",
"value": {
"end": 14241,
"labels": [
"ANALYSIS"
],
"start": 14108,
"text": "It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged."
}
},
{
"from_name": "label",
"id": "46237a55f19a4092b990876bab12c533",
"to_name": "text",
"type": "labels",
"value": {
"end": 14492,
"labels": [
"ANALYSIS"
],
"start": 14243,
"text": "13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings."
}
},
{
"from_name": "label",
"id": "310dcd75d76e48efb2db5d6245bf58e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14842,
"labels": [
"ARG_PETITIONER"
],
"start": 14492,
"text": "\n Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry."
}
},
{
"from_name": "label",
"id": "83085c85a37e4b679f514d8da6a9ae03",
"to_name": "text",
"type": "labels",
"value": {
"end": 15124,
"labels": [
"ANALYSIS"
],
"start": 14842,
"text": "\n 14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate."
}
},
{
"from_name": "label",
"id": "f0ff5a7e1fbc402aaf2f6e1ddd17d8aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 15379,
"labels": [
"ANALYSIS"
],
"start": 15125,
"text": "But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint."
}
},
{
"from_name": "label",
"id": "0181b3b2deea4da588fcad28f0287c4a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15692,
"labels": [
"ANALYSIS"
],
"start": 15380,
"text": "There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would-be accused."
}
},
{
"from_name": "label",
"id": "098764ea0f724d13bdef9361599c862f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15865,
"labels": [
"ANALYSIS"
],
"start": 15693,
"text": "In any event the appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier."
}
},
{
"from_name": "label",
"id": "5c513bc4bb1041cc99eaaadfad0df870",
"to_name": "text",
"type": "labels",
"value": {
"end": 15874,
"labels": [
"ANALYSIS"
],
"start": 15865,
"text": "\n xxx 18."
}
},
{
"from_name": "label",
"id": "2c4b27cf2baa4f72a400bf8b2e3724a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 16137,
"labels": [
"ANALYSIS"
],
"start": 15875,
"text": "We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt."
}
},
{
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"end": 16248,
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"text": "We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all."
}
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"text": "The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held."
}
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"text": "We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M.\n Muthuswamy v. Special Police Establishment [1985 Cri LJ 420 (Mad)] ).\"\n (emphasis supplied) 12. "
}
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"text": "However, in the subsequent decision in Sharad Pawar (supra), while dealing with a similar question, a three- Judge Bench of this Court did not take note of the dictum in Pritish (supra) and went on to observe as follows: \"7."
}
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"end": 17339,
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"text": "Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to filed complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done."
}
},
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"end": 17797,
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"start": 17339,
"text": "\n 8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry.\""
}
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],
"start": 17797,
"text": "\n 13. Later, the judgment in Pritish (supra) came to be relied upon by a two-Judge Bench of this Court in Amarsang Nathaji (supra)."
}
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"end": 18105,
"labels": [
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],
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"text": "While dealing with the propriety of the procedure adopted by the Court making a complaint under Section 340 of the Code, the Bench in Amarsang Nathaji observed as follows: \"7."
}
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"labels": [
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],
"start": 18106,
"text": "In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed."
}
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"labels": [
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"text": "\n It is open to the court to hold a preliminary inquiry though it is not mandatory."
}
},
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"labels": [
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],
"start": 18450,
"text": "In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry."
}
},
{
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"end": 18848,
"labels": [
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],
"start": 18676,
"text": "\n Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course."
}
},
{
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"end": 18959,
"labels": [
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],
"start": 18849,
"text": "(See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140].)"
}
},
{
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"value": {
"end": 19197,
"labels": [
"PRE_RELIED"
],
"start": 18960,
"text": "In the same decision, the Court also took note of the following observations made by a Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 in relation to the scope of Section 340 of the CrPC: \"23."
}
},
{
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"end": 19473,
"labels": [
"ANALYSIS"
],
"start": 19198,
"text": "In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words \"court is of opinion that it is expedient in the interests of justice\"."
}
},
{
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"end": 19583,
"labels": [
"ANALYSIS"
],
"start": 19474,
"text": "This shows that such a course will be adopted only if the interest of justice requires and not in every case."
}
},
{
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"to_name": "text",
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"end": 19827,
"labels": [
"ANALYSIS"
],
"start": 19584,
"text": "Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b)."
}
},
{
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"id": "e9f3afbda332447d8d8f8eba16238f61",
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"value": {
"end": 20094,
"labels": [
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],
"start": 19828,
"text": "This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice."
}
},
{
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"id": "73bd171acc5e4fccb3cad8b8d3890930",
"to_name": "text",
"type": "labels",
"value": {
"end": 20538,
"labels": [
"ANALYSIS"
],
"start": 20095,
"text": "It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal."
}
},
{
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"id": "361ab8261f064f908af724657404fdfc",
"to_name": "text",
"type": "labels",
"value": {
"end": 20650,
"labels": [
"ANALYSIS"
],
"start": 20539,
"text": "In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.\""
}
},
{
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"id": "7b3db301393e4f40863b6559f3d6b629",
"to_name": "text",
"type": "labels",
"value": {
"end": 20671,
"labels": [
"ANALYSIS"
],
"start": 20650,
"text": "\n (emphasis supplied)"
}
},
{
"from_name": "label",
"id": "6430dc882a6b4f279c18dd30060c3e59",
"to_name": "text",
"type": "labels",
"value": {
"end": 20799,
"labels": [
"ANALYSIS"
],
"start": 20672,
"text": "Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra)."
}
},
{
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"id": "e7136f79ad524d2da3ecbfedc8a0d54c",
"to_name": "text",
"type": "labels",
"value": {
"end": 21192,
"labels": [
"ANALYSIS"
],
"start": 20799,
"text": "\n 14. In any event, given that the decision of the three- Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra)"
}
},
{
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"id": "4ad65b1922c243fda8eac2623319dd1d",
"to_name": "text",
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"value": {
"end": 21622,
"labels": [
"RATIO"
],
"start": 21192,
"text": ", we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions: (i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?\n (ii) What is the scope and ambit of such preliminary inquiry?"
}
},
{
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"value": {
"end": 21741,
"labels": [
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],
"start": 21622,
"text": "\n 15. Accordingly, we direct the Registry to place the papers before the Hon'ble Chief Justice for appropriate orders."
}
},
{
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"to_name": "text",
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"value": {
"end": 21930,
"labels": [
"NONE"
],
"start": 21743,
"text": "...................................................J.\n (ASHOK BHUSHAN) ...................................................J.\n (MOHAN M. SHANTANAGOUDAR)"
}
},
{
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"id": "13429fc5580542e0b167a8f0a94d7255",
"to_name": "text",
"type": "labels",
"value": {
"end": 21958,
"labels": [
"NONE"
],
"start": 21931,
"text": "NEW DELHI FEBRUARY 26, 2020"
}
}
]
}
] | 1,715 | {
"text": " NON-REPORTABLE\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n CRIMINAL APPEAL NO.335 OF 2020\n\nTHE STATE OF PUNJAB VERSUS ...APPELLANT\nJASBIR SINGH ...RESPONDENT\n\n J U D G M E N T\n MOHAN M. SHANTANAGOUDAR, J.\n 1. The judgment dated 22.01.2019 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No.\n 24691/2009 (O&M), which quashed FIR No. 74 dated 13.4.2008 registered against the Respondent herein for the offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (\"IPC\"), has been called into question in this appeal.\n 2. The First Information Report (\"FIR\") against the Respondent was registered under Sections 420, 467, 468 and 471 of the IPC on the allegation that he had forged and fabricated documents submitted in the course of legal proceedings before the Revenue Courts. The relevant facts for the purpose of the present appeal are as follows: 2.1 The Respondent's mother, Karamjit Kaur, had filed an application in Tehsil Patti, District Tarn Taran seeking transfer of the subject property in her name on the basis of possession.\n Vide order dated 28.06.2002, the Tehsildar (Sales) allowed this application, directing conveyance in favour of Karamjit Kaur.\n Meanwhile, in the year 2005, the Respondent filed a suit for declaration that the subject property was owned by him, which is still pending.\n 2.2 Later, in the year 2006, the Respondent filed an appeal against the order of the Tehsildar (Sales), claiming that such order was based on an incorrect finding that the application was filed only by his mother, while it had actually been made jointly.\n 2.3 Furthermore, in parallel mutation proceedings, the Respondent got the subject land mutated in his favour along with his two cousins. In appeal, the Sub-Divisional Magistrate- cum-Collector, Patti declared the mutation as contested, and vide order dated 11.12.2006, mutation was sanctioned in favour of Tarjit Kaur, the elder sister-in-law of the Respondent.\nThe appeal filed by the Respondent against such order was dismissed vide order dated 06.06.2007.\n 2.4 On 29.08.2007, the SDM-cum-Sales Commissioner, Patti set aside the order of the Tehsildar (Sales) dated 28.06.2002, directing that the transfer of land be entered jointly in the names of the Respondent and his mother. This was done on the basis of a report submitted by the Tehsildar, Patti stating that the initial application for transfer of land had been made jointly by these two persons. In appeal, the Deputy Commissioner-cum-Chief Sales Commissioner, Tarn Taran restored the initial order dated 28.06.2002 passed by the Tehsildar (Sales), noting that the Respondent had submitted forged and fabricated documents in connivance with the Tehsil staff in the appeal before the SDM-cum-Sales Commissioner.\n Thus, the order dated 29.08.2007 was set aside and a direction was issued to the Sub-Divisional Magistrate, Patti to immediately get an FIR registered against the Respondent.\n 2.5 In pursuance of the said order, the Sub-Divisional Magistrate, Patti addressed a communication dated 11.04.2008 to the SHO, Police Station, Patti on the basis of which the FIR in question was registered against the Respondent. The trial commenced after the filing of the chargesheet. During the trial, a petition was filed by the Respondent under Section 482 of the Code of Criminal Procedure, 1973 (\"CrPC\") seeking quashing of the proceedings, which has been allowed vide the impugned order.\n 3. The High Court, while passing the impugned order, principally accepted the ground raised by the Respondent that the Deputy Commissioner-cum-Chief Sales Commissioner hearing the appeal had neither held an inquiry, nor had he directed the subordinate authority to hold any such inquiry against the accused, in terms of Section 340 read with Section 195 of the CrPC. Thus, it was held that the FIR was hit by these provisions, since it had been filed without any inquiry and without giving any opportunity to the Respondent to be heard, and was therefore liable to be quashed.\n 4. Heard learned Counsel for the parties.\n 5. Ms. Uttara Babbar, learned counsel appearing for the State has taken us through the material on record, and referred us to the provisions of Section 195 and Section 340 of the CrPC to contend that it is not mandatory on the part of the Court to make a preliminary inquiry under Section 340 before filing a complaint under Section 195; the Court is not required to afford an opportunity of hearing to the person against whom a complaint is filed before the Magistrate for initiating prosecution proceedings; and that Section 340 does not indicate that such person has any right to participate in the preliminary inquiry. In support of these contentions, she relied upon the judgments in Pritish v. State of Maharashtra, (2002) 1 SCC 253, decided by a three-Judge Bench of this Court, and of a two-Judge Bench in Amarsang Nathaji v.\nHardik Harshadbhai Patel, (2017) 1 SCC 113. Also drawing our attention to the another judgment decided by a three-Judge Bench of this Court in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, she submitted that no dictum can be said to be have been laid down in the said judgment as it was passed sub silentio, having assigned no reasons to come to the conclusion that a preliminary inquiry is mandatory under Section 340, contrary to the dictum of Pritish (supra).\n 6. Per contra, learned counsel for the Respondent argued in support of the judgment of the High Court.\n 7. In view of the arguments advanced and the material on record, the only question to be considered in this matter is as under: Whether the Court should have heard the Respondent and given him an opportunity to have a say in the matter before ordering prosecution under Section 195 of the CrPC?\n 8. In this regard, it is pertinent to note Section 195(1)(b) (ii) of the CrPC, which provides that no Court shall take cognizance of any offence mentioned therein, if committed in respect of a document produced or given in evidence in a proceeding in any Court: \"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.\n (1) No Court shall take cognizance- ...\n (b) ...(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court...\"\n 9. We may also note that Section 195(3) of the CrPC clarifies that the term \"Court\" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of the said section.\n 10. In the instant case, it is not in dispute that the Deputy Commissioner-cum-Chief Sales Commissioner, as well as the Sales Commissioner, Patti were discharging their duties as Revenue Courts. It is further not in dispute that the criminal proceedings instituted against the Respondent fell within the scope of Section 195(1)(b)(ii), as they pertained to offences under Sections 420, 467, 468 and 471 of the IPC. Essentially then, the controversy pertains to compliance with Section 340 of the CrPC, which lays down the procedure to be followed while making a complaint with respect to an offence as mentioned in Section 195. In this regard, it may be useful to note the wording of Section 340(1): \"(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate.\"\n (emphasis supplied) 11. A bare reading of Section 340 reveals that if the Court is of the opinion that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in, or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and thereafter make a complaint thereof in writing. Upon a plain reading of this provision, it is clear that it is open for the Court to conduct (or not to conduct) a preliminary inquiry into the matter before lodging a complaint in respect of an offence mentioned in Section 195(1)(b).\n Indeed, a three-Judge Bench of this Court in Pritish (supra) dealing with the question in consideration here, held that an opportunity to the would-be accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: \"9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub- section has conferred a power on the court to do so.\n It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub- section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.\n 10. \"Inquiry\" is defined in Section 2(g) of the Code as \"every inquiry, other than a trial, conducted under this Code by a Magistrate or court\". It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all falling within the purview of \"warrant case\"\n [as defined in Section 2(x)] of the Code the Magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report.\n That being the position, the Magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.\n 11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the Magistrate.\n 12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged.\n 13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings.\n Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.\n 14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would-be accused. In any event the appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier.\n xxx 18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M.\n Muthuswamy v. Special Police Establishment [1985 Cri LJ 420 (Mad)] ).\"\n (emphasis supplied) 12. However, in the subsequent decision in Sharad Pawar (supra), while dealing with a similar question, a three- Judge Bench of this Court did not take note of the dictum in Pritish (supra) and went on to observe as follows: \"7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to filed complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done.\n 8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry.\"\n 13. Later, the judgment in Pritish (supra) came to be relied upon by a two-Judge Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the Court making a complaint under Section 340 of the Code, the Bench in Amarsang Nathaji observed as follows: \"7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed.\n It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry.\n Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140].) In the same decision, the Court also took note of the following observations made by a Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 in relation to the scope of Section 340 of the CrPC: \"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words \"court is of opinion that it is expedient in the interests of justice\". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.\"\n (emphasis supplied) Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra).\n 14. In any event, given that the decision of the three- Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions: (i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?\n (ii) What is the scope and ambit of such preliminary inquiry?\n 15. Accordingly, we direct the Registry to place the papers before the Hon'ble Chief Justice for appropriate orders.\n ...................................................J.\n (ASHOK BHUSHAN) ...................................................J.\n (MOHAN M. SHANTANAGOUDAR) NEW DELHI FEBRUARY 26, 2020 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "54f49331b2b34306aab8068e2059dd57",
"to_name": null,
"type": null,
"value": {
"end": 124,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nHARISHIKESM GANGULI (DEAD)\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, CALCUTTA\n\nDATE OF JUDGMENT18/08/1971"
}
},
{
"from_name": null,
"id": "4d5db37b4c464fa3ab5d7461acd0cf70",
"to_name": null,
"type": null,
"value": {
"end": 614,
"labels": [
"PREAMBLE"
],
"start": 124,
"text": "\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nHEGDE, K.S.\n\nCITATION:\n\n1971 AIR 2516 1972 SCR (1) 310\n (3)\nCITATOR INFO :\n\nR 1991 SC 331\n\nACT:\nIncome-tax Act, 1922, s. 16(1) (c)-Settlor reserving benefit\nfor himself under trust created by him--Trust whether\nbecomes a revocable trust within meaning of section-Effect\nof third proviso.\n\nHEADNOTE:\nThe assessee derived income from house properties and from\nthe business of a registered partnership firm."
}
},
{
"from_name": null,
"id": "7735d34e075c4206a0a8e50f6e219b1e",
"to_name": null,
"type": null,
"value": {
"end": 687,
"labels": [
"PREAMBLE"
],
"start": 615,
"text": "On March 19,\n1953 the assessee created a trust in respect of two houses."
}
},
{
"from_name": null,
"id": "cd5c31580ff04468ae171b18cc312f03",
"to_name": null,
"type": null,
"value": {
"end": 924,
"labels": [
"PREAMBLE"
],
"start": 687,
"text": "\nit was provided in the trust ,deed that the trustees shall\npay a sum of Rs. 200/- per month to the settlor, for life\nfor his own absolute use and benefit out of the income of\nthe trust estate remaining after payment of taxes, rents\netc."
}
},
{
"from_name": null,
"id": "7d5ca0267bd04b5484ccf30896ab336f",
"to_name": null,
"type": null,
"value": {
"end": 1249,
"labels": [
"PREAMBLE"
],
"start": 925,
"text": "The Income-tax Officer held that the income from the\naforesaid two properties was assesses able in the hands of\nthe assessee inasmuch as he had retained a portion of the\nincome from the trust properties for himself whereby the\ntrust -became a revocable trust under the provisions of s.\n16(1) (c) of the Income-tax Act, 1922."
}
},
{
"from_name": null,
"id": "62c02005f2f9495ba39657e9645ab239",
"to_name": null,
"type": null,
"value": {
"end": 1336,
"labels": [
"PREAMBLE"
],
"start": 1250,
"text": "The Appellate\nAssistant Commissioner upheld the view taken by the Income-\ntax Officer."
}
},
{
"from_name": null,
"id": "3bb0223862084d2fbb4bac2dccc3e08a",
"to_name": null,
"type": null,
"value": {
"end": 1457,
"labels": [
"PREAMBLE"
],
"start": 1337,
"text": "The Tribunal however held that -only the sum\nof Rs. 2400/- annually payable to the assessee could be\ntaxed in his hands."
}
},
{
"from_name": null,
"id": "8a263e7d6c074881abdc77a8afeef750",
"to_name": null,
"type": null,
"value": {
"end": 1515,
"labels": [
"PREAMBLE"
],
"start": 1458,
"text": "In reference the High Court decided\nagainst the assessee."
}
},
{
"from_name": null,
"id": "81a5d9f6456d49129ef24f8b6b8823e4",
"to_name": null,
"type": null,
"value": {
"end": 1870,
"labels": [
"PREAMBLE"
],
"start": 1516,
"text": "In appeal to this Court by special\nleave,\nHELD : The effect of the third proviso to s. 16(1) (c) is\nthat a settlement or disposition containing a provision for\nretransfer of a part of the income to the settlor would not\nrender the whole income of the settlement chargeable in his\nhand provided the other conditions contained in the proviso\nare satisfied."
}
},
{
"from_name": null,
"id": "ed86f1c88d794426a7a882535bc7b859",
"to_name": null,
"type": null,
"value": {
"end": 2090,
"labels": [
"PREAMBLE"
],
"start": 1871,
"text": "In other words the proviso comes to the\nrescue of the settlor in that the portion of the income from\nthe trust properties which are settled on a third person is\nto be assessed in the hands of that person and not in the\n"
}
},
{
"from_name": null,
"id": "4aa413345a934ccc840581939fa12360",
"to_name": null,
"type": null,
"value": {
"end": 2150,
"labels": [
"PREAMBLE"
],
"start": 2090,
"text": "hand of the settlor, if the latter does not retain any power"
}
},
{
"from_name": null,
"id": "3b84bf3050174ee08938250cd9010ad4",
"to_name": null,
"type": null,
"value": {
"end": 2241,
"labels": [
"PREAMBLE"
],
"start": 2150,
"text": "\nto \"deflect the same for a period exceeding six years or\nduring the lifetime of the done\"."
}
},
{
"from_name": null,
"id": "3133c08a6b0f4fa8b6f16a4d2d559b17",
"to_name": null,
"type": null,
"value": {
"end": 2380,
"labels": [
"PREAMBLE"
],
"start": 2242,
"text": "Thus the settlement as a\nwhole will not come within the mischief of s. 16(1) (c) if\nthe revocability relates only to a part of the income."
}
},
{
"from_name": null,
"id": "72443d54b4524b83b87077afce9c1465",
"to_name": null,
"type": null,
"value": {
"end": 2506,
"labels": [
"PREAMBLE"
],
"start": 2381,
"text": "[314\nH-315 B]\n\nA significant change was made in the language with regard to\nrevocable transfers in the Income-tax Act, 19161."
}
},
{
"from_name": null,
"id": "a038e467260b42b7a03a2b16aa5baeeb",
"to_name": null,
"type": null,
"value": {
"end": 2611,
"labels": [
"PREAMBLE"
],
"start": 2507,
"text": "Section\n63(A) of that Act expressly refers to the whole or any part\nof the income or assets transferred."
}
},
{
"from_name": null,
"id": "94209c85711c4e9d9ded3e0bb6565ea7",
"to_name": null,
"type": null,
"value": {
"end": 2784,
"labels": [
"PREAMBLE"
],
"start": 2612,
"text": "It can well be said\nthat the necessity for expressly mentioning part of the\nincome was felt because under the provisions of the 1922 Act\npart of the income was not covered."
}
},
{
"from_name": null,
"id": "982d46f3209544258db2573bdf53aad1",
"to_name": null,
"type": null,
"value": {
"end": 2794,
"labels": [
"PREAMBLE"
],
"start": 2785,
"text": "[315 C-F]"
}
},
{
"from_name": null,
"id": "3fb994ae38694dfb96e1f97df9afd3a4",
"to_name": null,
"type": null,
"value": {
"end": 2877,
"labels": [
"PREAMBLE"
],
"start": 2794,
"text": "\nThere was no dispute in the present case that the trust\ncreated was a genuine one."
}
},
{
"from_name": null,
"id": "3db88a7bef3d40ba8b9a4788fc674e65",
"to_name": null,
"type": null,
"value": {
"end": 3154,
"labels": [
"PREAMBLE"
],
"start": 2878,
"text": "Since it fulfilled the\nconditions laid down in the third proviso only that part of\nthe income which accrued or was received by the settlor\ncould be assessed as his income The income accruing to the\nother beneficiaries could not be included in the total\nincome of the assessee."
}
},
{
"from_name": null,
"id": "8804741c2cd947938395ab83b6cf76bd",
"to_name": null,
"type": null,
"value": {
"end": 3314,
"labels": [
"PREAMBLE"
],
"start": 3154,
"text": "\n[315 F]\nC.I.T. Patna v. Rani Bhuvaneshwari Kuer, [1964]7 S.C.R. 920,\napplied.\nRamji Keshavji v. Commissioner of Income-tax, Bombay, 13\nI.T.R. 105, referred to."
}
},
{
"from_name": null,
"id": "33e996f9b7cc4c2dafb256e15caf9e4f",
"to_name": null,
"type": null,
"value": {
"end": 3380,
"labels": [
"PREAMBLE"
],
"start": 3314,
"text": "\nC.I.T. Calcutta v. Jitendranath Mallick, 50 I.T.R. 313,\napproved."
}
},
{
"from_name": null,
"id": "6204183a7bee4966ada440aed62a550d",
"to_name": null,
"type": null,
"value": {
"end": 3390,
"labels": [
"PREAMBLE"
],
"start": 3380,
"text": "\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "0f679d9ad52c4594bdb70c25dcfe748e",
"to_name": null,
"type": null,
"value": {
"end": 3451,
"labels": [
"NONE"
],
"start": 3390,
"text": "\nCIVIL APPELLATE JURISDICTION-: Civil Appeal No.1850 of 1967."
}
},
{
"from_name": null,
"id": "70ff2daf524c4db88b27073ba39bb50c",
"to_name": null,
"type": null,
"value": {
"end": 3542,
"labels": [
"NONE"
],
"start": 3452,
"text": "Appeal from the judgment and order dated September 30, 1966 of the Calcutta High Court in."
}
},
{
"from_name": null,
"id": "dbdad17b24084126bb20104c44206369",
"to_name": null,
"type": null,
"value": {
"end": 3580,
"labels": [
"NONE"
],
"start": 3543,
"text": "Income-tax Reference No. 102 of 1962."
}
},
{
"from_name": null,
"id": "96eea15084a14649a5ba8e36e0006624",
"to_name": null,
"type": null,
"value": {
"end": 3636,
"labels": [
"NONE"
],
"start": 3580,
"text": "\nM. N. Banerjee and P. K. Mukherjee, for the appellants."
}
},
{
"from_name": null,
"id": "e178ef8c581d480896ea4a553687778f",
"to_name": null,
"type": null,
"value": {
"end": 3723,
"labels": [
"NONE"
],
"start": 3636,
"text": "\nJagdish Sarup, Solicitor-General, R. N. Sachthey and B. D.\nSharma, for the respondent."
}
},
{
"from_name": null,
"id": "b9475d263334498eb5bdce1b5344ef5d",
"to_name": null,
"type": null,
"value": {
"end": 3778,
"labels": [
"FAC"
],
"start": 3723,
"text": "\nThe Judgement of the Court was delivered by Grover, J."
}
},
{
"from_name": null,
"id": "71176db8284241e0b04032bae1e4dfb5",
"to_name": null,
"type": null,
"value": {
"end": 3962,
"labels": [
"ISSUE"
],
"start": 3779,
"text": "This is an appeal by special. leave from a judgment of the Calcutta High Court answering the following question of law referred to it against the assessee and in favour of the Revenue"
}
},
{
"from_name": null,
"id": "a81672194b994e5ca655e4a0d05ad028",
"to_name": null,
"type": null,
"value": {
"end": 4263,
"labels": [
"ISSUE"
],
"start": 3963,
"text": "\"Whether on the facts and in the circumstances of the case, the entire or any part of the income from the house properties concerned could be included in the total income of the assessee by virtue of the provisions of s. 16 ( 1 ) (c) of the Income tax Act, 1922 read with the first proviso thereto ?\""
}
},
{
"from_name": null,
"id": "3b795ad653624b9ba16d2a934f10a470",
"to_name": null,
"type": null,
"value": {
"end": 4321,
"labels": [
"FAC"
],
"start": 4263,
"text": "\nThe assessee was assessed in the status of an individual."
}
},
{
"from_name": null,
"id": "5cd527ba85f348889b552bc24df072f9",
"to_name": null,
"type": null,
"value": {
"end": 4625,
"labels": [
"FAC"
],
"start": 4321,
"text": "\nHe derived income from house properties and from the business of a registered partnership firm H. Ganguly & Co.\nHe had six houses one of which was 24, Mohanlal Street, Calcutta and the other at Janganbari in the city of Banaras.\nOn March 19, 1953 the see, created a trust in respect of these two houses."
}
},
{
"from_name": null,
"id": "50c712458c9c49d2a7121be15106b7b9",
"to_name": null,
"type": null,
"value": {
"end": 4860,
"labels": [
"FAC"
],
"start": 4626,
"text": "It was provided in the trust deed that the trustees shall pay a sum of Rs. 200/- per month to the settlor for life for his own absolute use and benefit out of the income of the trust estate remaining after payment of taxes, rents etc."
}
},
{
"from_name": null,
"id": "2c6ec9bd527048f5851035894af09b85",
"to_name": null,
"type": null,
"value": {
"end": 4916,
"labels": [
"FAC"
],
"start": 4861,
"text": "In other words he himself was one of the beneficiaries."
}
},
{
"from_name": null,
"id": "2b07923dc69443dfabe2815fb61d9546",
"to_name": null,
"type": null,
"value": {
"end": 5131,
"labels": [
"FAC"
],
"start": 4917,
"text": "The Income tax Officer held that the income from the afore- said two properties was assessable in the hands Of the assessee inasmuch as he had retained a portion of the income from the trust properties for himself."
}
},
{
"from_name": null,
"id": "11b86a0fbf334421964e2b5728e167dc",
"to_name": null,
"type": null,
"value": {
"end": 5270,
"labels": [
"FAC"
],
"start": 5132,
"text": "The trust had, therefore, become revocable under the provisions of s. 16 (1) (c) of the income tax Act 1922, hereinafter called the 'Act'."
}
},
{
"from_name": null,
"id": "4cd34cefd111412d9cc660480606e393",
"to_name": null,
"type": null,
"value": {
"end": 5368,
"labels": [
"FAC"
],
"start": 5271,
"text": "The Appellate Assistant Commissioner on appeal affirmed the view taken by the Income tax Officer."
}
},
{
"from_name": null,
"id": "1797ddaf59ab4111a0b45ca171f393f9",
"to_name": null,
"type": null,
"value": {
"end": 5545,
"labels": [
"RLC"
],
"start": 5369,
"text": "When the matter came before the Appellate Tribunal it found that the assessee had irrevocably parted with the aforesaid two properties and the same had got vested in the trust."
}
},
{
"from_name": null,
"id": "de95183f1ea048929e5d4c7d3d36ed72",
"to_name": null,
"type": null,
"value": {
"end": 5788,
"labels": [
"RLC"
],
"start": 5546,
"text": "It was held that s. 16(1) (c) would become applicable only if the setdor preserved to himself the entire income arising from the settled properties; if only a portion had been reserved by thesettlor it would not make the settlement revocable."
}
},
{
"from_name": null,
"id": "cc5d7198fda0470887bdd46573bb8044",
"to_name": null,
"type": null,
"value": {
"end": 5883,
"labels": [
"FAC"
],
"start": 5789,
"text": "It is not disputed that the total annual income from these properties came to over Rs. 19,000."
}
},
{
"from_name": null,
"id": "e89f2733051244348e79077f72a39b57",
"to_name": null,
"type": null,
"value": {
"end": 5970,
"labels": [
"FAC"
],
"start": 5884,
"text": "Out of -this the assessee, who was the settlor, was entitled to Rs. 2,400,/- annually."
}
},
{
"from_name": null,
"id": "6e6ee683c14c448e9d1c742844414b0e",
"to_name": null,
"type": null,
"value": {
"end": 6143,
"labels": [
"RLC"
],
"start": 5971,
"text": "According to the Tribunal only the amount of Rs.\n2,400/- which had actually been received by the assessee under the terms of the trust deed could be included in his income."
}
},
{
"from_name": null,
"id": "779c518969874d61a491222ac7783d10",
"to_name": null,
"type": null,
"value": {
"end": 6407,
"labels": [
"RLC"
],
"start": 6143,
"text": "\nThe view of the High Court was that in order to be revocable under the first proviso to s. 16 (1) (c) it is sufficient if the, settlement, disposition or transfer contains a provision for retransfer of a part of the income to the settlor,. disposer or transferor."
}
},
{
"from_name": null,
"id": "3f061b1413884ed5994c26eab2c4d68b",
"to_name": null,
"type": null,
"value": {
"end": 6499,
"labels": [
"ANALYSIS"
],
"start": 6408,
"text": "It is not necessary that there must be a provision for the retransfer of the entire income."
}
},
{
"from_name": null,
"id": "59af8ce1ad94468691609a4e89e11f7a",
"to_name": null,
"type": null,
"value": {
"end": 6600,
"labels": [
"ANALYSIS"
],
"start": 6500,
"text": "The word \"income\" includes any part of the income unless there is anything repugnant in the context."
}
},
{
"from_name": null,
"id": "82e71ec1f1a84f2ba9dee4c0b244cc92",
"to_name": null,
"type": null,
"value": {
"end": 6746,
"labels": [
"ANALYSIS"
],
"start": 6601,
"text": "The High Court considered, that the third proviso to S. 1 6 (1) (c) did not explain the first proviso but was a kind of rider or exception to it."
}
},
{
"from_name": null,
"id": "7f6a43a8a8e743f184a6c478cb5ed761",
"to_name": null,
"type": null,
"value": {
"end": 7099,
"labels": [
"STA"
],
"start": 6747,
"text": "Bearing in mind the object behind the enactment of s. 16 and on a consideration of the terms of the section the true meaning and scope of the, first proviso seemed to be that the settlement in the present case was revocable in its entirety thus attracting the substantive clause of s. 16 (1) (c).\nClause (c) was introduced in s. 16(1) in the year 1939."
}
},
{
"from_name": null,
"id": "f37e1d0f264d4bd4afef29886a6061ad",
"to_name": null,
"type": null,
"value": {
"end": 7749,
"labels": [
"STA"
],
"start": 7100,
"text": "At the material time s. 16(1) stood thus :- \"S. 16(1) In computing the total income of an assessee (a).....................\n (b)....................\n (c) all income arising to any person by virtue of a settlement or disposition whether revocable or not, and whether effected before or after the commencement of the Indian Income tax (Amendment Act, 1939 from asserts remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor"
}
},
{
"from_name": null,
"id": "28e4697736534799ab17a48dab78d59e",
"to_name": null,
"type": null,
"value": {
"end": 8155,
"labels": [
"STA"
],
"start": 7750,
"text": "Provided that for the purposes of this clause a settlement, disposition of transfer shall be deemed to be revocable if it contains any provision for the retransfer directly or indirectly of the income or assets to the set- tlor, disponer or transferor, or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over income or assets; "
}
},
{
"from_name": null,
"id": "1bced0a8f158474f890b775be0c5d35a",
"to_name": null,
"type": null,
"value": {
"end": 8479,
"labels": [
"STA"
],
"start": 8155,
"text": "Provided further that the expression 'settlement or disposition' shall for the purposes of this clause include an disposition, trust covenant, agreement or arrangement and the expression 'settlor or disponer' in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made;"
}
},
{
"from_name": null,
"id": "dc24889dd17c4670b82fe4dfa57a7bbf",
"to_name": null,
"type": null,
"value": {
"end": 8903,
"labels": [
"STA"
],
"start": 8480,
"text": "Provided further that this clause shall not apply to any income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the life time of the person and from which income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed on the said income as and when the power to revoke arises to him.\""
}
},
{
"from_name": null,
"id": "3226ff2e4674451d9cafa5cdadc1e434",
"to_name": null,
"type": null,
"value": {
"end": 8991,
"labels": [
"ANALYSIS"
],
"start": 8903,
"text": "\nIt is apparent that the above clause of s. 16(1) with its provisos is unhappily worded."
}
},
{
"from_name": null,
"id": "2df3ab9aa760461290c7217cdcb9cc6f",
"to_name": null,
"type": null,
"value": {
"end": 9112,
"labels": [
"PRE_RELIED"
],
"start": 8992,
"text": "In Ramji Keshavji v.\nCommissioner of ,Income tax 'Bombay(1), the Bombay High Court considered the scheme of s. 16(1)(c)."
}
},
{
"from_name": null,
"id": "fcbad704d3e84626b567febc0a27211a",
"to_name": null,
"type": null,
"value": {
"end": 9209,
"labels": [
"PRE_RELIED"
],
"start": 9113,
"text": "According to that decision the first stage is that when there is a revocable transfer of assets."
}
},
{
"from_name": null,
"id": "000e934d609d40e4b8ded181c04087f4",
"to_name": null,
"type": null,
"value": {
"end": 9298,
"labels": [
"PRE_RELIED"
],
"start": 9210,
"text": "The income derived from such assets is still to be considered the income of the settlor."
}
},
{
"from_name": null,
"id": "611357fa2a1f4b6eb2b8effd6b6bdb2b",
"to_name": null,
"type": null,
"value": {
"end": 9419,
"labels": [
"ANALYSIS"
],
"start": 9298,
"text": "\nThe first proviso specifies what would be deemed a revocable transfer in spite of the deed being apparently irrevocable."
}
},
{
"from_name": null,
"id": "1075a5ca55934352af16e325eaafec91",
"to_name": null,
"type": null,
"value": {
"end": 9556,
"labels": [
"ANALYSIS"
],
"start": 9419,
"text": "\nThe relevant question for the first proviso is \"is this transfer revocable because it fulfils the conditions contained in the proviso ?\""
}
},
{
"from_name": null,
"id": "95992048311f481498d01405ec5a5119",
"to_name": null,
"type": null,
"value": {
"end": 9627,
"labels": [
"ANALYSIS"
],
"start": 9557,
"text": "The answer to that question can be in the positive or in the negative."
}
},
{
"from_name": null,
"id": "64322992c87b47e6a0b3e77d771db188",
"to_name": null,
"type": null,
"value": {
"end": 9736,
"labels": [
"ANALYSIS"
],
"start": 9628,
"text": "If the answer is in the negative no further discussion can arise and s. 16 ( 1 ) (c) will not be applicable."
}
},
{
"from_name": null,
"id": "c5a7c9fdef714d18bd295adefa80e8ff",
"to_name": null,
"type": null,
"value": {
"end": 9842,
"labels": [
"ANALYSIS"
],
"start": 9737,
"text": "If the answer be in the affirmative the deed, although ostensibly irrevocable, is deemed to be revocable."
}
},
{
"from_name": null,
"id": "335dd472cdd94f85aba3870ecea7da22",
"to_name": null,
"type": null,
"value": {
"end": 9995,
"labels": [
"ANALYSIS"
],
"start": 9843,
"text": "It will thus become revocable within the meaning of the substantive provisions of S.\n16(1)(c)having reached that stage proviso (3) has to be considered."
}
},
{
"from_name": null,
"id": "9111093ed59341648b5f21567e7ba146",
"to_name": null,
"type": null,
"value": {
"end": 10503,
"labels": [
"ANALYSIS"
],
"start": 9996,
"text": "In tile words of Kania J., as he then was \"the scheme appears to be that, although in fact, after reading the provision of s. 16(1) (c) with proviso (1), the transfer is revocable, the law will not still consider the income derived from such settlement, the income of the setlor, provided the settlement is not revocable for a period exceeding, six years or during the lifetime of the person for whom the incomes is settled, and, further from which income the settlor derives no direct or indirect benefit.\""
}
},
{
"from_name": null,
"id": "d8af85e2337e4a58b270e21e6387b7eb",
"to_name": null,
"type": null,
"value": {
"end": 10530,
"labels": [
"ANALYSIS"
],
"start": 10503,
"text": "\nChagla J., as he then was."
}
},
{
"from_name": null,
"id": "919553c2417a43108bd4fd4d78c729f5",
"to_name": null,
"type": null,
"value": {
"end": 10630,
"labels": [
"ANALYSIS"
],
"start": 10531,
"text": "delivered a separate judgment although he agreed with the answer given to the reference by Kania J."
}
},
{
"from_name": null,
"id": "33cd5ea0e6a345d78ddff29e415c46fb",
"to_name": null,
"type": null,
"value": {
"end": 10937,
"labels": [
"PRE_RELIED"
],
"start": 10631,
"text": "In his opinion the only way to reconcile the substantive provision of sub-cl. (c), Provisos (1) and (3) was to hold that proviso (3) contained a limitation which applied as much to the substantive provisions of sub-clause (c) as to proviso (1) 13 I.T.R. 105.The view expressed in the Ramji Keshavji case(1)"
}
},
{
"from_name": null,
"id": "324f9159a5d149a4be17a2fa75cfe3f1",
"to_name": null,
"type": null,
"value": {
"end": 11011,
"labels": [
"PRE_RELIED"
],
"start": 10938,
"text": "was approved by this court in C.I.T. Patna v. Rani Bhuvaneshwari Kuer(2)."
}
},
{
"from_name": null,
"id": "4eb5c47b8fa947138b279e276c9e5655",
"to_name": null,
"type": null,
"value": {
"end": 11147,
"labels": [
"PRE_RELIED"
],
"start": 11012,
"text": "In that case the assessee, who owned an estate known as 'Tekari Raj', created a trust with a view to liquidate the debts of Tekari Raj."
}
},
{
"from_name": null,
"id": "257ef9c61a034858a8a0ace99d9243fd",
"to_name": null,
"type": null,
"value": {
"end": 11224,
"labels": [
"PRE_RELIED"
],
"start": 11148,
"text": "The beneficiaries under the deed were the settlor, her husband and her sons."
}
},
{
"from_name": null,
"id": "e4fa8f0316244a7d865557a2ed7f434f",
"to_name": null,
"type": null,
"value": {
"end": 11465,
"labels": [
"ANALYSIS"
],
"start": 11224,
"text": "\nIt was declared that the settlement, made was to be permanent and irrevocable but each beneficiary had full right to make any sort of arrangement about devolvement or succession or make such alienation as was considered fit about his share."
}
},
{
"from_name": null,
"id": "4176aa9977f44c2db90298f85585bce2",
"to_name": null,
"type": null,
"value": {
"end": 11814,
"labels": [
"ANALYSIS"
],
"start": 11466,
"text": "It was observed that two conditions were necessary for the application of the third proviso to section 16(1) (c), (1) that the trust should not be revocable for a period exceeding six years or during the life-time of the beneficiary and (2) the settlor or disponer should have no direct or indirect benefit from the income given to the beneficiary."
}
},
{
"from_name": null,
"id": "1a478d5a5d964db89baa933abc7e17bd",
"to_name": null,
"type": null,
"value": {
"end": 12241,
"labels": [
"ANALYSIS"
],
"start": 11815,
"text": "The following observations at page 927 are noteworthy : \"The third proviso to s. 16 (1) (c) does not operate to exclude the income which the settlor receives as a beneficiary, from liability to income tax; it merely excludes that part of the income which is under the deed of settlement given to another person from liability to tax in the hands of the settlor, if the conditions prescribed by the third proviso are fulfilled."
}
},
{
"from_name": null,
"id": "29a3327c4ff648adba96ddd4a4b79145",
"to_name": null,
"type": null,
"value": {
"end": 12524,
"labels": [
"ANALYSIS"
],
"start": 12242,
"text": "The contention raised by the Commissioner that if under the, deed of trust the settlor has reserved to himself as a beneficiary any part of the income of -the property settled, the third proviso will not apply to the deed of trust runs contrary to the plain words of the statute\".\n "
}
},
{
"from_name": null,
"id": "ff9a37d708fe4cd1b32a96ecf0eb2dcc",
"to_name": null,
"type": null,
"value": {
"end": 13079,
"labels": [
"ANALYSIS"
],
"start": 12524,
"text": "The further contention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause (c) but not the deeds a' settlement or disposition which by the first proviso were deem,,,= to be revocable was rejected by saying that the function of provisos (1) and (2) was plainly explanatory and it was importable to hold that the third proviso did not operate in respect of settlement, dispositions or transfers which were by the first proviso revocable for the purposes of that clause."
}
},
{
"from_name": null,
"id": "0912e1525bd64e4694ec884f300a4a6e",
"to_name": null,
"type": null,
"value": {
"end": 13212,
"labels": [
"ANALYSIS"
],
"start": 13079,
"text": "\nWe have referred to the above case in extenso because in our opinion it fully covers the point which has arisen in the present case."
}
},
{
"from_name": null,
"id": "c715a9f233924f698c14aacfb85d1fb8",
"to_name": null,
"type": null,
"value": {
"end": 13613,
"labels": [
"RATIO"
],
"start": 13212,
"text": "\nIn the light of the above principles it would not be wrong to say that the effect of the third proviso is that a settlement or disposition containing a provision for retransfer of a part of the income to the settlor would not render the whole income of the (1) 13 I.T.R. 105 (2) (1964) 7 SCR 920 settlement chargeable in his hand provided the other conditions. contained in the proviso are satisfied."
}
},
{
"from_name": null,
"id": "c505d471b178491f80c689c0e97052c3",
"to_name": null,
"type": null,
"value": {
"end": 13985,
"labels": [
"ANALYSIS"
],
"start": 13614,
"text": "In other words the proviso comes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and not in the hand of the settlor, if the latter does not retain any power to \"deflect the same for a period exceeding six years or during the lifetime of the donee\"."
}
},
{
"from_name": null,
"id": "614cd6c72cd04c7b803ba4f620fd5ecf",
"to_name": null,
"type": null,
"value": {
"end": 14125,
"labels": [
"ANALYSIS"
],
"start": 13986,
"text": "Thus the settlement as a whole win not come within the mischief of s. 1 6 (1) (c) if the revocability relates only to a part of the income."
}
},
{
"from_name": null,
"id": "28059917716642b682cec438d9b1edfa",
"to_name": null,
"type": null,
"value": {
"end": 14173,
"labels": [
"ANALYSIS"
],
"start": 14126,
"text": "[See C.I.T. Calcutta v. Jitendranath Mallick(1)"
}
},
{
"from_name": null,
"id": "ce4e43eca2f443bb939def11ca911e31",
"to_name": null,
"type": null,
"value": {
"end": 14357,
"labels": [
"ANALYSIS"
],
"start": 14174,
"text": "We are in entire agreement with the above view of the Cal- cutta High Court and consider that the same is supported by the decision of this court in Rani Bhuvaneshwari Kuer's case(1)."
}
},
{
"from_name": null,
"id": "3f5ec51889e34e4e842cfddcecd0bac0",
"to_name": null,
"type": null,
"value": {
"end": 14485,
"labels": [
"ANALYSIS"
],
"start": 14358,
"text": "We may also refer to the significant change made in the language with regard to revocable transfers in the Income tax Act 1961."
}
},
{
"from_name": null,
"id": "0747a759b7364fc79823d815a008984e",
"to_name": null,
"type": null,
"value": {
"end": 14953,
"labels": [
"ANALYSIS"
],
"start": 14486,
"text": "Section, 63 of that Act provides : \"For the purposes of section 60, 61 and 62 and of this Section- (a) a transfer shall be deemed to be revocable if- (i) it contains any provision for the retransfer directly or indirectly of the whole or any part of the income or assets to the transferor, or (ii) it, in any way, gives the transferor a right to reassume power directly or indirectly over the whole or any part of the income or assets: (b) ........................\"\n "
}
},
{
"from_name": null,
"id": "92e0d7ac885845b0ad30ad4f57950d7d",
"to_name": null,
"type": null,
"value": {
"end": 15086,
"labels": [
"ANALYSIS"
],
"start": 14953,
"text": "It can well be said that the necessity for expressly mentioning, part of the income was felt because under the provisions of the. Act"
}
},
{
"from_name": null,
"id": "7792e0a8944c499697e273dba7525fcc",
"to_name": null,
"type": null,
"value": {
"end": 15122,
"labels": [
"ANALYSIS"
],
"start": 15087,
"text": "part of the income was not covered."
}
},
{
"from_name": null,
"id": "728a426715234d61826c845d05f63936",
"to_name": null,
"type": null,
"value": {
"end": 15205,
"labels": [
"ANALYSIS"
],
"start": 15122,
"text": "\n There is no dispute in the present case that the trust created was a genuine one."
}
},
{
"from_name": null,
"id": "ee1be9715836425790fedb9d96355172",
"to_name": null,
"type": null,
"value": {
"end": 15378,
"labels": [
"ANALYSIS"
],
"start": 15206,
"text": "Since it fulfilled the conditions laid down in the third proviso only that part. of the income which accrued or was received by the settlor could be assessed as his income."
}
},
{
"from_name": null,
"id": "65c7480cf6134fa0bbbbc290c3c18150",
"to_name": null,
"type": null,
"value": {
"end": 15486,
"labels": [
"ANALYSIS"
],
"start": 15379,
"text": "The income accruing to the. other beneficiaries could not be included in the total income. of the assessee."
}
},
{
"from_name": null,
"id": "d50346e36e864b50beaf60927b1ed55a",
"to_name": null,
"type": null,
"value": {
"end": 15571,
"labels": [
"RPC"
],
"start": 15488,
"text": "The appeal is consequently allowed and the judgment of the High Court is set aside."
}
},
{
"from_name": null,
"id": "c80a8a6bb672471b99804c4ec9007e30",
"to_name": null,
"type": null,
"value": {
"end": 15675,
"labels": [
"RPC"
],
"start": 15572,
"text": "The question which was referred shall stand answered in favour of the assessee and against the Revenue."
}
},
{
"from_name": null,
"id": "ecd52b0e723a49219df15d681e75cfe5",
"to_name": null,
"type": null,
"value": {
"end": 15760,
"labels": [
"RPC"
],
"start": 15676,
"text": "In view of the nature of the points involved the parties shall bear their own costs."
}
},
{
"from_name": null,
"id": "9626378a8bc547d8a0d0f0898e209131",
"to_name": null,
"type": null,
"value": {
"end": 15801,
"labels": [
"RPC"
],
"start": 15760,
"text": "\n G.C. Appeal allowed."
}
},
{
"from_name": null,
"id": "6e6c9713be2e46ecb3714072bc4f649f",
"to_name": null,
"type": null,
"value": {
"end": 15840,
"labels": [
"NONE"
],
"start": 15801,
"text": ", (1) 50 ITR 313 (2) [1964]7 S.C.R. 920"
}
}
]
}
] | 4,147 | {
"text": "PETITIONER:\nHARISHIKESM GANGULI (DEAD)\n\n Vs.\n\nRESPONDENT:\nCOMMISSIONER OF INCOME TAX, CALCUTTA\n\nDATE OF JUDGMENT18/08/1971\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nHEGDE, K.S.\n\nCITATION:\n\n1971 AIR 2516 1972 SCR (1) 310\n (3)\nCITATOR INFO :\n\nR 1991 SC 331\n\nACT:\nIncome-tax Act, 1922, s. 16(1) (c)-Settlor reserving benefit\nfor himself under trust created by him--Trust whether\nbecomes a revocable trust within meaning of section-Effect\nof third proviso.\n\nHEADNOTE:\nThe assessee derived income from house properties and from\nthe business of a registered partnership firm. On March 19,\n1953 the assessee created a trust in respect of two houses.\nit was provided in the trust ,deed that the trustees shall\npay a sum of Rs. 200/- per month to the settlor, for life\nfor his own absolute use and benefit out of the income of\nthe trust estate remaining after payment of taxes, rents\netc. The Income-tax Officer held that the income from the\naforesaid two properties was assesses able in the hands of\nthe assessee inasmuch as he had retained a portion of the\nincome from the trust properties for himself whereby the\ntrust -became a revocable trust under the provisions of s.\n16(1) (c) of the Income-tax Act, 1922. The Appellate\nAssistant Commissioner upheld the view taken by the Income-\ntax Officer. The Tribunal however held that -only the sum\nof Rs. 2400/- annually payable to the assessee could be\ntaxed in his hands. In reference the High Court decided\nagainst the assessee. In appeal to this Court by special\nleave,\nHELD : The effect of the third proviso to s. 16(1) (c) is\nthat a settlement or disposition containing a provision for\nretransfer of a part of the income to the settlor would not\nrender the whole income of the settlement chargeable in his\nhand provided the other conditions contained in the proviso\nare satisfied. In other words the proviso comes to the\nrescue of the settlor in that the portion of the income from\nthe trust properties which are settled on a third person is\nto be assessed in the hands of that person and not in the\nhand of the settlor, if the latter does not retain any power\nto \"deflect the same for a period exceeding six years or\nduring the lifetime of the done\". Thus the settlement as a\nwhole will not come within the mischief of s. 16(1) (c) if\nthe revocability relates only to a part of the income. [314\nH-315 B]\n\nA significant change was made in the language with regard to\nrevocable transfers in the Income-tax Act, 19161. Section\n63(A) of that Act expressly refers to the whole or any part\nof the income or assets transferred. It can well be said\nthat the necessity for expressly mentioning part of the\nincome was felt because under the provisions of the 1922 Act\npart of the income was not covered. [315 C-F]\nThere was no dispute in the present case that the trust\ncreated was a genuine one. Since it fulfilled the\nconditions laid down in the third proviso only that part of\nthe income which accrued or was received by the settlor\ncould be assessed as his income The income accruing to the\nother beneficiaries could not be included in the total\nincome of the assessee.\n[315 F]\nC.I.T. Patna v. Rani Bhuvaneshwari Kuer, [1964]7 S.C.R. 920,\napplied.\nRamji Keshavji v. Commissioner of Income-tax, Bombay, 13\nI.T.R. 105, referred to.\nC.I.T. Calcutta v. Jitendranath Mallick, 50 I.T.R. 313,\napproved.\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION-: Civil Appeal No.1850 of 1967.\nAppeal from the judgment and order dated September 30, 1966 of the Calcutta High Court in. Income-tax Reference No. 102 of 1962.\nM. N. Banerjee and P. K. Mukherjee, for the appellants.\nJagdish Sarup, Solicitor-General, R. N. Sachthey and B. D.\nSharma, for the respondent.\nThe Judgement of the Court was delivered by Grover, J. This is an appeal by special. leave from a judgment of the Calcutta High Court answering the following question of law referred to it against the assessee and in favour of the Revenue \"Whether on the facts and in the circumstances of the case, the entire or any part of the income from the house properties concerned could be included in the total income of the assessee by virtue of the provisions of s. 16 ( 1 ) (c) of the Income tax Act, 1922 read with the first proviso thereto ?\"\nThe assessee was assessed in the status of an individual.\nHe derived income from house properties and from the business of a registered partnership firm H. Ganguly & Co.\nHe had six houses one of which was 24, Mohanlal Street, Calcutta and the other at Janganbari in the city of Banaras.\nOn March 19, 1953 the see, created a trust in respect of these two houses. It was provided in the trust deed that the trustees shall pay a sum of Rs. 200/- per month to the settlor for life for his own absolute use and benefit out of the income of the trust estate remaining after payment of taxes, rents etc. In other words he himself was one of the beneficiaries.\nThe Income tax Officer held that the income from the afore- said two properties was assessable in the hands Of the assessee inasmuch as he had retained a portion of the income from the trust properties for himself. The trust had, therefore, become revocable under the provisions of s. 16 (1) (c) of the income tax Act 1922, hereinafter called the 'Act'. The Appellate Assistant Commissioner on appeal affirmed the view taken by the Income tax Officer. When the matter came before the Appellate Tribunal it found that the assessee had irrevocably parted with the aforesaid two properties and the same had got vested in the trust. It was held that s. 16(1) (c) would become applicable only if the setdor preserved to himself the entire income arising from the settled properties; if only a portion had been reserved by thesettlor it would not make the settlement revocable. It is not disputed that the total annual income from these properties came to over Rs. 19,000. Out of -this the assessee, who was the settlor, was entitled to Rs. 2,400,/- annually. According to the Tribunal only the amount of Rs.\n2,400/- which had actually been received by the assessee under the terms of the trust deed could be included in his income.\nThe view of the High Court was that in order to be revocable under the first proviso to s. 16 (1) (c) it is sufficient if the, settlement, disposition or transfer contains a provision for retransfer of a part of the income to the settlor,. disposer or transferor. It is not necessary that there must be a provision for the retransfer of the entire income. The word \"income\" includes any part of the income unless there is anything repugnant in the context. The High Court considered, that the third proviso to S. 1 6 (1) (c) did not explain the first proviso but was a kind of rider or exception to it. Bearing in mind the object behind the enactment of s. 16 and on a consideration of the terms of the section the true meaning and scope of the, first proviso seemed to be that the settlement in the present case was revocable in its entirety thus attracting the substantive clause of s. 16 (1) (c).\nClause (c) was introduced in s. 16(1) in the year 1939. At the material time s. 16(1) stood thus :- \"S. 16(1) In computing the total income of an assessee (a).....................\n (b)....................\n (c) all income arising to any person by virtue of a settlement or disposition whether revocable or not, and whether effected before or after the commencement of the Indian Income tax (Amendment Act, 1939 from asserts remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor Provided that for the purposes of this clause a settlement, disposition of transfer shall be deemed to be revocable if it contains any provision for the retransfer directly or indirectly of the income or assets to the set- tlor, disponer or transferor, or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over income or assets; Provided further that the expression 'settlement or disposition' shall for the purposes of this clause include an disposition, trust covenant, agreement or arrangement and the expression 'settlor or disponer' in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made; Provided further that this clause shall not apply to any income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the life time of the person and from which income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed on the said income as and when the power to revoke arises to him.\"\nIt is apparent that the above clause of s. 16(1) with its provisos is unhappily worded. In Ramji Keshavji v.\nCommissioner of ,Income tax 'Bombay(1), the Bombay High Court considered the scheme of s. 16(1)(c). According to that decision the first stage is that when there is a revocable transfer of assets. The income derived from such assets is still to be considered the income of the settlor.\nThe first proviso specifies what would be deemed a revocable transfer in spite of the deed being apparently irrevocable.\nThe relevant question for the first proviso is \"is this transfer revocable because it fulfils the conditions contained in the proviso ?\" The answer to that question can be in the positive or in the negative. If the answer is in the negative no further discussion can arise and s. 16 ( 1 ) (c) will not be applicable. If the answer be in the affirmative the deed, although ostensibly irrevocable, is deemed to be revocable. It will thus become revocable within the meaning of the substantive provisions of S.\n16(1)(c)having reached that stage proviso (3) has to be considered. In tile words of Kania J., as he then was \"the scheme appears to be that, although in fact, after reading the provision of s. 16(1) (c) with proviso (1), the transfer is revocable, the law will not still consider the income derived from such settlement, the income of the setlor, provided the settlement is not revocable for a period exceeding, six years or during the lifetime of the person for whom the incomes is settled, and, further from which income the settlor derives no direct or indirect benefit.\"\nChagla J., as he then was. delivered a separate judgment although he agreed with the answer given to the reference by Kania J. In his opinion the only way to reconcile the substantive provision of sub-cl. (c), Provisos (1) and (3) was to hold that proviso (3) contained a limitation which applied as much to the substantive provisions of sub-clause (c) as to proviso (1) 13 I.T.R. 105.The view expressed in the Ramji Keshavji case(1) was approved by this court in C.I.T. Patna v. Rani Bhuvaneshwari Kuer(2). In that case the assessee, who owned an estate known as 'Tekari Raj', created a trust with a view to liquidate the debts of Tekari Raj. The beneficiaries under the deed were the settlor, her husband and her sons.\nIt was declared that the settlement, made was to be permanent and irrevocable but each beneficiary had full right to make any sort of arrangement about devolvement or succession or make such alienation as was considered fit about his share. It was observed that two conditions were necessary for the application of the third proviso to section 16(1) (c), (1) that the trust should not be revocable for a period exceeding six years or during the life-time of the beneficiary and (2) the settlor or disponer should have no direct or indirect benefit from the income given to the beneficiary. The following observations at page 927 are noteworthy : \"The third proviso to s. 16 (1) (c) does not operate to exclude the income which the settlor receives as a beneficiary, from liability to income tax; it merely excludes that part of the income which is under the deed of settlement given to another person from liability to tax in the hands of the settlor, if the conditions prescribed by the third proviso are fulfilled. The contention raised by the Commissioner that if under the, deed of trust the settlor has reserved to himself as a beneficiary any part of the income of -the property settled, the third proviso will not apply to the deed of trust runs contrary to the plain words of the statute\".\n The further contention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause (c) but not the deeds a' settlement or disposition which by the first proviso were deem,,,= to be revocable was rejected by saying that the function of provisos (1) and (2) was plainly explanatory and it was importable to hold that the third proviso did not operate in respect of settlement, dispositions or transfers which were by the first proviso revocable for the purposes of that clause.\nWe have referred to the above case in extenso because in our opinion it fully covers the point which has arisen in the present case.\nIn the light of the above principles it would not be wrong to say that the effect of the third proviso is that a settlement or disposition containing a provision for retransfer of a part of the income to the settlor would not render the whole income of the (1) 13 I.T.R. 105 (2) (1964) 7 SCR 920 settlement chargeable in his hand provided the other conditions. contained in the proviso are satisfied. In other words the proviso comes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and not in the hand of the settlor, if the latter does not retain any power to \"deflect the same for a period exceeding six years or during the lifetime of the donee\". Thus the settlement as a whole win not come within the mischief of s. 1 6 (1) (c) if the revocability relates only to a part of the income. [See C.I.T. Calcutta v. Jitendranath Mallick(1) We are in entire agreement with the above view of the Cal- cutta High Court and consider that the same is supported by the decision of this court in Rani Bhuvaneshwari Kuer's case(1). We may also refer to the significant change made in the language with regard to revocable transfers in the Income tax Act 1961. Section, 63 of that Act provides : \"For the purposes of section 60, 61 and 62 and of this Section- (a) a transfer shall be deemed to be revocable if- (i) it contains any provision for the retransfer directly or indirectly of the whole or any part of the income or assets to the transferor, or (ii) it, in any way, gives the transferor a right to reassume power directly or indirectly over the whole or any part of the income or assets: (b) ........................\"\n It can well be said that the necessity for expressly mentioning, part of the income was felt because under the provisions of the. Act part of the income was not covered.\n There is no dispute in the present case that the trust created was a genuine one. Since it fulfilled the conditions laid down in the third proviso only that part. of the income which accrued or was received by the settlor could be assessed as his income. The income accruing to the. other beneficiaries could not be included in the total income. of the assessee.\n The appeal is consequently allowed and the judgment of the High Court is set aside. The question which was referred shall stand answered in favour of the assessee and against the Revenue. In view of the nature of the points involved the parties shall bear their own costs.\n G.C. Appeal allowed., (1) 50 ITR 313 (2) [1964]7 S.C.R. 920 "
} |
{
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{
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{
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"start": 0,
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPLICATION NO.95 OF 2017\n IN\n\n CRIMINAL REVISION APPLICATION NO.91 OF 2017\n WITH\n\n CRIMINAL REVISION APPLICATION NO.91 OF 2017\n\nMr.Vimanjan Hanumanta Devarkonda, )...APPLICANT"
}
},
{
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"labels": [
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"start": 369,
"text": "\n\nAged 42 years, Occ. Service,"
}
},
{
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"labels": [
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],
"start": 399,
"text": "\nResiding at Room No.01, Galli No.09,\nKunchi Kurve Nagar, Near Kalina\nChurch, Santacruz (East),\nMubmai 400 029.\n\n V/s.\n\nThe State of Maharashtra, )...RESPONDENT\nAt the instance of Kurla Police Station,\nMumbai."
}
},
{
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"text": "\n\n ....."
}
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"labels": [
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],
"start": 670,
"text": "\n\nMr.Ravi L. Gurnani with Mr.Vijay Agale, Advocate for the\nApplicant."
}
},
{
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"id": "17c91ffc0e204abfa1dec8cd9c5f96e1",
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"labels": [
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"start": 739,
"text": "\nMr.P.H.GaikwadPatil, APP for the Respondent State."
}
},
{
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"text": "\n\n .....\n\n "
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"labels": [
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"start": 871,
"text": "CORAM : A. M. BADAR, J.\n\n DATE"
}
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{
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"labels": [
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"start": 931,
"text": " : 10th APRIL 2017"
}
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{
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"text": "ORAL JUDGMENT : 1 "
}
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{
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"to_name": null,
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"value": {
"end": 1601,
"labels": [
"RLC"
],
"start": 979,
"text": "By this revision petition, the revision petitioner/ original accused is challenging the Judgment and Order passed by the learned Sessions Judge, Mumbai in Criminal Appeal No.882 of 2014 on 3rd January 2017 thereby dismissing his appeal challenging the Judgment and Order dated 02/09/2014 passed by the learned Metropolitan Magistrate, 51st Court, Kurla in C.C.No.356/PW/2000 convicting him of offences punishable under Sections 279, 337, 304A of the Indian Penal Code (\"IPC\"\nfor the sake of brevity) and under Section 134(a) and (b) read with Section 187 of the Motor Vehicle Act, 1988 (\"M.V.Act\" for the sake of brevity)."
}
},
{
"from_name": null,
"id": "3da4728e13444e458ec9e8c2db5220c0",
"to_name": null,
"type": null,
"value": {
"end": 1896,
"labels": [
"RLC"
],
"start": 1602,
"text": "The learned trial Magistrate upon conviction of the revision petitioner had sentenced him to suffer simple imprisonment for six months apart from payment of fine of Rs.1000/ in default to undergo further simple imprisonment for one month for the offence punishable under Section 279 of the IPC."
}
},
{
"from_name": null,
"id": "1e9ceff29f46461c9bf275749df6ca31",
"to_name": null,
"type": null,
"value": {
"end": 2118,
"labels": [
"RLC"
],
"start": 1897,
"text": "For the offence punishable under Section 337 of the IPC, he is sentenced to suffer simple imprisonment for six months apart from payment of fine of Rs.500/, in default to undergo further simple imprisonment for one month."
}
},
{
"from_name": null,
"id": "d2eac52607a14d7ca535a7431d4ca885",
"to_name": null,
"type": null,
"value": {
"end": 2340,
"labels": [
"RLC"
],
"start": 2119,
"text": "For the offence punishable under Section 304A of the IPC, he is sentenced to suffer simple imprisonment for one year apart from payment of fine of Rs.2000/, in default to undergo further simple imprisonment for one month."
}
},
{
"from_name": null,
"id": "f02bcf80b9144ce1b33455c9e8838c6a",
"to_name": null,
"type": null,
"value": {
"end": 2604,
"labels": [
"RLC"
],
"start": 2341,
"text": "For the offence punishable under Section 134(a) and (b) read with Section 187 of the M.V.Act, he is sentenced to suffer simple imprisonment for three months apart from payment of fine of Rs.500/, in default to undergo further simple imprisonment for fifteen days."
}
},
{
"from_name": null,
"id": "2851a95e5a1c46a69f2140890f56b6ce",
"to_name": null,
"type": null,
"value": {
"end": 2618,
"labels": [
"FAC"
],
"start": 2604,
"text": "\n 2 "
}
},
{
"from_name": null,
"id": "ed5215c9b97648ba8da8bf6ead0c5e46",
"to_name": null,
"type": null,
"value": {
"end": 2841,
"labels": [
"FAC"
],
"start": 2618,
"text": "It is the case of prosecution that on 29/03/2000, the revision petitioner/accused had driven a Maruti van bearing No.MH02JA228 in a rash and negligent manner and gave dash of that vehicle to Sugrabi and her son Abdul Rafiq."
}
},
{
"from_name": null,
"id": "b51b40a5d5304ff7ae14b50a7e414f0e",
"to_name": null,
"type": null,
"value": {
"end": 2960,
"labels": [
"FAC"
],
"start": 2842,
"text": "The incident, according to the prosecution case, took place near Halav bridge of Kurla in front of Kudiya Badlu Chawl."
}
},
{
"from_name": null,
"id": "a773157a76d744a9886f84b41e4f6246",
"to_name": null,
"type": null,
"value": {
"end": 3073,
"labels": [
"FAC"
],
"start": 2961,
"text": "The FIR (Exh.5) of the crime in question came to be lodged by P.W.No.1 Yasmin Abdul Khalid on 29/03/2000 itself."
}
},
{
"from_name": null,
"id": "a00d082f08ff4804aad236d8289ca8b0",
"to_name": null,
"type": null,
"value": {
"end": 3280,
"labels": [
"FAC"
],
"start": 3074,
"text": "Accordingly Crime Registration No.72 of 2000 for the offence punishable under Sections 279, 337, 304A of the IPC and under Sections 134(a) and (b) read with Section 187 of the M.V.Act came to be registered."
}
},
{
"from_name": null,
"id": "c474b38d9b884425a403508cca3db542",
"to_name": null,
"type": null,
"value": {
"end": 3347,
"labels": [
"FAC"
],
"start": 3281,
"text": "The revision petitioner/accused came to be arrested on 30/03/2000."
}
},
{
"from_name": null,
"id": "b38401d254a84205bc74e47cfad0dac2",
"to_name": null,
"type": null,
"value": {
"end": 3404,
"labels": [
"FAC"
],
"start": 3348,
"text": "Spot was inspected and spot panchanama came to be drawn."
}
},
{
"from_name": null,
"id": "f099d24b686a45f3b0cc92d0ad3fb436",
"to_name": null,
"type": null,
"value": {
"end": 3607,
"labels": [
"FAC"
],
"start": 3405,
"text": "On completion of routine investigation, chargesheet came to be filed and after due trial conviction came to be recorded in C.C.No.356/PW/2000 by the learned Metropolitan Magistrate, Kurla on 02/09/2014."
}
},
{
"from_name": null,
"id": "b7d6bdd398534edab48511e1d3d5a463",
"to_name": null,
"type": null,
"value": {
"end": 3696,
"labels": [
"FAC"
],
"start": 3608,
"text": "The accused came to be sentenced as indicated in the opening paragraph of this judgment."
}
},
{
"from_name": null,
"id": "38071d74f46747dbbcc4f3ccf5ddad35",
"to_name": null,
"type": null,
"value": {
"end": 3944,
"labels": [
"RLC"
],
"start": 3697,
"text": "Feeling aggrieved by this conviction and sentence, the revision petitioner/accused filed an appeal bearing No.882 of 2014 which came to be dismissed on 03/01/2017 by the learned Additional Sessions Judge, Mumbai by the impugned Judgment and Order."
}
},
{
"from_name": null,
"id": "c1416eddd7214687a90d8d294407f7ee",
"to_name": null,
"type": null,
"value": {
"end": 4042,
"labels": [
"NONE"
],
"start": 3944,
"text": "\n 3 I heard the learned Advocate appearing for the revision petitioner/original accused."
}
},
{
"from_name": null,
"id": "1120919c411e4ed0bdf9db0a06358302",
"to_name": null,
"type": null,
"value": {
"end": 4162,
"labels": [
"ARG_PETITIONER"
],
"start": 4043,
"text": "He argued that according to the prosecution case, the incident in question took place on 29/03/2000 at about 11.30 p.m."
}
},
{
"from_name": null,
"id": "d7a616bb491846238f4b485861158562",
"to_name": null,
"type": null,
"value": {
"end": 4240,
"labels": [
"ARG_PETITIONER"
],
"start": 4163,
"text": "There is no evidence regarding availability of light on the spot of incident."
}
},
{
"from_name": null,
"id": "2cddaa3836be4759900d5364aed520a0",
"to_name": null,
"type": null,
"value": {
"end": 4287,
"labels": [
"ARG_PETITIONER"
],
"start": 4241,
"text": "There were in all five persons in the vehicle."
}
},
{
"from_name": null,
"id": "e7d21f75e90e45ce8126ce0688047f47",
"to_name": null,
"type": null,
"value": {
"end": 4374,
"labels": [
"ARG_PETITIONER"
],
"start": 4288,
"text": "It is the case of prosecution that nobody was apprehended on the spot of the incident."
}
},
{
"from_name": null,
"id": "26290a5f3c784a719e0ee5d55f51b643",
"to_name": null,
"type": null,
"value": {
"end": 4529,
"labels": [
"ARG_PETITIONER"
],
"start": 4375,
"text": "Hence, in submission of the learned Advocate for the revision petitioner, evidence regarding identification of the revision petitioner is highly doubtful."
}
},
{
"from_name": null,
"id": "34c202b9ad7e4caabd38c79987867fe4",
"to_name": null,
"type": null,
"value": {
"end": 4671,
"labels": [
"ARG_PETITIONER"
],
"start": 4530,
"text": "He further argued that prosecution witnesses were not knowing the accused and no test identification parade was conducted by the prosecution."
}
},
{
"from_name": null,
"id": "5711936a2d8b42dcaed25e22061149b3",
"to_name": null,
"type": null,
"value": {
"end": 4701,
"labels": [
"ARG_PETITIONER"
],
"start": 4672,
"text": "Hence, offence is not proved."
}
},
{
"from_name": null,
"id": "be153937ce47479f82f4ce3d835d25f1",
"to_name": null,
"type": null,
"value": {
"end": 4885,
"labels": [
"ARG_PETITIONER"
],
"start": 4701,
"text": "\nIt is further argued that there is no evidence to come to the conclusion that the revision petitioner was under influence of the liquor as stated by the witnesses for the prosecution."
}
},
{
"from_name": null,
"id": "40158a7396474c0ba73642ffd7ac4b3e",
"to_name": null,
"type": null,
"value": {
"end": 4992,
"labels": [
"ARG_PETITIONER"
],
"start": 4886,
"text": "It is further argued that the prosecution has examined P.W.No.6 Raju owner of the Maruti van in question."
}
},
{
"from_name": null,
"id": "0781f5f9f3da4931b9b051e9c4b5878c",
"to_name": null,
"type": null,
"value": {
"end": 5080,
"labels": [
"ARG_PETITIONER"
],
"start": 4993,
"text": "But there is no evidence to show that to whom the vehicle was entrusted by Raju Jadhav."
}
},
{
"from_name": null,
"id": "39bb9828bbde4eeb93705b55b5881ec5",
"to_name": null,
"type": null,
"value": {
"end": 5263,
"labels": [
"ARG_PETITIONER"
],
"start": 5081,
"text": "All witnesses examined by the prosecution, in submission of the learned Advocate for the revision petitioner, are interested witnesses and, therefore, their evidence is not reliable."
}
},
{
"from_name": null,
"id": "ebf2dc0509bc42b19e3d134da8169368",
"to_name": null,
"type": null,
"value": {
"end": 5401,
"labels": [
"ARG_PETITIONER"
],
"start": 5264,
"text": "With this, it is argued that for want of sufficient evidence, the revision petitioner/accused is certainly entitled for benefit of doubt."
}
},
{
"from_name": null,
"id": "161ff4bcda91450f96e74f625a977893",
"to_name": null,
"type": null,
"value": {
"end": 5512,
"labels": [
"ANALYSIS"
],
"start": 5401,
"text": "\n 4 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction."
}
},
{
"from_name": null,
"id": "6f20716cba3c45fb96762532a2d1143e",
"to_name": null,
"type": null,
"value": {
"end": 5644,
"labels": [
"NONE"
],
"start": 5512,
"text": "\n 5 I have carefully considered the rival submissions and also perused Record and Proceedings called from the Court below."
}
},
{
"from_name": null,
"id": "6ed8d8e19e184d90b173db9edc374a8d",
"to_name": null,
"type": null,
"value": {
"end": 5730,
"labels": [
"STA"
],
"start": 5644,
"text": "\n Section 279 of the IPC deals with rash and negligent driving endangering human life."
}
},
{
"from_name": null,
"id": "d76b91c23c834c8cb3404cefc808762f",
"to_name": null,
"type": null,
"value": {
"end": 5794,
"labels": [
"STA"
],
"start": 5731,
"text": "Section 304A of the IPC deals with causing death by negligence."
}
},
{
"from_name": null,
"id": "ad34ac6b663844d9a451153ae797aab9",
"to_name": null,
"type": null,
"value": {
"end": 5942,
"labels": [
"STA"
],
"start": 5795,
"text": "Causing of death of a person by doing any rash and negligent act not amounting to culpabale homicide is made punishable by this Section of the IPC."
}
},
{
"from_name": null,
"id": "95827abba86544feb221ad891aa354c8",
"to_name": null,
"type": null,
"value": {
"end": 6096,
"labels": [
"STA"
],
"start": 5943,
"text": "Section 337 of the IPC deals with causing hurt to any person by doing any rash and negligent act endangering human life or the personal safety of others."
}
},
{
"from_name": null,
"id": "86a6454eedac405fb8532f75ab18b7de",
"to_name": null,
"type": null,
"value": {
"end": 6196,
"labels": [
"STA"
],
"start": 6097,
"text": "Section 134(a) and (b) of the M.V.Act deals with lapses on the part of driver of the motor vehicle."
}
},
{
"from_name": null,
"id": "4c53befc10c6462587560002d011084a",
"to_name": null,
"type": null,
"value": {
"end": 6413,
"labels": [
"ANALYSIS"
],
"start": 6197,
"text": "In the case in hand, the revision petitioner/accused is convicted for causing death of Sugrabai by his rash and negligent driving of the Maruti van and injuring her son P.W.No.3 Abdul Rafiq by dashing the Maruti van."
}
},
{
"from_name": null,
"id": "0547c42c535f4566bbc514e38bfff680",
"to_name": null,
"type": null,
"value": {
"end": 6577,
"labels": [
"ANALYSIS"
],
"start": 6414,
"text": "As such, one will have to determine whether the revision petitioner was driving the Maruti van involved in the incident and whether driving was rash and negligent."
}
},
{
"from_name": null,
"id": "9566f687ab5d4c7dba22dfc895ff3952",
"to_name": null,
"type": null,
"value": {
"end": 6651,
"labels": [
"ANALYSIS"
],
"start": 6578,
"text": "Negligence is a breach of duty or lack of proper care in doing something."
}
},
{
"from_name": null,
"id": "2c40f0467849445ca26c0b23ffdda577",
"to_name": null,
"type": null,
"value": {
"end": 6747,
"labels": [
"ANALYSIS"
],
"start": 6651,
"text": "\n Negligence reflects want of attention and doing of something which a prudent man would not do."
}
},
{
"from_name": null,
"id": "376831ee662f4c3d974a21ee60311c18",
"to_name": null,
"type": null,
"value": {
"end": 6955,
"labels": [
"ANALYSIS"
],
"start": 6748,
"text": "Criminal negligence defined in Section 304A of the IPC means gross and culpable negligence or failure to exercise the reasonable and proper care which it was imperative duty of the accused to have exercised."
}
},
{
"from_name": null,
"id": "9345d6d9ea3f434ea2dfd2dd9b954bb4",
"to_name": null,
"type": null,
"value": {
"end": 7168,
"labels": [
"ANALYSIS"
],
"start": 6956,
"text": "For making out such offence punishable under Sections 279, 304A and 337 of the IPC, there must be proof that rash and negligent act of the accused was a proximate cause of a death of a person or hurt to a person."
}
},
{
"from_name": null,
"id": "406393cdcd7b4e568966f9276a494deb",
"to_name": null,
"type": null,
"value": {
"end": 7355,
"labels": [
"ANALYSIS"
],
"start": 7169,
"text": "Direct nexus between death or hurt and rash and negligent act is required to be proved by the prosecution for making out offences punishable under Sections 279, 337 and 304 A of the IPC."
}
},
{
"from_name": null,
"id": "d2ae9b78f17042b1a247929d3a426861",
"to_name": null,
"type": null,
"value": {
"end": 7738,
"labels": [
"ANALYSIS"
],
"start": 7355,
"text": "\n 6 Similarly, one will also have to keep in mind that the revision petitioner has invoked revisional jurisdiction of this Court in challenging concurrent findings of facts arrived at by both Courts below holding that offences punishable under Sections 279, 337, 304A of the IPC and under Sections 134(a) and (b) read with Section 187 of the M.V.Act are proved against him."
}
},
{
"from_name": null,
"id": "f84d4596828448ef9e83b84c2bddf2ec",
"to_name": null,
"type": null,
"value": {
"end": 7949,
"labels": [
"ANALYSIS"
],
"start": 7739,
"text": "The revisional jurisdiction is required to be exercised sparingly when there is glaring error of law resulting in miscarriage of justice or when there is procedural irregularity resulting in failure of justice."
}
},
{
"from_name": null,
"id": "c96bda3e8bc54fdaa953d3eb2df5871f",
"to_name": null,
"type": null,
"value": {
"end": 8132,
"labels": [
"ANALYSIS"
],
"start": 7949,
"text": "\n While exercising the revisional jurisdiction, evidence cannot be appreciated and finding of fact recorded by Court below cannot be interfered with unless it is shown to be perverse."
}
},
{
"from_name": null,
"id": "c782a1042bde4666b0bf94011b874d45",
"to_name": null,
"type": null,
"value": {
"end": 8286,
"labels": [
"ANALYSIS"
],
"start": 8133,
"text": "Sufficiency of evidence to hold the fact as proved cannot be gone into albeit, want of evidence to hold a fact to be proved can certainly be looked into."
}
},
{
"from_name": null,
"id": "936bdd0798b549bba4ec9f828e90501d",
"to_name": null,
"type": null,
"value": {
"end": 8575,
"labels": [
"ANALYSIS"
],
"start": 8287,
"text": "Keeping in mind these parameters in exercising revisional jurisdiction, let us consider whether Courts below have committed error of law or procedural irregularity while recording conviction against the revision petitioner warranting interference in revisional jurisdiction of this Court."
}
},
{
"from_name": null,
"id": "3132849420ac44f4b7342ef8c8acfa10",
"to_name": null,
"type": null,
"value": {
"end": 8589,
"labels": [
"ANALYSIS"
],
"start": 8577,
"text": "7 "
}
},
{
"from_name": null,
"id": "457282759db3456ba45be3913b53f7ee",
"to_name": null,
"type": null,
"value": {
"end": 8678,
"labels": [
"ANALYSIS"
],
"start": 8589,
"text": "In the case in hand, death of Sugrabi Abdul Khalid Ansari is not disputed by the defence."
}
},
{
"from_name": null,
"id": "85f3855cadb840b4b1a9365fdda8833d",
"to_name": null,
"type": null,
"value": {
"end": 8767,
"labels": [
"ANALYSIS"
],
"start": 8679,
"text": "The defence has admitted inquest panchanama (Exh.12) and P.M.Report of deceased Sugrabi."
}
},
{
"from_name": null,
"id": "986f7934f96841eb87ea3b1a397d4a65",
"to_name": null,
"type": null,
"value": {
"end": 8867,
"labels": [
"ANALYSIS"
],
"start": 8768,
"text": "From perusal of P.M.Report it is seen that she died because of hemorrhagic shock due to polytrauma."
}
},
{
"from_name": null,
"id": "0e0069edade047e491a8e178812acc28",
"to_name": null,
"type": null,
"value": {
"end": 8939,
"labels": [
"ANALYSIS"
],
"start": 8868,
"text": "The defence has not disputed the spot panchanama recored on 30/03/2000."
}
},
{
"from_name": null,
"id": "ba2d67d4eab141bcb97d93c356af9f41",
"to_name": null,
"type": null,
"value": {
"end": 8979,
"labels": [
"ANALYSIS"
],
"start": 8939,
"text": "\n This spot panchanama is at Exhibit 11."
}
},
{
"from_name": null,
"id": "1c3635ed403c49cea36009ccb166f5aa",
"to_name": null,
"type": null,
"value": {
"end": 9079,
"labels": [
"ANALYSIS"
],
"start": 8980,
"text": "It reflects that the incident took place in front of Kudiya Badlu Chawl near Halav bridge of Kurla."
}
},
{
"from_name": null,
"id": "0f4f367d115d41c3a5151c8658e1b7c7",
"to_name": null,
"type": null,
"value": {
"end": 9176,
"labels": [
"ANALYSIS"
],
"start": 9080,
"text": "Maruti van bearing registration No.MH02JA228 was seen standing in damaged condition on the spot."
}
},
{
"from_name": null,
"id": "698e9f13e2a64cceacd2e99bc5fb84bf",
"to_name": null,
"type": null,
"value": {
"end": 9240,
"labels": [
"ANALYSIS"
],
"start": 9177,
"text": "Apart from that a broken wooden cot was also found on the spot."
}
},
{
"from_name": null,
"id": "c7730bf739c6431381fec612d78d941e",
"to_name": null,
"type": null,
"value": {
"end": 9327,
"labels": [
"ANALYSIS"
],
"start": 9241,
"text": "The spot of incident shown in the spot panchanama is a foot path having 10 feet width."
}
},
{
"from_name": null,
"id": "1e6aba04bb4046e69cc69ab7089c8a86",
"to_name": null,
"type": null,
"value": {
"end": 9394,
"labels": [
"ANALYSIS"
],
"start": 9328,
"text": "Width of the road abutting that foot path is stated to be 25 feet."
}
},
{
"from_name": null,
"id": "2f3578432d02484ea2e9be1da7902a8d",
"to_name": null,
"type": null,
"value": {
"end": 9717,
"labels": [
"ANALYSIS"
],
"start": 9395,
"text": "With this undisputed position emerging on record, let us see whether it is proved by the prosecution that it was the revision petitioner/accused who was driving the Maruti van involved in the accident and whether he has shown criminal negligence in driving it causing death of Sugrabi and injuries to P.W.No.3 Abdul Rafiq."
}
},
{
"from_name": null,
"id": "55590aa035f8420991b0db4979b7663e",
"to_name": null,
"type": null,
"value": {
"end": 9803,
"labels": [
"ANALYSIS"
],
"start": 9717,
"text": "\n 8 P.W.No.1 Yasmin Abdul Khalid is the first informant in the instant case."
}
},
{
"from_name": null,
"id": "f6508aa9553f4d39a8b2dbf5c49b8108",
"to_name": null,
"type": null,
"value": {
"end": 9944,
"labels": [
"ANALYSIS"
],
"start": 9804,
"text": "From her crossexamination, it is brought on record that deceased Sugrabi and P.W.No.1 Abdul Rafiq were sitting on the cot outside the house."
}
},
{
"from_name": null,
"id": "b87a6fcb5bc9448baf5d98e81762bb3b",
"to_name": null,
"type": null,
"value": {
"end": 10053,
"labels": [
"ANALYSIS"
],
"start": 9945,
"text": "Her crossexamination further shows that she herself and her sister were standing at the door of their house."
}
},
{
"from_name": null,
"id": "0e1036fa80884905abb8c3523eb83b33",
"to_name": null,
"type": null,
"value": {
"end": 10129,
"labels": [
"ANALYSIS"
],
"start": 10054,
"text": "Deceased Sugrabi is her mother whereas P.W.No.3 Abdul Rafiq is her brother."
}
},
{
"from_name": null,
"id": "cdb94c99171e4f22bf9ad47c64d94571",
"to_name": null,
"type": null,
"value": {
"end": 10226,
"labels": [
"ANALYSIS"
],
"start": 10130,
"text": "Size of her house was just 10 feet x 10 feet as seen from the evidence of P.W.No.4 Ashok Sasane."
}
},
{
"from_name": null,
"id": "94f1a04470fb41488e951ed16856d09d",
"to_name": null,
"type": null,
"value": {
"end": 10293,
"labels": [
"ANALYSIS"
],
"start": 10227,
"text": "From crossexamination of P.W.No.5 Salma sister of P.W.No.1 Yasmin"
}
},
{
"from_name": null,
"id": "982703ac2f6c465aa0a6d65b28b891ef",
"to_name": null,
"type": null,
"value": {
"end": 10473,
"labels": [
"ANALYSIS"
],
"start": 10293,
"text": ", it is confirmed by the defence itself that P.W.No.1 Yasmin was with P.W.No.5 Salma at the time of the incident in question and they both were standing at the door of their house."
}
},
{
"from_name": null,
"id": "cb29dd282cce4dd18576282493b5ff58",
"to_name": null,
"type": null,
"value": {
"end": 10693,
"labels": [
"ANALYSIS"
],
"start": 10474,
"text": "From the crossexamination of P.W.No.2 Nasim Banu another sister of P.W.No.1 Yasmin, it is brought on record by the defence that at the time of incident in question, P.W.No.1 Yasmin was standing at the door of the house."
}
},
{
"from_name": null,
"id": "d6e24843f3684710a36b4679225d6390",
"to_name": null,
"type": null,
"value": {
"end": 10876,
"labels": [
"ANALYSIS"
],
"start": 10694,
"text": "This material brought on record by crossexamination of P.W.No.2 Nasim Banu and P.W.No.5 Salma is enough to conclude that P.W.No.1 Yasmin is a eye witness to the incident in question."
}
},
{
"from_name": null,
"id": "b51d4e0cd05a4549a1ff5a5b6521087c",
"to_name": null,
"type": null,
"value": {
"end": 11061,
"labels": [
"ANALYSIS"
],
"start": 10877,
"text": "This eye witness P.W.No.1 Yasmin has deposed that the Maruti van came from eastern side by driving a distance of 30 to 35 feet and dashed to her mother Sugrabi and brother Abdul Rafiq."
}
},
{
"from_name": null,
"id": "0f41af792f4d4aa9af3382021b9ef769",
"to_name": null,
"type": null,
"value": {
"end": 11238,
"labels": [
"ANALYSIS"
],
"start": 11062,
"text": "She deposed that it was the revision petitioner/accused, who was driving the van at the time of the incident and she identified him while giving her statement before the Court."
}
},
{
"from_name": null,
"id": "7133fe79a6d24c748567bd728d242b3c",
"to_name": null,
"type": null,
"value": {
"end": 11592,
"labels": [
"ANALYSIS"
],
"start": 11239,
"text": "Though, in chiefexamination, this witness has not uttered anything about source of light at the time of incident, this lacuna in her evidence came to be fulfilled by her cross examination and by eliciting from her mouth that at the time of incident in question, there was light from the street light as well as from the bulb of electricity in her house."
}
},
{
"from_name": null,
"id": "bccc66a795534d889b5a31ed95ec54fa",
"to_name": null,
"type": null,
"value": {
"end": 11725,
"labels": [
"ANALYSIS"
],
"start": 11593,
"text": "As such, it cannot be said that because of darkness, P.W.No.1 Yasmin was not in a position to identify the driver of the Maruti van."
}
},
{
"from_name": null,
"id": "9d3a3737b1e84d5c9df62a3dafd4cf08",
"to_name": null,
"type": null,
"value": {
"end": 11806,
"labels": [
"ANALYSIS"
],
"start": 11725,
"text": "\n 9 P.W.No.3 Abdul Rafiq is injured victim of the incident in question."
}
},
{
"from_name": null,
"id": "ab61b098e7f443989113054dbcb9ae09",
"to_name": null,
"type": null,
"value": {
"end": 12025,
"labels": [
"ANALYSIS"
],
"start": 11807,
"text": "His evidence shows that when he as well as his mother Sugrabi were sitting at the door of their house, one Maruti van came in speed across the road towards their door and ran over his mother Sugrabi as well as himself."
}
},
{
"from_name": null,
"id": "9b574f073e22474d8aba6552749b52fc",
"to_name": null,
"type": null,
"value": {
"end": 12166,
"labels": [
"ANALYSIS"
],
"start": 12026,
"text": "This witness has also deposed that it was the revision petitioner/accused who was driving the Maruti van and who had ran away from the spot."
}
},
{
"from_name": null,
"id": "baaa3b1b7bbe4acca28925147a3368c8",
"to_name": null,
"type": null,
"value": {
"end": 12251,
"labels": [
"ANALYSIS"
],
"start": 12168,
"text": "While in the witness box, this witness identified the revision petitioner/ accused."
}
},
{
"from_name": null,
"id": "03eb1e1e527041b78b25a662c6c285bd",
"to_name": null,
"type": null,
"value": {
"end": 12494,
"labels": [
"ANALYSIS"
],
"start": 12252,
"text": "Crossexamination of this witness goes to show that the Maruti van involved in the accident crossed the road and came on the foot path in order to give dash to the cot on which P.W.No.3 Abdul Rafiq and his deceased mother Sugrabi were sitting."
}
},
{
"from_name": null,
"id": "09bb6124f0994e32b24eb700d20e5da7",
"to_name": null,
"type": null,
"value": {
"end": 12707,
"labels": [
"ANALYSIS"
],
"start": 12495,
"text": "Material elicited from crossexamination of this witness confirms the spot panchanama of the incident as foot path in front of the house of this witness as reflected in the spot panchanama an undisputed document."
}
},
{
"from_name": null,
"id": "c50a680cb3d947c9a252bc93ce5efa47",
"to_name": null,
"type": null,
"value": {
"end": 12858,
"labels": [
"ANALYSIS"
],
"start": 12708,
"text": "There is nothing in crossexamination of this witness to disbelieve his version that it was revision petitioner/accused who was driving the Maruti van."
}
},
{
"from_name": null,
"id": "d90bad9b164a4c54b684f7eac89b6959",
"to_name": null,
"type": null,
"value": {
"end": 13156,
"labels": [
"ANALYSIS"
],
"start": 12858,
"text": "\n 10 Though P.W.No.4 Ashok Sasane a neighbourer rushed to the spot of the incident soon after the incident, he being the next door neighbourer of deceased Sugrabi, his evidence can be relied to come to the conclusion that it was revision petitioner/accused who was driving the Maruti van."
}
},
{
"from_name": null,
"id": "aa0c4105ebc44f4bbf48016ce260c36c",
"to_name": null,
"type": null,
"value": {
"end": 13394,
"labels": [
"ANALYSIS"
],
"start": 13157,
"text": "This witness has categorically accepted the fact that he has not actually seen the accident, but upon hearing loud noise, he rushed out of the house and saw the incident and he had seen the revision petitioner as a driver of the vehicle."
}
},
{
"from_name": null,
"id": "fd8781c8bbe04a5480eedac5f43236c5",
"to_name": null,
"type": null,
"value": {
"end": 13478,
"labels": [
"ANALYSIS"
],
"start": 13395,
"text": "This witness has also identified the revision petitioner/accused while in the dock."
}
},
{
"from_name": null,
"id": "c2afe8d9025c47f091a92234282eacf8",
"to_name": null,
"type": null,
"value": {
"end": 13606,
"labels": [
"ANALYSIS"
],
"start": 13478,
"text": "\n 11 P.W.No.5 Salma Abdul Khalid is daughter of deceased Sugrabi and sister of first informant and injured Abdul Rafiq."
}
},
{
"from_name": null,
"id": "a0cf51b17e6b4bf4adfbe22495b6b55f",
"to_name": null,
"type": null,
"value": {
"end": 13818,
"labels": [
"ANALYSIS"
],
"start": 13607,
"text": "Her crossexamination also reveals that Sugrabai and P.W.No.3 Abdul Rafiq were sitting on the cot and she as well as her sister P.W.No.1 Yasmin were standing at the door of the house when the incident took place."
}
},
{
"from_name": null,
"id": "4931b1c5ebe14ca99a4605aa1b3e3cef",
"to_name": null,
"type": null,
"value": {
"end": 13949,
"labels": [
"ANALYSIS"
],
"start": 13819,
"text": "She deposed that when she was standing at the door with P.W.No.1 Yasmin, the Maruti van came and dashed to her mother and brother."
}
},
{
"from_name": null,
"id": "5224a81ffa534f4ca868abe815bb7814",
"to_name": null,
"type": null,
"value": {
"end": 14046,
"labels": [
"ANALYSIS"
],
"start": 13950,
"text": "She has also deposed that it was the revision petitioner/accused who was driving the Maruti van."
}
},
{
"from_name": null,
"id": "d795b0a8c20e4ca3a729fb6f6a3e1cab",
"to_name": null,
"type": null,
"value": {
"end": 14153,
"labels": [
"ANALYSIS"
],
"start": 14047,
"text": "She has also identified the revision petitioner/accused as driver of the vehicle involved in the accident."
}
},
{
"from_name": null,
"id": "1b2b95dab8b741d5bf38602d4f89e798",
"to_name": null,
"type": null,
"value": {
"end": 14214,
"labels": [
"ANALYSIS"
],
"start": 14154,
"text": "P.W.No.2 Nasim Banu is another daughter of deceased Sugrabi."
}
},
{
"from_name": null,
"id": "f78929a76c9444959465302884372e9b",
"to_name": null,
"type": null,
"value": {
"end": 14269,
"labels": [
"ANALYSIS"
],
"start": 14215,
"text": "She was inside the house when the incident took place."
}
},
{
"from_name": null,
"id": "ee58d087eb6d4b7c953f2c9bdbc57f04",
"to_name": null,
"type": null,
"value": {
"end": 14293,
"labels": [
"ANALYSIS"
],
"start": 14270,
"text": "She accepted this fact."
}
},
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"text": "But from her cross examination, it is elicited that she had seen the revision petitioner/accused while getting down from the driver seat of the van after the incident."
}
},
{
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"start": 14463,
"text": "12 "
}
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"text": "It is thus clear that all prosecution witnesses have came up with a version that they had seen the revision petitioner/accused as a person who was driving the Maruti van involved in the accident."
}
},
{
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"id": "9da1d50e49544a54ab7f7b97037ea8b0",
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"labels": [
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],
"start": 14671,
"text": "Source of light on the scene of occurrence was brought on record from crossexamination of P.W.No.1 Yasmin Abdul Khalid."
}
},
{
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"id": "b5e73d53e52d4f04804eb37098b8bb31",
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],
"start": 14791,
"text": "Both Courts below on the basis of this evidence on record have come to the conclusion that it was revision petitioner/accused who was driving the motor vehicle involved in the accident."
}
},
{
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],
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"text": "As such, it is not possible in the revisional jurisdiction to conclude that this finding of fact is unsupported by evidence."
}
},
{
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],
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"text": "True it is that no test identification parade was conducted by the prosecution, but ultimately it is the dock identification which is a substantive evidence."
}
},
{
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"text": "\n 13 The incident in question, as seen from the witnesses' examination by the prosecution, whose presence on the scene of occurrence was natural, took place on the foot path abutting the road."
}
},
{
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"labels": [
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],
"start": 15461,
"text": "The Maruti van crossed the road and came on the foot path giving dash to the deceased Sugrabi and her son P.W.No.3 Abdul Rafiq."
}
},
{
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"id": "04278b7c1a8b4e638c5f8529b38c83bd",
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"labels": [
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],
"start": 15589,
"text": "The standard which needs to be applied in such case is that of a prudent person acting in a similar situation."
}
},
{
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"id": "6309bb2d4ff447f3b64d34058de5dddd",
"to_name": null,
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"value": {
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"labels": [
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],
"start": 15700,
"text": "By no stretch of imagination, one will say that a prudent person would drive a Maruti van in such a way to take it on the foot path of the road."
}
},
{
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"id": "900f25c4ab1e448eb59bfd496bd41252",
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"labels": [
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],
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"text": "\n This act is certainly negligent as well as rash because it depicts lack of due care and attention."
}
},
{
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"id": "b15f5e12339648b8af31536d603c5c30",
"to_name": null,
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"value": {
"end": 16087,
"labels": [
"RATIO"
],
"start": 15945,
"text": "Therefore, no infirmity can be found in conviction of the revision petitioner of offences punishable under Sections 279, 337, 304A of the IPC."
}
},
{
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"id": "eda53c4fe68a4198be0eaaa2fa02a69b",
"to_name": null,
"type": null,
"value": {
"end": 16294,
"labels": [
"RATIO"
],
"start": 16088,
"text": "Similarly, as seen from the evidence of witnesses that he instead of providing medical aid to the injured as well as Sugrabai who was found to be dead after the incident, fled from the spot of the incident."
}
},
{
"from_name": null,
"id": "4d48c398b66c4d2090d2b3be3e65eaf6",
"to_name": null,
"type": null,
"value": {
"end": 16430,
"labels": [
"RATIO"
],
"start": 16295,
"text": "As such, the offence punishable under Sections 134(a) and (b) read with Section 187 of the M.V.Act is also made out by the prosecution."
}
},
{
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"id": "e785c1f4b3544a31a7959d1cefe7dd0f",
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"value": {
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"labels": [
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],
"start": 16430,
"text": "\n 14 In the result, no infirmity can be found with the impugned Judgment and Order of the appellate Court and as such, the order."
}
},
{
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"value": {
"end": 16609,
"labels": [
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],
"start": 16568,
"text": "\n (i) The revision petition is dismissed."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 16717,
"labels": [
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],
"start": 16609,
"text": "\n (ii) Consequently, pending Criminal Application No.95 of 2017 for suspension of sentence is also rejected."
}
},
{
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"id": "5aff0c3c52534a95921f52add3e43664",
"to_name": null,
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"value": {
"end": 16795,
"labels": [
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],
"start": 16717,
"text": "\n (iii) Time of two weeks is granted to the revision petitioners to surrender."
}
},
{
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"value": {
"end": 16850,
"labels": [
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],
"start": 16795,
"text": "\n Gaikwad RD (A. M. BADAR, J.) 12/12"
}
}
]
}
] | 4,285 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPLICATION NO.95 OF 2017\n IN\n\n CRIMINAL REVISION APPLICATION NO.91 OF 2017\n WITH\n\n CRIMINAL REVISION APPLICATION NO.91 OF 2017\n\nMr.Vimanjan Hanumanta Devarkonda, )...APPLICANT\n\nAged 42 years, Occ. Service,\nResiding at Room No.01, Galli No.09,\nKunchi Kurve Nagar, Near Kalina\nChurch, Santacruz (East),\nMubmai 400 029.\n\n V/s.\n\nThe State of Maharashtra, )...RESPONDENT\nAt the instance of Kurla Police Station,\nMumbai.\n\n .....\n\nMr.Ravi L. Gurnani with Mr.Vijay Agale, Advocate for the\nApplicant.\nMr.P.H.GaikwadPatil, APP for the Respondent State.\n\n .....\n\n CORAM : A. M. BADAR, J.\n\n DATE : 10th APRIL 2017\n\nORAL JUDGMENT : 1 By this revision petition, the revision petitioner/ original accused is challenging the Judgment and Order passed by the learned Sessions Judge, Mumbai in Criminal Appeal No.882 of 2014 on 3rd January 2017 thereby dismissing his appeal challenging the Judgment and Order dated 02/09/2014 passed by the learned Metropolitan Magistrate, 51st Court, Kurla in C.C.No.356/PW/2000 convicting him of offences punishable under Sections 279, 337, 304A of the Indian Penal Code (\"IPC\"\nfor the sake of brevity) and under Section 134(a) and (b) read with Section 187 of the Motor Vehicle Act, 1988 (\"M.V.Act\" for the sake of brevity). The learned trial Magistrate upon conviction of the revision petitioner had sentenced him to suffer simple imprisonment for six months apart from payment of fine of Rs.1000/ in default to undergo further simple imprisonment for one month for the offence punishable under Section 279 of the IPC. For the offence punishable under Section 337 of the IPC, he is sentenced to suffer simple imprisonment for six months apart from payment of fine of Rs.500/, in default to undergo further simple imprisonment for one month. For the offence punishable under Section 304A of the IPC, he is sentenced to suffer simple imprisonment for one year apart from payment of fine of Rs.2000/, in default to undergo further simple imprisonment for one month. For the offence punishable under Section 134(a) and (b) read with Section 187 of the M.V.Act, he is sentenced to suffer simple imprisonment for three months apart from payment of fine of Rs.500/, in default to undergo further simple imprisonment for fifteen days.\n 2 It is the case of prosecution that on 29/03/2000, the revision petitioner/accused had driven a Maruti van bearing No.MH02JA228 in a rash and negligent manner and gave dash of that vehicle to Sugrabi and her son Abdul Rafiq. The incident, according to the prosecution case, took place near Halav bridge of Kurla in front of Kudiya Badlu Chawl. The FIR (Exh.5) of the crime in question came to be lodged by P.W.No.1 Yasmin Abdul Khalid on 29/03/2000 itself. Accordingly Crime Registration No.72 of 2000 for the offence punishable under Sections 279, 337, 304A of the IPC and under Sections 134(a) and (b) read with Section 187 of the M.V.Act came to be registered. The revision petitioner/accused came to be arrested on 30/03/2000. Spot was inspected and spot panchanama came to be drawn. On completion of routine investigation, chargesheet came to be filed and after due trial conviction came to be recorded in C.C.No.356/PW/2000 by the learned Metropolitan Magistrate, Kurla on 02/09/2014. The accused came to be sentenced as indicated in the opening paragraph of this judgment. Feeling aggrieved by this conviction and sentence, the revision petitioner/accused filed an appeal bearing No.882 of 2014 which came to be dismissed on 03/01/2017 by the learned Additional Sessions Judge, Mumbai by the impugned Judgment and Order.\n 3 I heard the learned Advocate appearing for the revision petitioner/original accused. He argued that according to the prosecution case, the incident in question took place on 29/03/2000 at about 11.30 p.m. There is no evidence regarding availability of light on the spot of incident. There were in all five persons in the vehicle. It is the case of prosecution that nobody was apprehended on the spot of the incident. Hence, in submission of the learned Advocate for the revision petitioner, evidence regarding identification of the revision petitioner is highly doubtful. He further argued that prosecution witnesses were not knowing the accused and no test identification parade was conducted by the prosecution. Hence, offence is not proved.\nIt is further argued that there is no evidence to come to the conclusion that the revision petitioner was under influence of the liquor as stated by the witnesses for the prosecution. It is further argued that the prosecution has examined P.W.No.6 Raju owner of the Maruti van in question. But there is no evidence to show that to whom the vehicle was entrusted by Raju Jadhav. All witnesses examined by the prosecution, in submission of the learned Advocate for the revision petitioner, are interested witnesses and, therefore, their evidence is not reliable. With this, it is argued that for want of sufficient evidence, the revision petitioner/accused is certainly entitled for benefit of doubt.\n 4 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction.\n 5 I have carefully considered the rival submissions and also perused Record and Proceedings called from the Court below.\n Section 279 of the IPC deals with rash and negligent driving endangering human life. Section 304A of the IPC deals with causing death by negligence. Causing of death of a person by doing any rash and negligent act not amounting to culpabale homicide is made punishable by this Section of the IPC. Section 337 of the IPC deals with causing hurt to any person by doing any rash and negligent act endangering human life or the personal safety of others. Section 134(a) and (b) of the M.V.Act deals with lapses on the part of driver of the motor vehicle. In the case in hand, the revision petitioner/accused is convicted for causing death of Sugrabai by his rash and negligent driving of the Maruti van and injuring her son P.W.No.3 Abdul Rafiq by dashing the Maruti van. As such, one will have to determine whether the revision petitioner was driving the Maruti van involved in the incident and whether driving was rash and negligent. Negligence is a breach of duty or lack of proper care in doing something.\n Negligence reflects want of attention and doing of something which a prudent man would not do. Criminal negligence defined in Section 304A of the IPC means gross and culpable negligence or failure to exercise the reasonable and proper care which it was imperative duty of the accused to have exercised. For making out such offence punishable under Sections 279, 304A and 337 of the IPC, there must be proof that rash and negligent act of the accused was a proximate cause of a death of a person or hurt to a person. Direct nexus between death or hurt and rash and negligent act is required to be proved by the prosecution for making out offences punishable under Sections 279, 337 and 304 A of the IPC.\n 6 Similarly, one will also have to keep in mind that the revision petitioner has invoked revisional jurisdiction of this Court in challenging concurrent findings of facts arrived at by both Courts below holding that offences punishable under Sections 279, 337, 304A of the IPC and under Sections 134(a) and (b) read with Section 187 of the M.V.Act are proved against him. The revisional jurisdiction is required to be exercised sparingly when there is glaring error of law resulting in miscarriage of justice or when there is procedural irregularity resulting in failure of justice.\n While exercising the revisional jurisdiction, evidence cannot be appreciated and finding of fact recorded by Court below cannot be interfered with unless it is shown to be perverse. Sufficiency of evidence to hold the fact as proved cannot be gone into albeit, want of evidence to hold a fact to be proved can certainly be looked into. Keeping in mind these parameters in exercising revisional jurisdiction, let us consider whether Courts below have committed error of law or procedural irregularity while recording conviction against the revision petitioner warranting interference in revisional jurisdiction of this Court.\n 7 In the case in hand, death of Sugrabi Abdul Khalid Ansari is not disputed by the defence. The defence has admitted inquest panchanama (Exh.12) and P.M.Report of deceased Sugrabi. From perusal of P.M.Report it is seen that she died because of hemorrhagic shock due to polytrauma. The defence has not disputed the spot panchanama recored on 30/03/2000.\n This spot panchanama is at Exhibit 11. It reflects that the incident took place in front of Kudiya Badlu Chawl near Halav bridge of Kurla. Maruti van bearing registration No.MH02JA228 was seen standing in damaged condition on the spot. Apart from that a broken wooden cot was also found on the spot. The spot of incident shown in the spot panchanama is a foot path having 10 feet width. Width of the road abutting that foot path is stated to be 25 feet. With this undisputed position emerging on record, let us see whether it is proved by the prosecution that it was the revision petitioner/accused who was driving the Maruti van involved in the accident and whether he has shown criminal negligence in driving it causing death of Sugrabi and injuries to P.W.No.3 Abdul Rafiq.\n 8 P.W.No.1 Yasmin Abdul Khalid is the first informant in the instant case. From her crossexamination, it is brought on record that deceased Sugrabi and P.W.No.1 Abdul Rafiq were sitting on the cot outside the house. Her crossexamination further shows that she herself and her sister were standing at the door of their house. Deceased Sugrabi is her mother whereas P.W.No.3 Abdul Rafiq is her brother. Size of her house was just 10 feet x 10 feet as seen from the evidence of P.W.No.4 Ashok Sasane. From crossexamination of P.W.No.5 Salma sister of P.W.No.1 Yasmin, it is confirmed by the defence itself that P.W.No.1 Yasmin was with P.W.No.5 Salma at the time of the incident in question and they both were standing at the door of their house. From the crossexamination of P.W.No.2 Nasim Banu another sister of P.W.No.1 Yasmin, it is brought on record by the defence that at the time of incident in question, P.W.No.1 Yasmin was standing at the door of the house. This material brought on record by crossexamination of P.W.No.2 Nasim Banu and P.W.No.5 Salma is enough to conclude that P.W.No.1 Yasmin is a eye witness to the incident in question. This eye witness P.W.No.1 Yasmin has deposed that the Maruti van came from eastern side by driving a distance of 30 to 35 feet and dashed to her mother Sugrabi and brother Abdul Rafiq. She deposed that it was the revision petitioner/accused, who was driving the van at the time of the incident and she identified him while giving her statement before the Court. Though, in chiefexamination, this witness has not uttered anything about source of light at the time of incident, this lacuna in her evidence came to be fulfilled by her cross examination and by eliciting from her mouth that at the time of incident in question, there was light from the street light as well as from the bulb of electricity in her house. As such, it cannot be said that because of darkness, P.W.No.1 Yasmin was not in a position to identify the driver of the Maruti van.\n 9 P.W.No.3 Abdul Rafiq is injured victim of the incident in question. His evidence shows that when he as well as his mother Sugrabi were sitting at the door of their house, one Maruti van came in speed across the road towards their door and ran over his mother Sugrabi as well as himself. This witness has also deposed that it was the revision petitioner/accused who was driving the Maruti van and who had ran away from the spot.\n While in the witness box, this witness identified the revision petitioner/ accused. Crossexamination of this witness goes to show that the Maruti van involved in the accident crossed the road and came on the foot path in order to give dash to the cot on which P.W.No.3 Abdul Rafiq and his deceased mother Sugrabi were sitting. Material elicited from crossexamination of this witness confirms the spot panchanama of the incident as foot path in front of the house of this witness as reflected in the spot panchanama an undisputed document. There is nothing in crossexamination of this witness to disbelieve his version that it was revision petitioner/accused who was driving the Maruti van.\n 10 Though P.W.No.4 Ashok Sasane a neighbourer rushed to the spot of the incident soon after the incident, he being the next door neighbourer of deceased Sugrabi, his evidence can be relied to come to the conclusion that it was revision petitioner/accused who was driving the Maruti van. This witness has categorically accepted the fact that he has not actually seen the accident, but upon hearing loud noise, he rushed out of the house and saw the incident and he had seen the revision petitioner as a driver of the vehicle. This witness has also identified the revision petitioner/accused while in the dock.\n 11 P.W.No.5 Salma Abdul Khalid is daughter of deceased Sugrabi and sister of first informant and injured Abdul Rafiq. Her crossexamination also reveals that Sugrabai and P.W.No.3 Abdul Rafiq were sitting on the cot and she as well as her sister P.W.No.1 Yasmin were standing at the door of the house when the incident took place. She deposed that when she was standing at the door with P.W.No.1 Yasmin, the Maruti van came and dashed to her mother and brother. She has also deposed that it was the revision petitioner/accused who was driving the Maruti van. She has also identified the revision petitioner/accused as driver of the vehicle involved in the accident. P.W.No.2 Nasim Banu is another daughter of deceased Sugrabi. She was inside the house when the incident took place. She accepted this fact. But from her cross examination, it is elicited that she had seen the revision petitioner/accused while getting down from the driver seat of the van after the incident.\n 12 It is thus clear that all prosecution witnesses have came up with a version that they had seen the revision petitioner/accused as a person who was driving the Maruti van involved in the accident. Source of light on the scene of occurrence was brought on record from crossexamination of P.W.No.1 Yasmin Abdul Khalid. Both Courts below on the basis of this evidence on record have come to the conclusion that it was revision petitioner/accused who was driving the motor vehicle involved in the accident. As such, it is not possible in the revisional jurisdiction to conclude that this finding of fact is unsupported by evidence. True it is that no test identification parade was conducted by the prosecution, but ultimately it is the dock identification which is a substantive evidence.\n 13 The incident in question, as seen from the witnesses' examination by the prosecution, whose presence on the scene of occurrence was natural, took place on the foot path abutting the road. The Maruti van crossed the road and came on the foot path giving dash to the deceased Sugrabi and her son P.W.No.3 Abdul Rafiq. The standard which needs to be applied in such case is that of a prudent person acting in a similar situation. By no stretch of imagination, one will say that a prudent person would drive a Maruti van in such a way to take it on the foot path of the road.\n This act is certainly negligent as well as rash because it depicts lack of due care and attention. Therefore, no infirmity can be found in conviction of the revision petitioner of offences punishable under Sections 279, 337, 304A of the IPC. Similarly, as seen from the evidence of witnesses that he instead of providing medical aid to the injured as well as Sugrabai who was found to be dead after the incident, fled from the spot of the incident. As such, the offence punishable under Sections 134(a) and (b) read with Section 187 of the M.V.Act is also made out by the prosecution.\n 14 In the result, no infirmity can be found with the impugned Judgment and Order of the appellate Court and as such, the order.\n (i) The revision petition is dismissed.\n (ii) Consequently, pending Criminal Application No.95 of 2017 for suspension of sentence is also rejected.\n (iii) Time of two weeks is granted to the revision petitioners to surrender.\n Gaikwad RD (A. M. BADAR, J.) 12/12 "
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"text": "Mrs Musarrat Zahin, LL.B.,\n S.D.J.M.,Sundargarh."
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"text": "/o- Surendra Kalo, Resident\n\n of Village- Nuadihi, Ps-Lephripada,\n\n District."
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"end": 745,
"labels": [
"PREAMBLE"
],
"start": 656,
"text": "........ Accused is in custody.\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act.\n "
}
},
{
"from_name": null,
"id": "52e642fd26c44f1fabd8c4c19436bace",
"to_name": null,
"type": null,
"value": {
"end": 791,
"labels": [
"PREAMBLE"
],
"start": 745,
"text": "Counsel for the State : Sri Debasish Shit, APP"
}
},
{
"from_name": null,
"id": "a2c4bf1458f743eaa6eb0f0579d23ef9",
"to_name": null,
"type": null,
"value": {
"end": 865,
"labels": [
"PREAMBLE"
],
"start": 796,
"text": "Counsel for the Defence : Sri P K Choudhury & associates, Sundargarh."
}
},
{
"from_name": null,
"id": "ebdb17a624674b7c8cb3bf2f2d435695",
"to_name": null,
"type": null,
"value": {
"end": 886,
"labels": [
"PREAMBLE"
],
"start": 865,
"text": "\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "e5bff6ded84941099227bdf027523bda",
"to_name": null,
"type": null,
"value": {
"end": 1013,
"labels": [
"FAC"
],
"start": 886,
"text": "\n 1. Accused stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. Liquor."
}
},
{
"from_name": null,
"id": "9ecab472beab46eb81a76af60f3283d3",
"to_name": null,
"type": null,
"value": {
"end": 1259,
"labels": [
"FAC"
],
"start": 1015,
"text": "2. The story of the prosecution in brief is that on 19.03.2015 at about 9.30 AM, while the SI of Excise Sadar Mobile, Sundargarh was performing patrolling duty along with other official staffs at village Nuadihi (Sancharpada) area, Sundargarh."
}
},
{
"from_name": null,
"id": "ee80136c38a84865936042afc4fbcfb4",
"to_name": null,
"type": null,
"value": {
"end": 1389,
"labels": [
"FAC"
],
"start": 1260,
"text": "During patrolling, they found the accused namely Jaishree Kalo was going on the road by holding a plastic jerry cane in her hand."
}
},
{
"from_name": null,
"id": "e47daf6e72de44e2beabbd7c82562b35",
"to_name": null,
"type": null,
"value": {
"end": 1570,
"labels": [
"FAC"
],
"start": 1390,
"text": "On suspicion, the patrolling team detained her and on search, recovered one plastic jerry cane containing ID liquor from the possession of the accused in presence of the witnesses."
}
},
{
"from_name": null,
"id": "b43914a95d3944e4b5240e0a6d676f22",
"to_name": null,
"type": null,
"value": {
"end": 1761,
"labels": [
"FAC"
],
"start": 1571,
"text": "Thereafter, he conducted blue litmus test, smell test, hydrometer test and from above tests and from his prolonged service experience, he ascertained that the seized article was I.D. liquor."
}
},
{
"from_name": null,
"id": "d17f8a81ba004d66a95ddf9a8fee5ca2",
"to_name": null,
"type": null,
"value": {
"end": 1971,
"labels": [
"FAC"
],
"start": 1762,
"text": "On being asked, the accused failed to produce any license or authority for such illegal possession, he seized 4 (four) litres of ID liquor containing in a plastic jerry cane from the possession of the accused."
}
},
{
"from_name": null,
"id": "4a4aac1d76274bd0ac8df9f5f2fb34e9",
"to_name": null,
"type": null,
"value": {
"end": 2088,
"labels": [
"FAC"
],
"start": 1972,
"text": "Thereafter, he measured the liquor through litre measurement and prepared the seizure list in presence of witnesses."
}
},
{
"from_name": null,
"id": "ccddb881d2ba480aa052b412445b1111",
"to_name": null,
"type": null,
"value": {
"end": 2154,
"labels": [
"FAC"
],
"start": 2089,
"text": "After that he arrested the accused and produced before the court."
}
},
{
"from_name": null,
"id": "3566ed7704284aafac65a6716e3a1456",
"to_name": null,
"type": null,
"value": {
"end": 2357,
"labels": [
"FAC"
],
"start": 2155,
"text": "Then the SI of Excise Sadar Mobile has enquired into the matter and after completion of his inquiry submitted final PR against the accused U/s.47(a)(i) of Bihar & Orissa Excise Act suggesting her trial."
}
},
{
"from_name": null,
"id": "f5a2424b0d1045a3aa8f60a8dba9ee7a",
"to_name": null,
"type": null,
"value": {
"end": 2470,
"labels": [
"FAC"
],
"start": 2357,
"text": "\n 3. The plea of the accused is one of complete denial and false implication only for statistical purpose."
}
},
{
"from_name": null,
"id": "a69108bed88c41a3b6c17f9b109ebd7c",
"to_name": null,
"type": null,
"value": {
"end": 2540,
"labels": [
"ISSUE"
],
"start": 2472,
"text": "4. The points for determination of this case are as follows: (i) "
}
},
{
"from_name": null,
"id": "6e0394f7bd234baca17975034cddf2b8",
"to_name": null,
"type": null,
"value": {
"end": 2794,
"labels": [
"ISSUE"
],
"start": 2540,
"text": "Whether on 19.03.2015 at about 9.30 AM, on the road of village Nuadihi (Sancharpada), Sundargarh SI of Excise seized (4) four litres of ID liquor containing in a plastic jerry cane which you were carrying for the purpose of selling without any authority?"
}
},
{
"from_name": null,
"id": "9f05862025564b10929514579e3a2b03",
"to_name": null,
"type": null,
"value": {
"end": 3001,
"labels": [
"ISSUE"
],
"start": 2794,
"text": "\n (ii) Whether on the same date, time and place the said (4) four litrs of ID liquor has been seized from your exclusive and conscious possession?\n (iii) Whether the seized article is I.D. liquor or not ?"
}
},
{
"from_name": null,
"id": "7191168c4ec04c77bedc492b64cd0419",
"to_name": null,
"type": null,
"value": {
"end": 3078,
"labels": [
"FAC"
],
"start": 3001,
"text": "\n 5. To prove its case, prosecution has examined only three witnesses."
}
},
{
"from_name": null,
"id": "a513eb6ed2c44ec8be9802099761ebb8",
"to_name": null,
"type": null,
"value": {
"end": 3178,
"labels": [
"FAC"
],
"start": 3080,
"text": "Out of whom P.W.3 is the SI of Excise Sadar Mobile and P.W.2 is the accompanying Excise constable."
}
},
{
"from_name": null,
"id": "f5e4ecd9c89840c886af1a3dc4fe3d52",
"to_name": null,
"type": null,
"value": {
"end": 3252,
"labels": [
"FAC"
],
"start": 3179,
"text": "P.W.3 is the cited independent seizure witness to the alleged occurrence."
}
},
{
"from_name": null,
"id": "5a2bb7f9039f44c18ad6138fde6019e5",
"to_name": null,
"type": null,
"value": {
"end": 3318,
"labels": [
"FAC"
],
"start": 3253,
"text": "Prosecution proved certain documents marked as Ext. 1 to Ext.2/1."
}
},
{
"from_name": null,
"id": "4137fa7a99fe440ea59f3aa15012f660",
"to_name": null,
"type": null,
"value": {
"end": 3414,
"labels": [
"FAC"
],
"start": 3319,
"text": "On the other hand, no oral or documentary evidence adduced on behalf of accused in his defence."
}
},
{
"from_name": null,
"id": "74853390ea1c471ebd74ced8c002370d",
"to_name": null,
"type": null,
"value": {
"end": 3719,
"labels": [
"ANALYSIS"
],
"start": 3414,
"text": "\n 6. On analysis of the evidence on record P.W.3 the SI of Excise Sadar Mobile, Sundargarh deposed that on 19.03.2015 at about 9.00 AM, while he was performing patrolling duty at village Nuadihi (Sancharpada) area found that the accused was coming on the road by holding a plastic jerry cane in her hand."
}
},
{
"from_name": null,
"id": "f29b55254d304af4863a311c72de2935",
"to_name": null,
"type": null,
"value": {
"end": 3901,
"labels": [
"ANALYSIS"
],
"start": 3720,
"text": "On suspicion, he detained the accused Jaishree Kalo and on search, he recovered (4) four litres of ID liquor containing in the plastic jerry cane from the possession of the accused."
}
},
{
"from_name": null,
"id": "21e2196dcbea41bc907e771ff3d73fff",
"to_name": null,
"type": null,
"value": {
"end": 4069,
"labels": [
"ANALYSIS"
],
"start": 3902,
"text": "According to this witness, he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list."
}
},
{
"from_name": null,
"id": "592d41f82c5f4b4e8e820246125e735d",
"to_name": null,
"type": null,
"value": {
"end": 4247,
"labels": [
"ANALYSIS"
],
"start": 4070,
"text": "Another official witness P.W.2 (Excise constable) like wise supported the version of P.W.3 in respect of patrolling and seizure of the liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "69e7099f8a3446dd86703db81d071e62",
"to_name": null,
"type": null,
"value": {
"end": 4379,
"labels": [
"ANALYSIS"
],
"start": 4248,
"text": "Specific version of both the witnesses is that seizure was conducted by the SI of Excise Sadar Mobile in presence of the witnesses."
}
},
{
"from_name": null,
"id": "445b92b7eceb4d439c2240be6399b712",
"to_name": null,
"type": null,
"value": {
"end": 4508,
"labels": [
"ANALYSIS"
],
"start": 4380,
"text": "Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration."
}
},
{
"from_name": null,
"id": "baaff6324ae94a85ae0b2f3dc5b54827",
"to_name": null,
"type": null,
"value": {
"end": 4634,
"labels": [
"ANALYSIS"
],
"start": 4509,
"text": "P.W.1, the independent seizure witness did not support the version of P.W.2 and P.W.3 at all in respect of factum of seizure."
}
},
{
"from_name": null,
"id": "9c335452ec044708bc07150e6dc6f5f8",
"to_name": null,
"type": null,
"value": {
"end": 4771,
"labels": [
"ANALYSIS"
],
"start": 4635,
"text": "According to him nothing was seized in his presence by any Excise staff and on direction of the police, he put his signature in a paper."
}
},
{
"from_name": null,
"id": "9341c2e984cf4eb2ae254bd478416113",
"to_name": null,
"type": null,
"value": {
"end": 4880,
"labels": [
"ANALYSIS"
],
"start": 4772,
"text": "Hence, there is discrepancy between the testimony of independent seizure witness and the official witnesses."
}
},
{
"from_name": null,
"id": "73409ed69e324722ac9cc53e1d2a8a9c",
"to_name": null,
"type": null,
"value": {
"end": 5080,
"labels": [
"ANALYSIS"
],
"start": 4880,
"text": "\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "1c43476df8fe4a0498d0d5092f18de13",
"to_name": null,
"type": null,
"value": {
"end": 5163,
"labels": [
"ANALYSIS"
],
"start": 5081,
"text": "But in this case the seizure witness did not support the factum of seizure at all."
}
},
{
"from_name": null,
"id": "9185fd3324fa4088a5e36c9effd4398d",
"to_name": null,
"type": null,
"value": {
"end": 5353,
"labels": [
"ANALYSIS"
],
"start": 5164,
"text": "Further the SI of Excise Sadar Mobile P.W.3 in cross-examination admitted that he did not know the accused prior to the occurrence and the spot of occurrence is a village road and busy one."
}
},
{
"from_name": null,
"id": "34e8a903456348cf94c2f481a020efe5",
"to_name": null,
"type": null,
"value": {
"end": 5481,
"labels": [
"ANALYSIS"
],
"start": 5353,
"text": "\n Further he stated that he has not produced the seized articles before the court nor he sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "8b06ef84cd51497b9f41860fc7cc6da9",
"to_name": null,
"type": null,
"value": {
"end": 5675,
"labels": [
"ANALYSIS"
],
"start": 5482,
"text": "Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism."
}
},
{
"from_name": null,
"id": "1f7ff47b159e4fdcb9deb97f65ab3bf8",
"to_name": null,
"type": null,
"value": {
"end": 5780,
"labels": [
"ANALYSIS"
],
"start": 5675,
"text": "\n The plea of the defence is that a false case has been foisted against him only for statistical purpose."
}
},
{
"from_name": null,
"id": "5d6849cf4bf1464496a76a2a5507bf34",
"to_name": null,
"type": null,
"value": {
"end": 6012,
"labels": [
"ANALYSIS"
],
"start": 5781,
"text": "There is no material on record to show the exact place of seizure, as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "91190ad40acb43da841e496e8dadc2e7",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
"ANALYSIS"
],
"start": 6013,
"text": "More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "31e4c56c57f34a68869296ae8c83228f",
"to_name": null,
"type": null,
"value": {
"end": 6209,
"labels": [
"ANALYSIS"
],
"start": 6134,
"text": "Further, independent seizure witness did not support the factum of seizure."
}
},
{
"from_name": null,
"id": "09dfb2c2234842c883eae6e0331d1834",
"to_name": null,
"type": null,
"value": {
"end": 6284,
"labels": [
"ANALYSIS"
],
"start": 6209,
"text": "\n 8. That apart the seized article has not been produced before the court."
}
},
{
"from_name": null,
"id": "54a06874d9cd4d008bcc6c31182c15a4",
"to_name": null,
"type": null,
"value": {
"end": 6410,
"labels": [
"ANALYSIS"
],
"start": 6284,
"text": "\n Thus it cannot be said with certainty that the liquor was seized from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "3f36501696aa4aeaa002cfcb6be202c0",
"to_name": null,
"type": null,
"value": {
"end": 6754,
"labels": [
"PRE_RELIED"
],
"start": 6411,
"text": "In Bhagia Sahoo vrs. State of Orissa reported in (2002) 93 CLT 684 where his Lordship has observed that when the liquor seized is not produced before the Court and no reason for such non production is provided and the independent witness is not supporting the seizure, the evidence provided by the prosecution is not sufficient for conviction."
}
},
{
"from_name": null,
"id": "3e374f687eec4001a0707da1cef4cd61",
"to_name": null,
"type": null,
"value": {
"end": 6903,
"labels": [
"ANALYSIS"
],
"start": 6755,
"text": "In the instant case, the seized liquor is not produced before this Court and no reason for such non production has been provided by the prosecution."
}
},
{
"from_name": null,
"id": "d49ede22bfa24d128d00895a041ef2b7",
"to_name": null,
"type": null,
"value": {
"end": 6969,
"labels": [
"ANALYSIS"
],
"start": 6904,
"text": "That apart in the present case informant himself I.O of the case."
}
},
{
"from_name": null,
"id": "defcef7a487d46c2a1d805a076da8815",
"to_name": null,
"type": null,
"value": {
"end": 7257,
"labels": [
"PRE_RELIED"
],
"start": 6970,
"text": "The Hon'ble Apex Court upheld in Mukhitiar Ahmed Ansari Vrs NCT of Delhi 2005 31 OCR (SC) 257 that investigation by the same police official who had lodged the complaint is deprecating practice and in absence of any independent corroboration no conviction can be recorded in such a case."
}
},
{
"from_name": null,
"id": "4f8a4c7523cf478895c2bda9b4990b42",
"to_name": null,
"type": null,
"value": {
"end": 7319,
"labels": [
"ANALYSIS"
],
"start": 7258,
"text": "Hence, the entire fact of search and seizure sound skeptical."
}
},
{
"from_name": null,
"id": "18f45ed5da734afba17ab084517496c5",
"to_name": null,
"type": null,
"value": {
"end": 7477,
"labels": [
"ANALYSIS"
],
"start": 7320,
"text": "In such premises, I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration."
}
},
{
"from_name": null,
"id": "9741f4fd38034c81b6ee9e50568c4bbb",
"to_name": null,
"type": null,
"value": {
"end": 7592,
"labels": [
"ANALYSIS"
],
"start": 7478,
"text": "Hence, the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "1ef97b3a29a6490aac22bdc71291dba2",
"to_name": null,
"type": null,
"value": {
"end": 7666,
"labels": [
"ANALYSIS"
],
"start": 7594,
"text": "9. With regard to nature of seized article whether it is liquor or not."
}
},
{
"from_name": null,
"id": "71c7de9ea46b4ca7a2ad2ebc694dd731",
"to_name": null,
"type": null,
"value": {
"end": 7719,
"labels": [
"ANALYSIS"
],
"start": 7667,
"text": "P.W.3 stated that the seized article is I.D. liquor."
}
},
{
"from_name": null,
"id": "022ad78f329c49a9927b950de7f00b34",
"to_name": null,
"type": null,
"value": {
"end": 7923,
"labels": [
"ANALYSIS"
],
"start": 7720,
"text": "No document is filed or proved on behalf of prosecution to establish that P.W.3 is competent enough to opine on the subject of liquor, spirit or intoxicant being an expert U/s. 45 of Indian Evidence Act."
}
},
{
"from_name": null,
"id": "052e166b92ca43c3b5d8f9577b9d212b",
"to_name": null,
"type": null,
"value": {
"end": 7988,
"labels": [
"ANALYSIS"
],
"start": 7924,
"text": "No distillery training certificate has been filed on his behalf."
}
},
{
"from_name": null,
"id": "dab1a237aa9a46e9be4e4c05a1e7a0d5",
"to_name": null,
"type": null,
"value": {
"end": 8432,
"labels": [
"ANALYSIS"
],
"start": 7989,
"text": "It is the settled principle of law that chemical test is the surest test and in the instant case, the alleged liquor was never subjected to any chemical test and in the absence of any chemical test, the officer conducting test must produce an unequivocal evidence on the score that he has expertise knowledge to testify the liquor and then his opinion can be regarded as the opinion of an expert as enshrined U/s-45 of the Indian Evidence Act."
}
},
{
"from_name": null,
"id": "88d4ce5f18c54f7ab992f446ab5e49d0",
"to_name": null,
"type": null,
"value": {
"end": 8690,
"labels": [
"PRE_RELIED"
],
"start": 8433,
"text": "In Shimanchal Choudhury Vrs. State of Orissa reported in 2005 (ii) OLR 40 it has been held by the Hon'ble Court that Excise Officer bearing some experience due to long service can not be termed as an expert in terms of Section-45 of the Indian Evidence Act."
}
},
{
"from_name": null,
"id": "51ebdb54c41845cf9891753626a5b2a8",
"to_name": null,
"type": null,
"value": {
"end": 8884,
"labels": [
"ANALYSIS"
],
"start": 8691,
"text": "The bare statement of P.W.3 that he conducted blue litmus paper test which turned into red in colour along with hydrometer test does not prove conclusively that the seized liquor was ID liquor."
}
},
{
"from_name": null,
"id": "29e509d1af6f402bbca40d33d5a928fd",
"to_name": null,
"type": null,
"value": {
"end": 8980,
"labels": [
"ANALYSIS"
],
"start": 8885,
"text": "Litmus test only determines acidity and hydrometer test only determines density of a substance."
}
},
{
"from_name": null,
"id": "f3b76c16477446fe91c6ec6f284c1738",
"to_name": null,
"type": null,
"value": {
"end": 9168,
"labels": [
"ANALYSIS"
],
"start": 8981,
"text": "Both these tests conclusively can not establish of a substance to be liquor because without positive proof regarding presence of alcohol contents a substance can not be held to be liquor."
}
},
{
"from_name": null,
"id": "fcdfbad1a4384a559efd6a7c178228f8",
"to_name": null,
"type": null,
"value": {
"end": 9341,
"labels": [
"ANALYSIS"
],
"start": 9169,
"text": "Further this witness has admittedly stated in cross-examination that he had not sent the seized article or samples for chemical examination which is one of the surest test."
}
},
{
"from_name": null,
"id": "0cab68c5fcf34c8f861a455311c101c1",
"to_name": null,
"type": null,
"value": {
"end": 9432,
"labels": [
"ANALYSIS"
],
"start": 9342,
"text": "Hence, I hold that prosecution failed to establish that the seized article is I.D. Liquor."
}
},
{
"from_name": null,
"id": "71fea769cf4b411b8d760dab616439cf",
"to_name": null,
"type": null,
"value": {
"end": 9817,
"labels": [
"RATIO"
],
"start": 9432,
"text": "\n 10. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure of contraband article from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "8a672be6cb3347819b0dd3c0c92a086c",
"to_name": null,
"type": null,
"value": {
"end": 9890,
"labels": [
"RPC"
],
"start": 9818,
"text": "Hence, I acquit her therefrom under the provisions of Sec.248(1) Cr.P.C."
}
},
{
"from_name": null,
"id": "29500c4894344172bca5642d532a777f",
"to_name": null,
"type": null,
"value": {
"end": 9947,
"labels": [
"RPC"
],
"start": 9891,
"text": "She be set at liberty and discharged from her bail bond."
}
},
{
"from_name": null,
"id": "d8c8f527bac1472ca5b197f11a1171c7",
"to_name": null,
"type": null,
"value": {
"end": 9983,
"labels": [
"RPC"
],
"start": 9949,
"text": "Enter the case as mistake of fact."
}
},
{
"from_name": null,
"id": "602baece93e74af188bf7c776bf5e32b",
"to_name": null,
"type": null,
"value": {
"end": 10266,
"labels": [
"RPC"
],
"start": 9983,
"text": "\n The seized articles if any be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court.\n S.D.J.M.,Sundargarh.\n 10.07.2017"
}
},
{
"from_name": null,
"id": "c945d14da5e74e87a2533fc8999ecfc4",
"to_name": null,
"type": null,
"value": {
"end": 10489,
"labels": [
"NONE"
],
"start": 10267,
"text": "The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 10th day of July, 2017 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List of P.Ws."
}
},
{
"from_name": null,
"id": "e165898066b04bb998aa73a0dbb6dcb9",
"to_name": null,
"type": null,
"value": {
"end": 10506,
"labels": [
"NONE"
],
"start": 10490,
"text": "Examined: P.W. 1"
}
},
{
"from_name": null,
"id": "fa44c2c4eca4475fbc4ad3221ffcb3ab",
"to_name": null,
"type": null,
"value": {
"end": 10542,
"labels": [
"NONE"
],
"start": 10517,
"text": "Subash Chandra Das P.W. 2"
}
},
{
"from_name": null,
"id": "1f9f84f6c3e14f66a59fdf5fb7aca334",
"to_name": null,
"type": null,
"value": {
"end": 10584,
"labels": [
"NONE"
],
"start": 10553,
"text": "Nirupama Naik P.W.3. "
}
},
{
"from_name": null,
"id": "ba6a7923e1834f5692028f59032ed43f",
"to_name": null,
"type": null,
"value": {
"end": 10621,
"labels": [
"NONE"
],
"start": 10584,
"text": "Abhiram Behera List of D.Ws examined:"
}
},
{
"from_name": null,
"id": "511e5756a1d745ada640f9f1dc67eddd",
"to_name": null,
"type": null,
"value": {
"end": 10670,
"labels": [
"NONE"
],
"start": 10622,
"text": "N i l.\n List of Exts.marked for the prosecution."
}
},
{
"from_name": null,
"id": "37b3ee7f4b4642dc84af04e835965390",
"to_name": null,
"type": null,
"value": {
"end": 10689,
"labels": [
"NONE"
],
"start": 10670,
"text": "\n Ext.1 "
}
},
{
"from_name": null,
"id": "17d4ee6cffb04dea851785bce306d641",
"to_name": null,
"type": null,
"value": {
"end": 10827,
"labels": [
"NONE"
],
"start": 10689,
"text": "Signature of P.W.1 Ext.1/1 Seizure list Ext.1/2 Signature of P.W.2 Ext.1/3 Signature of P.W.3 Ext.1/4 "
}
},
{
"from_name": null,
"id": "a0edd5655d204363bd4ee83a26bd8216",
"to_name": null,
"type": null,
"value": {
"end": 10833,
"labels": [
"NONE"
],
"start": 10827,
"text": "Tested"
}
},
{
"from_name": null,
"id": "9a781b78e109412b85a18677a52689d2",
"to_name": null,
"type": null,
"value": {
"end": 10858,
"labels": [
"NONE"
],
"start": 10834,
"text": "blue litmus paper Ext.2."
}
},
{
"from_name": null,
"id": "5de57055a0ed41f78f81e55c0962db7c",
"to_name": null,
"type": null,
"value": {
"end": 10988,
"labels": [
"NONE"
],
"start": 10859,
"text": " Hydrometer test.\n Ext.2/1 Signature of PW.3 List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh."
}
}
]
}
] | 4,102 | {
"text": " IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n DISTRICT: SUNDARGARH.\nPRESENT:\n\n Mrs Musarrat Zahin, LL.B.,\n S.D.J.M.,Sundargarh.\n\n 2(a) CC CASE No.62 of 2015\n Trial No.180 of 2015\n\n Date of argument : 27.06.2017\n Date of Judgment : 10.07.2017\n\n State of Odisha. ...... Prosecution.\n\n -vrs.-\n\n Jaishree Kalo, aged about 50 years,\n\n S/o- Surendra Kalo, Resident\n\n of Village- Nuadihi, Ps-Lephripada,\n\n District. Sundargarh. ........ Accused is in custody.\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act.\n Counsel for the State : Sri Debasish Shit, APP\n Counsel for the Defence : Sri P K Choudhury & associates, Sundargarh.\n\n J U D G M E N T\n 1. Accused stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. Liquor.\n 2. The story of the prosecution in brief is that on 19.03.2015 at about 9.30 AM, while the SI of Excise Sadar Mobile, Sundargarh was performing patrolling duty along with other official staffs at village Nuadihi (Sancharpada) area, Sundargarh. During patrolling, they found the accused namely Jaishree Kalo was going on the road by holding a plastic jerry cane in her hand. On suspicion, the patrolling team detained her and on search, recovered one plastic jerry cane containing ID liquor from the possession of the accused in presence of the witnesses. Thereafter, he conducted blue litmus test, smell test, hydrometer test and from above tests and from his prolonged service experience, he ascertained that the seized article was I.D. liquor. On being asked, the accused failed to produce any license or authority for such illegal possession, he seized 4 (four) litres of ID liquor containing in a plastic jerry cane from the possession of the accused. Thereafter, he measured the liquor through litre measurement and prepared the seizure list in presence of witnesses. After that he arrested the accused and produced before the court. Then the SI of Excise Sadar Mobile has enquired into the matter and after completion of his inquiry submitted final PR against the accused U/s.47(a)(i) of Bihar & Orissa Excise Act suggesting her trial.\n 3. The plea of the accused is one of complete denial and false implication only for statistical purpose.\n 4. The points for determination of this case are as follows: (i) Whether on 19.03.2015 at about 9.30 AM, on the road of village Nuadihi (Sancharpada), Sundargarh SI of Excise seized (4) four litres of ID liquor containing in a plastic jerry cane which you were carrying for the purpose of selling without any authority?\n (ii) Whether on the same date, time and place the said (4) four litrs of ID liquor has been seized from your exclusive and conscious possession?\n (iii) Whether the seized article is I.D. liquor or not ?\n 5. To prove its case, prosecution has examined only three witnesses.\n Out of whom P.W.3 is the SI of Excise Sadar Mobile and P.W.2 is the accompanying Excise constable. P.W.3 is the cited independent seizure witness to the alleged occurrence. Prosecution proved certain documents marked as Ext. 1 to Ext.2/1. On the other hand, no oral or documentary evidence adduced on behalf of accused in his defence.\n 6. On analysis of the evidence on record P.W.3 the SI of Excise Sadar Mobile, Sundargarh deposed that on 19.03.2015 at about 9.00 AM, while he was performing patrolling duty at village Nuadihi (Sancharpada) area found that the accused was coming on the road by holding a plastic jerry cane in her hand. On suspicion, he detained the accused Jaishree Kalo and on search, he recovered (4) four litres of ID liquor containing in the plastic jerry cane from the possession of the accused. According to this witness, he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list. Another official witness P.W.2 (Excise constable) like wise supported the version of P.W.3 in respect of patrolling and seizure of the liquor from the possession of the accused. Specific version of both the witnesses is that seizure was conducted by the SI of Excise Sadar Mobile in presence of the witnesses. Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration. P.W.1, the independent seizure witness did not support the version of P.W.2 and P.W.3 at all in respect of factum of seizure. According to him nothing was seized in his presence by any Excise staff and on direction of the police, he put his signature in a paper. Hence, there is discrepancy between the testimony of independent seizure witness and the official witnesses.\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused. But in this case the seizure witness did not support the factum of seizure at all. Further the SI of Excise Sadar Mobile P.W.3 in cross-examination admitted that he did not know the accused prior to the occurrence and the spot of occurrence is a village road and busy one.\n Further he stated that he has not produced the seized articles before the court nor he sent the same for chemical examination. Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism.\n The plea of the defence is that a false case has been foisted against him only for statistical purpose. There is no material on record to show the exact place of seizure, as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused. More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination. Further, independent seizure witness did not support the factum of seizure.\n 8. That apart the seized article has not been produced before the court.\n Thus it cannot be said with certainty that the liquor was seized from the exclusive and conscious possession of the accused. In Bhagia Sahoo vrs. State of Orissa reported in (2002) 93 CLT 684 where his Lordship has observed that when the liquor seized is not produced before the Court and no reason for such non production is provided and the independent witness is not supporting the seizure, the evidence provided by the prosecution is not sufficient for conviction. In the instant case, the seized liquor is not produced before this Court and no reason for such non production has been provided by the prosecution. That apart in the present case informant himself I.O of the case. The Hon'ble Apex Court upheld in Mukhitiar Ahmed Ansari Vrs NCT of Delhi 2005 31 OCR (SC) 257 that investigation by the same police official who had lodged the complaint is deprecating practice and in absence of any independent corroboration no conviction can be recorded in such a case. Hence, the entire fact of search and seizure sound skeptical. In such premises, I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration. Hence, the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused.\n 9. With regard to nature of seized article whether it is liquor or not. P.W.3 stated that the seized article is I.D. liquor. No document is filed or proved on behalf of prosecution to establish that P.W.3 is competent enough to opine on the subject of liquor, spirit or intoxicant being an expert U/s. 45 of Indian Evidence Act. No distillery training certificate has been filed on his behalf. It is the settled principle of law that chemical test is the surest test and in the instant case, the alleged liquor was never subjected to any chemical test and in the absence of any chemical test, the officer conducting test must produce an unequivocal evidence on the score that he has expertise knowledge to testify the liquor and then his opinion can be regarded as the opinion of an expert as enshrined U/s-45 of the Indian Evidence Act. In Shimanchal Choudhury Vrs. State of Orissa reported in 2005 (ii) OLR 40 it has been held by the Hon'ble Court that Excise Officer bearing some experience due to long service can not be termed as an expert in terms of Section-45 of the Indian Evidence Act. The bare statement of P.W.3 that he conducted blue litmus paper test which turned into red in colour along with hydrometer test does not prove conclusively that the seized liquor was ID liquor.\nLitmus test only determines acidity and hydrometer test only determines density of a substance. Both these tests conclusively can not establish of a substance to be liquor because without positive proof regarding presence of alcohol contents a substance can not be held to be liquor. Further this witness has admittedly stated in cross-examination that he had not sent the seized article or samples for chemical examination which is one of the surest test. Hence, I hold that prosecution failed to establish that the seized article is I.D. Liquor.\n 10. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure of contraband article from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt. Hence, I acquit her therefrom under the provisions of Sec.248(1) Cr.P.C. She be set at liberty and discharged from her bail bond.\n Enter the case as mistake of fact.\n The seized articles if any be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court.\n S.D.J.M.,Sundargarh.\n 10.07.2017 The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 10th day of July, 2017 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List of P.Ws. Examined: P.W. 1 Subash Chandra Das P.W. 2 Nirupama Naik P.W.3. Abhiram Behera List of D.Ws examined: N i l.\n List of Exts.marked for the prosecution.\n Ext.1 Signature of P.W.1 Ext.1/1 Seizure list Ext.1/2 Signature of P.W.2 Ext.1/3 Signature of P.W.3 Ext.1/4 Tested blue litmus paper Ext.2. Hydrometer test.\n Ext.2/1 Signature of PW.3 List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh.\n "
} |